FEDERAL COURT OF AUSTRALIA Kord v Minister for Immigration & Multicultural Affairs [2001] FCA 1163 MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – meaning of "persecution" – whether Refugee Review Tribunal applied the correct test – Refugee Review Tribunal made an error of law WORDS AND PHRASES – "persecution" Gersten v Minister for Immigration & Multicultural Affairs (2000) FCA 855 followed Gunaseelan v Minister for Immigration & Multicultural Affairs (unreported, French J, 9 May 1997) referred to Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 referred to Kanagasabai v Minister for Immigration & Multicultural Affairs [1999] FCA 205 considered Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Gersten v Minister for Immigration & Multicultural Affairs [1999] FCA 1768 referred to Chen Shi Hai v Minister for Immigration & Multicultural Affairs 170 ALR 553 referred to Minister for Immigration & Multicultural Affairs v Rajalingham 56 ALD 43 referred to Minister for Immigration & Multicultural Affairs v Hagi Ibrahim 175 ALR 585 not followed Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 applied Khawar referred to Hathaway, The Law of Refugee Status (Reprint #2, 1996) Grahl-Madsen, The Status of Refugees in International Law (1966) GHOLAM REZA FILINEJAD KORD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 121 OF 2001 HELY J 24 AUGUST 2001 SYDNEY (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 121 OF 2001 BETWEEN: GHOLAM REZA FILINEJAD KORD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 24 AUGUST 2001 WHERE MADE: SYDNEY (HEARD IN PERTH) THE COURT ORDERS THAT: 1. The application for an order of review be upheld. 2. The decision of the Refugee Review Tribunal given on 27 March 2001 be set aside. 3. The matter be remitted to the Refugee Review Tribunal (differently constituted) for reconsideration according to law. 4. The respondent pay the applicant'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 AUSTRALIA DISTRICT REGISTRY W 121 OF 2001 BETWEEN: GHOLAM REZA FILINEJAD KORD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 24 AUGUST 2001 PLACE: SYDNEY (HEARD IN PERTH) REASONS FOR JUDGMENT 1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") for the review of a decision of the Refugee Review Tribunal ("RRT") given on 27 March 2001. By that decision, RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant is a citizen of Iran. He arrived in Australia on 3 November 2000 by boat. He left Iran legally, travelling on his own passport, which he left with a people smuggler in Indonesia. He arrived in Australia without travel documentation and was detained at Curtin IRPC. 3 On 20 April 2001 the applicant lodged an application for an order for review of RRT's decision with this Court. The grounds of the application are described as follows: "(a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed if he returned to Iran within the reasonably foreseeable future. (b) The decision involved an error of law, being an error of law involving the incorrect interpretation. The applicable law of an incorrect application of the law to the facts as found by the Tribunal or both (sic)." No particulars of those grounds have been given. Nor has the applicant complied with the direction given on 18 May 2001 that he should lodge a statement setting out why he considers the decision of RRT is wrong by 22 June 2001. Mr Heenan QC appeared for the applicant at the hearing. He informed me that ground (a) was not pursued. He confirmed that ground (b) was intended to invoke the ground established by s 476(1)(e) of the Act. Mr Heenan provided a written outline of the applicant's submissions, and counsel for the Minister, Mr Ritter, agreed that this outline should stand as the statement required to be lodged by the directions given on 18 May 2001. 4 The applicant is of Algerian descent. Even though he and his family are all Iranian citizens, the applicant claimed that he faces discrimination in Iran because of his black skin. He claimed that if he were to return to Iran: "My life would be like a gradual death because of the discrimination that I would experience as a black person." 5 RRT found no evidence in the country information available to it which indicates that racial discrimination on the grounds of colour alone is a major problem in Iran. However, on the basis of the applicant's evidence as to his experiences, RRT accepted that the applicant had faced some discrimination in Iran because of his colour. RRT accepted that the applicant had encountered "some difficulty", but did not accept that the difficulty which he faced amounted to persecution. 6 RRT has implicitly accepted the applicant's account of his past experiences. The discrimination of which the applicant complained included ridicule, difficulty in obtaining employment, including government employment and lack of opportunities as a wrestler. As a soldier in the war with Iraq, the applicant had certain rights to obtain employment with the government. After the completion of his military service, the applicant enrolled with a government employment service. He has been on their list for fourteen years and never once have they referred him to an employer. The applicant asserted that he was denied his rights as a former soldier because of his colour. 