FEDERAL COURT OF AUSTRALIA

 

Gersten v Minister for Immigration & Multicultural Affairs [1999] FCA 1768

 

MIGRATION – application for refugee status in Australia – application for review of decision of Refugee Review Tribunal affirming deemed decision not to grant protection visa – whether well-founded fear of persecution for reasons of political opinion – whether Tribunal made finding of fact on question whether applicant had been investigated by State Attorney’s office for reasons of political opinion – whether conduct of person for a Convention reason must be sole cause of another’s persecution – whether “but for” test of causation sufficient in refugee context – whether no causal connection between conduct and suffering of persecution by reason of unreasonable action by person persecuted – whether Tribunal failed to consider claim that State Attorney’s office had procured correctional authorities to detain applicant in adversely discriminatory conditions – whether Tribunal committed reviewable error by stating that persecution means “serious or significant harm”.

Migration Act 1958 (Cth), ss 5, 36, 475(1)(b), 486

Zuway v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 391, discussed

X v Minister for Immigration and Multicultural Affairs [1999] FCA 697 (unreported; 3 June 1999; Hill, Whitlam and Kiefel JJ; reasons confidential), cited

Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293, discussed

Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678, discussed

Z v Minister for Immigration and Multicultural Affairs (unreported; 11 December 1998; Katz J), discussed

Minister for Immigration and Multicultural Affairs v Abdi (1999) 162 ALR 105, cited

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (unreported; 5 June 1998; French J), discussed

Minister for Immigration and Multicultural Affairs v Chen Shi Hai [1999] FCA 381 (unreported; 13 April 1999; O’Loughlin, Carr and RD Nicholson JJ), discussed

Chappel v Hart (1998) 195 CLR 232, discussed

Kanagasabi v Minister for Immigration & Multicultural Affairs [1999] FCA 205 (unreported; 10 March 1999; Branson J), not followed

Prasad v Minister for Immigration and Ethnic Affairs (unreported; 4 April 1997; Burchett J), followed

MMM v Minister for Immigration and Multicultural Affairs (unreported; 22 December 1998; Madgwick J), followed

Shetty v Minister for Immigration and Multicultural Affairs [1999] FCA 1601 (unreported; 18 November 1999; Branson J), cited

JOSEPH M GERSTEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NG 1184 of 1998

 

KATZ J

17 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1184 of 1998

 

 

BETWEEN:	JOSEPH M GERSTEN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent   JACK HOYSTED (constituting the Refugee Review TribunaL) Second Respondent
JUDGE:	KATZ J
DATE OF ORDER:	17 DECEMBER 1999
WHERE MADE:	SYDNEY

 

 

MINUTES OF ORDER

 

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed.

2.         The applicant pay the respondents’ costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1184 of 1998

 

 

BETWEEN:	JOSEPH M GERSTEN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent   JACK HOYSTED (constituting the Refugee Review Tribunal) Second Respondent

 

JUDGE:	KATZ J
DATE:	17 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1                     Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect to “judicially-reviewable decisions”.  Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal (“the Tribunal”): see par 475(1)(b) of the Act.

2                     In this proceeding, Mr Joseph Morris Gersten seeks review of a decision made by the Tribunal on 8 October 1998.

3                     The procedural background to the Tribunal’s decision of which Mr Gersten seeks review is as follows: in late October 1993, Mr Gersten, who had arrived in Australia as a visitor in early September 1993, applied for refugee status in Australia to the Minister for Immigration and Ethnic Affairs (as the office was then called; now, “Ethnic” is replaced by “Multicultural”) (“the Minister”); in early December 1993, a delegate of the Minister (“the delegate”) decided to refuse that application; and, in late December 1993, Mr Gersten applied to the Tribunal for review of the delegate’s decision.

4                     It was the delegate’s decision of early December 1993 which the Tribunal affirmed on 8 October 1998.  (Part, at least, of the very lengthy time taken by the Tribunal to deal with Mr Gersten’s application to it was caused by the facts that the member at first constituting the Tribunal to hear Mr Gersten’s application to it resigned when that application had been partly dealt with and that the member ultimately constituting the Tribunal to hear Mr Gersten’s application to it decided to proceed with that application de novo.)

5                     I should note now that, as a result of changes made to Australian migration legislation after Mr Gersten had made his application to the Minister, the Tribunal had been required to proceed as though it were reviewing a decision by the delegate to refuse an application made by Mr Gersten, not for refugee status in Australia, but for a “protection”visa. 

6                     Protection visas are dealt with in s 36 of the Act, which provides as follows:

“36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

(The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act.  Subsequently in these reasons for judgment, I will refer to the Refugees Convention as amended by the Refugees Protocol simply as “the Convention”.)

7                     A necessary condition of Australia’s having protection obligations under the Convention to a non-citizen in Australia within the meaning of subs 36(2) of the Act is that that non-citizen be a “refugee” within the meaning of Art 1A(2) of the Convention.  That provision defines a “refugee” to include a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is both outside the country of that person’s nationality and unwilling to avail him/herself of the protection of that country.

8                     Mr Gersten claimed before the Tribunal to be a “refugee” within the meaning of Art 1A(2) of the Convention, because, owing to a well-founded fear of being persecuted for reasons of political opinion, he was both outside the United States of America, the country of his nationality, and unwilling to avail himself of the protection of that country.  It was the Tribunal’s rejection of that claim which led it to affirm the delegate’s deemed decision to refuse to grant Mr Gersten a protection visa.

9                     In substance, Mr Gersten’s case before the Tribunal had been that he was a politician from Florida who had already been persecuted in that State for reasons of political opinion and who, if he were to return there (or, indeed, to any other part of the United States), would continue to be persecuted for the same reasons.

10                  Mr Gersten claimed before the Tribunal that, because of his reformist conduct as a member (elected in 1988) of the Board of Commissioners of Dade County, Florida, he had, by 1992, made powerful enemies of certain less enlightened members of the Democratic Party (to which party, I gather, he also belonged).  Dade County was a very substantial county, which included within its boundaries the City of Miami.  The office of Commissioner was somewhat similar to that of a local government councillor in Australia.

11                  According to Mr Gersten, most prominent among his political enemies (and past and feared future persecutors) was Ms Janet Reno, in 1992, the State Attorney for the Eleventh Judicial Circuit of Florida.  (The boundaries of the Eleventh Judicial Circuit were, I gather, similar to, if not identical with, the boundaries of Dade County and Ms Reno held her office of State Attorney, which was somewhat similar to that of a Director of Public Prosecutions in Australia, as a result of election.)

12                  It is convenient to mention now that, in early 1993, after having occupied it for many years, Ms Reno left her office as State Attorney for the Eleventh Judicial Circuit, in order to become federal Attorney General in the Clinton administration, in which office she remained at the date of the Tribunal’s decision.  When she left, Ms Reno was replaced as State Attorney for the Eleventh Judicial Circuit by Ms Katherine Fernandez Rundle, who remained in that office at the date of the Tribunal’s decision.  (Ms Rundle took office in the first instance by way of an appointment to the casual vacancy created by Ms Reno’s resignation.) Ms Rundle was alleged by Mr Gersten to be another of his political enemies and past and feared future persecutors.

13                  (I should also mention now that Mr Gersten claimed before the Tribunal that, as Commissioner, he had also made powerful enemies among certain elements of the mass media, in particular, the Miami Herald newspaper, had been persecuted by them and would again be persecuted by them if he returned to the United States.  It is not clear to me how any enmity of, for instance, the Miami Herald, presumably manifesting itself primarily by false defamatory statements about Mr Gersten in its pages, could constitute or have constituted persecution of him in the relevant sense, but it is unnecessary to resolve that difficulty for present purposes.)

14                  There were before the Tribunal in connection with Mr Gersten’s application to it thousands of pages of documentary material.  Most of that material had been supplied by Mr Gersten.  Much of the material which he had supplied had consisted of court documents, transcripts, judgments and reasons for judgment from American legal proceedings in which he had been involved between 1992 and 1996, most of those proceedings also involving as a party one or other of the two State Attorneys.  It is convenient now that I summarise Mr Gersten’s situation in America, as it appears from such material.  I must preface that summary, however, by saying that it is not possible to be certain as to Mr Gersten’s situation in all respects from such material. Sometimes that material was incomplete and sometimes assertions of fact recorded in it as having been made on Mr Gersten’s behalf in the various legal proceedings were inconsistent with one another.

15                  As I have already mentioned, in 1988, Mr Gersten (having earlier held elective office at the Florida State level) was elected to the Board of Commissioners of Dade County.  He remained in that office on 29 April 1992 (and, indeed, until 20 April 1993).

16                   On the evening of 29 April 1992, Mr Gersten reported to the authorities that his car had shortly before been stolen from outside his home in Coral Gables, Dade County.  Several days later, police recovered the car.  Among those persons questioned about the theft were Ms Claudia Lira and Mr Kenneth Elswick.  They apparently admitted that they had stolen Mr Gersten’s car, but denied that they had stolen it from outside his home.  Instead, according to them, it had been stolen from outside a “crack house” in Miami, while Mr Gersten had been, to their knowledge, in the crack house, both using crack cocaine and having sex with a prostitute, Ms Lisa McCann.  Other eyewitness accounts were obtained, including from Ms McCann, corroborating Ms Lira’s and Mr Elswick’s account.  It appears that, because of the circumstances in which Ms Lira’s and Mr Elswick’s accounts had been obtained, those accounts were incapable of use against them in any subsequent criminal proceedings against them for the theft of Mr Gersten’s car.

17                  In consequence of the matters to which I have just referred, two investigations were conducted by Ms Reno’s office.  An Assistant State Attorney, Mr Michael Band, conducted an investigation into the theft of Mr Gersten’s car.  Another Assistant State Attorney, Mr Richard Gregorie, conducted an investigation into the possible commission by Mr Gersten of the offences of possession and distribution of crack cocaine, solicitation for prostitution and filing a false police report.

18                  It would appear that, under Florida law, State Attorneys have the power to require persons to appear before them to give evidence on oath, in order to assist them in criminal investigations which they are conducting.  (Attorneys are said to be acting in such circumstances as “one person grand juries”.)  That power is exercised by procuring the issue by a court of a subpoena directed to such a person.  It would appear further that such a person may, in the discretion of the one person grand jury concerned, be immunised from the subsequent use against him or her, except on a perjury charge, of any self-incriminating evidence which he or she gives pursuant to such a subpoena.

19                  In July 1992, a subpoena was issued at Mr Band’s instance by the Circuit Court of the Eleventh Judicial District (“the Circuit Court”), addressed to Mr Gersten.  It required him to appear before Mr Band to give evidence in connection with the latter’s investigation into the theft of Mr Gersten’s car.  Mr Band conferred on Mr Gersten immunity from subsequent use against him, except on a perjury charge, of any self-incriminating evidence which he might give pursuant to the subpoena.

20                  Following the service on him of the subpoena to which I have just referred, Mr Gersten took proceedings in the Circuit Court, described as a motion for a protective order against a subpoena “issued” (what was meant was “the issue of which had been procured”) in bad faith.  That motion not only identified the relief which Mr Gersten sought, but also included submissions.  It was not submitted in that motion that the procuring of the issue of the subpoena had been related in any way to political opinions Mr Gersten either held or was thought to hold; instead, relief was sought on the basis of the “perjury trap” argument to which I will refer below.  That motion appears to have been dismissed by Knight J of the Circuit Court in August 1992.

21                  Mr Gersten seems next to have made further application for similar relief and for the quashing of the subpoena as well to Schwartz J of the Circuit Court.  The ground of the further applications was the same as that of the first and the making of the further applications was sought to be justified on the basis that, after dismissing Mr Gersten’s motion, Knight J had disqualified himself from further participation in the matter.  Knight J’s disqualification was said by Mr Gersten to entitle him to a hearing de novo of his claims.  The further applications were dismissed by Schwartz J during the same month.

