FEDERAL COURT OF AUSTRALIA

SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40

FEDERAL COURT OF AUSTRALIA

SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40

CORRIGENDUM

1    In the last sentence of paragraph 71 of the Reasons for Judgment, the words “for the purposes of s 91R(2)(b)” should read “for the purposes of s 91R(2)(a)”.

2    In the last sentence of paragraph 71 of the Reasons for Judgment, the words “such an approach under s 91R(2)(c)” should read “such an approach under s 91R(1)(c)”.

Associate:

Dated:    2 April 2015

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1    This appeal is from the judgment of the Federal Circuit Court of Australia given on 27 June 2014 dismissing, with costs, the applicant’s application filed on 26 September 2013. That application was for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) made on 9 September 2013 affirming the decision of the first respondent, the Minister for Immigration and Border Protection (the Minister), by his delegate, not to grant the applicant a Protection (Class XA) visa. We shall refer to the applicant as the appellant.

2    As found by the Tribunal, the appellant is a national of Sri Lanka. The appellant is a young Tamil man from Udappu who worked as a fisherman and who left the country illegally and would return there as a failed asylum seeker. He arrived in Australia on 21 May 2012. He applied for a Protection (Class XA) visa on 23 September 2012. On 7 January 2013 a delegate refused to grant the visa.

The proceedings in the Federal Circuit Court

3    The grounds of the application to the Federal Circuit Court were as follows:

RRT did not assess my claims fairly

RRT did not call me for 2nd hearing

RRT did not put all adverse information to me for my response

4    The Federal Circuit Court considered these grounds as follows, having noted that they did not identify with any clarity an alleged error in the Tribunal’s decision and there was a complete absence of any particulars. It appeared that the application had been prepared by somebody who had a very limited understanding of administrative law and the operation of the relevant migration law.

5    As to ground 1, the judge of the Federal Circuit Court said this was effectively an expression of the appellant’s disagreement and disappointment with the ultimate outcome of the Tribunal’s decision and what, in effect, was a request of that Court to engage in a review of the merits.

6    As to ground 2, the judge said the person preparing the review application did not fully understand the operation of Part 7, Division 4 of the Migration Act 1958 (Cth) (Migration Act) as there was no automatic requirement for the appellant to be called for a second hearing. On a fair reading of the decision record, there was no suggestion that an invitation to a second hearing was contemplated or issued.

7    As to ground 3, the judge said it was vague in nature. The ground was not particularised and the alleged adverse information was not disclosed. The appellant did not, in written or oral submissions, identify material that might fall into this category.

The present appeal

8    The ground of appeal to this Court (as proposed) is:

That the Court below erred in failing to find that the RRT has applied the incorrect test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.

                Particulars

By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].

9    The Minister did not oppose the application to amend the notice of appeal either at all or on the ground that it raised a point not argued before the Federal Circuit Court. We note that the decision of the Tribunal and the decision of the Federal Circuit Court preceded WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 (WZAPN). We grant leave to amend.

10    The remaining grounds in the original “application” were not pressed.

APPLICABLE provisions

11    Section 91R took the following form:

91R Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(3)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

12    At the time of the Tribunal’s decision, s 36(2)(a) of the Migration Act provided:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

…

13    Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the Convention) relevantly defined a “refugee” as a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Tribunal’s reasons

14    The relevant reasons of the Tribunal were as follows:

118.    … the country information mentioned earlier in this decision indicates to the Tribunal that on arrival in Sri Lanka, returnees will be interviewed at the airport to establish identity and as soon as possible brought before a magistrate in relation to departing the country illegally.

119.     Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court. In the Tribunal’s view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.

120.     The Tribunal notes that according to country information Tamils are treated the same way as anybody else in this process. Further, there is no reliable substantiated evidence that Tamils suffer harm or maltreatment in this process.

…

125.     …, on the information before it about this issue, the Tribunal is satisfied that, while the government has, from November 2012, begun charging people for offences relating to illegal departure, the risk of any Tamil returnee, who unsuccessfully sought asylum abroad, being given a jail sentence for their illegal departure is remote. The Tribunal is satisfied that a fine is the most likely outcome and the imposition of a fine within the range for amounts set out above in country information (or what appears to be the lesser range actually being imposed by magistrates on those who attempt to leave illegally) does not amount to serious harm.

126.     Accordingly, the Tribunal considers that the risk of a Tamil suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally (and suffering harm solely due to those factors) is remote.

…

143.     For the reasons given above, the Tribunal finds that on arrival at the airport in Colombo, the applicant will be questioned about his identity; enquiries will be processed as quickly as possible and, depending on the day he arrives in Sri Lanka, there is the possibility of the applicant being held in remand briefly before being brought before a magistrate.

144.    The Tribunal finds that the possibility of the applicant being held briefly in remand in poor conditions before being brought before a magistrate does not equate with a real chance of suffering serious harm. As stated above, there is no reliable substantiated country information demonstrating that Tamils sent back to Sri Lanka after seeking asylum abroad suffer harm at the airport or after their arrival because they have been abroad and sought asylum.

145.    The representative submitted country information about poor conditions in prisons in Sri Lanka; the maltreatment of prisoners and submitted that Sri Lankan law provides a prison sentence for illegal departure. At the hearing the applicant said he knew of a person from his native area who had attempted to leave the country illegally, was apprehended by the authorities and given a three year jail sentence.

146.    Country information set out earlier in this decision indicates that no returnee is receiving a jail sentence for leaving the country illegally. The Tribunal remains of that view notwithstanding the example put forward by the applicant. The Tribunal finds the risk of the applicant receiving a jail sentence for illegal departure is remote. He will most likely receive a fine and the amount of that fine is most likely to be the same as or slightly more than the fines mentioned in country information as being imposed on those caught attempting to leave illegally.

147.     The imposition of a fine including a fine within the range mentioned does not amount to serious harm. No claim was made nor any evidence advanced that the applicant could not pay the fine or that having to do so would lead to him suffering serious harm (including serious harm based on a convention ground).

The parties’ submissions

15    With one exception, the submissions made in this appeal were the same as in the appeal in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 (SZTEQ). That appeal and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 were argued at the same time and judgment is given at the same time. There is, therefore a very substantial overlap in both the submissions and in our consideration of those submissions in each appeal. The exception to which we have referred is in relation to the submission noted at [27]-[28] of the present reasons for judgment and our consideration of that submission at [156] below.

16    The appellant submitted that the critical issue in the appeal was whether North J correctly held in WZAPN that a “threat to the person’s life or liberty” within the meaning of s 91R(2)(a) of the Migration Act, couched as it was in absolute terms, meant that such a threat constituted “serious harm”.

17    In the context of the present case, the appellant submitted, a qualitative assessment by the Tribunal as to the severity of the consequences of deprivation of liberty was made and, on the ratio of WZAPN, involved jurisdictional error. Reference was made to [143]-[144] of the Tribunal’s reasons, set out above.

18    The appellant submitted that the interpretation of s 91R(2)(a) in WZAPN was consistent with the ordinary meaning of the statute. First, only s 91R(2)(a) was couched in absolute terms. It was not contingent on a qualitative (or adjectival) expression of the harm, the reasonable inference of which was that the threat to life or liberty was without reference to the severity of the consequence to life or liberty. This was in contrast to the adjectives used elsewhere in s 91R(2). Unlike physical harassment, physical ill-treatment and economic hardship, each of which must be “significant”, there was no such qualification in a “threat to liberty”. The construction of a threat to liberty as absolute and devoid of qualitative assessment accorded with Australia’s international obligations under the Convention. Next, this interpretation was consistent with common law principles citing arrest and imprisonment as “grave interference with the rights of the individual”. The absolute nature of the protection afforded to the right to liberty was consistent with other Australian statute and common law, including those conceptions cited under the Human Rights Commission Act 1986 (Cth). The appellant referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan); Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 (Ibrahim); and Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422 (Goldie) at [17].

19    The appellant submitted that because the Tribunal accepted that there was a possibility (depending on the day of the week he arrived) that the appellant would be briefly remanded into custody before being brought before a Court, the reasoning in WZAPN applied.

20    The appellant anticipated a submission on behalf the Minister that a separate and independent basis for finding no real chance was made on the basis of s 91R(1)(c), that is, that the persecution did not involve systematic and discriminatory conduct. The appellant submitted there was no evidence that the Tribunal approached the issue consistently with the observations in WZAPN at [48] and [51], that is, whether the law facing the appellant upon his arrival in Sri Lanka was a law of general application.

21    The Minister first adopted his submissions in SZTEQ. The Minister submitted that the construction of s 91R in WZAPN was not correct as (a) the existence of a real chance that a person will be detained for a Convention reason did not necessarily mean that the person had a well-founded fear of being persecuted within the meaning of Art 1A(2) of the Convention; (b) ss 91R(1) and 91R(2) were intended to reflect the meaning of persecution in the Convention which had always required a qualitative assessment of the nature of any harm claimed; and (c) for the purpose of s 91R(2)(a), a decision-maker was required to undertake a qualitative analysis of the kind of detention feared (including considering its length, purpose and attendant conditions) to determine if the feared detention rose to the level of a “threat to liberty”.

22    The Minister submitted that while persecution was not defined in the Convention, it was generally accepted that not all harm, even if perpetrated for a reason mentioned in the Convention, will amount to persecution. In order to do so, the harm must rise above a threshold of severity. In many jurisdictions and academic writings, that threshold was identified as the level of “serious harm”. The Minister referred to Chan at 429-430; Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 (Chen) at [24]-[25]; Ibrahim at [55]-[65]; Islam v Secretary for the Home Department [1999] 2 AC 629 at 653; Mikhailevitch v Immigration and Naturalization Service 146 F. 3d 384 (6th Cir 1998) (Mikhailevitch) at 389-390; and Price, Rethinking Asylum: History, Purpose and Limits (Cambridge University Press, 2009) (Price) at pages 104, 107-8, 116-7; and Hathaway, The Law of Refugee Status (Butterworths, 1991) at page 105.