7 In addition, the applicant relied upon two specific instances in support of his claim. About six months before coming to Australia he was the only coloured person travelling on a bus. He was ordered off the bus and searched by the police, shouted at and insulted. He had to partially undress in front of thirty or forty other passengers which he found to be very humiliating. In 1998-1999 a friend established a sports club in Ahwaz. Government officials came to the club and said they had to allocate a time and place for prayers. The applicant told them that this was a club, not a mosque. As a result of which the officials became very angry and started to beat the applicant. RRT said of this incident: "Whilst there may have been an element of racism involved in this I am not satisfied this tactless remark (in a theocracy like Iran) was necessarily a result of racism alone." There is an obvious defect in the construction of this sentence. The parties were agreed that I should deal with the matter on the basis that the sentence should have read: "Whilst there may have been an element of racism involved in this I am not satisfied this beating following a tactless remark (in a theocracy like Iran) was necessarily a result of racism alone." or words to that effect. 8 Although the applicant was the victim of discriminatory conduct, he became a national wrestling champion, was educated to a relatively high level, completed national service and was generally able to find work. The applicant complained that he did not reach the levels he might otherwise have reached because of racism. 9 RRT said that it was important to bear in mind that discrimination per se is not enough to establish a case for refugee status. A distinction must be drawn between a breach of human rights and persecution. Not every breach of a claimant's human rights constitutes persecution. RRT quoted from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, par 54: "Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantial prejudicial nature for the person concerned, eg, serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities." (emphasis added) RRT nonetheless accepted that various threats to human rights, in their cumulative effect, can deny human dignity in fundamental ways and should properly be recognised as persecution for the purposes of the Convention. 10 RRT summed up its conclusions as follows: "Acts of regular but petty discrimination are undesirable and annoying but do not necessarily amount to the denial of human dignity in the sense of the Refugee Convention. The standard of a sustained or systemic denial of core human rights is simply not met by the allegations made by the applicant of discrimination. I am not satisfied that overall, the level of discrimination experienced by black persons, assessed cumulatively, reaches the persecution standard, namely 'some serious punishment or penalty or some significant detriment or disadvantage', selective harassment or serious violation of human rights and measures 'in disregard' of human dignity. The discrimination, although abhorrent, does not rise to the level of persecution. Low level discrimination experienced by the applicant will have a minimal impact. Low level racism may well continue to exist, however this falls short of what is required to constitute 'persecution' for the purposes of the Convention." 11 The applicant contends that RRT's decision discloses an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by RRT. Whilst there is no acceptable substitute for the language of s 476(1)(e), it is the applicant's contention that RRT's decision discloses reviewable error in that RRT misunderstood, or alternatively misapplied the concept of persecution. RRT overstated the severity or the gravity of the conduct necessary to give rise to a well-founded fear of persecution, particularly as it wrongly adopted the test for "persecution" as being a "standard of a sustained or systemic denial of core human rights" when single or sporadic episodes of harassment or threats on Convention reasons are sufficient to constitute persecution. RRT's reliance on par 54 of the UNHCR Handbook led it into error insofar as it required consequences "of a substantially prejudicial nature" in order for there to be persecution. 12 The applicant submits that where, as here, it has been established that because of his racial background the applicant has, in the past, been subject to repeated acts of discrimination, humiliation and violence, even though at irregular frequency, coupled with a practical exclusion of any opportunity for employment in government service (notwithstanding an apparent legal eligibility for such employment), the application of the proper tests as to persecution could only result in a conclusion that there is serious systemic discrimination based on racial grounds practised in Iran and officially condoned such as to give rise to a well-founded fear of persecution. 