FEDERAL COURT OF AUSTRALIA

Roguinski v Minister for Immigration & Multicultural Affairs [2001] FCA 1327

MIGRATION – review of decision of Refugee Review Tribunal refusing protection visa – whether Tribunal misconceived and misapplied the concept of “being persecuted”

WORDS & PHRASES – “being persecuted”

Migration Act 1958, s 430(1)(c),  476(1)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 followed

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred

Craig v State of South Australia (1995) 184 CLR 163 at 179 discussed

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 discussed

The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 referred

Re Coldham; Ex parte Brideson (1989) 166 CLR 338 referred

Public Service Association of South Australia v Federation Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132 referred

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 referred

R v Connell (1944) 69 CLR 407 discussed

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 followed

Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 followed

Kanagasabai v Minister for Immigration and Multicultural Affairs [1999] FCA 205 referred

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred

Hagi-Mohamed v Minister for Immigration and Multicultural Affairs [2001] FCA 1156 followed

LEONID ROGUINSKI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 725 of 1998

KENNY J

17 SEPTEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The decision of the Tribunal made on 9 December 1998, affirming the decision not to grant the applicant a protection visa, be set aside.

2.                  The matter to which the decision relates be remitted to the Tribunal, differently constituted, for determination in accordance with law.

3.         The respondent pay the costs of and incidental to this application.

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

REASONS FOR JUDGMENT

introduction

1                     This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 December 1998, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa. 

background facts

2                     The applicant, Leonid Roguinski, was born on 5 November 1970.  He is a citizen of the Russian Federation, and of the Jewish faith.

3                     Mr Roguinski first arrived in Australia on 19 June 1993 as a participant in an exchange program between the Australian Department of Primary Industry and Energy and the Russian Rural Students Union.  He left Australia on 7 August 1993.  He returned on 30 April 1995, holding a fellowship with the Australian Program of Training for Eurasia and a visa valid until 31 December 1995.  From 28 December 1995, he held four Business (Short Stay) visas, the last of which expired on 9 December 1996.  On 5 December 1996, he applied for a protection visa.  On 14 April 1997, a delegate of the respondent refused Mr Roguinski’s protection visa application.  On 21 April 1997, he applied to the Tribunal for review of that decision.  He was notified, by letter dated 9 December 1998, of the Tribunal’s decision to affirm the delegate’s decision. 

4                     The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that Mr Roguinski has a well-founded fear of being persecuted in the Russian Federation by reason of his religion.  The applicant has claimed that anti-Semitism is rife in Russia; and that “because of my religion the only thing I could expect is continuous moral and physical harassment from the populace and government authorities”. 

legislative framework

5                     Section 36 of the Act provides:

(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 is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

6                     Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas.  Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”).  A refugee is defined in Article 1A(2) of the Convention as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .

reasons for the tribunal’s decision

7                     The Tribunal began its reasons for decision by outlining the applicable legal principles in terms that are familiar to this Court.   In discussing what is meant by “persecution”, the Tribunal stated:

Not every threat of harm or interference with a person’s rights for a Convention reason constitutes ‘being persecuted’.  Mason CJ referred to persecution as requiring ‘some serious punishment or penalty or some significant detriment or disadvantage’ (Chan at 388).  Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason.  In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures ‘in disregard’ of human dignity.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. 

8                     The Tribunal referred to the published information on Russia that it had considered and “noted” “[f]rom this evidence” that:

[T]here was an apparent paradox in the attitude to Jews in the post-Soviet Russian Federation.  On the one hand, since the end of the Soviet era, Judaism has been recognised officially as one of the five religions operating in Russia and there is more freedom to practise the Jewish religion openly.  … On the other hand, the strain of anti-Semitism which has been a factor in Russian and Soviet history has received a public boost with the new found freedom of expression in Russia. 