23    The Minister submitted that the conclusion in WZAPN that any period of detention, however isolated or short, necessary constituted persecution involved an a priori assumption that a real chance of detention (irrespective of its character) was necessarily more serious than a real chance of being a victim of physical or other forms of harm which would constitute persecution only if they rose to the level of serious harm. The Minister submitted that this approach had no support in authority and there were numerous cases in the United States where it had been specifically held that detention of a short duration, unaccompanied by other forms of harm, did not rise to the level of persecution. The European approach appeared similar. The construction in WZAPN was not supported by the leading academic texts. The construction in WZAPN was not supported by the leading academic texts. The Minister cited as an example the view expressed by Grahl-Madsen in his book, The Status of Refugees in International Law (AW Sijthoff, 1966) (Grahl-Madsen), where it is stated at page 201 of volume 1 that:

We may conclude that there is precedent for considering the following measures or sanctions ‘persecution’ in the sense of the Refugee Convention, provided that the circumstances warrant it: … (2) Imprisonment or other forms of detention or internment for a period of three months or more, it remaining an open question whether deprivation of physical freedom for shorter periods may constitute ‘persecution’; however deprivation of liberty for 10 days or less has been deemed not to amount to ‘persecution’.

24    The Minister submitted that the explanatory memorandum that accompanied the Bill that became the Migration Legislation Amendment Act (No. 6) 2001 (Cth) showed that s 91R was enacted to “set the parameters and raise the threshold of what can properly amount to “serious harm” within the spirit of the Refugees Convention”, citing Minister for Immigration and Multicultural and Indigenous Affairs v VBAO [2004] FCA 1495; (2004) 139 FCR 405 at [36]. Section 91R(2) gave instances of serious harm. If the proper interpretation of s 91R(2) deemed a threat of any period of detention to constitute serious harm, the consequence would be that there would be no need to conduct a qualitative assessment to determine whether such a threat would otherwise meet the requirement that there be a real chance of “serious harm”. That would mean that Parliament, by enacting s 91R, in fact lowered the threshold for establishing persecution in a case where a person feared detention.

25    The Minister submitted that to construe s 91R(2)(a) as meaning that any threat of detention necessarily constituted serious harm would produce anomalous results. It would allow protection claims to be established based on a real chance of even a short period of detention when more serious infringements of rights may nevertheless fail to constitute persecution because they fall short of the “serious harm” threshold. The Minister referred to the statement in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60; (2006) 233 CLR 1 (VBAO) at [19] per Gummow J that the six paragraphs (a)-(f) of s 91R(2) should be considered together and they all take their colour from the specification of “serious harm” in the opening words of the subsection. The Minister submitted that whether the particular harm that was pursued was serious (and indeed so serious as to prevent the visa applicant from returning to their own country) required a qualitative analysis of the feared harm in each instance, citing VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212; (2005) 141 FCR 435 (VBAS) at [28]; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 962 at [36]; and SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 at [19]-[20].

26    The Minister also submitted that contrary to the apparent reasoning in WZAPN, a threat of detention was not synonymous with a threat to liberty for the purposes of s 91R(2)(a). The Minister submitted that it was an error to define the concept of “serious harm” or “persecution” by reference to international human rights treaties that post-dated the Convention and which were directed to a different topic. The Minister submitted that it was an error to apply a human rights framework to the identification of serious harm under the Convention.

27    The Minister also submitted, as anticipated by the appellant, that there was an entirely independent basis for the Tribunal’s decision. The Tribunal implicitly accepted country information that “Tamils are treated the same way as anybody else” in the “process” that was described by the Tribunal at [118]-[119] and also at [143]. The Tribunal also found at [120] that there was “no reliable substantiated evidence that Tamils suffer harm or mistreatment in this process”: see also [144]. The Minister submitted that these findings, relevant to ss 91R(1)(a) and 91R(1)(c), provided an entirely independent basis for the Tribunal’s decision for the following reasons. Even if the appellant satisfied s 91R(2)(a), and thus s 91R(1)(b), he did not satisfy the requirements of ss 91R(1)(a) and 91R(1)(c). On the basis of the findings of the Tribunal there would be no Convention nexus or Convention reason for the process and it would be relevantly non-discriminatory.

28    Insofar as the appellant submitted that some further analysis by the Tribunal was required to determine whether the relevant law was appropriate and adapted to its purpose, the Minister submitted that the High Court decisions considered in WZAPN preceded s 91R being inserted into the Migration Act; in any event, the Court decisions proceeded on the basis that an analysis as to whether a law was appropriate and adapted to its purpose was only required when a law of apparently general application had a discriminatory impact or effect, which was not this case; and the observations in WZAPN were obiter and, in any event, could not override any relevant statement by the High Court.

29    The Minister submitted the Tribunal did consider whether the period on remand would involve serious harm and answered that question in the negative at [144]. The Minister accepted that there was a qualitative assessment by the Tribunal in that respect but submitted that such an assessment was permissible for the reasons set out above with reference to the Minister’s submissions in SZTEQ.

30    The appellant adopted the submissions made by the appellant in SZTEQ.

31    As to the Minister’s submission that the reasoning in WZAPN should be rejected because the purpose of s 91R(2)(a) was to require a decision-maker to undertake a qualitative analysis of the kind of detention feared to determine if the feared detention rose to a threat to liberty, the appellant submitted no authority existed for such a proposition and it was contrary to the ordinary meaning of liberty.

32    As to the Minister’s submission or suggestion that the reasoning in Chan and Ibrahim established that harm must rise above a threshold of severity, the appellant submitted that what McHugh J said in Chan simply noted that not every threat of harm for a Convention reason constituted “being persecuted”, but this clearly left open the question of whether particular types of harm would constitute persecution. Secondly, the Minister’s submission ignored the significant reference made by McHugh J in both cases to the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), particularly to [51] of that Handbook. The appellant also referred to Goodwin-Gill and McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) at page 90.

33    The appellant submitted that:

(a)    none of the authorities or commentaries referred to in the Minister’s submissions established that a threat to liberty did not constitute a threat of serious harm for the purposes of that component of the equation to determine whether there was a risk of persecution. Section 91R(2)(a), by its plain words, included within “serious harm” a “threat to liberty”;

(b)    North J in WZAPN did not conclude that any period of detention, however short, necessarily constituted persecution but, rather, his Honour’s conclusion was that any period of detention, however short, constituted a threat to liberty and therefore “serious harm” within s 91R(1)(b);

(c)    the Minister impermissibly conflated the concept of persecution with its subset of “serious harm”;

(d)    the Minister’s reference to Grahl-Madsen’s comments was misplaced; and

(e)    the Minister’s contention that the construction of s 91R(2)(a) in WZAPN was inconsistent with Art 1A(2) of the Convention should be rejected.

34    In the present case, the appellant submitted, the real reason that the Tribunal found that there would be no persecution in respect of the claim to fear imprisonment on return as a failed asylum seeker was simply a finding that such imprisonment would not amount to “serious harm”. Unsurprisingly, the appellant submitted, in light of that finding, there was no separate consideration of the other integers of “persecution” which would have independently supported a finding, for the purposes of the Convention, that there was no “relevant persecution” – for example, because the action would not occur for a Convention reason.

35    The appellant submitted that the Minister’s submissions as to the construction of s 91R proceeded from the erroneous assumption that a “threat to liberty” would not necessarily involve “serious harm” for the purposes of the Convention.

36    The appellant submitted that the Minister’s reliance on the observations in VBAO was misplaced.

37    The appellant submitted that the Minister’s assumption that convenience dictated that people must be returned to a place where they will be deprived of their liberty for a few hours where such deprivation of liberty was because of their ethnicity and not pursuant to a law of general application countenanced “a little abuse of liberty”, which immediately begged the question of how much liberty was important to an individual and what level of abuse of a person’s liberty would convenience require. That proposition, the appellant submitted, was entirely inconsistent with the value which the common law had always placed on the absolute nature of liberty of the individual. The appellant referred to Goldie at [17] per French J (as his Honour then was). The appellant submitted the plain meaning of liberty did not admit or countenance captivity for a particular period of time. The assumption that some deprivation of liberty did not involve serious harm should be rejected. No authority was cited for the proposition that a confinement for a short period was not a deprivation of liberty.

38    Shortly before the hearing of the appeal, the Minister filed further submissions in which he drew the Court’s attention to a recent ex tempore judgment of Hayne J in SZWAU v Minister for Immigration and Border Protection [2015] HCA Trans 2 (29 January 2015) (SZWAU). In dismissing an application for an interlocutory injunction to prevent the imminent return to Sri Lanka of an unsuccessful asylum seeker, and having had the decision of North J in WZAPN drawn to his attention, Hayne J made two points of relevance to the present appeal. First, noting there was an application for special leave to appeal in WZAPN, his Honour said (at page 16 of the transcript):

For the purposes of determining this application I will proceed on the footing that the Tribunal was bound to act in accordance with the law as it may be understood to have been stated by North J in the decision in WZAPN. That assumption should not be understood as expressing any concluded view at all about the correctness of his Honour’s exposition of the law. Those are matters which await consideration in the application for special leave brought by the Minister.

39    Second, his Honour gave emphasis to the following matter relating to the meaning and effect of s 91R of the Act (at page 18 of the transcript):

It will be observed that the premise for the engagement of section 91R(1) is that Article 1A(2) of the Refugees Convention as amended by the Protocol is otherwise satisfied, there being persecution – I interpolate a real risk of persecution – for one or more of the reasons mentioned in that Article.

The question of whether the persecution involves serious harm to the applicant arises if, and only if, it is first demonstrated that the applicant fears a real risk of harm for a Convention reason. (Emphasis added.)

40    The Minister submitted that s 91R(2)(a) had work to do only in relation to what was serious harm for the purposes of s 91R(1)(b), as was made clear in the opening words of s 91R(2). And the opening words of s 91R(1) made clear that each of paragraphs (a)-(c) of that sub-section must be fulfilled before Art 1A(2) will apply in relation to persecution for a Convention ground.

41    The Minister then submitted that s 91R(1) “provides added conditions” for the purposes of the application of the Act and the regulations to a person. Furthermore, it was submitted that these conditions “reflected Parliament’s view of the true effect of Art 1A(2)”, and, in that sense, ss 91R(1) and (2) were “limiting provisions”. The Minister then contended that if the provisions were not viewed as limiting but instead as loosening the requirements of Article 1A(2), they would have no work to do because, as Hayne J explained in SZWAU, these provisions operate only once Art 1A(2) is otherwise satisfied. This, submitted the Minister, was a further reason why the construction in WZAPN was incorrect.