13 In his final submissions Mr Heenan QC summed up the applicant's position as follows: "If a black man cannot get employment when other people with like military service can, when he is discriminated against in his chosen profession as a wrestler, when he is taken off a bus and humiliated publicly and when he is assaulted in circumstances where the colour of his skin is a contributing factor, in my respectful submission, that satisfies all the tests of persecution and a contrary conclusion can only imply a misapplication of the law to the facts of the case." 14 In the preliminary section of its reasons, at CB 82, RRT summarised, appropriately and without error, the effect of some leading High Court decisions on the notion of persecution. In particular, the summary noted that a single act of oppression may amount to persecution, as well as measures "in disregard" of human dignity. Further, as indicated above, RRT accepted that various threats to human rights, in their cumulative effect, can deny human dignity in fundamental ways and should properly be recognised as persecution for the purposes of the Convention. 15 Whether conduct amounts to persecution in the Convention sense involves questions of fact and degree in the appraisal and weighing of circumstances. For there to be persecution, the harm must be more than "trivial or insignificant": (Gersten v Minister for Immigration & Multicultural Affairs (2000) FCA 855 at [48]; and transient or minor detriment will not constitute persecution even if for a Convention reason: Gunaseelan v Minister for Immigration & Multicultural Affairs (unreported, French J, 9 May 1997 at p 11). 16 Subject to that qualification, the applicant submitted that it is the animus behind the harm or the discriminatory conduct which elevates that harm or conduct to the level of persecution. Reliance was placed in particular upon the statement by McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 at 258: "Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group." The nature of the conduct is not a critical factor because persecution on account of race, religion and/or political opinion has historically taken many forms of social, political and economic discrimination: Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 430. In the passage quoted, McHugh J was not dealing with the present problem. 17 In Kanagasabai v Minister for Immigration & Multicultural Affairs (1999) FCA 205, RRT considered whether the harm to which the applicant in that case was subjected was sufficiently serious to amount to persecution. RRT enquired whether that treatment had caused "such serious or significant harm as to amount to persecution". Branson J held that in posing the question in that way, RRT had failed to act on the basis of the proper interpretation of "persecution" in Article 1A(2) of the Convention. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, 570 six justices of the High Court approved the reference by Mason CJ in Chan to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". In her Honour's view that statement was intended only to convey that the type of harm which can constitute persecution cannot be trivial or insignificant harm, but rather must be harm of significance. 18 Katz J declined to follow that decision in Gersten v Minister for Immigration & Multicultural Affairs [1999] FCA 1768 upon the grounds that her Honour had not been referred to earlier decisions of judges of this Court to the effect that persecution is concerned with "significant or serious harm" or some "serious or significant ... detriment or disadvantage ...". Were it not for the decision of the Full Court in Gersten (referred to in par [19] below), and with respect to those who are of a contrary view, I would have been in agreement with Katz J. It is implicit in the notion of persecution in the context of the Convention that the harm feared must be sufficiently serious as to justify international protection. 19 Although an appeal from Katz J's decision was dismissed (Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 855) the Full Court said at [48]: "It is inappropriate to attempt a definition of 'persecution', if only because whether a particular act or threat will constitute persecution will depend on the circumstances of each case. This is a point emphasised in the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the Office of the United High Commission for Refugees. It is also a point made by Kirby in Chan. To the extent that the Tribunal did equate persecution with significant harm and applied that as a rigid test, the Tribunal would have erred. However, we do not think that it did. In our view the Tribunal did no more than reiterate, as Mason CJ had in Chan, the proposition that persecution involves harm that is more than trivial or insignificant." The decision of Branson J in Kanagasabai was quoted by the Full Court with approval. In Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130 Hill J, sitting as a member of the Full Court, said that persecution involves, in a general sense: "an element of harm which is not insignificant". 