22                  Mr Gersten appears next to have made yet a further application for similar relief to Dean J of the Circuit Court, who, still during the same month, ordered Mr Gersten to comply with the subpoena, but agreed to “review all questions posed [by Mr Band to Mr Gersten] for relevancy, materiality, and whether they would lead to further discoverable evidence”.  The ground of the application to Dean J had been different from that which had been the ground of the applications made to Knight and Schwartz JJ.  It had been that Ms Reno’s office had knowledge of the contents of certain illegally intercepted telephone conversations which had occurred between a representative of Mr Gersten, on the one hand, and Mr Elswick, on the other, and that such knowledge might be had by Mr Band personally and used by him when questioning Mr Gersten pursuant to the subpoena.  (Such interception had, incidentally, apparently occurred by arrangement between Mr Gersten’s legal representatives and Ms Reno’s office.)

23                  It would appear that Mr Gersten sought from the Florida Third District Court of Appeal (“the Court of Appeal”) certiorari with respect to Dean J’s decision and that the subpoena remained in abeyance by agreement pending the outcome of that application.  However, that application was dismissed without reasons in December 1992: see 613 So 2d 36.  (The Court of Appeal was an intermediate level State appellate court exercising jurisdiction with respect to the Eleventh Judicial District (and, it appears, one other Judicial District as well).  (The ultimate appellate court in the Florida State system was, incidentally the Supreme Court of Florida, which exercised a State-wide jurisdiction, but which appears to have taken no substantive part in Mr Gersten’s numerous attempts by litigation to avoid being questioned under oath by Mr Band.)) 

24                  Next, Mr Gersten unsuccessfully sought in January 1993 yet further relief from Dean J, this time moving for an order disqualifying Ms Reno’s office from proceeding further with its investigations arising out of the theft of Mr Gersten’s car.  (The success of that application would, no doubt, have ended any obligation in Mr Gersten to appear for questioning before Mr Band (who was, of course, a member of Ms Reno’s office), something which Mr Gersten had thus far effectively avoided.)

25                  That application had two aspects to it.

26                  The first was, in substance, the risk of public perception that, in deciding whether to charge Mr Gersten with any criminal offence at the conclusion of Mr Gregorie’s investigation, Ms Reno would be influenced by her knowledge of information obtained in the course of Mr Band’s investigation, which information should be used solely for the purpose of deciding whether to charge Ms Lira and Mr Elswick with the theft of Mr Gersten’s car.  During his final oral submissions in the matter, Mr Gersten’s attorney said of that aspect of the application,

“[I]t is Ms. Reno’s office that is doing it, and I don’t accuse her of anything.  She is a wonderful woman who has done a great job for many years….  I don’t accuse her of ill motive, but it is just the way it is happening.  It circles back to her and eventually she has got to make that decision and she can’t….

…

[C]ertainly she is going to pay careful attention to … charging a county commissioner when it is on TV every night.  He is a commissioner.  She is an elected professional and has a responsibility….”

27                  The second aspect of the application related, not to Ms Reno herself, but to certain persons within her office.  During his final oral submissions in the matter, Mr Gersten’s attorney said of that aspect of the application,

“… I know you can tell they [that is, Mr Gregorie and Mr Havens, an investigator in Ms Reno’s office, both of whom had given evidence in the proceeding] don’t like him [that is, Mr Gersten].  They have an ax [sic] to grind.  They’re mad they couldn’t charge him [with the offences alleged against him by Ms Lira and Mr Elswick or with filing a false police report].  That is why they hedged [in oral evidence about the possibility of charging Mr Gersten with perjury if he gave evidence before Mr Band which they considered to have been given knowingly falsely]….  [Y]ou know there is twenty thousand … little things that are written on notes in his [that is, Mr Havens’] file that he is ready to jump on [in order to demonstrate perjury by Mr Gersten if he gives evidence before Mr Band considered by Mr Havens to have been given knowingly falsely].  That is his job.

That is his job.  I was a prosecutor and you think someone’s wrong, you think someone’s bad, you get in that mentality and you go.”

28                  In substance, the argument regarding Messrs Gregorie and Havens was that they, genuinely believing that Mr Gersten had committed the offences alleged against him by Ms Lira and Mr Elswick and the offence of filing a false police report, but being unable to obtain the evidence necessary successfully to prosecute him for those offences, had determined to contrive a situation in which Mr Gersten could be prosecuted for perjury instead.  That would be brought about by procuring Mr Band to require Mr Gersten to answer certain questions on oath in the course of the car theft investigation.  If Mr Gersten’s answers to those questions contradicted certain information which Messrs Gregorie and Havens already had in their possession, he would then be charged with perjury as a result of those answers.  (The argument to which I have just referred was the argument which had already been made unsuccessfully on Mr Gersten’s behalf before both Knight and Schwartz JJ and was described as the “perjury trap” argument.)

29                  I note that it was not suggested against Messrs Gregorie and Havens that they were seeking to set a perjury trap for Mr Gersten because of any political opinions which he held or was thought to hold, but merely because they genuinely believed him guilty of offences for which they could not successfully prosecute him and hoped that the investigation into the theft of his car would provide the occasion for administering to him the punishment which they believed he deserved.  Nor was it suggested before Dean J that Ms Reno had herself been responsible for the attempt to set a perjury trap for Mr Gersten.

30                  Dean J rejected both aspects of the argument made on Mr Gersten’s behalf.  In the course of giving her reasons for doing so, Dean J said regarding Ms Reno,

“There has been some suggestion here today really forcefully – for the first time, that simply because Ms Reno serving as the overall State Attorney, stands there as the overall State Attorney, that the office must be disqualified when they are investigating an individual in one matter and that same individual is a complaining witness in the other.

The Court does not find that this is anywhere supported by any kind of law.  In fact, in this particular instance there has been no showing that Ms. Reno, or anyone [in her office], has violated the terms … of that Chinese Wall [said to have been erected between the two investigations], and that it has in fact [not] been preserved and respected.

…

It is very clear to me at this juncture that the Chinese Wall has been respected and preserved.”

31                  So far as concerned the argument regarding Messrs Gregorie and Havens, Dean J said,

“… I didn’t glean in any way, shape, or form from the testimony given to me today that anyone is angry, obsessed, or in any way out to get anybody….”

32                  (I point out that, if, as submitted by Mr Gersten’s attorney, but contrary to Dean J’s finding, Messrs Gregorie and Havens had been angry because they could not charge Mr Gersten with any of the offences alleged by Ms Lira and Mr Elswick to have been committed by him, in particular, with any offence relating to cocaine, part at least of the reason for that could have been found in a certain event recounted in the evidence of a witness who was called by Mr Gersten in the proceedings and who had been his attorney at an early stage in Ms Reno’s office’s investigations arising out of the theft of Mr Gersten’s car.  That witness gave evidence that he had told members of that office in May 1992 that Mr Gersten’s family “was concerned with” Mr Gersten’s “problem” and that he, the witness, had suggested to the members of Ms Reno’s office that if Mr Gersten “would enter some kind of program, that maybe this whole thing would go away”.  The purport of that evidence was made clearer by a statement made to Dean J by the attorney appearing for Mr Gersten in the proceedings, “I believe … there were some discussions [between the former attorney and Ms Reno’s office] about how this case can be worked out short of a – and a drug program was brought up”.  However, if that information from Mr Gersten’s then attorney had led Messrs Gregorie and Havens to believe that the allegations of cocaine use by Mr Gersten were likely to have been correct, that belief would later have been shaken by a report from the FBI, which said that certain specimens of Mr Gersten’s hair, obtained pursuant to search warrant and tested in June 1992, “were negative for cocaine”, although it must be pointed out that the report did continue,

 “Although this is consistent with the suspect not being a casual or recreational[ ] user of cocaine, the lack of … cocaine does not preclude the possibility that this individual may have used cocaine one time or at very infrequent intervals in the past.”)

33                  It appears that Mr Gersten sought certiorari from the Court of Appeal in respect of Dean J’s decision on his application for disqualification of Ms Reno’s office and that that Court granted Mr Gersten a stay of proceedings under the subpoena until it determined his application.  It appears further that Mr Gersten’s certiorari application was refused by the Court of Appeal without reasons on Monday, 15 March 1993, at which time its stay of proceedings under the subpoena was terminated.

34                  On that day, Mr Band requested that Mr Gersten appear for examination before him either on that day or on the following day, Tuesday, 16 March 1993.

35                  Tuesday was the day of an election for the office of Dade County Commissioner, in which election Mr Gersten was a candidate, his current term as Commissioner being about to expire.  He refused Mr Band’s request to appear for examination, relying, among other things, on the fact of the election, a refusal which led to the parties’ appearance before Dean J early on Tuesday morning.  At that time, Dean J ordered Mr Gersten to appear before Mr Band at 3 pm on that day.

36                  Immediately following the making of that order, Mr Gersten moved yet again to quash the subpoena and to disqualify the State Attorney’s office, applications which were heard by Dean J beginning at 3 pm on the same day, without Mr Gersten’s having appeared yet before Mr Band, as ordered in the morning.  As with his previous application, Mr Gersten’s argument had two aspects to it.

37                  First, without identifying any particular individual or individuals associated with the State Attorney’s office, Mr Gersten’s attorney said,

“They think he is a bad guy.  They have tried to [obtain evidence to] prosecute him for crimes.  They have failed to.  They have no evidence.

So now, they want to submarine [sic] or subvert his political chances on this day [by attempting to force his examination to occur today]….”

38                  The obvious inference is that the persons being referred to in that submission were those who had been referred to in the earlier disqualification proceedings, namely, Messrs Gregorie and Havens.  Certainly, no suggestion was made that the State Attorney had herself been personally responsible for any attempt to force Mr Gersten’s examination on election day, although another specific allegation was made respecting her, to which allegation I will refer in a moment.  What was being suggested against Messrs Gregorie and Havens was that they had now devised a method of punishing Mr Gersten for the crimes which they genuinely believed him to have committed, but for which they could not successfully prosecute him, which method did not depend on successfully setting a perjury trap for him.  They would procure his questioning in the car theft investigation on the day before or the day of the election.  They would then ensure that adverse publicity resulted merely from the fact of that questioning, which adverse publicity would prejudice Mr Gersten’s chances of election.

39                  I note that it was not suggested against Messrs Gregorie and Havens that they were seeking to prejudice Mr Gersten’s chances of election because of any political opinions which he held or was thought to hold, but merely because they genuinely believed him guilty of offences for which they could not successfully prosecute him and hoped that the fact of his running for office at that time would provide the occasion for administering to him the punishment which they believed he deserved. 

40                  Secondly, Mr Gersten’s attorney drew attention to the fact that Ms Rundle had replaced Ms Reno as State Attorney on the Friday before and to the fact that Ms Rundle had, before her appointment as State Attorney, but while Chief Assistant State Attorney, apparently expressed her support for one of Mr Gersten’s rival candidates in the election, as appeared from a campaign brochure of that rival.  As to that apparent expression of support, Mr Gersten’s attorney said,

“I am not accusing Ms. Rundle of anything….  I am not accusing her of anything.

I don’t know if the Chief Assistant State Attorney has a right to endorse someone in a campaign.  I assume they do.  I am not accusing her of anything personally.

However, it is the appearance of these issues for the public….

…

I am not accusing her of personally doing anything.  She chose to support this person.  It is America.  She can choose whoever she wants to.

But then, for her office to be prosecuting [sic] the opponent on election day, gives forward this odor [sic] of impropriety, conflict, everything that we talk about in the ethics of practising law that we try to avoid.”

Dean J then asked Mr Gersten’s attorney, “So the basis of the motion to disqualify has to do with the appearance of impropriety with Ms. Rundle, correct?” (obviously, as opposed to the fact of impropriety), to which Mr Gersten’s attorney answered, “That is it”.