42    The Minister further submitted that, once it was accepted that “persecution” for the purposes of Article 1A(2) involved evaluation by the Tribunal of whether the relevant harm was “serious harm”, the appeal must fail. The Minister emphasised that the Tribunal made a clear finding at [242]-[243] of its reasons that it was not satisfied that being questioned on arrival at the airport, detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing could reasonably be seen as constituting “serious harm”.

Consideration

43    As this appeal was argued, the appellant’s submission was that any threat to his liberty involves serious harm to him within s 91R(1)(b). Thus, the appellant submitted, the Tribunal’s finding at [35] and [37] that the possibility of the appellant being held briefly on remand in poor conditions before being brought before a magistrate sufficed to establish that serious harm for the purposes of s 91R(1)(b). As we have said above, the appellant expressly accepted he then needed to satisfy the remainder of s 91R(1), especially s 91R(1)(c). In the appellant’s submission, any detention or imprisonment for any period of time constituted serious harm and, if done for a Convention reason, would give rise to persecution unless the detention or imprisonment was authorised by a law of general application which was not applied discriminatorily. As particularised, the jurisdictional error was said to be “undergoing a qualitative assessment of the nature and degree of the harm experienced by the appellant when being questioned and investigations by the authorities at the airport and detention on remand for illegal departure”.

44    Those submissions should be rejected. In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

Approach to construction of s 91R

45    In accordance with the contemporary approach to statutory construction, legislative provisions such as s 91R of the Act should be construed having regard to the text, considered in their context. As Hayne, Heydon, Crennan and Kiefel JJ stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (citations omitted):

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

46    To similar effect, see Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] per French CJ, Hayne, Kiefel, Gageler and Keane JJ.

47    At the relevant time, a criterion for a protection visa in s 36(2) of the Migration Act was the requirement that the Minister be satisfied that Australia has protection obligations to a person under the Convention. In NGAV and NGAW of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 6; (2005) 222 CLR 161, in joint reasons (and having noted at [27] that the provision is awkwardly drawn in its use of the concept “obligations” under the Convention), the High Court described the effect of s 36(2) in the following terms (at [32]-[33]):

Section 36(2) does not use the term “refugee”. But the “protection obligations under [the Convention]” of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer “surrogate protection” in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term “refugee”.

Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of “refugee” spelled out in Art 1 of the Convention.

(Citations omitted.)

48    It is also now well-established that a domestic statute which gives effect to an international treaty, should be construed in accordance with the meaning in the treaty of the corresponding text in the absence of a contrary intention, and the rules of construction which apply to the treaty govern the interpretation of the domestic statute, noting that primacy is to be given to the ordinary meaning of the terms used in the treaty, albeit in their context and in the light of the object and purpose of the treaty, which may also involve recourse in an appropriate case to the travaux préparatoires: see Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265 per Brennan CJ; Chan at 412-413 per Gaudron J; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (Applicant A) at 231 per Brennan CJ; at 239 per Dawson J; at 251-256 per McHugh J; and at 277 per Gummow J.

49    In our view, an important aspect of the text is that s 91R makes explicitly clear that the provision concerns persecution involving serious harm to the person. The correct approach to s 91R of the Migration Act, and, as a subset of that issue, the construction of one of the express “instances” of “serious harm”, requires attention to be given to a number of matters. Those matters are: the text of s 91R, the legislative purpose of the provision, and the concept in Art 1A of the Convention of “being persecuted” in Australian cases, and in other jurisdictions and international instruments. These matters are all to be approached on the basis that, at the time of the decision under review in the present appeal, s 36(2)(a) of the Migration Act incorporated the terms of Art 1A(2) as one of the criteria for the grant of a protection visa.

The text of ss 91R(1) and (2)

50    Without seeking artificially to divorce the text of s 91R from consideration of its purpose and context (which we deal with below), there are some features of the text and structure of the provision which deserve emphasis.

51    The provision is concerned with two different aspects of the operation of Art 1A of the Convention. Sections 91R(1) and (2) deal with the kind of treatment or conduct a person must fear before a decision-maker can be satisfied she or he has a fear of “being persecuted” for the purposes of Art 1A(2) of the Convention as a criterion of a protection visa under s 36(2)(a) of the Act. In its terms it is not a statutory definition, but rather a prescription of attributes which the treatment or conduct a person claims to fear must have. Section 91R(3) deals with a different aspect of the Art 1A(2) criterion: namely, conduct outside a person’s country of nationality which may give rise to a sur place claim: see generally Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642.

52    As Gummow J pointed out in VBAO at [12] and [13], the statutory articulation of persecution is to be found in s 91R(1), where three cumulative aspects are incorporated. The presently relevant aspect is the concept of “serious harm”. What then appears in s 91R(2) are, expressly, no more than examples or, as the statute describes them, “instances”. Whatever is comprehended by each instance is classified by the Parliament as “serious harm”. To say that much may not advance the textual argument about s 91R(2)(a) on this appeal one way or the other. That is because of what must be seen as a deliberate choice by the Parliament not to insert any adjectival qualification in s 91R(2)(a), nor to insert any circumstantial qualification of the kind found in s 91R(2)(d), (e) and (f). The constructional choice to be made about the absence of any adjectival qualification is whether the Parliament intended to reflect absolute concepts, or rather to reflect broader understandings of the concepts of life and liberty (or freedom) within the framework of Art 1A of the Convention.

53    The Minister relied on Gummow J’s observations in VBAO at [19]-[20] where his Honour said (citations omitted):

It is trite to observe that the six paras (a)-(f) of s 91R(2) should be considered together; they all take their colour from the specification of “serious harm” in the opening words of the sub-section. That phrase in turn may be traced to judicial statements such as that of Mason CJ in Chan to which reference has been made. His Honour also used the adjective “significant” to describe a detriment or disadvantage which answers the description of persecution. The phrase “a threat” to life or freedom was used in Chan by Dawson J. The term “significant” qualifies the physical harassment, physical ill-treatment and economic hardship spoken of in paras (b), (c) and (d) of s 91R(2). The consequence of an action or state of affairs spoken of in paras (d), (e) and (f) must be one which “threatens the person’s capacity to subsist”.

This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty.

54    Again, it does not seem to us that these passages necessarily advance one argument or another on the present appeal. Gummow J noted expressly the adjectival qualifications in paras (b), (c) and (d), and the way in which paras (d), (e) and (f) are also expressly qualified. There is no doubt these qualifications are present because the kind of conduct described in those paragraphs has been given a qualitative “colour” to accord with the Parliament’s conception of “serious harm”. Yet, having accepted at [18] that the Minister was correct to submit that the word “threat” in para (a) of subs (2) means “risk”, Gummow J then identified para (a) of s 91R(2) with what was said by Dawson J in Chan, where Dawson J did not use any qualifying adjectives when describing threats to life or freedom as persecution. In Chan, Dawson J said (at 399-400):

“Persecution” is not defined in the Convention, although Arts 31 and 33 refer to those whose life or freedom may be threatened. Indeed, there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution: see Grahl-Madsen, op. cit., p. 193; Goodwin-Gill, The Refugee in International Law (1983), p. 38. Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity. 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. It is unnecessary for present purposes to enter the controversy whether any and, if so, what actions other than a threat to life or freedom would amount to persecution. (Emphasis added.)

55    For those reasons, we consider North J was, with respect, correct in WZAPN at [29] not to see these passages from Gummow J’s reasons in VBAO as of assistance to the Minister’s arguments about s 91R(2)(a), although we differ somewhat from his Honour about why that is so. It seems to us that the point now in issue on this appeal was not the subject of any consideration in VBAO.

56    Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).

57    Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty” is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty” is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).

58    With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397:

... the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

The legislative purpose of s 91R

59    Before developing this topic, it is desirable to address the significance of the explanatory memorandum with a particular focus on what light it sheds on the question whether the Parliament intended s 91R to qualify or limit the meaning of persecution under the Convention or simply confirm that meaning. The relevant paragraphs of the explanatory memorandum are as follows:

19.    Claims of persecution have been determined by Australian courts to fall within the scope of the Refugees Convention even though the harm feared fell short of the level of harm accepted by the parties to the Convention to constitute persecution. Persecution has also been interpreted to be for reason of the above Convention grounds where there have been a number of motivations for the harm feared and the Convention-based elements have not been the dominant reasons for that harm. Taken together these trends in Australian domestic law have widened the application of the Refugees Convention beyond the bounds intended.

…

22.    Under new paragraphs 91R(1)(b) and 91R(1)(c), the persecution must involve serious harm to the person and systematic and discriminatory conduct. New subsection 91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test and fall within the meaning of persecution for the purposes of the Refugees Convention. New subsection 91R(2) makes it clear that serious harm includes a reference to any of the following:

(a)    a threat to the person’s life or liberty; or

(b)    significant physical harassment of the person; or

(c)    significant physical ill-treatment of the person; or

(d)    significant economic hardship that threatens the person’s capacity to subsist; or

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist; or

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

…

25.    The above definition of persecution reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well-founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient to establish an entitlement for protection under the Refugees Convention that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia. Persecution must constitute serious harm. The serious harm test does not exclude serious mental harm. Such harm could be caused, for example, by the conducting of mock executions, or threats to the life of people very closely associated with the person seeking protection. In addition, serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.

60    Although there was some ambiguity in the Minister’s submissions before us (to which we refer below), we understood counsel to submit that these passages in the explanatory memorandum demonstrated that the Parliament’s intention in inserting s 91R was simply to confirm the Parliament’s understanding of what the Convention required in any event, rather than to qualify or limit it. That submission has some support from Gummow J’s reading of the explanatory memorandum in VBAO at [16]. The appellant did not contest this aspect of the Minister’s submissions. Indeed, the same submission was made by his counsel. For the reasons we set out below, we are prepared to proceed on the basis of this agreed position while noting, however, that counsel then appearing for the Minister seems to have put a different submission in VBAS, namely that s 91R “qualified” the Convention (see VBAS at [16]), a submission which Crennan J accepted at [18] and [25].

61    The legislative choice to give statutory content to the concept of persecution in the Migration Act, rather than leave its interpretation and application entirely to refugee decision-makers and the courts, has been the subject of criticism: see for example Edwards “Tampering with Refugee Protection: the Case of Australia” (2003) 15 Int’l J Refugee L 192-211; Storey “What Constitutes Persecution? Towards a Working Definition” (2014) 26 Int’l J Refugee L 272-285 at pages 274-275. Despite that criticism, in our opinion, each of the extracted paragraphs of the explanatory memorandum makes it clear the Parliament had as its touchstone the Convention concept of persecution, as the Parliament understood that to be.