20 In Chan (at 399-400) Dawson J pointed out that some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity. His Honour noted that the Handbook in par 51 expresses the view that it may be inferred from the Convention that a threat to life or freedom for a Convention reason is always persecution, although other serious violations of human rights for the same reasons would also constitute persecution. His Honour said that it was unnecessary to enter the controversy whether any, and if so what, actions other than the threat to life or freedom would amount to persecution. In Chan at 430 McHugh J said that to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Measures "in disregard" of human dignity may in appropriate cases, constitute persecution. His Honour noted that the UNHCR Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par 151. 21 In Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 at [29] four justices of the High Court described persecution in terms of a "significant departure from the standards of the civilised world". In Chen at [62] Kirby J referred to dictionary definitions of the verb to "persecute". His Honour detected a "softening" of the original meaning of persecution. 22 Finally, in Minister for Immigration & Multicultural Affairs v Hagi Ibrahim (2000) 175 ALR 585 Gaudron J at [24] said: "In a number of cases, this Court has emphasised that, for the purposes of the Convention, '[persecution] ... for reasons of race, religion, nationality, membership of a particular social group or political opinion' is conduct which is discriminatory on one or other of those grounds and which is sufficiently serious to constitute persecution." (emphasis added) In the same case at par [55] McHugh J said: "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." (emphasis added) At par [60] His Honour recognised that the infliction or threat of harm by reason of harassment, discrimination or tortious or unlawful conduct may fall short of persecution for Convention reasons. At par [61] his Honour said: "Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it." (emphasis added) 23 At par [65] McHugh J summarised the position as follows: "Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is: - unjustifiable and discriminatory conduct directed at the individual or group for a Convention reason; - which constitutes an interference with the basic human rights or dignity of that person or the persons in the group; - which the country of nationality authorises or does not stop, and - which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." (emphasis added) McHugh and Gaudron JJ formed part of the minority in Ibrahim, but their dissent was unrelated to the question of whether particular harm is serious enough to amount to persecution. 24 I reject the criticism that RRT adopted as the test for persecution a "standard of sustained or systemic denial of core human rights". RRT adopted what it called the persecution standard which included sustained or systemic denial of core human rights, but which was not confined to that matter. Nonetheless the applicant contends that RRT has adopted a benchmark of serious or significant harm or discrimination leading to consequences of a substantially prejudicial nature, as the criterion for persecution, and contends that this overstates what is required in order for conduct to be characterised as persecution. 25 Refugee law is intended to meet the needs of only those who have no alternative to seeking international protection: Hathaway, The Law of Refugee Status (Reprint #2, 1996) at p 133. Thus at p 105 Hathaway states that: "A well-founded fear of persecution exists when one reasonably anticipates that remaining in the country may result in a form of serious harm which government cannot or will not prevent, including either 'specific hostile acts or ... an accumulation of adverse circumstances such as discrimination existing in an atmosphere of insecurity and fear'." (emphasis added) 26 The circumstances in which discrimination in employment may constitute persecution in the relevant sense if for a Convention reason were explained by Hill J in Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 267-268. For the reasons there given, the applicant's inability to get a government job would not amount to persecution in the circumstances of the present case as other employment is available to him. 27 Grahl-Madsen, The Status of Refugees in International Law (1966) states at p 213: "What one has to decide in each individual case is whether the measures to which a person claiming refugeehood is likely to be subjected on his eventual return to his home country, go beyond what we equitably may expect him to endure". (emphasis added) 28 Grahl-Madsen examines at 213-215 whether in a number of postulated circumstances, life is made so difficult for the putative refugee that he may reasonably claim it to be "unendurable". All the small annoyances to which a person may be subjected can, as a matter of fact, add up to persecution in this sense. Grahl-Madsen's approach is consistent with that adopted by McHugh J in Ibrahim. 