41                  Later, Mr Gersten’s attorney said of Mr Gersten’s rival’s campaign brochure in which Ms Rundle had been said to be a supporter of the rival,

“I can’t make a statement as to whether this was printed and distributed before or after [Mr] Gersten went into the race.

Regardless, at this point we sit with this campaign literature that went out, and I don’t imply any ill motive to Ms. Rundle.  I would never do that, because I’m sure she didn’t purposely -”

42                  Dean J was not able to rule on Mr Gersten’s two applications on election day, but did so on the morning of the following day, 17 March 1993, dismissing both of them.

43                  So far as concerned the submission of bad faith by unspecified persons in the State Attorney’s office, she rejected it, saying that she stood by the finding which she had made in January that “there was no bad faith here”.

44                  So far as concerned the submission of an appearance of impropriety on Ms Rundle’s part, Dean J rejected it also.  In the course of doing so, Dean J expressed herself to be satisfied of the following facts, all of which had ultimately been admitted before her on Mr Gersten’s behalf on the preceding day: first, Ms Rundle, before becoming State Attorney, had endorsed in writing the candidacy for election of a person as a Dade County Commissioner; secondly, Mr Gersten was not then a candidate in the same election as that person, but only became one subsequently; thirdly, Ms Rundle had done nothing to promote that person’s candidacy, except for giving the written endorsement; fourthly, Ms Rundle had been asked to become more active in promoting that person’s candidacy, but had refused to do so; and, fifthly, the campaign brochure referring to Ms Rundle’s endorsement had been distributed by the candidate before Ms Rundle’s appointment as State Attorney.

45                  Having dismissed Mr Gersten’s two applications, Dean J ordered him to appear before Mr Band later that day.

46                  Later that day, Mr Gersten did appear before Mr Band, but refused to answer certain questions put to him by Mr Band, which led to the matter’s returning immediately thereafter to Dean J’s court.  Her Honour, consistently with the order which she had made the preceding August on Mr Gersten’s first application to her, then ruled on the questions which Mr Gersten had refused to answer, directing, after argument, that he answer some of them, but excusing him from answering others.  After making those rulings, Dean J said in response to a question addressed to her by Mr Band,

“Well, here is what I propose.  I propose that you finish asking all of your questions, go through all of them so at least we will know what we are dealing with.  Then what we then have to deal with is advising us [that is, the Court] whether he [that is, Mr Gersten] is going to answer the questions I have ordered [that is, the questions which Dean J had just ruled that Mr Gersten was required to answer].

If he refuses, then he will have to show cause why he should not be held in contempt of court.”

47                  Questioning of Mr Gersten by Mr Band then recommenced immediately, but Mr Gersten continued to refuse to answer questions put to him by Mr Band, which questions Dean J had just ordered him to answer.  That refusal led to the matter’s immediately returning to Dean J’s court and to there being fixed for the following day a hearing on the question whether Mr Gersten was in civil contempt.

48                  On the following day, 18 March 1993, Dean J held that Mr Gersten had committed civil contempt by refusing to answer questions put to him by Mr Band which she had ordered him to answer.  The arguments unsuccessfully put on Mr Gersten’s behalf against that holding were, in substance, those which had already been made on his behalf in earlier proceedings to which I have referred above.  In the course of her reasons for judgment, Dean J drew attention both to the “unprecedented” nature of the order which she had made in August 1992, providing for her to “review all questions posed [by Mr Band to Mr Gersten] for relevancy, materiality, and whether they would lead to further discoverable evidence”, and to the fact that that order had been made in consequence of an application by Mr Gersten himself.  “It is to be noted”, she said, “that Mr. Gersten sought relief in this Court and sought the rulings of this Court but has steadfastly refused to comply”.

49                  In consequence of her holding, Dean J ordered that Mr Gersten be detained until he agreed both to answer those questions which she had ordered him, but which he had refused, to answer and to undergo further questioning by Mr Band pursuant to the subpoena.

50                  It is worth drawing attention to two quite unusual things which occurred during the course of the civil contempt proceeding.

51                  First, Mr Gersten himself was permitted to make a sworn statement to the Court, on which, it was understood, he would not be cross-examined.  In the course of making that statement, Mr Gersten told Dean J, “[Y]ou have treated me more than fair[ly] and impartially, Judge.  You have.  You’re brilliant, actually; a very, very fine judge”.

52                  Secondly, after Mr Gersten had made his scheduled statement to the Court and while his attorney was in the course of making submissions on his behalf relating to the question of an appropriate sanction to be imposed if, contrary to his submissions, Mr Gersten should be held to be in civil contempt, Mr Gersten interrupted his attorney and addressed the Court further himself, saying,

“Your Honor [sic], my counselor [sic] is brilliant and he is doing a great job and I couldn’t ask him to do a better job, but he is missing the point.

The point is, I am not going to prosecute this case [that is, prosecute for the theft of his car], because to do so – in other words, if you say, ‘I order you to talk to these people [that is, people from the State Attorney’s office],’ that I think are – some of them are very, very, very badly motivated, there is a higher force than even a court of law, and that is our Lord.

…

There is a higher force than you, Judge.  There is a higher force than all of us and that is an order by that force that I am going to obey first.”

53                  Of course, it would usually be open to a trier of fact in legal proceedings to attribute to an individual lay client those submissions made on his behalf by his legal representative in the course of earlier legal proceedings in which he was a party, especially when, as in Mr Gersten’s case, that lay client is himself a lawyer.  However, when that client has obviously felt no inhibition against interrupting the submissions of his legal representative in those earlier legal proceedings and putting his “real” case when he considered that his legal representative was “missing the point”, the trier of fact might, one would think, be entitled to be very confident indeed that the client agreed with any submission made by his legal representative in those earlier legal proceedings which he had not interrupted.

54                  On the next day, 19 March 1993, Mr Gersten surrendered to the Dade County correctional authorities.  He also appealed to the Court of Appeal against Dean J’s civil contempt decision (I assume on that day, but cannot tell from the materials).  After about three weeks in custody, he appears to have been granted bail by the Court of Appeal pending the determination of his appeal.  However, on 25 June 1993, the Court of Appeal dismissed his appeal without reasons: see 621 So 2d 442; and, I infer, his bail ended.

55                  On the same day, Mr Gersten began proceedings against Ms Rundle in the United States District Court for the Southern District of Florida (“the District Court”), seeking both interlocutory and final orders which would have had the effect of preventing Mr Gersten’s being detained again for civil contempt and of relieving him of any further obligation to comply with the subpoena to appear before Mr Band.  While his “complaint” (his initiating process) covered much the same ground as had been covered in his earlier proceedings in the Florida courts, one new allegation was that,

“The State Attorney, by supporting Plaintiff’s opponent … and choosing election day for calling Plaintiff in for questioning unlawfully sought to hinder Plaintiff’s exercise of his First Amendment [that is, the First Amendment to the American federal Constitution] right to seek and hold office -- an abuse of the office of State Attorney for what are blatantly political motives.”

It will be apparent that that allegation against Ms Rundle was not only new, but was also contrary to the position which Mr Gersten had taken before Dean J regarding Ms Rundle.

56                  In the result, it became unnecessary for Mr Gersten to pursue his claim for interlocutory relief in the District Court, because Ms Rundle undertook not to have Mr Gersten detained again before the determination of his complaint in that court.  It appears that Ms Rundle did not seek any undertakings in return from Mr Gersten, such as his not leaving Florida while his complaint was pending without giving her advance notice or his surrendering to the Dade County correctional authorities if his complaint should be dismissed.

57                  Then, on 22 July 1993, Ms Rundle filed a motion to dismiss Mr Gersten’s complaint.  A hearing was held on that motion on 6 August 1993, following which Mr Gersten filed certain written submissions on 9 August 1993.  King J, the District Court Judge who heard the motion, then reserved his judgment in the matter.

58                  On 22 August 1993, while judgment was still reserved in the District Court, Mr Gersten left Florida and flew to Hawaii.  As I will mention below, it was later claimed on his behalf that his doing so had been in connection with some civil litigation in that State in which he was a cross-defendant.  From Hawaii, he flew to Australia, arriving here on 6 September 1993, and, as I understand it, has remained here ever since.

59                  On 14 September 1993, King J gave judgment on Ms Rundle’s motion, granting it and accordingly dismissing Mr Gersten’s complaint: see 833 F Supp 906.  In doing so, King J accepted as true, for the purpose of ruling on Ms Rundle’s motion, the facts alleged in Mr Gersten’s complaint, although King J emphasised that those facts from the complaint which he was reciting in his reasons “are not findings of fact in an official sense” (at 908).  (The procedure was thus a demurrer-like procedure.)  King J therefore made no findings of fact on, among other things, Mr Gersten’s new allegation against Ms Rundle.

60                  Following the dismissal of Mr Gersten’s District Court complaint, Ms Rundle’s undertaking not to have Mr Gersten detained again before the determination of his complaint in that court obviously terminated, but, Mr Gersten being outside Florida, he could not readily be returned to detention.  It appears that the matter was therefore brought back before the Circuit Court on 20 September 1993 and the issue of a capias ad respondendum against Mr Gersten was sought.  The matter came before Brown J, who stood it over to 24 September 1993, ordering that Mr Gersten appear before him in person on that day.

61                  It is not clear from the material which I am summarising why the matter had come before Brown J on 20 September 1993, rather than before Dean J, but it does appear from that material that, on 23 September 1993, Dean J disqualified herself from further participation in the matter.

62                  When the matter came on again before Brown J on 24 September 1993, Mr Gersten’s attorney sought an adjournment of the matter for an unspecified period of time “to allow … JOSEPH M. GERSTEN … an opportunity to return from Australia”.  It was said that Mr Gersten had an airline ticket to return to Hawaii from Australia on 14 October 1993, but would be unable (apparently for reasons connected with the Hawaiian litigation) to return from Hawaii to Florida until “late October-early November, 1993”.  The adjournment application was refused and Mr Gersten was ordered to surrender to correctional authorities on 4 October 1993.

63                  Then, on 29 September 1993, Mr Gersten applied to Brown J for reconsideration of Dean J’s orders of 18 March 1993.  Mr Gersten’s application was based on Dean J’s having disqualified herself on 23 September 1993.  (It may be recalled that Mr Gersten had made a similar application to Schwartz J in August 1992, after Knight J had disqualified himself.)

64                  It appears that, on 1 October 1993, Brown J rejected Mr Gersten's reconsideration application.  It appears further that, having disqualified herself on 23 September 1993, Dean J had subsequently stated the grounds of such disqualification and that Mr Gersten had unsuccessfully sought before Brown J to establish that there were other grounds for her disqualification than those which she had stated.  What Dean J’s stated grounds and Mr Gersten’s claimed other grounds were does not appear from the material which I am summarising.

65                  His reconsideration application having failed on 1 October 1993, Mr Gersten then applied to the Court of Appeal, also on the same day, for a writ of prohibition against Brown J and for interlocutory relief pending the determination of his prohibition application.  (There were before the Tribunal no papers generated in those Court of Appeal proceedings apart from the initiating process and application for interlocutory relief, but I assume that Mr Gersten was unsuccessful in them.)

66                  When Mr Gersten failed to surrender to correctional authorities on 4 October 1993, Brown J issued on that day a writ of bodily attachment against him.

67                  So far as I am able to tell from the material which I am summarising, the history of relevant proceedings in the Florida courts ended as I have just described it and it was about two weeks later, on 20 October 1993, that Mr Gersten made his application to the Minister for refugee status in Australia.

68                  However, even after he had made such application to the Minister, Mr Gersten continued the course of litigation which he had initiated in the American federal court system and I will now say something of that post-refugee status application litigation.