62    In the summary of the Minister’s written submissions on the present appeal, the Minister submitted that “section 91R(1) and 91R(2) were intended to reflect the meaning of persecution in the Convention which … has always required a qualitative assessment of the nature of any harm claimed”. Later in the same written submissions, however, reliance was placed on the judgment of Marshall J, sitting as the Full Court of this Court, in Minister for Immigration and Multicultural and Indigenous Affairs v VBAO [2004] FCA 1495; (2004) 139 FCR 405 at [36] where his Honour said that s 91R was enacted to “set the parameters and raise the threshold of what can properly amount to ‘serious harm’ within the spirit of the Refugees Convention”. As in the written submissions, in oral argument there was some difficulty in clarifying the Minister’s position. Senior counsel ultimately confirmed that the Minister was not submitting that ss 91R(1) and (2) narrowed or restricted the Convention. Rather, the Minister submitted, it was intended to reflect the Parliament’s understanding of Convention requirements, while making clear that some previous judicial interpretations of the concept of persecution were, in the Parliament’s view, unwarranted extensions of the Convention.

63    We agree with the parties that this submission accords with the observations of Gummow J in VBAO. At [16] Gummow J referred to the explanatory memorandum introducing s 91R. His Honour described paragraph 19 of the explanatory memorandum as manifesting “a concern that the degree of the apprehended ‘harm’ not rise above the level regarded by the Parliament as that accepted by the parties to the Convention as constituting ‘persecution’. Hence paras (b) and (c) of s 91R(1).”

64    We consider it is clear that ss 91R(1) and (2) were intended to express the concept of persecution as the Parliament understood the Convention used the term. By express incorporation of the concepts of serious harm, and systematic and discriminatory conduct, the Parliament intended to give more particular content to the term in the way the text of the Convention does not, so as to avoid what the Parliament saw as the expansion of the concept by the courts, beyond the Convention. To the extent that there are observations in NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 at [5] and NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 at [39] to the effect that ss 91R(1) and (2) have raised the threshold or narrowed the concept of persecution to move it away from the concept as conceived by the Convention, we respectfully disagree.

65    As we have noted above, at the most general level there is some departure from the Convention in that the Parliament has taken Australian law away from the Convention’s conscious decision to leave the term without express content. However, the approach taken by the courts of other state parties to the Convention, by regional instruments and regional courts interpreting those instruments, and in secondary sources reviewing the decisions of those courts and the Convention concept of persecution, indicates that in no substantive sense do ss 91R(1) and (2) “raise” the threshold set by the Convention or “narrow” the meaning of persecution in the Convention.

66    Indeed, what has been done by ss 91R(1) and (2) has some parallels with Art 9 of the “Qualification Directive” issued by the Parliament of the European Union (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/16) (Qualification Directive), which we discuss further below. The express purpose of the Qualification Directive was to give content to concepts within the Convention as a practical means of providing guidance for refugee decision-makers.

67    In our opinion, and in the absence of any clear statutory indication to the contrary, to construe ss 91R(1) and (2) as intended to reflect the Convention concept of persecution is also consistent with the presence in the Migration Act of s 36(2)(a) and the importation into the criteria for a protection visa of Art 1A(2) of the Convention. While s 36(2)(a) remained a criterion for a protection visa, it would take clear statutory language to signal an intention by the Parliament to depart from the accepted approach under the Convention to such a central concept as persecution.

68    The legislative purpose of ss 91R(1) and (2) is important because it affects the available constructional choices for the provision. Therefore, in determining whether North J’s construction of para (a) of s 91R(2) in WZAPN is correct, it is appropriate to construe the term “serious harm” in a way which conforms with the Convention, and which conforms with any generally accepted construction in other countries subscribing to the Convention, in the same way it would conform with any provision of an international instrument that has been received into its domestic law: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 (QAAH) at 15 ([34]) per Gummow A-CJ, Callinan, Heydon and Crennan JJ. Of course, as their Honours also point out at [34] of QAAH, it is always the words of the statute which must govern.

69    If, in contrast, ss 91R(1) and (2) were intended to alter the meaning of persecution so that it had a meaning different from its Convention meaning, then the approach to the construction of ss 91R(1) and (2) , especially s 91R(2)(a), would also have to be different.

70    Although not directly in issue in this appeal, it is important to say something about the requirement in s 91R(1)(c) that conduct be discriminatory and systematic. As the third limb of the content given by s 91R(1) to the concept of persecution, the work which it does also informs the construction of the second limb in s 91R(1)(b). To say of conduct that it is “systematic” is not to say that it is “systemic. The word “systemic”  was used by Hathaway in his 1991 text,  The Law of Refugee Status (at pages 104-105), as part of a longer phrase giving content to the concept of persecution, namely “the sustained or systemic violation of basic human rights”.  A violation of rights which is sustained or systemic, as Hathaway himself points out in this passage, is demonstrative of a failure of state protection. Nor does the word “systematic” mean there is a requirement that conduct be repeated, in respect of the same or different individuals, a certain number of times: see Ibrahim at 30 per McHugh J; Minister for Immigration and Citizenship v SZCWF [2007] FCAFC 155; (2007) 161 FCR 441 at [31] to [32]. It is clear then, that “systematic” is used in s 91R(1)(c) in the same way that “discriminatory” is used, to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental. It also reinforces the causative aspect of Art 1A(2), that persecution must be “for reasons of” one of the prescribed attributes in Art 1A(2).

71    Thus, in accordance with s 91R(1)(c), before it will constitute persecution for the purposes of s 36(2) and Art 1A(2), any risk to life or liberty must have the attributes of being discriminatory and systematic. Neither of those latter characterisations can be arrived at without an evaluative exercise, in the context of the facts and other material before the decision-maker. To preclude an evaluative approach to the nature and seriousness of any deprivation of life or liberty for the purposes of s 91R(2)(b), but then to require such an approach under s 91R(2)(c) would be to give a somewhat incoherent structure to s 91R(1) as a whole.

72    The appellant further submitted that, while it may be accepted that a “threat” to a person’s life or liberty as referred to in s 91R(2)(a) requires the threat to be one which gives rise to a risk or a danger (and not a mere threatening utterance or statement), both “life” and “liberty” involve values of such fundamental importance that they apply in a binary form. Hence, just as life and death are polar opposites, so are liberty and non-liberty. Accordingly, while an evaluative exercise is required to determine whether there is a “threat”, the appellant contended that there was no further evaluative exercise to be carried out in respect of the concept of “liberty” with a view to establishing whether or not “serious harm” was involved.

73    These submissions should also be rejected. Although s 91R(2)(a) juxtaposes a threat to life and a threat to liberty as instances of serious harm, that does not mean that the sharpness of the distinction between life and death dictates a similarly sharp distinction between the existence and absence of liberty. Life and death are absolute concepts, but that is not the case with the state of a person’s liberty or its absence. Neither party suggested that any significance should attach to the fact that s 91R(2)(a) uses the term “liberty” as opposed to the term “freedom” which appears in Arts 31 and 33 of the Convention. Both those concepts encompass a range of values and are not simply limited to liberty (or freedom) in the sense of movement. They also encompass such other values as freedom (or liberty) of thought and expression, freedom (or liberty) of association or assembly, and freedom (or liberty) of religion. None of those freedoms or liberties is absolute and untrammelled. This serves to underline the observation made above that “liberty” as it appears in s 91R(2)(a) is a nuanced, rather than an absolute, concept.

74    In our view, it is impermissibly artificial to focus on the word “liberty” apart from the balance of the text. Equally, in our view, it is impermissibly artificial to focus on the word “life” so as to reason that because life is either threatened or it is not, parity of reasoning shows that liberty is either threatened or not.

A relatively uniform approach to the Convention concept of persecution

75    It is inevitable that the fact-dependent nature of the inquiry, and the legitimate scope for reasonable minds to differ about the evaluative assessment involved, mean any examination of decisions across jurisdictions will reveal a spectrum of outcomes for individual asylum seekers. However, consideration of cases from other jurisdictions, international jurisprudence and, importantly, although it post-dates the insertion of s 91R into the Migration Act in Australia, the only agreed international definition of persecution in the European Union’s Qualification Directive suggests a relatively uniform approach to the concept of “being persecuted” in Art 1A(2). More particularly, where an applicant for refugee status relies on a fear of persecution because of detention or imprisonment for a Convention reason, these sources demonstrate that serious harm is not necessarily established simply by the fact that detention or imprisonment is likely to occur.

76    Further, in our opinion, although there is much debate amongst academic commentators about how to articulate the concept of persecution, and the most effective ways in which refugee decision-makers should go about using and applying the concept while staying true to the purposes of the Convention, there is no debate that where a person claims she or he fears “being persecuted” for a Convention reason, the Convention requires a close and careful evaluation of the factual circumstances surrounding the particular claim without any assumptions that certain kinds of claimed conduct are inevitably to be characterised as persecution. When a person claims to fear torture if returned to her or his country of nationality, a refugee decision-maker must evaluate the factual basis for that claim, and characterise the conduct the person claims to fear, to determine whether it is “torture” as that concept is understood in international and human rights law. In the same way, when a person claims to fear threats to her or his life or freedom (or liberty), a refugee decision-maker must also evaluate the factual basis for that claim, and characterise the conduct the person claims to fear to determine whether it is the kind of threat to life or freedom (or liberty), as that concept is understood in international and human rights law, that falls within the concept of persecution.

77    A similarly evaluative approach is found in the Australian cases, both before and after the enactment of s 91R.

78    Finally, secondary sources and commentary on the Convention generally describe the approach to whether conduct constitutes persecution in evaluative, rather than absolute, terms.

79    Before turning to the Australian cases, the international cases and instruments, and the secondary sources and commentary, several initial matters should be addressed. They are, in turn: the actual expression used in Art 1A(2), the role of Arts 31 and 33 of the Convention and the UNHCR Handbook, and the place of general statements about the importance of liberty.