9                     Following this statement, the Tribunal quoted passages from four publications:  DFAT cable MS 11857 (19 November 1997) “Russia – Treatment of Jews in Khabarovsk”; UNHCR (1996) “Russia: The Status of Jews in the Post-Soviet Era, Current Situation”; US Federal News Service (27 February 1996) “Testimony before House International Relations Committee on Anti-Semitism in Russia by Paul A Goble and Alla Gerber”; and the Anti Semitism World Report 1998.  Immediately thereafter, the Tribunal stated:

The Tribunal concludes that, in general, anti-[S]emitism does not manifest itself as persecution of individuals; the country information cited above does indicates [sic] that there have been individual incidents of harassment.

The Tribunal made no further analysis of the country information that it had set out in its reasons.

10                  In relation to the instances relied on by the applicant as indicative of persecution, the Tribunal found that:

[T]he harm suffered, while it may have had a substantial effect on the Applicant, is not of such gravity as to constitute Convention persecution.  The Tribunal further finds that some of the events described as discriminatory or persecutory, such as the sacking of the Applicant’s parents and the refusal of the bank loan, are only subjectively so in the interpretation of the Applicant and there is no evidence that indicates that these were instances of discrimination let alone persecution.

11                  The Tribunal noted that the applicant’s protection visa application was not made when he entered Australia in June 1993 or in April 1995.  It found that “these actions are not consistent with the existence of a fear of persecution”.  The Tribunal added:

Even on the issue of discrimination, the Tribunal notes that, despite the claims of discrimination, the Applicant was able to obtain two awards which enabled him to come to Australia twice; this was, by all accounts, on his own merit.  The Tribunal notes that the Applicant is a highly educated individual who was able to obtain a position as a part-time tutor at a university soon after graduation; there is no indication that, despite the setback in relation to the business venture, he would not be able to pursue his career goals. 

The Tribunal found that there was “no real chance that the Applicant would be persecuted for reason of his religion or race should he return to Russia”.  After referring to the fact that another basis of claim, initially relied on by the applicant, had gone because of subsequent events, the Tribunal concluded that “the Applicant’s fear of persecution for any Convention reason [was] not well-founded”.

grounds of review

12                  The applicant did not challenge the Tribunal’s findings that:

(a)                he did not apply for a protection visa when he entered Australia in 1993 or 1995;

(b)               it was not satisfied that the discrimination that he alleged that he and his family had suffered amounted to persecution within the meaning of the Convention;

(c)                he was highly educated and had been able to obtain a part-time university teaching position soon after graduation, as well as the awards that had twice brought him to Australia; and

(d)               there was no real chance that he would be persecuted for a possible refusal to participate in military service.

13                  By an amended application, Mr Roguinski sought review of the Tribunal’s decision on the grounds identified in s 476(1)(b), (c) and (e) of the Act.  At the hearing, he abandoned all but the matters set out in pars 1(a) and (b) of the particulars given in that application.  Those paragraphs read:

(a)       [The Tribunal] misstated or misconceived the evidence before it and thereby failed to interpret and/or apply the correct test of well-founded fear to the facts of this case or has asked itself the wrong question in making its finding that anti-Semitism does not manifest itself as persecution of individuals yet there have been individual incidents of harassment.

(b)               In assessing whether the Applicant held a well-founded fear of persecution [the Tribunal] failed to ask itself the right question and/or ignored relevant material concerning the chance of the applicant becoming a target of acts amounting to persecution by anti-Semitic groups and the State authorities being unable or unwilling to protect him.

the parties’ respective submissions

14                  In abandoning some particulars of the amended review application at the hearing, the applicant also gave up some contentions that had been made in written submissions that had previously been filed in the Court.

15                  The applicant’s case at the hearing focussed on the Tribunal’s statement that “in general, anti-[S]emitism does not manifest itself as persecution of individuals” and that “the country information … indicates that there have been individual incidents of harassment”.  The applicant submitted that, in light of the country information set out by the Tribunal, the Tribunal must have misunderstood the meaning of “persecution”, because this information “clearly identified repetitive examples of persecutory behaviour by non-state agents who … the state is unable to control”.  It followed, so the applicant contended, that the Tribunal must have asked itself the wrong question, since it had not, so the applicant said, “turned its mind to the true meaning of persecution”.  The Tribunal had not addressed the question whether he had a relevant fear based on the persecutory treatment of Jews in the Russian Federation by non-State agents against whom the State gave inadequate protection.  The applicant also submitted that the second part of the Tribunal’s statement regarding individual incidents of harassment “(in juxtaposition to the earlier part of the sentence) [was] demonstrably a distortion of the … information and wrong if by it the Tribunal was meaning to say that those incidents were only harassment”. 