69                  By way of background, I first mention that, on the same day as that on which Brown J of the Circuit Court had ordered Mr Gersten to surrender on 4 October 1993 to correctional authorities, Mr Gersten had appealed to the United States Court of Appeals for the Eleventh Circuit (“the Court of Appeals”) from the dismissal by King J of his District Court complaint.  He had also sought interlocutory relief pending the determination of his appeal, but such relief had been denied by the Court of Appeals on 30 September 1993, having earlier been denied by a single District Court Judge.

70                  Then, after his application to the Minister for refugee status in Australia, Mr Gersten pursued his appeal to the Court of Appeals, with written submissions being filed by him in June and August 1994.

71                  It is noteworthy that, among the documents annexed to the latter submissions, there was a transcript from 7 March 1994 of part of the hearing of certain disciplinary proceedings against Mr Gersten.  Those proceedings had been brought by the Florida Bar, of which Mr Gersten was a member, and arose out of Dean J’s civil contempt decision against Mr Gersten.  At the hearing, Mr Gersten’s attorney told the committee conducting the hearing that she had spoken to Mr Gersten and that he had told her that his “license [sic] to practice [sic] law” “is the most important thing in his life.  He will go to the ends of the earth to defend his ability to have a Florida bar license [sic].  He will not give it up”.  Later, she was asked by a member of the committee, “Counsel, once Mr. Gersten realized that the court wanted him back here, what are you saying are the reasons why he has not returned?”  Her answer was as follows,

“His [that is, Mr Gersten’s] questions were very specific to me regarding whether there was an order compelling him to return.

There is no order compelling him to return.  The order that exists [that is, the writ of bodily attachment] says that when he returns, he will either be re-incarcerated or he will answer the questions.

He is conducting his business.  It is very far away.  When he finishes whatever business he is doing there, he will return and he will comply with the order at that time.

…

He is still in Australia, but the litigation in Hawaii is ongoing and he will have to return to Hawaii at some point for that litigation.

…

[H]is business in Australia is precluding him from coming [back to Florida] right now.”

Mr Gersten’s attorney was also asked later whether Mr Gersten wished to testify in the disciplinary proceedings, to which she answered, “If they are prolonged [given the context, “postponed” appears to have been intended] to when he returns, yes”.

72                  There are a number of features about Mr Gersten’s attorney’s statements to the committee to which attention should be drawn.  First, Brown J had been told in September 1993 that Mr Gersten would be returning from Hawaii to Florida and that that would occur in late October or early November 1993 (see par 62 above); now, in March 1994, the committee was also being told that Mr Gersten would be returning from Hawaii to Florida, but at some unspecified future time, still contingent, apparently, on the Hawaiian litigation.  Secondly, the obvious interpretation of Mr Gersten’s attorney’s statement that, when he returned to Florida, Mr Gersten would comply with Dean J’s order of 18 March 1993 was that he would, at that time, answer the questions which she had ordered him to answer—the attorney was most unlikely to have been seeking to convey that Mr Gersten intended to comply with Dean J’s order by going into detention indefinitely.  Thirdly, what Mr Gersten's “business” was in Australia was not identified, but, in spite of his reported statement that he would go to the ends of the earth for the purpose of defending his ability to have a Florida bar licence, it is difficult to imagine that any part of his “business” here related to that purpose; in fact, his “business” (or, at least, some part of it) was the obtaining of refugee status in Australia, something which he did not reveal to the committee. 

73                  It is apparent from the material which I have set out above that, while Mr Gersten was claiming in Australia, in order to gain refugee status, that he was unwilling, by reason of a well-founded fear of persecution, to return, not only to Florida, but also to any part of the United States, he was simultaneously claiming in Florida, in order to avoid the possible loss of his entitlement to practise law there, that he was in Australia only temporarily for unspecified business reasons and would be returning, first, to the State of Hawaii, and, then, as soon as his litigation in that State permitted, to the State of Florida.  He was also claiming in Australia that, if he were to return to Florida, attempts would be made, as part of a political vendetta against him, to force him to comply with Dean J’s order, while simultaneously claiming in Florida that, on his return there, he would voluntarily comply with that order.

74                  (By way of digression, I mention that the Florida Bar’s attempt to discipline Mr Gersten to which I have referred above ultimately led the Supreme Court of Florida, on 5 March 1998, to suspend Mr Gersten from the practice of law in that State from that date until one year after the date on which he complied with Dean J’s orders of 18 March 1993.  He was also ordered to accept no new legal business in that State until his suspension had concluded: see The Florida Bar v Gersten 707 So 2d 711 at 714.)

75                  Returning now to the course of litigation which Mr Gersten had initiated in the American federal court system, on 15 May 1995, the Court of Appeals affirmed, without reasons, the District Court’s decision: see 56 F 3d 1389.

76                  Mr Gersten then sought from the United States Supreme Court certiorari in respect of the decision of the Court of Appeals, but the Supreme Court denied his application without reasons on 20 February 1996: see 516 US 1118. 

77                  Having dealt now with the litigation in the American federal court system pursued by Mr Gersten, even after he had made his application to the Minister for refugee status, I will make further brief reference to the Hawaiian civil litigation in which Mr Gersten was being sued as a cross-defendant and which had been said to require his travelling to Hawaii in August 1993 and his not returning to Florida from there until late October or early November 1993 or, alternatively, until some unspecified time after March 1994.

78                 Among the papers before the Tribunal was a transcript from 8 December 1994 of a pre-trial proceeding described as a “deposition of Michael H. Bonner Custodian of Records Federal Bureau of Investigation upon written questions”.  The deposition was taken in the matter of Hamamoto and another v Royal Coast Realty Corp and others; Royal Coast Realty Corp and another v Gersten, which matter was in the Circuit Court of the First Circuit for the State of Hawaii.  The matter appears from its docket number to have been begun in 1992 and was said to be scheduled for trial on 24 April 1995.  It seems from that transcript that Mr Bonner, an FBI agent who was stationed in Florida, had been subpoenaed by a number of the defendants in the proceeding to produce certain documents in the possession of the FBI, which documents had been seized from Floridan premises used by Mr Gersten.  It seems further that, in response to that subpoena, Mr Bonner had produced certain documents which had been seized no later than April 1993 in relation to a federal criminal investigation concerning Mr Gersten.  (I am unaware of the nature of the suspected federal crime.) Mr Gersten was represented by an attorney at the taking of the deposition.  Having produced at the outset of the proceeding documents in response to the subpoena, Mr Bonner was then examined on oath about that response, some, at least, of the questions to him having earlier been supplied to him in writing.  In the course of his evidence, Mr Bonner referred to the fact that some of the documents which he had produced had been “obtained from Mr. Gersten pursuant to a search warrant”, while others had been “seized from Mr Gersten pursuant to a Federal Grand Jury”.  Mr Gersten’s attorney asked orally as a result of that evidence, “He [that is, Mr Bonner] said some of this information was obtained through Grand Jury, and some of it was through a search warrant.  And my question … is whether Mr. Gersten has been charged with any crime as a result of that?” Mr Bonner refused, on legal advice, to answer that question.

79                  I note that there is nothing in the materials which I am presently summarising which explains what it was about the Hawaiian litigation which could have necessitated Mr Gersten’s leaving Florida for Hawaii on 22 August 1993 and then spending a very considerable time in the latter State in connection with that litigation. The litigation had, as I have already mentioned, apparently been begun in 1992 and was presumably at a very early stage in August 1993, since, as late as December 1994, it was not fixed for hearing before April 1995.

80                  Having now completed my summary of Mr Gersten’s situation in America as it appears from the material generated in various American legal proceedings in which he was involved between 1992 and 1996, it is appropriate that I emphasise certain features of that situation.

81                  First, Mr Gersten did not, at any stage in either the State or federal proceedings arising out of Mr Band’s attempts to question him on oath, allege against Ms Reno personally any abuse of official power in an attempt to harm him for reasons of his political opinion.  Such omission is striking, because, if he believed then that such abuse had occurred, one would naturally have expected him to make such allegation immediately.  Mr Gersten focused attention on Ms Reno only in his January 1993 Circuit Court application that the State Attorney’s office be disqualified from proceeding further with its investigations arising out of the theft of his car.  Then, Ms Reno was said on his behalf to be a wonderful woman who had done a great job for many years and who was not being accused of anything, in particular, of any ill motive.  It was not suggested in those proceedings that she had been personally responsible for seeking to set a perjury trap for Mr Gersten.  The only complaint made regarding her was said to be one arising from public perception.

82                  Secondly, Mr Gersten did not, at any stage in the State proceedings arising out of Mr Band’s attempts to question him on oath, allege against Ms Rundle personally any abuse of official power in an attempt to harm him for reasons of his political opinion.  Again, such omission is striking, because, if he believed then that such abuse had occurred, one would naturally have expected him to make such allegation immediately.  So far as those State proceedings were concerned, Mr Gersten focused attention on Ms Rundle only in his March 1993 Circuit Court application that the State Attorney’s office be disqualified from proceeding further with its investigations arising out of the theft of his car.  Then, she was said on his behalf not to be accused of anything personally, in particular, of any ill motive.  It was not then suggested that she had personally played any part whatever in seeking to have Mr Gersten examined by Mr Band on election day.  The only thing which was alleged about her personally was her endorsement of a candidate for election as Dade County Commissioner.  Furthermore, it was admitted that that endorsement had occurred both before she was State Attorney and before Mr Gersten had been running in opposition to the person she had endorsed, that, though asked to do so, she had done nothing more than give that person her written endorsement and that the brochure publicising her endorsement had been distributed by that person before Ms Rundle had become State Attorney.  As with the earlier complaint against Ms Reno, the only complaint made regarding Ms Rundle was said to be one arising from public perception.

83                  It is true that, when Mr Gersten switched from the State to the federal court system, he did, for the first time, allege against Ms Rundle personally abuse of official power in an attempt to harm him for reasons of his political opinion.  However, his federal proceedings failed at every level, without the making of any findings of fact on his allegation.  Furthermore, the making of the allegation was not only belated, but was also contrary to the position which Mr Gersten had adopted regarding Ms Rundle in the State court system and inconsistent with Dean J’s holding in March 1993 of an absence of bad faith on the part of Ms Rundle’s office generally.

84                  Thirdly, Mr Gersten did not, at any stage in either the State or federal proceedings arising out of Mr Band’s attempts to question him on oath, allege against any particular individual in the State Attorney’s office (as opposed to either of the two State Attorneys themselves) any abuse of official power in an attempt to harm him for reasons of his political opinion.  Yet again, such omission is striking, because, if he believed then that such abuse had occurred, one would naturally have expected him to make such allegation immediately.  Mr Gersten did allege against Messrs Gregorie and Havens abuse of official power in an attempt to harm him, but not for reasons of his political opinion, rather because they genuinely believed him to be guilty of offences for which they could not, through lack of evidence, successfully prosecute him.  (Of course, I do not seek to minimise the heinousness of such conduct, if it occurred, but, even if, contrary to the findings of Dean J, it did occur, it was not said then to have anything to do with any political persecution of Mr Gersten.)

85                  Fourthly, it is not easy to reconcile Mr Gersten’s protestations in Australia of a well-founded fear of persecution, if he should return to any part of America, with his simultaneous continuation of his federal litigation in America.  More strikingly, in the Florida Bar disciplinary proceedings, he positively asserted, while his application for refugee status was still under consideration in Australia, both an intention to return to Hawaii on business and then to Florida as soon as his Hawaiian business was concluded and an intention voluntarily to comply with Dean J’s orders of 18 March 1993.

86                  In the light both of the matters which I have just emphasised and of the nature of Mr Gersten’s claims before the Tribunal of past and feared future persecution for reasons of political opinion, it appears to me that it would have been well open in law to the Tribunal to have rejected, with that degree of confidence which would have excused it from considering the possibility of error on its part, all of Mr Gersten’s claims before it.  Indeed, it appears to me that the Tribunal could well have concluded that Mr Gersten was a determined fabulist.