Art 1A(2): “Being persecuted”

80    It is as well to recall that the noun “persecution” is not found in Art 1A(2). Rather, Art 1A(2) speaks of a well-founded fear of “being persecuted”. That language focusses on what is done to an individual, by way of conduct. In the French text the term is “d’être persécutée”, and the tense signifies present rather than historic fear and a focus on the interaction between the persecutor and the persecuted: see Storey, “What Constitutes Persecution? Towards a Working Definition” (2014) 26 Int’l J Refugee L 272-285 at page 272.

81    The phrase “being persecuted” appears in Art 1A(2) as part of a larger phrase – “well-founded fear of being persecuted”. In interpreting the phrase “being persecuted” and the meaning given to persecution in s 91R(1), it is important to recall that the present fear claimed by any applicant will need to be well-founded, according to the well-established test: see Chan at 389 per Mason CJ, 407 per Toohey J and 429 per McHugh J. The need for the identified fear of being persecuted for a Convention reason to be well-founded may be the point at which a claim under Art 1A(2) fails. It is not necessary to load up the concept of “being persecuted”, or persecution, to do all the work of determining whether a person is in need of the surrogate protection for which the Convention provides.

The role of Arts 31 and 33 of the Convention, and the UNHCR Handbook

82    Taking the holistic approach required by the 1969 Vienna Convention on the Law of Treaties to Art 1A and its place in the Convention as a whole (see QAAH at [34] per Gummow A-CJ, Callinan, Heydon and Crennan JJ; Applicant A at 230-231 per Brennan CJ, at 240 per Dawson J, at 254-255 per McHugh J, at 277 per Gummow J and at 294 per Kirby J), in discussions about the meaning of “being persecuted”, reference is often made to the text of Arts 31 and 33 of the Convention. Article 31 relevantly prohibits the imposition of penalties on account of illegal entry on persons coming from a territory where “their life or freedom was threatened in the sense of article 1”. Article 33 relevantly prohibits the expulsion of a person to the frontier of a territory where her or his “life or freedom would be threatened” for a Convention reason.

83    Perhaps to emphasise that “being persecuted” involves conduct wider than threats to “life or freedom”, the UNHCR Handbook at paragraph 51 states:

There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.

84    Despite the use of the word “always”, there is no sense in judicial decisions of various jurisdictions, nor in the academic commentary, that this paragraph is to be construed as meaning the UNHCR’s position is that decision-makers faced with a well-founded claim of any deprivation of life or liberty must find the person fears “being persecuted” for the purposes of Art 1A. No such absolute approach is evident.

85    Nor, in our opinion can it be said that the words “life” and “freedom” in Arts 31 and 33, and in paragraph 51 of the UNHCR Handbook, are intended to protect an individual from any interference with her or his life or freedom, no matter what the circumstances of the interference.

86    Notwithstanding that the right to life is described in some human rights contexts as a “supreme right”, and seen as non-derogable (see, for example the United Nations Human Rights Committee General Comment No. 6, Article 6, “The Right to Life” (30 April 1982), as Hathaway and Foster observe in The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) at page 208, international law does not protect life in an absolute and unqualified way. As the authors point out, the 1966 International Covenant on Civil and Political Rights (ICCPR) prohibits “arbitrary” deprivation of life, a prohibition of most obvious relevance to countries where the death penalty remains available as a form of criminal punishment. What will constitute an “arbitrary” deprivation of life will be informed, in any given case, by the nature and use of any law of general application which imposes the death penalty: see, for example, the discussion by Hathaway and Pobjoy in “Queer Cases Make Bad Law” (2012) 44 NYU J Int’l L & Pol 315-389 of punishment imposed in some countries for homosexual conduct.

87    In relation to liberty or freedom (assuming those terms may be used interchangeably in this context), the protection afforded by international human rights law is also conditioned in at least two general ways. First, the protection extends only to deprivations of liberty that are not “on such grounds and in accordance with such procedures as established by law”. Secondly, the protection will extend to deprivations of liberty which, although in accordance with domestic law, are “arbitrary”: see, for example, the ICCPR Art 9(1) and the findings of the UN Human Rights Committee in Van Alphen v The Netherlands (305/88), 29 March 1989. In Van Alphen, the Committee said (at [5.8]) that:

The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.

88    In the similar human rights context of an “arbitrary” interference with privacy, the Victorian Court of Appeal has described arbitrariness as “concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of not being proportionate to the legitimate aim sought”: WBM v Chief Commissioner of Police (Vic) [2012] VSCA 159; (2012) 230 A Crim R 322 at [114] per Warren CJ.

89    These references to the approaches taken in international human rights law are not intended to depart from or undermine the current approach to laws of general application and the concept of “being persecuted” under Australian law, which is one based more in constitutional concepts of laws being “reasonably appropriate and adapted to achieving some legitimate object of the country of the refugee” (see Applicant A at 258 per McHugh J; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395) at [49] per McHugh and Kirby JJ).

90    Rather, the purpose of these references is to demonstrate that, even in what might be perceived to be the most general analytical framework for the concept of “being persecuted” – namely, international human rights law – a risk of deprivation of life or liberty, or life or freedom, even if well-founded, will not necessarily bring a person within that concept. A fact finding exercise evaluating the particular circumstances in which such deprivations will occur must be undertaken.

General statements about liberty

91    The appellant relied on statements in Australian cases about the importance of liberty. At a level of generality, the importance of liberty cannot be disputed, but the weakness in the argument is to leave the statements at that level of generality, devoid of context. For example, the appellant relied on statements by French J in Goldie at [17], where his Honour said:

Wrongful arrest and imprisonment even for a short time is a serious matter whose seriousness is measured not solely by the length of the period of incarceration. Arrest and imprisonment involve a grave interference with the rights of the individual coupled with humiliation which is both private and public. The arrest in this case occurred in a public setting and added to the indignity suffered by Mr Goldie. The physical constraint applied to him was undignified, albeit not unreasonable from the point of view of the ACM officers who were apprehending him. The pat searches and interrogations and the removal of his tie and belt and shoelaces, which followed at the Detention Centre, were all factors to be taken into account in measuring the extent of the interference with his rights associated with the imprisonment and the humiliation and indignity thereby inflicted on him.

92    Goldie was a case dealing with false imprisonment, occasioned by wrongful detention under the Migration Act. As is plain from the opening words of this paragraph, French J was dealing with deprivation of liberty which was not, to use the language of the human rights instruments, “on such grounds and in accordance with such procedures as are established by law”. That is not to say, of course, that had the deprivation of liberty suffered by Mr Goldie been suffered by an asylum seeker in her or his country of nationality it would necessarily meet the definition of “serious harm” in s 91R(1). Rather, it is to make the point that Australian law, alike with the domestic laws of other state parties to the Convention, recognises that there are circumstances in which deprivation of liberty is justifiable. In our view, the appellant’s reliance on the comments of French J in Goldie is misplaced. His Honour’s comments that arrest and imprisonment “involve a grave interference with the rights of the individual coupled with humiliation which is both private and public” are uncontroversial, but it is important to note that those comments were directed to an arrest and imprisonment which were wrongful and unlawful.

Australian decisions about the concept of persecution

93    Chan was relied on by the appellant. Mr Chan was a citizen of the People’s Republic of China and a member of a faction of the Red Guards which lost the struggle for control of that organization in his local area. Members of the faction, including Mr Chan, were questioned by police. Mr Chan was detained by police for two weeks. His name was later publically released on a list in his local area as someone who was opposed to the policies and ideas of the Chinese state. He was assessed as “anti-revolutionary” and exiled by a Local People’s Committee to another area. He attempted to escape on three occasions and was recaptured, receiving increasingly long periods of detention on each occasion. He was warned that any further escape attempts would result in two years’ detention. He then successfully escaped, stowed away on a ship bound for Australia and sought refugee status here. His application was refused, a refusal upheld by the Full Federal Court but not by the High Court. The case raised the question of the meaning of the concept of “being persecuted” in the Convention.

94    In Chan, at 388 Mason CJ spoke of persecution as requiring “some serious punishment or penalty or some significant detriment or disadvantage”. However, at 390 his Honour spoke of “[d]iscrimination which involves interrogation, detention or exile to a place remote from one’s place of residence under penalty of imprisonment for escape or for return to one’s place of residence” as prima facie constituting persecution, the first two kinds of conduct (interrogation and detention) appearing in an unqualified way in his Honour’s description. These statements may indicate Mason CJ drew a distinction between treatment which his Honour saw as obviously constituting “harm” (such as detention) and treatment which might involve a “denial of fundamental rights or freedoms otherwise enjoyed by nationals”, but which does not obviously constitute “harm”, by which we take his Honour to be referring to denial of, for example, other civil and political rights such as freedom of assembly or freedom of expression. Treatment which infringed the latter kinds of rights, his Honour said, “may constitute such harm”, but he expressly stated that he “would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason” (at 388, emphasis in original). When the facts of Chan are recalled, it is apparent there was no need for any adjectival qualification to his Honour’s references to “detention”: the detention which Mr Chan feared was, on any view, of a serious and significant nature.

95    This point is made by Gaudron J in Chan (at 416):

It is not reasonable by the standards of civilized nations to categorize exile and detention for reasons of political opinion as discrimination ‘to a limited degree’ not constituting persecution. Whatever else may lie within the meaning of ‘persecution’, significant deprivation of liberty certainly falls to be so characterized.

96    In the same case, Dawson J said that “there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution … Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity” (at 399). In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 the observations of both Mason CJ and Dawson J were referred to by the majority with approval (at 570 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), and they were cited with apparent agreement by Gummow J in VBAO at [15].

97    Thus, if the descriptions employed by Mason CJ and Dawson J in Chan were to be applied literally, they might support the proposition put by the appellant in the present case: namely, that any deprivation of liberty is within the concept of “being persecuted” in Art 1A(2).

98    That would be, in our opinion, a misreading of these statements, and of the judgments and context in Chan as a whole. Reading the judgments as a whole, it is clear their Honours understood the Convention term “persecution” to require conduct of a certain level of seriousness or intensity, taking into account that threats to life or freedom are more readily characterised as having the necessary quality of seriousness or intensity of harm. That was the view taken by other members of the Court: see Gaudron J at 416 (extracted above); also McHugh J at 429. Toohey J’s finding about the legal unreasonableness of the delegate’s conclusions makes a similar point (at 408):

Given the circumstances of that discrimination, no reasonable delegate could have concluded that it did not amount to persecution. Nor could a reasonable delegate have concluded other than that there was a real chance of imprisonment or exile if the appellant returned to China.