29 In the present case, RRT did not describe the treatment to which the applicant was subjected as trivial or insignificant. I should not attribute to RRT a finding to that effect which it has not made, for that is to enter the forbidden territory of merits review: cf Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 56 ALD 43 at [65]. RRT did say that the low level discrimination experienced by the applicant will have a "minimal impact". A "minimal impact" may be something which is more than a trivial or insignificant matter, but is nonetheless an impact which the applicant can reasonably be expected to bear. 30 In substance, RRT has concluded that although the applicant has been and is likely to be the victim of officially tolerated discrimination which RRT regards as abhorrent, the "minimal impact" which that will have on the applicant is such that he can reasonably be expected to bear it, rather than to seek international protection. A reasonable construction of RRT's reasons is that the unjustifiable and discriminatory treatment to which the applicant was exposed, and to which he would be likely to be exposed on return to Iran, whilst an interference with his basic human rights or dignity was not sufficiently serious to warrant characterisation as persecution. 31 If the judgment of McHugh J in Ibrahim reflects the current state of the law, that is a judgment which RRT was entitled to make. The first three of the criteria enunciated by McHugh J in Ibrahim (see 23 above) may be present, but the fourth is lacking. 32 But there is or may be a tension or inconsistency between the decision of the Full Court in Gersten and that of McHugh J in Ibrahim. Whether or not that is so may depend upon what the Full Court intended to convey when it said that to equate persecution with significant harm and to apply that as a rigid test is an error. If all that the Full Court meant to convey was that no verbal formula should be rigidly applied as a substitute for "persecution", there is no difficulty. But the Full Court's endorsement of the decision of Branson J indicates that it accepted that "persecution" does not necessarily involve serious harm. 33 Grahl-Madsen makes the point at p 214 that if a professor loses his chair but is not hindered in the exercise of his profession in some other capacity, life is not made so difficult for him that he may reasonably claim it to be unendurable. But for the genius, the situation may be different. For an Einstein, for example, relocation to "normal" professional work would amount to persecution. 34 There is no room in the notion of persecution for something in the nature of a table of maims to be rigidly or mechanically applied. But RRT's decision-making process was not of that type, nor do I think that the Full Court's comments directed to that type of situation. 35 It seems to me that there is an inconsistency between the decision of the Full Court in Gersten, and the decision of McHugh J in Ibrahim. The inconsistency is to be found in the fourth of McHugh J's criteria for persecution. The Full Court rejects "significant or serious harm" as a necessary ingredient of persecution in favour of harm which is more than trivial or insignificant. On McHugh J's definition of persecution, the conduct must be such that the putative refugee cannot be expected to tolerate it. The two things are not the same, and the difference between them is one of substance rather than merely a matter of language. 36 It seems to me to follow from the Full Court's decision in Gersten that unjustifiable and discriminatory conduct, officially tolerated, directed at an applicant by reason of his race is persecution unless the impact of that conduct on the applicant is trivial or insignificant. Whereas on the test adopted by McHugh J the impact of such conduct may be more than trivial or insignificant, but if the putative refugee could nonetheless be expected to tolerate it rather than claim international protection, then he or she is not a refugee in terms of the Convention. 37 I am bound by the decision of the Full Court in Gersten. I am not entitled to put it to one side, and to follow the decision of McHugh J in Ibrahim in preference to it, even though Gaudron J also refers to conduct which is sufficiently serious to constitute persecution. Applying the Full Court's decision in Gersten, RRT has overstated the severity or the gravity of the conduct which is required for it to be characterised as persecution and the ground of review specified in s 476(1)(e) is made out. Conclusion 38 The application for an order of review should be upheld; and the decision of the Refugee Review Tribunal given on 27 March 2001 should be set aside; the matter should be remitted to the Refugee Review Tribunal (differently constituted) for reconsideration according to law; the respondent should pay the applicant's costs of this application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 24 August 2001 Counsel for the Applicant: Mr E M Heenan QC Counsel for the Respondent: Mr M T Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 August 2001 Date of Judgment: 24 August 2001