87                  However, that was not the way in which the Tribunal did approach Mr Gersten’s claims and I therefore turn now to the Tribunal’s statement of findings and reasons in the matter in order to deal both with the way in which the Tribunal did approach those claims and with Mr Gersten’s complaints about that approach.

88                  First, as is usual, the Tribunal set out those claims in a summary form.  I will neither repeat in its entirety nor summarise the Tribunal’s setting out of Mr Gersten’s claims, but will merely repeat now so much of the Tribunal’s setting out of those claims as appears to me to be necessary in order to deal with the first two of Mr Gersten’s four grounds of reviewable error by the Tribunal:

“The Applicant believes that by 1992 he had some powerful political enemies.  He characterised himself as a reformist and his political enemies as the ‘old guard’.  The ‘old guard’ included the Miami Herald, and the then State Attorney Janet Reno.  The Applicant states that his campaigns against the ‘old guard’ caused them some harm.

The Applicant states that the major reason the ‘old guard’ sought to harm him was his opposition to their political actions.  He opposed Dade County approval of developments and practices championed by the Miami Herald.  He opposed what he saw as corruption by the ‘old guard’.

The Applicant states that his enemies Ms Reno and the Miami Herald in particular, wield great power in Florida.  Ms Reno is now the Attorney-General for the United States.  She continues to exercise great political influence in Florida.  She was replaced as State Attorney by a protégé[e] and political colleague [that is, Ms Rundle].  Ms. Calzon [Mr Gersten’s Floridan legal representative] states that she has been told that the campaign against the Applicant is directed from Washington, and that she could herself have a judicial appointment if she abandons her support for the Applicant.

Through the common practice of having joint Federal\State prosecutions and investigations, Ms Reno can also exercise more direct influence on State prosecutions and investigations.  The State Attorney’s position is a political one.  The Miami Herald is the dominant media organisation in Miami, and exercises great influence on elections and political appointments in Florida.

…

The Applicant claims that the then State Attorney, Ms. Reno, acting in bad faith, used the theft of the Applicant’s car as an opportunity to investigate him.  The Applicant believes that Ms Reno’s motives in so doing were to damage him politically.  That is, to harm him because of his political opposition to her and others.

…

It was noted [in Mr Gersten’s submissions to the Tribunal] that the Applicant was called to give his evidence on the day of an election in which the Applicant was a candidate, and the State Attorney had publicly supported the Applicant’s main opponent in that election.

…

The Applicant states that he could not relocate within the United States as the power of his enemies extends across the United States.  Ms. Reno is now the Attorney-General for the United States.  She has appointed [Mr Gregorie] … as a Federal official.  He has conducted further investigations into the Applicant’s business dealings.

…

The Applicant states that his political foes have sponsored proceedings to have him struck off as a lawyer.  Both the Applicant and Ms Calzon contend that the Applicant has been denied a fair hearing in those proceedings and that there are irregularities in the proceedings suggestive of bad faith on the part of State officials.  The Applicant believes that he will be prevented from practising his profession by his political foes.

The Applicant believes that his political enemies in the United States, including Ms. Reno and the Miami Herald,, will use their power to cause him further harm should he return to the United States.  The Applicant contends that there is a pattern of behaviour towards him designed to cause him harm for reasons of his political opinion.

The Applicant states that he would be unable to engage in business as Ms. Reno and her associates would subject any prospective business partners to investigation which would discourage them from dealing with the Applicant.  The Applicant contends that there have been bad faith investigations of commercial dealings in which he has been involved, in Florida and elsewhere in the United States.

The Applicant states that he would be subject to ridicule from the Miami Herald and its partners and subsidiaries.  The Applicant has suffered greatly from this adverse publicity.  He has been abandoned by some friends and family because of it.”

(No specific complaint was made before me by Mr Gersten about the way in which the Tribunal, in the passages which I have just quoted, had set out his claims before it.)

89                  Having set out Mr Gersten’s claims, the Tribunal then stated, under the heading “FINDINGS”, certain things in connection with them.  For present purposes, it is sufficient to set out the following (emphasis added),

“The Tribunal notes the Applicant’s statements as to the motivation of the Florida State Attorney’s office in investigating him and the motivation of the Miami Herald in humiliating him.  The Tribunal also notes the Applicant’s allegation that the investigation was carried out in bad faith.  He cites examples of what he sees as bad faith.  They included the timing of court hearings to coincide with election day, media leaks to maximize the embarrassment to the Applicant, assistance given by the Attorney’s office in steps taken to disbar the Applicant, investigations into the Applicant’s business dealings, and statements made in response to queries by Australian authorities.

It may be that the Applicant is right in his assertion as to the motivation of his political opponents.

…

The Tribunal notes that the Applicant was investigated by the State Attorney and her office and hounded by the media.  It may be that this was done in bad faith, and for reasons of the Applicant's political opinion.”

90                  Among the things submitted before me on Mr Gersten’s behalf was that, in stating those things which I have just set out, in particular, those things which I have emphasised, the Tribunal was not stating any finding of fact which it had made on Mr Gersten’s claims, but was instead merely “making an assumption”.  Indeed, it was submitted on Mr Gersten’s behalf, as his second ground of review of the Tribunal’s decision, that the Tribunal had committed an error reviewable by this Court because it had not, although required to do so, made any finding at all on the question whether Mr Gersten had been investigated by the State Attorney’s office for reasons of political opinion, but had merely assumed that he had been.

91                  I do not read the Tribunal’s statement of findings and reasons in the way in which Mr Gersten submitted that it should be read and I therefore reject his second ground of review of the Tribunal’s decision.  In my view, in the emphasised passages, the Tribunal was making a finding of fact, as the heading to that portion of its statement of findings and reasons in which the relevant passages appear implies.  The finding of fact which it was making in the emphasised passages was that, although it was not satisfied that it was more probable than not that the State Attorney and her office had investigated Mr Gersten in order to harm him for reasons of his political opinion, nevertheless it was not satisfied, with that degree of confidence which would have permitted it to ignore the possibility, that they had not done so.  It may therefore be said that the Tribunal’s relevant finding of fact was that there was a “real chance” that the State Attorney and her office had investigated Mr Gersten in order to harm him for reasons of his political opinion.

92                  (In the case of Zuway v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 391, I dealt at considerable length with my understanding of the Tribunal’s obligations when it is not satisfied on the balance of probabilities that a past event asserted by a refugee claimant to have occurred did occur, but, at the same time, is not so confident that the asserted past event did not occur that it can ignore the possibility of its having occurred in determining the ultimate question which it must decide.  I will not repeat in these reasons for judgment what I said on that matter in Zuway.  I will, however, add here that my reasoning in Zuway was afterwards referred to with approval in the joint reasons for judgment of Hill, Whitlam and Kiefel JJ in X v Minister for Immigration and Multicultural Affairs [1999] FCA 697 (unreported; 3 June 1999; reasons confidential).)

93                  (I should mention also that, in his oral submissions, Mr Gersten conceded that the construction which I have given to those passages from the Tribunal’s statement of findings and reasons which I have just been discussing was an open one.)

94                  Having made the finding of fact to which I have referred above, the Tribunal then found it necessary to deal with a submission made to it by Mr Gersten that his detention for about three weeks beginning on 19 March 1993 had amounted to an act of persecution of him by the State Attorney’s office for reasons of political opinion, within the meaning of the Convention.  As to that submission, the Tribunal said,

“The Tribunal notes the Applicant’s submission that as the investigation was, in his view, carried out to cause him harm for reasons of his political opinion, then the jailing for refusing to answer questions which were part of that investigation also occurred for reasons of his political opinion.  It was submitted that the motivation for the investigation is inseparable from his jailing.

The Tribunal does not accept that reasoning.  The Tribunal finds that the Applicant was jailed for flouting the authority of Judge Dean’s court in refusing to answer a series of questions.  The Applicant’s refusal was his own choice, and not in any way an inevitable result of the allegedly bad faith investigation.  Answering the questions required by Judge Dean may have placed the Applicant at risk of being charged with perjury or making a false report, or caused him embarrassment, but that does not mean it was unreasonable for him to have been required to answer the questions, or that he, in any sense, could not answer them.”

95                  It was submitted before me, as Mr Gersten’s first ground of review of the Tribunal’s decision, that, in rejecting the submission (in effect) that the State Attorney’s office had caused Mr Gersten’s detention, the Tribunal had committed an error reviewable by this Court.  Reliance was placed in making that submission on three decisions of this Court, Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 (French J), Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678 (Branson J) and Z v Minister for Immigration and Multicultural Affairs (unreported; 11 December 1998; Katz J), and it convenient to turn immediately to the first two of those cases.

96                  In Jahazi, the refugee claimant had been an employee of the Iranian Shipping Line, a government-run line.  He was convicted in Australia of a drug importation offence and imprisoned, the drugs concerned having been brought by him to Australia in the course of his employment.  He claimed to have a well-founded fear of being persecuted on his return to Iran by reason of his membership of a particular social group, namely, employees (and, presumably, former employees) of the Iranian Shipping Line.  The persecution claimed to be feared was the imposition upon him in Iran of additional punishment for the Australian offence because of its connection with Iran.  Even accepting that the imposition of such additional punishment would amount to persecution within the meaning of the Convention and that employees (and, presumably, former employees) of the Iranian Shipping Line were members of a particular social group within the meaning of the Convention, nevertheless French J dismissed Jehazi’s application for review of the Tribunal’s decision rejecting his claim, because French J decided that it had been open to the Tribunal to conclude that such persecution would not be “for reasons of” Jahazi’s membership of the particular social group concerned.  In the course of dismissing the application, his Honour said (at 299-300),

“The motivation of the persecution of members of a particular social group which will attract Convention protection is membership of that group.  The membership of the group must provide the reason for the persecution.  A person must have a well-founded fear of persecution because he belongs to the relevant group: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, per Burchett J, O’Loughlin J agreeing.  This is not, in my opinion, to exclude the possibility that the occasion for persecution is something other than membership of the group.  For example, an individual might commit a minor offence which is harshly punished because he is a member of a particular social group.  To require that a feared persecution arises solely for a Convention reason would be to narrow the scope of the protection artificially.  It would be an inadequate response to the possible varieties of and excuses for the oppression of target groups within a repressive society. 

In the present case the Tribunal’s findings supported the inference of a causal connection between the possibility of severe punishment upon Jahazi’s return to Iran and his former employment by the Iranian Shipping Line.  But a bare causal connection is not, in my opinion, sufficient to attract Convention protection.  The question whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention.  While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution.  In the present case, the risk to which Jahazi is exposed if returned to Iran arises, on the Tribunal’s factual analysis, because the offence of which he was convicted had a connection with Iran.  That connection in this case was established by virtue of his employment by the Iranian Shipping Line.  Such a connection might be otherwise established in other cases.  Membership of the group is the occasion of the connection and to that extent there is a causal connection between that membership and the apprehended harm.  But the fear of persecution in this case is not attributable to membership of the group in any sense relevant to the policy of the Convention.  If Jahazi is persecuted upon his return to Iran it will be because he has been convicted of an offence which had a connection with an Iranian government organisation which in this case happened to be the Iranian Shipping Line of which he was an employee.”

97                  It will be apparent immediately that the issue in Jehazi was different from the issue which I am presently considering.  Here, the issue is whether it was open to the Tribunal to conclude (as it did) that a harm which a person had suffered had not been caused by another, rather than being (as it had been in Jahazi) whether it had been open to the Tribunal to conclude (as it had) that a harm which another would cause a person to suffer would not be caused for a particular reason.  However, that difference does not appear to me to make the passage which I have just quoted from French J’s reasoning in Jahazi irrelevant on the present issue.