16                  In a more overarching submission, the applicant contended that the Tribunal had “failed to ask the right question in regard to whether he had a prospective well-founded fear of persecution at the Convention level of risk.  …  By only concentrating on and restricting itself to the issue of persecution of individuals qua individuals the Tribunal never turned its mind to the possibility that the Applicant might face persecution as a member of a class were he to return to Russia” (emphasis original). 

17                  The respondent’s case was, in substance, that the applicant had not identified any reviewable error.  The applicant was, so the respondent submitted, inviting the Court merely to take a different view from the Tribunal about the evidence and the facts and, in particular, about the extent to which persecutory acts were experienced by Jews in the Russian Federation. By so doing, the applicant was inviting the Court impermissibly to engage in merits review.

consideration of the parties’ submissions

Concept of Jurisdictional Error

18                  In this case, the applicant relied heavily on certain observations in the judgments of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  The High Court, in Yusuf, overruled the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469.  The High Court held, contrary to Singh, that s 430(1)(c) of the Act merely obliged the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision:  180 ALR 1 at [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ with whom Gleeson CJ agreed, and [217] per Callinan J.  The applicant did not, however, rely on this aspect of the case.  He relied instead on the proposition in the joint judgment (and in the separate judgment of Gaudron J) that s 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error. 

19                  At common law, the term “jurisdictional error” covers a number of kinds of error, including asking the wrong question and ignoring relevant material.  As the High Court said in Craig v State of South Australia (1995) 184 CLR 163 at 179:

At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of the law or to make an order or decision otherwise than in accordance with the law.  …  If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

20                  After noting that the limitation in s 476(3) of the Act applied to only one ground of review in s 476(1), the joint judgment in Yusuf stated at [83]-[84]:

[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act. 

Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  …  No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals.  That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out. 

See also [4] and [38]-[44] in the judgments of the Chief Justice and Gaudron J respectively. 

21                  The general principles regarding a constructive failure to exercise jurisdiction were stated by Jordan CJ, in a passage in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420 to which the courts have repeatedly referred:  see The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 267-269 (Aickin J) and the cases there cited.  A constructive failure to exercise jurisdiction is found where a tribunal makes some fundamental mistake about the inquiry and determination required by the legislation conferring authority to act.  In Ex parte Hebburn, Jordan CJ said at 420:

I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction:  R v Minister of Health [1939] 1 KB 232 at 245-6.  But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’:  Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’:  The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-3; or ‘to misunderstand the nature of the opinion which it is to form’:  The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law:  R v Board of Education [1910] 2 KB 165.  That is, I think, the predicament of the learned magistrate in the present case.

22                  The same approach was adopted in Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 349-350 and in Public Service Association of South Australia v Federation Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132 at 144-145 .  The approach regarding an excess of jurisdiction is no different:  see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at 594-595. 

23                  As already indicated, the applicant’s case was that the Tribunal had erred in that it had failed to address the question prescribed by the Act because it had misunderstood the meaning ascribed by the Convention and the Act to the words, “being persecuted” in Art 1A(2) of the Convention.  If this were so, then the Tribunal misunderstood the nature of the opinion it was required to form, and the observations of Latham CJ in R v Connell (1944) 69 CLR 407 are relevant.  At 432, Latham CJ said:

It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form.  Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal.  It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question.  What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed.  If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed.  In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 

Being persecuted

24                  The applicant’s case calls for consideration of the words “being persecuted” in Art 1A(2) of the Convention.  They are not defined.  The High Court discussed them in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379:  see at 388-389 per Mason CJ; 399-400 per Dawson J; 416 per Gaudron J; 429-431 per McHugh J.  At 429-430, McHugh J said:

The term ‘persecuted’ is not defined by the Convention or the Protocol.  But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes ‘being persecuted’.  The notion of persecution involves selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual.  He or she may be ‘persecuted’ because he or she is a member of a group which is the subject of systematic harassment … .  Nor is it a necessary element of ‘persecution’ that the individual should be the victim of a series of acts.  A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention.  The threat need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution … .  Moreover, to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty.  Other forms of harm short of interference with life or liberty may constitute ‘persecution’ for the purposes of the Convention and Protocol.  Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution … .  (Citations omitted)

25                  McHugh J returned to this description of “being persecuted” in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 (“Ibrahim”).  In connection with the expression “systematic conduct”, his Honour said at [99]:

It is an error to suggest that the use of the expression ‘systematic conduct’ … was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War.  Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution.  Unsystematic or random acts are non-selective.  It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or ‘must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic’.  The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.  (Citations omitted)

26                  As McHugh J noted in Ibrahim at [55], the Convention protects persons from persecution, although not from discrimination not amounting to persecution.  There may be occasions when selective harassment is not “so intensive, repetitive or prolonged that it can be described as persecution”:  see Ibrahim at [55].  His Honour considered that “the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it”:  see Ibrahim at [61].  Drawing these ideas together, his Honour said at [65]:

Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible.  Ordinarily, however, given the rationale of the Convention, persecution for that purpose is: 

·        unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason

·        which constitutes an interference with the basic human rights or dignity of that person or the persons in the group

·        which the country of nationality authorises or does not stop, and

·        which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned. 

27                  Gaudron J also discussed the meaning of “being persecuted” in Ibrahim.  At [16]-[18], her Honour observed:

The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution.  The Convention test is simply whether the individual concerned has a ‘well-founded fear of persecution’.  Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member.  On the contrary, a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion. 

…

As a matter of ordinary usage, the notion of ‘persecution’ includes sustained discriminatory conduct or a pattern of discriminatory conduct against individuals or a group of individuals who, as a matter of fact, are unable to protect themselves by resort to law or by other means.  That being so, conduct of that kind, if it is engaged in for a Convention reason, is, in my view, persecution for the purposes of the Convention. 

Her Honour also accepted that the discriminatory conduct must be “sufficiently serious” to constitute persecution:  see Ibrahim at [24].  See also Gummow J (with whom Gleeson CJ and Hayne J agreed) at [152]-[155].

28                  In Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855, the Full Court of this Court summarised the High Court’s exegesis of the words “being persecuted”  It said at [45]:

It is clear that, while the word [persecution] means infliction of harm, not every kind of harm constitutes persecution.  That having been said, harm short of interference with life or liberty may suffice.  Many forms of social, political and economic discrimination may constitute persecution, including denial of access to employment and restriction on freedom of worship.  Denial of access to education, food or health care constituted persecution in [Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553].  However that harm which is merely trivial or insignificant could not constitute persecution in the Convention sense. 

29                  After referring to observations of Mason CJ in Chan and Branson J in Kanagasabai v Minister for Immigration and Multicultural Affairs [1999] FCA 205, the Full Court concluded at [48]:

It is inappropriate to attempt a definition of ‘persecution’, if only because whether a particular act or threat will constitute persecution will depend on the circumstances of each case.  This is a point emphasised in the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the Office of the United High Commission for Refugees.  It is also a point made by Kirby J in Chen.  To the extent that the Tribunal did equate persecution with significant harm and applied that as a rigid test, the Tribunal would have erred.  However we do not think that it did.  In our view the Tribunal did no more than reiterate, as Mason CJ had in Chan, the proposition that persecution involves harm that is more than trivial or insignificant. 

Tribunal’s approach

30                  The Tribunal identified the broad question that the Act required it to address when it said, at the commencement of its discussion under the heading “Findings and Reasons”:

In order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution.  He must have a subjective fear, and that fear must be well-founded when considered on an objective basis.  There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to the Russian Federation.  The Tribunal will consider the claims under the Convention reasons of race and religion, noting that these will be considered together as it is not practical nor productive to separate them.