99    In Appellant S395 at [66] Gummow and Hayne JJ said:

The term “persecution” is not defined in the Convention, and in the decisions of this Court there has been no precise tracing of the metes and bounds of its meaning in the Convention definition of “refugee” applied in the Act. It is not of great assistance and is apt to mislead to approach the matter by saying, as did an English court, that “persecution” is a “strong word”. However, it is clear from the decision of this Court in Minister for Immigration and Multicultural Affairs v Haji Ibrahim that a systematic course of conduct is not required. Further, in the joint judgment of six members of this Court in Minister for Immigration and Ethnic Affairs v Guo, an approving reference was made to the proposition stated by McHugh J in Chan v Minister for Immigration and Ethnic Affairs that measures in disregard of human dignity may, in appropriate cases, constitute persecution. In the present appeals, there was no challenge to those propositions.

The reference to “an English court” is to the decision of R v Secretary of State for the Home Department; Ex parte Zia Mehmet Binbasi [1989] Imm AR 595 at 599 per Kennedy J.

100    Appellant S395 was decided after the enactment of s 91R. The analysis of Gummow and Hayne JJ provides, in our opinion, further support for the proposition that ss 91R(1) and (2) were not intended to move away from the Convention’s approach to “being persecuted”, but rather were intended to illustrate that the concept of persecution involved, as Mason CJ said in Chan, conduct with sufficiently serious effects that surrogate protection for an individual was necessary.

101    In Appellant S395 at [40], McHugh and Kirby JJ described persecution in the following terms:

The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality. (Emphasis added.)

102    This passage has been cited many times, both in Australia and in other jurisdictions, notably in the United Kingdom. The reference to what a person can “reasonably be expected to tolerate” was misunderstood by the Court of Appeal in HJ (Iran) v Secretary for the Home Department [2009] Imm AR 600; [2009] EWCA Civ 172, where the Court of Appeal saw this reference as authorising refugee decision-makers to ask what a person can be “expected” to do on return to her or his country of nationality. That misunderstanding is noted by members of the UK Supreme Court in HJ (Iran) v Secretary for the Home Department [2010] UKSC 31; [2011] 1 AC 596 (HJ (Iran)) at [28]-[29] per Lord Hope, at [102] per Lord Collins, and at [125]-[126] per Dyson JSC. The introduction of glosses such as what a person might be “expected” to endure, as well as the notion of individuals needing to “tolerate” certain kinds of behaviour by their alleged persecutors, in our opinion, is not consistent with the otherwise relatively uniform tenor of formulations of “being persecuted”. Those other formulations focus on the nature and quality of the harm inflicted, not the individual’s ability to cope with it. They focus, correctly in our respectful opinion, on normative standards governing the behaviour of those whose conduct is under scrutiny rather than asking a decision-maker to impose expectations on the person said to be the target of the persecutory conduct.

103    However, even if aspects of the passage at [40] in Appellant S395 may tend to put a gloss on what is meant by “being persecuted”, for the purposes of the issues in this appeal, this passage again makes plain that the decision whether conduct does or does not constitute persecution involves an evaluative exercise, no matter what the conduct is.

104    It is true that there are obiter statements in other Australian authorities to the effect that ss 91R(1) and (2) “limit” the range of circumstances in which apprehended harm may be characterised as persecution for the purposes of Art 1A(2) (see for example SZJGV at [6] and [7]). As we have noted above, given the provision is dealing with a concept left deliberately undefined by the Convention, that description may be appropriate. In substance, however, the jurisprudence of other state parties and the secondary sources demonstrate, in our opinion, that the content given to the concept of persecution by ss 91R(1) and (2) is not inconsistent with the approach required by the Convention, provided the terms of ss 91R(1) and (2) are not themselves restrictively interpreted or applied.

105    Finally, we do not see anything said by Crennan J in VBAS as inconsistent with this approach. Her Honour noted at [18] that, by the terms of s 91R(1), Art 1A of the Convention “does not apply” in relation to one or more Convention reasons unless, cumulatively, the three aspects of subs (1) are satisfied. Where her Honour states that an applicant must, under s 91R(1), have a well-founded fear of “persecution involving serious harm” her Honour was, in our respectful opinion, simply paraphrasing the effect of s 91R(1) rather than finding that the Convention concept of persecution had been altered.

106    The final sentence in [18] of her Honour’s reasons was one upon which the Minister placed some reliance. Her Honour stated:

The first instance of ‘serious harm’ set out in s 91R(2)(a) – ‘a threat to the person’s life or liberty’ – does not mean that every death threat or threat of imprisonment made against an applicant will fall within that paragraph and necessarily constitute ‘serious harm’.

107    VBAS, like VBAO, was concerned with the proper construction of the word “threat” in ss 91R(1) and (2). Crennan J found (at [22]) that the word should be construed as meaning “risk”, rather than a declaration of an intention to cause harm, or a determination to cause harm. This was the construction subsequently adopted by the High Court in VBAO. In the passage above, her Honour was referring to conduct which could be covered by either of the constructions proposed in the case before her, and simply making the incontrovertible point that whether the word means “risk” or refers to an “utterance”, not every instance will constitute “serious harm”. There was no occasion for her Honour to consider whether any imprisonment would suffice, and her Honour clearly did not do so.

Other jurisdictions

108    The following analysis of selected judicial decisions in other Convention jurisdictions indicates that the Convention has generally been interpreted as requiring a qualitative assessment to be carried out of any detention or imprisonment which is claimed to amount to persecution where it has occurred for a Convention reason. That qualitative assessment is required to establish whether or not the detention or imprisonment involves serious harm.

The United States

109    In the United States, a subjective approach is taken to the assessment of what is, and is not, “being persecuted” and this approach is undoubtedly evaluative.

110    In Mikhailevitch, after noting that the US Immigration and Nationality Act did not contain a definition of “persecution”, the US Court of Appeals for the Sixth Circuit referred at [7] to other relevant US authorities, and noted that it had been held that the concept of “persecution” “embodies punishment or the infliction of suffering or harm”. Furthermore, the Court stated:

We agree with our sister circuits that “persecution” within the meaning of 8 U.S.C. § 1101(a) of 42(A) requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty. (Emphasis added.)

111    In Mikhailevitch, the asylum seeker sought protection on the basis that he feared persecution if he was returned to Belarus because, while there, he had been questioned by the KGB and subject to searches of his home and place of business on account of his activities as a Roman Catholic. He also claimed that the KGB arrived at his home at 1.00 am. and knocked on his door for 40 minutes before leaving. There was no evidence that he had been physically abused, imprisoned or arrested by the KGB as a consequence of practising his religion. It was held that while the evidence indicated that the asylum seeker had been “harassed” by the KGB because of his religious activities, this did not rise to the level of “persecution” under US legislation.

112    A similar approach has been adopted in subsequent decisions of the US Court of Appeals. For example, in Topalli v Gonzales 417 F. 3d 128 (1st Cir 2005), a twenty-four year old Albanian man claimed to be a refugee on the basis that he had been arrested and beaten multiple times for his participation in anti-government rallies. The Board of Immigration Appeals accepted his evidence that he had been arrested and detained by the police seven times between 1999 and 2001 and that four of those arrests were for his participation in anti-government rallies and the three other occasions were simply because the police recognised him. None of the periods of detention lasted more than 24 hours. He also claimed that each time that he was arrested, he was beaten by the police but not to the extent that he required medical attention. The Board of Immigration Appeals rejected his application on the basis that his past maltreatment did not amount to persecution, nor did he demonstrate a reasonable likelihood of future persecution. It emphasised that the detentions were short, never lasting more than 24 hours, and his injuries did not require medical attention. The Court of Appeals rejected his appeal applying the well-known deferential substantial evidence standard. While acknowledging that the question whether the appellant had suffered past persecution on account of his political beliefs was “a close one”, the Board’s decision was upheld. The Court observed (at 132):

The record reveals that the detentions never exceeded 24 hours (and sometimes lasted for much less time). The police only once threatened Topalli with imprisonment if he continued with his (sometimes illegal) political activities, and Topalli himself was confident that the police did not have the power to incarcerate him for more than 24 hours without formal charges. Topalli did not give a great deal of detail concerning the duration or severity of the beatings, but it is relevant that Topalli did not claim to need medical attention from the beatings. Topalli conceded that at least some of the arrests may have been due to his fighting with the police at the illegal rallies, rather than the result of police signalling him out in a pattern of targeted political harassment. Besides the three when he was arrested walking down the street, there were no other incidents of police surveillance, targeted harassment, or threats against him. Moreover, Topalli was able to live in relative peace in Albania, free from police harassment, for almost three years after his last arrest. We cannot say that we are compelled to conclude that Topalli was subjected to systematic maltreatment rising to the level of persecution, as opposed to a series of isolated incidents…

113    In Gomez-Zuluaga v Attorney General of the United States 527 F. 3d 350 (3rd Cir 2008), the US Court of Appeals reaffirmed that for the purposes of US immigration law (which, like Australia, draws down the Convention definition of a refugee) not every detention of a person for a Convention reason constitutes persecution. At 341, the Court described the relevant legal position in the United States as follows:

We have held that persecution, while not inclusive of every act that our society might regard as unfair, unjust, unlawful, or unconstitutional, generally includes treatment like death threats, involuntary confinement, torture and other severe affronts to the life or freedom of the applicant. (Citing Lin v INS, 238 T.D 239 at 244, 3d Cir 2001.)

114    The asylum seeker in that case, a Colombian national, had been detained in Colombia by the terrorist group commonly known as FARC, on three separate occasions. Her detention on each of those occasions related to the fact that she was dating members of Colombia’s armed or police forces. The first detention was for two hours after she was taken from her home to an outdoor playing field where she observed armed men and other women who had been brought there under similar duress. She was not physically harmed but said that she feared for both her own and her family’s safety as a result of the experience and being told by the terrorists that she should remember what she had been told about FARC’s opposition to local women fraternising with soldiers because it was an “insult” to the FARC and if the conduct did not end something would happen to them or their families.

115    The second detention incident occurred two years later when the petitioner, who had then formed a relationship with a police officer, was taken from her father’s home by an armed man to an area outside the town where they met up with two other men, who were armed with ammunition and grenades and who wore FARC colours. They referred to her failure to abide by the previous FARC warning and the petitioner said that she became very scared. She was released after about one hour.