98                  Mr Gersten first drew from Jahazi the proposition that persecution caused by a person may be for a Convention reason within the meaning of the Convention, even though that person acts for a number of reasons, only one of which is a Convention reason.  With that proposition, I do not have any difficulty.  (Indeed, I could not, since it has not only been followed by other single Judges of this Court, but also approved by Full Courts of this Court: as an example of the latter, see Minister for Immigration and Multicultural Affairs v Abdi (1999) 162 ALR 105 at 112, [21] (O’Connor, Tamberlin and Mansfield JJ).) Mr Gersten then sought to build upon that proposition by submitting, as I understood it, that, just as persecution caused by a person may be for a Convention reason within the meaning of the Convention, even though that person acts for more than one reason, only one of which is a Convention reason, so also may a person be a persecutor within the meaning of the Convention, even though that person’s conduct is not the sole cause of another’s persecution and, indeed, even though that other has materially contributed to his or her own persecution.  Again, that is a proposition with which I have no difficulty.  A question arises, however, whether the Tribunal, in denying in the present matter that the State Attorney’s office had caused Mr Gersten’s detention, was denying the correctness of that proposition.  That is a matter to which I will return.

99                  To turn now to Okere’s Case, Okere’s refugee claim was based on his fear of death for reasons of religion if he should return to Nigeria, the country of his nationality.  He claimed that he would be pressed on his return to assume the leadership of a local traditional religious group, that he would refuse to do so by reason of his holding Christian religious beliefs, that the members of the group would then threaten his life and that the government would not protect him against such threats.  The Tribunal rejected his refugee claim, attributing any threat made to his life in those circumstances, not to reasons of religion, but to his act of refusing to assume the leadership of the group.  Branson J set aside the Tribunal’s decision.  In the course of giving her reasons for doing so, her Honour said (at 683-84),

“‘[M]embership of a particular social group’ is to be distinguished from the other four convention reasons: the notion of ‘membership’ is a crucial aspect of ‘membership of a particular social group’, but that notion has no part to play in the other four reasons.  As Burchett J explained in … Ram’s case …, persons are persecuted for reasons of their membership of a group when they are seen as ‘jointly condemned [with other members of the group] in the eyes of their persecutors’.  It is in this sense that they are persecuted for reason of their membership of the group rather than for reason of what they as individuals have done….

It does not logically follow that individuals are not persecuted for reason of their race or religion, to take two of the other four convention reasons, if they are persecuted for reason of what they as individuals have done.  To determine whether this consequence nonetheless follows from the proper construction of Art 1A(2) of the Refugees Convention, it is necessary to give consideration to the principles which govern the construction of Art 1A(2).

…

McHugh J gave detailed consideration to the rules applicable to the interpretation of treaties in Applicant A’s case (at [190] CLR 251-6).  Brennan CJ in that case agreed with the principles of interpretation identified by McHugh J.  Such principles derive from Art 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention).  As McHugh J pointed out in Applicant A’s case (at CLR 254), Art 31 of the Vienna Convention calls for an holistic approach in which ‘[p]rimacy is to be given to the written text of the convention but the context, object and purpose of the treaty must also be considered’.

Adopting such an approach to the construction of Art 1A(2) of the Refugees Convention, and giving primacy to the ordinary meaning of the text of the Article, I do not consider that the protection of the Convention is intended to be denied to all persons who have a well-founded fear of persecution for reason of what they have done as individuals.  Persons who seek to invoke the protection afforded by the Refugees Convention by placing reliance on their membership of a particular social group necessarily face the hurdle, discussed above, of showing that the persecution that they fear is persecution for reason of their membership of that social group.  However, I find nothing in the ordinary meaning of Art 1A(2), considered in the light of the context, object and purpose of the Refugees Convention, which suggests against the question of whether an individual has a well-founded fear of persecution for reason of his or her race or religion being answered by ‘applying common sense to the facts of each case’ (cf March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 per Mason CJ at CLR 515).  I appreciate that the March v Stramare test is a common law test of causation, but having regard to the principles of interpretation of treaties referred to above, it reflects, in my view, an appropriate approach to the construction of this aspect of Art 1A(2) of the Refugees Convention….

In this case the RRT did not, in my view, seek to apply common sense to the facts of the case when it concluded:

In the present case it is clear, in my view, that it is because of what he has done as an individual, in refusing to lead the followers of traditional religion in his village, that the applicant faces harm; it is not for reason of his race or his religion.

The above conclusion of the RRT was, I consider, based on a false dichotomy: that is, that within the meaning of Art 1A(2) of the Refugees Convention the applicant either faces harm for reason of his religion or he faces harm by reason of what he has done as an individual.  The Refugees Convention does not, in my view, require the imposition of such a dichotomy upon the facts of any particular case.  The RRT was required in this case, in my view, to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is his religion.

It follows from the above analysis that I reject the contention made on behalf of the respondent that Art 1A(2) of the Refugees Convention is to be construed as excluding from the protection afforded by the Refugees Convention persons who have a well-founded fear of persecution which is motivated not directly by reason, for example, of their religion, but only ‘indirectly’ by reason of their religion.”

100               When referring above to Jahazi, I was able to summarise why it was that Mr Gersten had placed reliance on it before me.  I am not able to do the same thing regarding Okere, since Mr Gersten merely drew the case’s existence to my attention after oral argument had concluded, without seeking leave to make any submissions about its effect.  However, although Branson J did not refer in Okere to Jahazi or to any of the cases following it, it is apparent that there are many similarities in approach between the two cases and I infer that Mr Gersten relies on Okere for the same reason that he relies on Jehazi, namely, because of its treatment of persecution for multiple reasons, only one of which is a Convention reason.

101               There is, however, something else in Okere which I consider it important to emphasise for present purposes.  That is Branson J’s explicit acceptance as applicable in the context of the definition of a refugee for the purposes of the Convention of principles of causation developed in another area of the law, namely, the area of liability for the tort of negligence. 

102               Branson J was not the first Judge of this Court explicitly to draw on such principles for such purpose.  So far as I am able to tell, it was French J who first did so explicitly, in the case of Chen Shi Hai v Minister for Immigration and Multicultural Affairs (unreported; 5 June 1998).  In that case, as he had in Jehazi, French J discussed the “multiple reasons for persecution” problem and did so in a way which incidentally casts light on what he had earlier meant in the whole passage which I have quoted above from Jehazi.

103               Chen involved a claim for refugee status on behalf of an illegitimate Chinese infant who was the third of his parents’ children.  It was claimed on his behalf that, for reasons of his membership of a particular social group, his parents feared his persecution if he should travel to China (for the first time, he having been born in Australia) and that that fear should be attributed to him.  The particular social group concerned was said to consist of what were called in China “black children” (children born contrary to Chinese law).  In the course of discussing the notion of being persecuted for reasons of a Convention attribute, French J said (at 9),

“The protection of the Refugee Convention is accorded to members of a particular social group who have a well founded fear ‘of being persecuted for reasons of ...’ that membership and who satisfy the other conditions of Article 1. That the fear must relate to persecution ‘for reasons of’ membership of the relevant group imports a requirement for a causal connection between the apprehended persecution and that membership.  As in so many areas of the law, the judgment to be made about causal connection is not satisfied by demonstration of purely logical causality.

The courts in developing the common law and in the construction of statutes which give rise to questions about causation have often selected some one or more out of an infinite number of conditions to be treated as the legally relevant cause.  ‘In making those selections the law is moved by considerations of policy, not simply of logic’ - Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 16 FCR 410 at 418 (Gummow J).  Questions of causal connection in the law have been described as ultimately a matter of commonsense not susceptible of reduction to a satisfactory formula - March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515-516 (Mason CJ).  These discussions have generally arisen when the question of causation is linked to a legal liability such as, for example, damages in tort or under statute.  There is however no reason why the same approach should not be applied to determining whether an apprehended persecution is ‘for reasons of ...’ one of the specified attributes to which Article 1 of the Convention refers.  Mere application of a ‘but for’ test to satisfy the connection could take the scope of Convention protection well beyond that which it was intended to secure.”

104               Following the passage which I have just quoted, his Honour said that “a bare causal connection” between persecution and the relevant characteristic of the person persecuted was insufficient to constitute that person a refugee within the meaning of the Convention and repeated, by way of reinforcement of that statement, his earlier statement in Jahazi that,

“The question whether a particular causal connection between persecution and membership of a group attracts Convention Protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention.”

105               It is apparent from French J’s remarks in Chen that his view was, and had been in Jehazi as well, that, just as in the area of causation in the negligence context, causation in the context of the definition of a refugee for the purposes of the Convention was not to be determined by the exclusive application of the “but for” test of causation.  It appears to me further that Branson J, by later adopting in Okere what she referred to as “the March v Stramare test”, was taking the same approach as French J had taken in Jahazi and Chen.

106               It is appropriate now to mention that French J’s decision in Chen, which had set aside the Tribunal’s decision denying the claimant refugee status, was appealed to a Full Court of this Court, which Full Court allowed the appeal: Minister for Immigration and Multicultural Affairs v Chen Shi Hai [1999] FCA 381 (unreported; 13 April 1999; O’Loughlin, Carr and RD Nicholson JJ).  However, in the course of their joint reasons for doing so, O’Loughlin and Carr JJ expressed (at [19]) approval of French J’s statement in Jehazi which I have quoted in par 104 above.  They also said (at [21]),

“In terms of the ‘but for’ test of causation, it can be seen that but for the fact that the respondent is a ‘black child’ he would not face persecution.  Similarly but for his parents’ decision, with full knowledge of all the circumstances, to bring him into the world he would not face persecution.  As Mason CJ pointed out in March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 516-517 the ‘but for’ test when applied as an exclusive criterion of causation, ‘… yields unacceptable results … which must be tempered by the making of value judgments and the infusion of policy considerations’.  In the context of the Convention the respondent (as a child) has the benefit, as French J held, of deriving a well-founded fear of persecution by that fear being held for him by his parents.  In like vein, we consider that the predicament in which he finds himself must be assessed in the light of choices made by his parents.  In our opinion, in terms of causation, the respondent does not face persecution ‘by reason of’ being a member of the social group of ‘black children’.  He faces such persecution by reason of his parents’ conduct (as Chinese nationals) in contravening the relevant laws of China.  Those laws fasten on that very conduct of causing a second or, in this case, a third child to be born.  Their conduct is the relevant cause of the respondent’s sad predicament.  But it is no different to the predicament of any other Chinese child, not being a legitimate first-born, whose parents are unable to provide for him or her.”

107               As I read the passage which I have just quoted, although O’Loughlin and Carr JJ came to a different conclusion as to the outcome of the matter than had French J, they both agreed with him that, in the context of the definition of a refugee for the purposes of the Convention, the “but for” test of causation was not to be used exclusively.

108               If the “but for” test is not to be used exclusively in that context, but its application is to be “tempered by the making of value judgments and the infusion of policy considerations”, then, it appears to me, one may consider for transfer to that context those value judgments and policy considerations which have tempered the application of that test in the negligence context.

109               One such tempering matter in the negligence context was recently discussed by Gummow and Kirby JJ, two members of the majority in Chappel v Hart (1998) 195 CLR 232.  It will be convenient to make reference to the reasons for judgment in that case of both of their Honours.

110               Gummow J said (at 255-56, [62] (footnotes omitted)),

“In Australia, it is settled by the decision of this Court in March v Stramare (E & MH) Pty Ltd that the legal concept of causation differs from philosophical and scientific notions of causation.  Mason CJ said:

‘In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences.  In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.’

Mason CJ (with whom Toohey J and Gaudron J agreed) also held that, generally speaking, a sufficient causal connection is established if it appears that the plaintiff would not have sustained the injuries complained of had the defendant not been negligent.  However, the ‘but for’ test is not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations.  So, it may be ‘unjust’ to hold a defendant legally responsible for an injury which, though it may be traced back to the wrongful conduct of the defendant, was the immediate result of unreasonable action on the part of the plaintiff.”

