FEDERAL COURT OF AUSTRALIA Applicant S1570/2003 v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1679 VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 307 APPLICANT S1570/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR NSD 1386 OF 2006 DOWNES J 24 NOVEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1386 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S1570/2003 Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE OF ORDER: 24 NOVEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Appeal dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1386 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S1570/2003 Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE: 24 NOVEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT DOWNES J: 1 The appellants are married Nepalese. The husband is from a higher caste than the wife. Traditionally, such marriages are forbidden. The appellants arrived in Australia on 21 November 1996. On 6 December 1996 they claimed protection visas under the Refugees Convention on the basis that they had well-founded fears of persecution on the grounds of religion or membership of a social group. They claimed that they were being persecuted because they had broken the taboo on inter-caste marriage imposed by the religion or social group to which they adhered or belonged. 2 The fear of persecution relied upon arose out of claims that relatives of the husband had harassed the couple, attacked their home and threatened to kill the wife. The Tribunal concluded that "it cannot find evidence indicating a real chance of the appellants facing anything amounting to persecution in the event of returning to Nepal." It arrived at this conclusion because of three primary findings it made: (1) The source of the harassment was small; (2) The harassment was light in its degree; (3) The death threats were apparently empty. 3 The Tribunal also addressed the element of State involvement in the alleged persecutions and concluded that the absence of any complaint to the police reinforced the finding that "the danger they faced at the time was not particularly serious, even when it was threatened". The Tribunal said the appellants could bring the matter to the attention of the police if the harassment became more serious. 4 The Tribunal then turned to two alternative bases by which it might come to the same conclusion. First, it found that any persecution was not Convention based. The Federal Magistrates Court has found that that conclusion involved jurisdictional error. The first respondent does not challenge that finding. Accordingly, I need not address it. It is not fatal to the first respondent's case because it was an alternative ground by which the Tribunal arrived at its conclusion. Secondly, the Tribunal addressed the applicability of the real chance test, as the Tribunal said, "on its own". The Tribunal said this: 'This leads the Tribunal to conclude that even if there were evidence of persecution up to the present, and there is not, and even if it were Convention related, which it is not, there is no evidence of a real chance of the more serious level of harm, death, being perpetrated upon them in the future, since it was not perpetrated even after the applicants failed to comply with the threats over the four months before they departed Nepal.' 5 It is clear that this ground of the Tribunal was intended to be quite separate from the first ground, because the Tribunal introduced it by saying that on its reasons so far it could proceed to a decision, although it proposed first to address this new ground. This would ordinarily lead to the conclusion that if the appeal relating to the first ground was unsuccessful, the appeal must fail. However, the appellants seek to link the Tribunal's reasoning on the two grounds and to suggest that they both involve jurisdictional error. 6 The primary basis upon which the Tribunal dealt with the claim was its rejection on the basis of the smallness of the source of harassment, the lightness of its degree, and the apparent emptiness of the death threats. The Tribunal recognised in this part of its reasons that conduct falling short of death threats could amount to persecution. What the Tribunal found was that the death threats were apparently empty and the harassment generally, including the death threats, was light and from a small source. The Tribunal accordingly assessed the harassment as falling short of persecution. 7 If the Tribunal had not relied on the second alternative ground, the validity of the decision would stand or fall on that reasoning. However, the Tribunal ultimately used the real chance test to determine the primary claim. The Tribunal based its decision relating to the second alternative ground on a test using the same description, "real chance". In doing so, the Tribunal may have confined its consideration to the "more serious level of harm, death". It cannot be in doubt that harassment short of death can amount to persecution. Harassment short of a serious death threat can also amount to persecution. Threats of death themselves, and other verbal abuse, can amount to persecution in many circumstances. Accordingly, the question arises whether, in dealing with the second alternative ground, the Tribunal has misdirected itself in law, making a jurisdictional error. If there is such an error a further question arises as to whether that error in some way infects the Tribunal's consideration of the primary ground. 8 It is so clear that neither fear of death nor physical violence is essential to persecution that I am reluctant to ascribe such a proposition to the reasoning of the Tribunal. After all, the Tribunal is not a court composed of judges and the High Court has said on a number of occasions that its reasons for decision are not to be construed as if they were. 9 For reasons I have given, I consider that the reasons of the Tribunal relating to what I have called the first ground alone are unexceptionable. Read with the reasons as a whole, they show that the Tribunal recognised that there was harassment which was both physical and which involved threats. However, in assessing the level of the harassment the Tribunal found that it fell short of persecution. The Tribunal, as it was entitled to do in my opinion, assessed the death threats as empty. Although an empty death threat, with other conduct, could amount to persecution, threats which are hollow are to be treated differently from threats which are real or genuine. See VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 307 at pp 313-14. 10 Do the words of the Tribunal when dealing with the second alternative ground change this? Does the Tribunal's apparent reference to the need for a real threat of death when dealing with that ground mean that the Tribunal's earlier reasons should be read subject to that? I have come to the conclusion that they should not be so read and for a number of reasons. 11 First, the primary reasons relate to the basis on which the Tribunal first came to its conclusion that there was no persecution within the Convention. It came to this conclusion independently of its addressing the first and second alternative grounds. I think that the reasoning should be considered in that light. The reasoning on the two alternative grounds proceeds on the basis that there has already been a finding of no persecution. The Tribunal was really saying that there was no real chance of persecution at a level above the threshold necessary for persecution. I think it may be unfortunate that, on one view, it confined that consideration (when dealing with the second alternative ground) by specifying a level of harm so serious as death, but it seems to me that when the reasons are read as a whole what the Tribunal was saying was that: · there was no harassment sufficient to amount to persecution in the evidence before it; · on the evidence the only step up from what was before the Tribunal which might amount to persecution was that the death threats were serious; and · that possibility the Tribunal discounted. 12 It follows that I consider that the reasoning in the first paragraph of its findings and reasoning is adequate and discloses no jurisdictional error. When I consider whether that reasoning should be adjusted because of what appears on the following page, I find that that is not the appropriate way to read the reasons of the Tribunal. 13 This is a matter in which the Tribunal, as the Tribunal of fact, has found that although there was harassment it did not amount to persecution. That is a finding which was open to the Tribunal. Indeed, it is the central task of the Tribunal to deal with that issue in refugee cases. The system of refugee law in Australia gives refugee claimants two independent opportunities to make out their claim on its facts and merits. The first is to the Minister for Immigration and Multicultural Affairs, generally through her delegate. The second is to the Refugee Review Tribunal. The Tribunal is in no way bound or influenced by the decision of the delegate. Applicants can start all over again before that Tribunal. However, the appeal from the Tribunal is not an appeal from the Tribunal's findings of fact unless there has been an error of law. 14 I do not consider that there was any error of law in this case and as the Tribunal's findings relating to persecution are not appealable, they must stand. It is not open to this court to reconsider the issues of fact that were before the Tribunal and to determine them for itself. For all these reasons the appeal must be dismissed, and will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes. Associate: Dated: 24 November 2006 Counsel for the Appellant: Mr J R Young Solicitor for the Appellant: Simon Diab & Associates Counsel for the Respondents: Ms R M Henderson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 24 November 2006 Date of Judgment: 24 November 2006