116    The third incident occurred early the following year, when the petitioner was taken by an armed man from her local church. She was blindfolded and forced to walk for two hours to a small empty house, at which there were other armed men. She was chained to a bed for eight days and only allowed to be unchained to go to the toilet, on which occasions one of the terrorists accompanied her. Various threats were also made to her. She was ultimately released on the basis, she believed, that the terrorists learned that she was studying to be a dental hygienist and they released her on condition that she had to return and work for them when she completed her studies.

117    In conducting a de novo review of a decision of the Board of Immigration Appeals, which rejected the petitioner’s claim to be recognised as a refugee, the US Court of Appeals distinguished the first two detentions from the third. As to the first two detentions, while they were described as being “close to the line” they were held not to rise to the level of persecution because the detentions were brief and little or no physical harm had occurred. That is to be contrasted with the Court’s findings in respect of the third detention, which are reflected in the following passages (at 342-343):

These earlier incidents do not rise to the level of persecution, but Petitioner’s eight-day abduction and confinement does. Petitioner testified that an armed man forced her to walk for two hours, eyes covered and hands bound, before chaining her to a bed in an unfamiliar house in the hills. There, she remained blindfolded, while a number of armed men repeatedly threatened her, menacingly informed her that “they had intentions” with her, and told her that they wanted her to “stay with them”. The men even remained with her when she periodically went outside to the bathroom. The FARC guerrillas confined her under these conditions for eight days.

While we have explained that detentions alone do not necessarily constitute persecution, this unlawful abduction rises to the level of persecution because of the duration of confinement, the deprivation of Petitioner’s freedom of movement and sight, the invasion of Petitioner’s privacy, the implicit and overt threats made against her person, the ominous warnings upon her release that the FARC would be “very attentive” to her, and that she was obliged to return to serve their cause upon completion of her studies. (Emphasis added.)

118    The following summary of the relevant principles by a different US Court of Appeals in Vasili v Holder 732 F. 3d 83 (1st Cir 2013) confirms that the US approach has not relevantly changed post 2001:

An individual seeking asylum faces a “daunting task” in establishing subjection to past persecution… To meet this standard, “the discriminatory experiences must have reached a fairly high threshold of seriousness as well as [occurred with] some regularity and frequency”… Infrequent beatings, threats or periodic detention, we have said, do not rise to the level of persecution, and the nature and extent of an applicant’s injuries are relevant to the ultimate determination… Thus, “persecution” requires “more than mere discomfiture, unpleasantness, harassment, or unfair treatment” and “implies some connection to government action or inaction”. (Citations omitted.)

119    One of the cases cited in this extract was the US Court of Appeals’ decision in Nelson v Immigration and Naturalization Service 232 F. 3d 258 (1st Cir 2000), in which it was held that the petitioner failed to establish persecution even though he had been subjected to physical abuse and placed in solitary confinement for less than 72 hours on three different occasions.

120    We refer to these cases not to rely on the correctness of the decisions but to draw attention to the qualitative nature of the approach adopted by the courts.

The United Kingdom

121    In 1996, in Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97 at 107, the Court of Appeal adopted the now widely recognised formulation of persecution proposed by Hathaway, in the 1991 edition of his text, The Law of Refugee Status (Butterworths) (at page 112):

In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of any right within the first category, a discriminatory or non-emergency abrogation of a right within the second category, or a failure to implement a right within the third category which is either discriminatory or not grounded in the absolute lack of resources.

122    The “first category” referred to in this passage consisted of those rights in the 1948 Universal Declaration of Human Rights (UDHR), translated into immediately binding form in the ICCPR and from which no derogation can be permitted, such as freedom from the arbitrary deprivation of life, and protection against torture or cruel, inhuman or degrading punishment or treatment. The “second category” is described by Hathaway as those rights in the UDHR given binding and enforceable form in the ICCPR, including “freedom from arbitrary arrest or detention” and from which states may derogate in limited circumstances. The “third category” is described by Hathaway as those rights in the UDHR which were carried forward into the International Covenant on Economic Social and Cultural Rights, where no absolute and immediately binding standards of attainment were imposed, such the rights to food, housing and medical care.

123    Hathaway’s formulation as described in Sandralingham has been endorsed by the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 495 per Lord Hope, for the majority; Sepet v Secretary of State for the Home Department [2003] UKHL 15; [2003] 1 WLR 856 (Sepet) at [7] per Lord Bingham; and R v Special Adjudicator; ex parte Ullah [2004] UKHL 26; [2004] 2 AC 323 at [33] per Lord Steyn.

124    In HJ (Iran), the UK Supreme Court dealt with the circumstances of a homosexual applicant, and the relevance to satisfaction of Art 1A(2) of the proposition that such a person might modify her or his behaviour in her or his country of nationality so as not to attract attention and risk persecution for what was clearly the Convention reason of membership of a social group. In the course of deciding, as the High Court did in Appellant S395, that a person could not be compelled to modify her or his behaviour so as to avoid the otherwise well-founded fear of persecution becoming a reality, Lord Hope considered the concept of persecution.

125    Noting (at [12]) that, as Lord Bingham had said in Sepet (at [7]), it was a “strong word” and indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to repression or extirpation of it, Lord Hope then also considered the description given by McHugh and Kirby JJ in Appellant S395 at [40] (to which we refer above) and to the Qualification Directive (to which we refer below). Lord Hope then made three points which we consider of significance to the issue on this appeal.

126    First, Lord Hope adopted Hathaway’s formulation of persecution. Secondly, and connected to this, he emphasised that the purpose of the Convention was to provide surrogate protection where state protection of its nationals has failed. That emphasis can also be found in the reasons of Lord Rodger at [52]. The question, Lord Hope said (at [13]), was “whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals”. Thirdly, although the guarantees in the UDHR were fundamental to the Convention, as the reference to the UDHR in the Preamble to the Convention made clear, the contracting states did not undertake to protect claimants against discrimination judged according to the standards in the state of asylum. Lord Hope said (at [15]):

Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights.

127    Although not the main focus of his reasons, at [53] Lord Rodger in HJ (Iran) also recognised the concept of persecution as involving harm of a certain kind. He said:

The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. (Emphasis added.)

128    A further significant example of the approach taken in the United Kingdom comes from the Immigration Appeal Tribunal decision of Iqbal v Secretary of State for the Home Department [2002] UKIAT 2239 (Iqbal) (to which the Court of Appeal in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807 refers). Iqbal concerned a “prosecution versus persecution” situation, where the appellant claimed that in his foreshadowed prosecution for breach of the criminal law, he would face pre-trial detention involving significant hardship. The Tribunal found the kind of detention he would face did not amount to persecution for the purposes of Art 1A(2). Noting (at [74.5]) that the right to a fair trial is not an absolute, non-derogable right and failures in a trial process must “go beyond shortcomings and pose a threat to the very existence of the right to a fair trial” before they might amount to persecution, the Tribunal said (at [74.6]):

When considering whether the generality of citizens face a real risk of persecution under the criminal justice system of their country of origin, it is important to establish the scale of any violations of relevant human rights such as the right not to be exposed to ill treatment during detention or the right to a fair trial. A useful benchmark is set out in Article 3 of the Convention Against Torture, namely whether the level of abuse of human rights rises to the level of a ‘consistent pattern of gross, flagrant or mass violations of human rights’.

Canada

129    Judicial decisions in Canada reveal a similarly evaluative approach. The Canadian Immigration and Refugee Protection Act (S.C. 2001, c 27) relevantly incorporates at s 96 the Art 1A(2) criteria into Canadian domestic law.

130    In Canada (Attorney General) v Ward [1993] 2 SCR 689 at 733-734 (Ward) and in the context of considering the meaning and application of the Convention reason of “particular social group”, the Supreme Court of Canada adopted, admittedly in reasonably general terms, an approach to the concept of persecution which was inherently evaluative:

Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:

CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law:

The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.

This theme sets the boundaries for many of the elements of the definition of “Convention refugee”. “Persecution”, for example, undefined in the Convention, has been ascribed the meaning of “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”; see Hathaway, supra, at pp. 104-105. So too Goodwin-Gill, supra, at p. 38, observes that “comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights”. This has recently been recognized by the Federal Court of Appeal in the Cheung case.

131    In Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 the Supreme Court considered, amongst other issues, whether forced sterilization of a man pursuant to China’s one child policy constituted “being persecuted” for the purposes of the equivalent s 2 of the predecessor Immigration Act 1985. The Court divided four to three on the ultimate outcome of the appeal, but there was no relevant distinction between the majority and minority on the question whether forced sterilization – if a claimant (whether male or female) established a real risk of such treatment – was capable of constituting persecution.

132    In relation to laws of general application and the nature of punishment meted out under such laws, the minority judgment given by La Forest J (L’Heureux-Dubé and Gonthier JJ concurring) made it clear (at [68]) that such punishment could nevertheless constitute persecution in certain circumstances. The minority approved a passage from a Federal Court decision in Cheung v Canada (Minister of Employment and Immigration) [1993] 2 F.C. 314 (C.A.), at 323 where Linden JA said:

Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), the Court held that even where there is a law of general application, that law may be applied in such a way as to be persecutory .... if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.

(Emphasis added.)

133    To take an example at Canadian Federal Court level, in Sadeghi-Pari v Canada (Minister for Citizenship and Immigration) 2004 F.C. 282 at [29] Mosley J said:

The meaning of persecution as set out in the seminal decisions of Canada (Attorney General) v. Ward and Chan v. Canada (Minister of Employment and Immigration) is generally defined as the serious interference with a basic human right.

(Emphasis added. Citations omitted.)

134    There are many cases of the Canadian Federal Court dealing with the manner in which a fact-finding tribunal should approach the distinction between discrimination and persecution as concepts. Many of those decisions emphasise the need to assess whether the discrimination is cumulative, and therefore of a sufficiently intense and serious nature to constitute persecution: see for example Sugiarto v Canada (Minister of Citizenship and Immigration) 2010 F.C. 1326 at [12] per Tremblay-Lamer J and the series of cases there referred to; also H.L. v Canada (Minister of Citizenship and Immigration) 2009 F.C. 521 at [26] (H.L.).