111               Kirby J (at 268-71, [93] (footnote omitted)), under the heading, “Causation: general legal propositions”, collected a number of propositions established by authority relevant to a case such as the one then before the Court, which case was a negligence case.  The fifth of those propositions contained a list of matters, the demonstration of which had been held to have displaced “the appearance that there is a causal connection between the breach and the damage, arising from the application of the ‘but for’ test and the proximity of the happening of the damage”.  The fourth of those matters was that, “The event was the immediate result of unreasonable action on the part of the plaintiff”.

112               No good reason appears to me why, in the context of ascertaining legal responsibility for persecution in the Convention context, the “but for” test of causation should not be tempered by the use of a matter similar to that which was referred to by Gummow and Kirby JJ in Chappel, namely, unreasonable action by the person claiming to have been persecuted, the immediate result of which unreasonable action was the suffering by that person of the alleged persecution.  To translate that matter to the present case, it appears to me to have been open to the Tribunal to conclude that, although there might be here an appearance of responsibility in the State Attorney’s office for Mr Gersten’s detention, because, but for the State Attorney’s office investigation into the theft of Mr Gersten’s car, Mr Gersten would not ultimately have been detained, nevertheless that appearance of responsibility was displaced by Mr Gersten’s unreasonable action of refusing to comply with Dean J’s order to answer certain questions put to him by Mr Band, his detention being the immediate result of such unreasonable action by him. 

113               That, in fact, is what I interpret the Tribunal to have been saying when giving its reasons for refusing to attribute legal responsibility for Mr Gersten’s detention to the State Attorney’s office and attributing it instead to Mr Gersten’s own conduct.  (I refer especially to the Tribunal’s characterising Mr Gersten’s detention as being “for flouting the authority of Judge Dean’s court”.) In particular, I do not read the Tribunal as having intended to convey that a person could not be a persecutor of another within the meaning of the Convention merely because either that person’s conduct was not the sole cause of the other’s persecution or that other had materially contributed to his or her own persecution.

114               I should, perhaps, add here that a number of matters combined to permit a conclusion that Mr Gersten’s action of refusing to comply with Dean J’s order to answer certain questions put to him by Mr Band had been an unreasonable one: it was on Mr Gersten’s application to Dean J for relief from the subpoena in August 1992 that she had conferred on him what she later described as the “unprecedented” benefit of a preparedness to review questions asked of him by the functional equivalent of a grand jury; although Mr Gersten sought some greater benefit than that, by approaching the Court of Appeal, he failed in that attempt in December 1992; the questions at first asked of Mr Gersten by Mr Band on 17 March 1993 which Mr Gersten refused to answer were the subject of review by Dean J, exactly as she had foreshadowed, and, having reviewed them, she did order him to answer some of them; not having obtained an order of a higher court excusing him from doing so, Mr Gersten must have been aware, as any lawyer would be, that he had no choice but to obey Dean J’s order or else be in contempt of court, with detention until he obeyed the order a possible consequence; and, finally, Dean J had made it plain, when she had ordered Mr Gersten to answer some of the questions, that she would call on him to show cause why he should not be dealt with for contempt if he did not answer them. 

115               I mentioned earlier that Mr Gersten had relied on three cases in support of his first ground of review of the Tribunal’s decision, the third of them being Z, a decision of my own.  I will say something of that case now.  In Z (at 9-10), I said that I understood an earlier decision of a Full Court of this Court to stand for the proposition that, although the punishment of a person for breach of a criminal law of general application will not usually constitute persecution of that person for a Convention reason, it can do so in two situations: first, where, although the punishment meted out is not, for a Convention reason, greater than it would otherwise have been, nevertheless the person was selected, for a Convention reason, to be prosecuted; and, secondly, where, although the person was not, for a Convention reason, selected to be prosecuted, the punishment meted out is, for a Convention reason, greater than it would otherwise have been.  (The second of those situations was referred to by French J in Jahazi in the context of the specific Convention reason of membership of a particular social group.)

116               The existence of those two examples of punishment as persecution for a Convention reason within the meaning of the Convention was relied on by Mr Gersten as providing further support for the proposition that the fact that a person has materially contributed to his or her own persecution (in the two examples, by committing a criminal offence) does not exclude a conclusion that he or she has been persecuted by another for a Convention reason within the meaning of the Convention (in the first of the two examples, by a prosecutor, in the second, by a court).

117               However, as I have already said above, I have no difficulty with the proposition that a person may have been persecuted by another within the meaning of the Convention, nonetheless though that person has materially contributed to his or her own persecution, nor do I consider that the Tribunal was, by its treatment of Mr Gersten’s detention, seeking in any way to deny the correctness of that proposition. 

118               I therefore consider that Z provides no more support for Mr Gersten’s attack on the Tribunal’s treatment of his detention than do Jahazi and Okere and that such attack must fail.

119               I turn now to the third of the four grounds of reviewable error alleged against the Tribunal by Mr Gersten.

120               In order to deal with that ground, it is convenient that I should first set out certain passages from the Tribunal’s statement of findings and reasons additional to those which I have already set out for the purpose of dealing with Mr Gersten’s first two grounds of reviewable error alleged against the Tribunal.

121               In that portion of its statement of findings and reasons which preceded the portion headed “FINDINGS”, the Tribunal referred to Mr Gersten’s detention which, as I have already said, began on 19 March 1993 and ended about three weeks later, when he appears to have been granted bail by the Court of Appeal pending the determination of his appeal against Dean J’s civil contempt decision of 18 March 1993.  The Tribunal said,

“The Applicant was held in jail for three weeks.  He believes that he was subject to special treatment in jail.  Although Florida law requires that all persons incarcerated be evaluated and placed in specific types of units according to the level of threat they pose to other inmates, this did not happen to the Applicant.  Instead, he was placed with dangerous criminals.  He states that he was twice assaulted, and denied adequate medical care.”

122               Later, in that portion of its statement of findings and reasons headed “FINDINGS”, the Tribunal stated,

“The Tribunal notes that the Applicant was kept in jail for some weeks, in most unpleasant conditions.  The Applicant states that he was not classified as he should have been and was kept with dangerous prisoners and denied adequate medical treatment.  He was threatened and perhaps assaulted by fellow inmates.

The Tribunal is not satisfied that any harm which the Applicant suffered in prison occurred for reasons of his political opinion.  The Tribunal notes that the Applicant could have secured his own release at any time by agreeing to answer the questions as ordered by the Judge.”

123               Mr Gersten submitted before me that he had claimed before the Tribunal that, even if his detention had not amounted, of itself, to an act of persecution of him for reasons of political opinion by the State Attorney’s office, nevertheless his being detained under certain conditions had done so, because the State Attorney’s office had procured the correctional authorities to discriminate against him by imposing those conditions of detention.  He further submitted that the extract from the Tribunal’s statement of findings and reasons which I have set out in the preceding paragraph had not dealt adequately with that particular claim which he had made before it.

124               In aid of that part of Mr Gersten’s attack on the Tribunal’s decision which I have just described, I was taken on his behalf to extracts from certain submissions which had been made on his behalf at different stages in the administrative process of dealing with his application for refugee status: first, the stage before the Minister; then, the stage before the Tribunal as first constituted; and, finally, the stage before the Tribunal as ultimately constituted.  The significance of the extracts from those submissions to which I was taken was said to be that they showed that Mr Gersten had made the claim to which I have referred in the preceding paragraph.

125               The last in time of those submissions was one which was made to the Tribunal as ultimately constituted by Mr Gersten’s solicitors.  Given that that submission was the last in time of those to which I was taken (and, indeed, the last made to the Tribunal on Mr Gersten’s behalf), it is appropriate that I should deal with it at some length, as being the ultimate presentation of Mr Gersten’s relevant claim.  (In doing so, I set out, not only the extracts from it to which I was taken on Mr Gersten’s behalf, but others as well which appear to me to be of significance.)

126               The submission began by referring to what it described as an “attempt” by another person in detention on Mr Gersten’s life while he had been in the custody of the Dade County Department of Corrections (“the Department”).  (Whether the event is to be described as an attempt in a legal sense is doubtful.) According to the submission, that “attempt” had been frustrated by the Department’s conduct.

127               Reference was then made to what was described as an earlier attempt to kill or severely wound Mr Gersten while in the Department’s custody.  According to the submission, that attempt had been caused by failure of the Department both to restrain the perpetrator, a Mr Tate, and to keep Mr Gersten isolated from other persons in detention; further, it was said, “No reasonable explanation for Mr Tate’s being unshackled or for the applicant’s door being left open has ever been put forward by the Department”.  Having referred to the two attempts, the submission then continued,

“Each of the acts or failures to act by the Department described in this submission violated State and County law and prison regulations.  Each was contrary to the stated purpose for placing the applicant in Unit 8-1, which purpose itself is unlawful ie, to protect the applicant from other inmates (see Interview with John Gnat dated 16 April 1993).  The law requires that inmates be housed in the least restricted setting, according to the inmate’s risk to himself or others.  Unit 8-1 is a unit that Deputy Director of Operations of the Department has acknowledged is used to house the most dangerous and violent criminals in the custody of the Department (see Interview with John Gnat dated 16 April 1993).  The Department had a legal duty to protect the applicant while he was in its custody.  This duty arises from the US Constitution, the Florida Constitution, State statute, County ordinance and Department regulations.

The same duty of protection is also found in international instruments, including the Refugee Convention.  The effect of applying the Convention to the facts of the instant application is set out further below.

Even according to the minimalist test imposed by the Member for determining whether the applicant is a refugee, the applicant is entitled to his physical safety and dignity whilst he is imprisoned.  This is a fundamental human right.

Further, the applicant emphasises that even if his being jailed was the lawful result of his refusing to answer ‘unexceptional’ questions (a ludicrous proposition adopted by the Member, with [sic] which the applicant takes the strongest exception and in response thereto has made several submissions), the applicant is nevertheless thereafter entitled to be treated according to law, to be protected and to be treated with dignity whilst in the custody of the State.  Yet the applicant was illegally housed with the most violent and desperate convicted criminals in the prison system; even though he had not been charged with a crime (see Interview with John Gnat dated 16 April 1993).  The applicant submits that he is entitled to the same guarantees in respect of his personal safety as are all other persons in custody of the Department, even if, as the Member contends, he is not entitled to his freedom.

The applicant submits that, if according to the Member’s view the applicant ‘chose’ to be imprisoned and that that ‘choice’ does not result from or amount to Convention persecution, it does not follow that the applicant, having been imprisoned and in the custody of the State, ‘chose’ to be assaulted or to be the subject of an attempt on his life.  Neither death nor grievous bodily injury is a lawful penalty for civil contempt.

The applicant can not be said to have breached any Convention obligation of protection.  This obligation is imposed on the State.  The applicant was in the custody of the State.  The State had a duty to protect him….

The State had a duty to protect the applicant from assault and/or attempted murder.  The State failed to protect the applicant.  To the extent that the State engaged in acts of commission or omission, it participated in unlawful and improper acts being perpetrated against the applicant, or is responsible for their consequences (ie, the applicant’s lethal hypertension, loss of dignity, etc) whilst he was in the custody, care and control of the State.  These acts amount to violation of the applicant’s basic human rights.  They resulted from the failure of State protection.  The previous presiding member described the applicant’s treatment by the prison authorities thus:

The use of influence by his opponents to ensure that he received selective and discriminatory mistreatment whilst in prison was an act of persecution … persecution for political reasons: Draft Provisional View p 3

The applicant submits that his treatment by prison official[s] alone constitutes Convention persecution, even according to the Member’s minimalist test.  …

…

The Member is obliged to take into account only facts and law in determining the instant application.  The applicant submits that the law to be applied includes that applicable to the facts in respect of both his treatment whilst in prison as well as on-going persistent selective harassment amounting to Convention persecution directed against him by Janet Reno and persons under her influence, as submitted with particularity in previous submissions and evidence before the Tribunal.”