135    In H.L. Martineau J, referring to Hathaway’s formulation (in the 1991 edition of his text, The Law of Refugee Status) as endorsed by the Supreme Court in Ward, said (at [21]):

Discrimination in itself does not amount in every case to persecution. It may, however, if it manifests as “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”. 

136    This summary of approaches taken in other jurisdictions, by no means comprehensive, is entirely supportive of the proposition that the concept of “being persecuted” in Art 1A(2) is understood by courts in other jurisdictions as requiring decision-makers to evaluate the nature of the harm claimed to be feared and to be satisfied it reaches a level of intensity or seriousness which is both commensurate with the understanding of the word “persecution” and which justifies surrogate protection by a state party.

The European Union’s Qualification Directive

137    Despite the reticence demonstrated, outside Australia, in articulating the content of the concept of persecution, in Art 9(1) to (3) of its Qualification Directive, the European Union took a step which in our opinion is not so dissimilar to ss 91R(1) and (2). Like ss 91R(1) and (2) it does not purport to be an exhaustive definition. Art 9(1) to (3) of the Qualification Directive provides:

1. In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must:

(a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).

2. Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(c) prosecution or punishment which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature.

3. In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.

138    The European Court of Justice has made it clear that the terms of Art 9 mean, much like s 91R, that not all violations of human rights constitute persecution. Rather, the violation must be “sufficiently serious”: X, Y and Z, Joined Cases C-199/12, C-200/12 and C-201/12, 7 November 2013. In those cases, which dealt with homosexual asylum seekers, the Court expressed the view that the “mere existence” of legislation criminalising homosexual acts could not be regarded as an act affecting the applicants “in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of article 9(1) of the Directive” (at [55]).

Academic writing

139    Turning now to consider the views of some academic writing on the issue whether any detention, confinement or imprisonment for a Convention reason necessarily amounts to persecution, the following materials indicate that commentators accept that a qualitative assessment is involved, although they may differ on the measures or reference points by which that assessment should be undertaken.

140    In Grahl-Madsen, it is noted, at page 193 of volume 1, that there are at least two schools regarding the question whether persecution includes any threat to freedom. Reference is made to the view expressed by one commentator (Vernant), who quoted “persecution” with “severe measures and sanctions of an arbitrary nature, incompatible with the principles set forth in the Universal Declaration of Human Rights”, as opposed to a less liberal view, represented by another commentator (Zink), who interpreted “persecution” so as to mean only deprivation of life or of physical freedom, whilst also excluding deprivation of physical freedom for a very short period of time. After discussing various cases in France and Germany, Grahl-Madsen gave the following summary at page 201, which suggests that a qualitative assessment is involved:

We may conclude that there is precedent for considering the following measures or sanctions “persecution” in the sense of the Refugees Convention, provided that the circumstances warrant it:

(1)    threats to a person’s life;

(2)    imprisonment or other forms of detention or internment for a period of three months or more, it remaining an open question whether deprivation of physical freedom for shorter periods may constitute “persecution”; however, deprivation of liberty for 10 days or less has been deemed not to amount to “persecution”;

(3)    numerous arrests or summonses for interrogation;

(4)    removal to a remote or designated place within the home country;

(5)    infliction of bodily harm and serious threats to a person’s health;

(6)    extradition to a country where the person may be subjected to measures mentioned under (1) or (2).

141    To similar effect is the description given by Zimmermann and Mahler, “Article 1A, para. 2 (Definition of the Term ‘Refugee’/Définition du Terme ‘Réfugié’)” in Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, 2011) at page 348 ([227] and [228]):

To determine whether a severe violation of human rights amounting to persecution has been taking place, a complex bundle of factors such as “the nature of a freedom threatened, the nature and severity of the restriction and the likelihood of the restriction eventuating in the individual case” has to be taken into consideration. Possible factors are the intensity of the acts and their duration; the danger of or the actual recurrence of such acts; whether the acts occur are individual cases or as part of a larger campaign of systematic human rights violations; and finally the effect of such acts on the health, family life, or participation in political life of the person concerned. The most difficult part, however, is how to weigh the different aspects…

With regard to a required duration, and it has been argued that a short duration shall, in general, not suffice or that an isolated act is not sufficient, but that there has to be a sustained, persistent, or systematic risk of human rights violations in order to amount to persecution. However, the example of torture proves the contrary. In this case the violation of human dignity is so severe that even a single incident and a short period of time trigger persecution. At least with regard to very basic rights a single incident should accordingly be regarded as sufficient to be tantamount to persecution and that the “persistency as a usual but not a universal criterion of persecution.”

(Citations omitted.)

142    A third example is to be found in Hathaway and Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014). At page 198, in responding to a criticism that a human rights framework might diminish attention being given to “individuated vulnerabilities”, the authors write:

While an understandable concern, the truth is that international human rights law not only allows, but actually requires, careful scrutiny of particularized circumstances… courts relying on human rights norms to identify serious harm for refugee law purposes have appropriately insisted, for example, that personal attributes such as “age and frailty” may have an impact on seriousness of harm… (Citations omitted.)

143    In considering the relationship between persecution and human rights such as those the subject of Art 9 of the ICCPR, Hathaway and Foster state (at page 239):

Persecution often takes the form of “detention, arrest, interrogation, prosecution, [and] imprisonment” – whether by way of police or other officially mandated custody, house arrest, “involuntary hospitalisation” or even “being involuntarily transported”. Importantly, though, not every constraint on free movement amounts to a violation of an internationally guaranteed human right: international human rights law requires only that any deprivation of liberty be “on such grounds and in accordance with such procedures as are established by law” and – assuming this first requirement is met – expressly disallows only “arbitrary” arrest or detention. It follows, for example, that ordinary policing efforts do not normally infringe this standard, assuming that they are conducted in accordance with valid criminal law and are not arbitrarily conceived or enforced. Beyond the basic requirements of lawfulness and avoidance of arbitrary action, international human rights law requires further that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Taken together, these three requirements provide a sound and workable basis for the assessment of persecutory harm under refugee law. (Citations omitted.)

144    The authors elaborated upon each of these requirements as follows. First, an arrest or detention must be truly on grounds and in accordance with procedures as are established by law. Accordingly, persons facing arrest or detention at the hands of non-state actors will almost always face the risk of persecutory harm.

145    Secondly, even where an arrest and/or detention takes place within a genuine legal framework, it must not be “arbitrary”. This includes conduct which is not only against the law but also conduct which is authorised by law but is discriminatory or shows elements of inappropriateness, injustice, lack of predictability, and due process of law.

146    Thirdly, even if an arrest and/or detention is both lawful and not arbitrary, it must be effected in a manner that comports with the duty of states to ensure that all persons deprived of their liberty are treated with humanity and with respect for the inherent dignity of the human person. Hence, if the arrested or detained person is subjected to “truly undignified conditions”, even if falling short of inhuman or degrading treatment, this bespeaks a risk of breach of international human rights norms and constitutes serious harm. In our view, these remarks confirm the appropriateness of an evaluative or qualitative exercise of the relevant facts surrounding a loss of liberty.

147    The authors then state, at page 204, that under a human rights framework “a finding of serious harm requires careful consideration of whether a generally accepted right as codified in international law is, on the facts of the case, at risk of being violated” (emphasis in original). They discuss at length the checks and balances they perceive to inhere in this approach, ranging from the need for the feared treatment to fall within a human rights norm as defined by a “widely ratified” international human rights treaty, to the incorporation of notions of derogable and non-derogable rights, internal limitations on rights and a proportionality approach.

148    Other commentators propose a different approach: see, for example, Price at pages 103-136, arguing against what he describes as a “humanitarian approach” to the concept of persecution in the Convention, and in favour of what he calls a “legitimacy approach”.

149    Storey, in “Persecution: Towards a Working Definition”, in Chetail and Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar, 2014) at page 476, makes the following observations, with which we respectfully agree:

Thus both refugee law and human rights law make clear that it is only if violations of human rights attain a sufficient severity or disproportionality that they amount to persecution or ill treatment.

Furthermore, under a human rights approach it remains the case that persecution has to be shown to be person-specific. Not every violation of human rights will have equally serious consequences for different individuals. There is broad acceptance of the need for the human rights approach to be applied contextually. In Goodwin-Gill’s formulation, whether a human rights violation will amount to persecution will “again turn on an assessment of a complex of factors, including (1) the nature of the freedom threatened, (2) the nature and severity of the restriction, and (3) the likelihood of the restriction eventuating in the individual case”. As stated by Symes and Jorro, “[b]y this sensible linkage between formal breach of a human right and its conversion into persecution by means of the gravity of its invasion, the principal criticism of the Hathaway approach, that it might extend the forms of harm capable of constituting persecution too far, is overcome.”

(Citations omitted.)

150    Indeed, perhaps with the exception of some of the United States decisions, almost all of the decisions to which we have referred (from Australia and other jurisdictions) have considered the question of what conduct should be characterised as persecution from the perspective of interferences with basic human rights. The matter was clearly put, with respect, by Brennan CJ in Applicant A (at 232):

When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied.

151    In our view, it is unnecessary for the purposes of this appeal to choose between the competing academic approaches to the analysis of what kind of conduct may constitute “being persecuted” for the purposes of Art 1A. Whether or not the preferable analysis is to measure it against human rights norms, the point of referring to this approach in some detail here is to put beyond doubt that, on any view, the evaluation of whether what a person claims to fear is “serious harm” will be a question of fact and degree, often complicated and quite specific to the individual concerned, and involving consideration of domestic and international justifications for interference with, and limits placed on, the enjoyment of human rights in a particular country of nationality.

Conclusion

152    For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).

153    As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards” (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.

154    In our opinion, the Tribunal did not misconstrue s 91R(2)(a) or ask itself the wrong question.

155    As to the Minister’s reliance on what was said by Hayne J in SZWAU, we do not consider that that case assists in determining this appeal. The passages relied on reflect the particular facts in SZWAU, which were different from those here. In the present appeal, the identification of the social group relied on by the appellant and accepted by the Tribunal of “failed asylum seekers from a Western country” was not contested by the Minister.

156    In this appeal, we do not find it necessary to decide the alternative argument by the Minister that the appellant cannot overcome the findings of fact which would mean that neither s 91R(1)(a) or (c) was satisfied: see the submission at [27]-[28] above.

157    The appeal should be dismissed, with costs.

Associate:

Dated:    24 March 2015