128               As well as being taken to extracts from submissions which had been made at the administrative level on Mr Gersten’s behalf, I also had my attention drawn on Mr Gersten’s behalf to the existence of specific evidentiary material relating to the conditions of Mr Gersten’s detention which he had put before the Tribunal as ultimately constituted.  The specific evidentiary material to which I had my attention drawn consisted both of incident reports generated during Mr Gersten’s detention and of a transcript of what was described more than once in the submission from which I have just quoted as the “Interview with John Gnat dated 16 April 1993”.  I was not, however, taken on Mr Gersten’s behalf to the content of that material in order to show that there had been before the Tribunal evidentiary material which had supported the particular claim now said to have been made to it on his behalf.

129               In light of the terms of the submission by Mr Gersten’s solicitors to which I have referred above, I reject that attack on the Tribunal’s decision by Mr Gersten which is presently under discussion.  I do so because, in my view and contrary to his submissions before me, his claim before the Tribunal as ultimately constituted regarding the conditions of his detention had not ultimately involved a claim that the persecutor concerned had been the State Attorney’s office.  Instead, as I read the solicitors’ submission, what was being claimed was that alleged omissions by the Department while Mr Gersten had been in its custody had amounted to persecution of him for reasons of political opinion by the Department itself, rather than by the Department, acting merely “at the behest of” (to quote from Mr Gersten’s written submissions before me) the State Attorney’s office. 

130               It is true that, at an earlier time than the submission by his solicitors to which I have referred above, Mr Gersten had personally claimed before the Tribunal as ultimately constituted that it had been the State Attorney’s office which had caused his persecution for reasons of political opinion while in detention.  However, I infer from the terms of their submission that his solicitors had later persuaded him that such a claim should not be persisted with.

131               Not persisting with such a claim appears to me to have been a sound decision, judging by the content of some of the specific evidentiary material relating to the conditions of Mr Gersten’s detention, to the existence of which material (although not its contents) my attention was drawn on Mr Gersten’s behalf.  I refer in particular to the transcript of what was described in the solicitors’ submission as the “Interview with John Gnat dated 16 April 1993”.

132               That transcript, like many other documents supplied to the Tribunal by Mr Gersten, was not complete, in this instance missing the first page of 158.  However, it was a transcript of an interrogation, conducted by Mr Gersten in his capacity of Dade County Commissioner, of Mr John Gnat, described as “Assistant Director of Jail Operations” for Dade County.  (Mr Gnat had operational control of Dade County detention facilities.) The interrogation occurred just days after Mr Gersten’s release from detention.  During the course of it, Mr Gersten described the interrogation to Mr Gnat as “a legitimate inquiry pursuant to the constitutional powers vested in me as of this day and time”.

133               During the course of the interrogation, Mr Gersten asked Mr Gnat numerous questions about contacts regarding Mr Gersten during his detention, which contacts had taken place between the Department and the State Attorney’s office.  Mr Gnat acknowledged that there had been some such contacts.  It is probably sufficient for present purposes to repeat the following exchange about those contacts:

“COMMISSIONER GERSTEN: …

Did you ever get the impression during any of your conversations with the State Attorney’s Office, any personnel there, that they wanted me treated more harshly than you thought was appropriate?

MR. GNAT: No.  And if I got that impression, I wouldn’t comply with it.”

134               I have been taken on Mr Gersten’s behalf to no evidentiary material which was before the Tribunal which would justify a trier of fact’s rejecting that evidence of Mr Gnat’s which I have just set out, nor am I aware of any myself.  (Nor, incidentally, am I aware of any evidentiary material which was before the Tribunal which would justify a trier of fact’s concluding that any person in the Department, as opposed to any person in the State Attorney’s office, had any political animus against Mr Gersten.  Certainly, Mr Gersten directed not a single question on that issue to Mr Gnat during the course of his lengthy interrogation of him.)

135               Two other passages from the transcript of Mr Gnat’s interrogation than the one which I have quoted above are also of present interest, given the terms of Mr Gersten’s solicitors’ submission with which I have dealt above.

136               In the first of them, Mr Gnat, having stated that “folks” (in the context, members of the State Attorney’s office were being referred to) had not told the Department “where to put” Mr Gersten or “how” he “should be handled” (a statement reinforcing his evidence which I have already quoted), continued, “I even took it upon myself to go against department rules as to how you entered our system.  We don’t do that.  I tried to do that as least demeaning as possible”.  To that statement, Mr Gersten replied, “That’s appropriate”.  Mr Gnat then continued,

“Sir, you weren’t guilty of any crime and I tried my best to not bring any situation at that time that would be considered demeaning, that’s why you weren’t cuffed, that’s why I had a chief come get you, take you to North Dade, process you in a private area, the whole thing.”

Mr Gersten’s reply to that statement was,

“I understand the problem.  As a matter of fact the--I don’t know about the protocol of the Department [in the context, the Department’s command structure was being referred to], but the lieutenants on down, couldn’t be any better.  You’ve got a phenomenal department”.

137               It is not easy to reconcile Mr Gersten’s assertion to Mr Gnat of the appropriateness of Mr Gnat’s “going against” Departmental rules as to how Mr Gersten should enter the Department’s system with his solicitors’ later submission on his behalf to the Tribunal which appears to have criticised that very thing, among others.

138               The second portion of the transcript to which I refer was as follows,

“MR. GNAT: … I’ve done everything within my power [while you were in detention] to keep things in a low profile and to keep things with a norm where my boss is not unduly intruded upon, my immediate boss is not unduly intruded upon, and I am not unduly intruded upon.  And that with the unfortunate situation of an individual such as yourself is in, that no one, being quite frank with you, wants to be in jail, but to make that as least intrusive on you as possible.

Now, the incident [involving Mr Tate]--

COMMISSIONER GERSTEN: I’m sorry.  I need to interrupt you.  I know what you’re going to finish [sic].

Putting me in [Unit] 8-1 could not be the least intrusive--

MR. GNAT: Why not? You were in an area where you could come out when everybody else was locked in [and] vice versa.  That incident that occurred up there, unfortunate as it was--

COMMISSIONER GERSTEN: I understood it slipped through the--

MR GNAT: It did.  That somebody afforded you by your office something that was normally should not have happened.  And I’ll be very honest with you, sir, I would administratively [have] nailed their butt to the wall had it not been I didn’t want to create more of a controversy about this.”

139               What Mr Gnat was saying in the above passages of evidence, as I understand him, was that, by reason of Mr Gersten’s office as County Commissioner, someone in the Department had afforded to Mr Gersten some privilege in detention which would not normally have been afforded to someone in detention and should not, in Mr Gnat’s view, have been afforded to Mr Gersten.  The affording of that privilege (whatever it had been was not then identified), had been the cause of the incident involving Messrs Tate and Gersten.  It appears to me that Mr Gersten, by his comment, “I understood it slipped through the …” and his not rejecting in the course of his interrogation of Mr Gnat the latter’s account of the cause of the Tate incident, was accepting that that incident had resulted from some administrative error on the part of some Departmental official or officials which, far from having involved discrimination against Mr Gersten, whether for political reasons or otherwise, had involved some discrimination in his favour.

140               (It is possible (I do not know) that the privilege which Mr Gnat had in mind had had something to do either with “lockdowns”, telephones or visitors, because, a few days after the Tate incident, a memorandum had been sent to all concerned personnel on Mr Gnat’s behalf, directing that, while in detention, Mr Gersten was to be “subject to all lockdowns pursuant to standard policy”,  that he was to be “afforded access to the telephone in keeping with unit policy reference telephone calls” and not allowed to use the officers’ telephone under any circumstances and that personal visits to him (as opposed to visits by his attorneys and by county employees on official county business, which visits were to be allowed at all times) were to be “conducted pursuant to facility policy reference visitation”.)

141               It is not easy to reconcile Mr Gersten’s reaction to Mr Gnat’s explanation of the cause of the Tate incident, almost contemporaneously with the incident itself, with his solicitors’ later submission on his behalf to the Tribunal that the Department had never put forward a reasonable explanation for the incident. 

142               I turn now to Mr Gersten’s fourth and final ground of attack on the Tribunal’s decision regarding him.

143               At the outset of its statement of findings and reasons, the Tribunal discussed in a general way the definition of a refugee contained in the Convention.  In the course of doing so, it said, “‘Persecution’ means serious or significant harm”.

144               In reliance in the decision of Branson J in Kanagasabi v Minister for Immigration & Multicultural Affairs [1999] FCA 205 (unreported; 10 March 1999), it was submitted before me on Mr Gersten’s behalf that for the Tribunal to frame the test for persecution as it had had been for it to commit reviewable error.

145               It is true that the decision of Branson J in Kanagasabi does provide support for such a submission, but a question arises whether I should follow that decision in the present case.

146               I have decided that I should not.

147               It is plain that, in Kanagasabi, Branson J was not referred by counsel to two earlier decisions of this Court in which the test of persecution for the purpose of the Convention had effectively been framed just as the Tribunal framed it in the present case.

148               In Prasad v Minister for Immigration and Ethnic Affairs (unreported; 4 April 1997), Burchett J had said (at 2-3; emphasis in bold added),

“The decisions lay down the proposition, which the very word ‘persecution’ implies, that not every infliction of harm upon a person is an act of persecution of that person: see Chan [Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] at 388, per Mason CJ, 399-400, per Dawson J, 429-431, 433, per McHugh J; Ram [v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565] at 568; Applicant ‘A’ v Minister [for Immigration and Ethnic Affairs (1997) 4 Leg Rep 9] at 13, 18, 19 [now reported in 190 CLR 225].  Persecution is concerned with significant or serious harm….”

149               Likewise, in MMM v Minister for Immigration and Multicultural Affairs (unreported; 22 December 1998), Madgwick J had said (at 7; emphasis added), “The sensible and necessary (but sufficient) requirement [for showing persecution], in my view, is that some serious or significant … detriment or disadvantage … be shown”.

150               As Burchett and Madgwick JJ obviously did, I consider that use of the language of “serious or significant” harm to describe what amounts to persecution for Convention purposes does not amount to reviewable error by the Tribunal.  (I attach no significance for present purposes either to Burchett J’s inversion of the adjectives “serious” and “significant” or to Madgwick J’s speaking of serious or significant “detriment or disadvantage”, rather than of serious or significant “harm”.)

151               In Kanagasabi, as I understand her Honour’s reasons for judgment, Branson J took the view that, in order to constitute “persecution” for Convention purposes, a type of harm “cannot be trivial or insignificant harm but rather must be harm of significance” (see at [27] and see also her Honour’s reasons in Shetty v Minister for Immigration and Multicultural Affairs [1999] FCA 1601 (unreported; 18 November 1999) at [17]).  I infer from that formulation of what amounts to “persecution” for Convention purposes that her Honour’s difficulty with the formulation used by the Tribunal in the case before her (and used also by Burchett and Madgwick JJ in the cases before them, as well as by the Tribunal in the present matter) must have been its inclusion of the adjective “serious” as an alternative to “significant” in order to describe the relevant harm.  However, I am unable to regard the addition of that adjective to the formulation as having been intended to do anything more in the context than merely provide a synonym of the adjective “significant”. (Compare Branson J’s use in her own formulation of the test of persecution for Convention purposes of the phrase “trivial or insignificant harm”, which appears to me to have amounted to the use of an antonym of “serious” as a synonym of an antonym of “significant”.)

152               I therefore reject Mr Gersten’s fourth ground of reviewable error on the part of the Tribunal and, having rejected his other grounds as well, I dismiss his application with costs. 

 

I certify that the preceding one hundred & fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:              17 December 1999

Counsel for the Applicant:	R Beech-Jones
Solicitor for the Applicant:	Alex Lee Solicitors
Counsel for the Respondents:	P Roberts SC
	and G Kennett
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	26 July 1999
Date of Judgment:	17 December 1999