31                  As already noted, the Tribunal also included a short statement of what it understood to be the legal effect of the words “being persecuted” in its reasons.  The statement (see above) was unexceptional, and neither party contended otherwise.  The applicant’s case was that, notwithstanding these statements of the applicable law, the Tribunal misunderstood the concept of “being persecuted” and, hence, the nature of the opinion that it was required to form. 

32                  At the hearing, the applicant’s argument depended very heavily on a passage from the 1996 UNHCR Report which was set out by the Tribunal.  That passage relevantly read:

In contrast to the Soviet period, most human rights problems today are not due to deliberate abuses by a single, easily identifiable culprit such as the KGB or the Communist party.  Instead, abuses are generally a result of the chaotic and uncertain political situation, and the weakness of the Yeltsin Government, which is not always able to control the actions of local officials, security forces, and non-governmental social and political movements.  Human rights abuses may come from a variety of sources, including gangs with mixed political, ethnic and criminal agendas and extremist groups that Moscow may not be willing or able to control.  Such violations include harassment of Jews by anti-Semitic extremist groups … .  In some cases the local authorities are either in sympathy or collusion with anti-Semitic groups.  For Jews, the situation is particularly contradictory and uncertain … .  A large number of right wing, anti-Semitic groups have sprung up over the past few years … .  In speeches and publications Jews are blamed for almost everything:  creating communism, promoting unemployment through capitalist reforms, the loss of the Russian Empire, responsibility for the Russian revolution and the suppression of the Russian masses under communism.  Even though such beliefs are not shared by all Russians, it is unclear what effect the constant litany of anti-Jewish rhetoric is having on the general population, who may already be inclined to hold anti-Semitic views … .  Despite the threats of violence and pogroms against Jews made by some Anti-Semitic leaders, there has been until now no organised campaign of violence against Jews.  Individual acts of violence against Jewish citizens and property have been reported … .  These attacks do not appear to be centrally coordinated or systematic … .  Human Rights monitors and academic researchers have complied ‘numerous’ cases of rapes, beatings, arson and some murders in which the attackers either indicated the motivation for the attack was anti-Semitic, or the attacker was identified as belonging to an anti-Semitic organisation.  Compiling statistics on such attacks against Jews is difficult however as Jews are reluctant to report such incidents to local authorities, and local authorities often refuse to investigate such cases or do only a cursory examination … .  The statement above that the attacks on Jews are not systematic or centrally coordinated does not mean that individual Jews do not face persecution from individual anti-Semitic or nationalist groups which the Government is either unwilling or unable to halt or prosecute.  Nor does it mean that, when such individual Jews become targets of such groups, they have adequate avenues for redress of grievances or protection from the State.  As noted above, anti-Semitic groups often act with the consent or participation of local authorities or individual members of the security apparatus.  Thus, no Russian Jew is automatically at risk, or automatically safe from risk.

33                  The applicant’s argument was that the Tribunal must have misunderstood the meaning of “being persecuted” to have concluded that anti-Semitism did not manifest itself as persecution in light of the information set out in the above passage.  Its error consisted in disregarding the persecutory acts of non-state agents that were uncontrolled by the state. 

34                  The Tribunal did not, however, support its conclusion solely by reference to the UNHCR report.  As already noted, it also referred to the 1997 DFAT cable, Gerber, Goble, and the 1998 Anti-Semitism World Report.  The applicant sought to meet the objection by submitting that this other information was concerned with state persecution, and not with persecution by non-state agents. 

35                  I reject the applicant’s contention that the information in the DFAT cable relied on by the Tribunal related solely to persecution by the state or a state agency.  The relevant passage, consisting of seven and a half lines, included the following:

Anti-Semitism and social prejudices persist in Russia, but rarely manifest themselves in actual persecution.  …

[The embassy] is not aware of any information that suggests that the Jewish population is not subject to the same level of protection as other sections of the Russian population. 

Plainly enough, these remarks embraced persecution by non-state agents that may have been uncontrolled by the state, as well as state action (or inaction). 

36                  As the respondent’s counsel noted, the information from Gerber related principally to the proliferation of anti-Semitic literature and the information from Goble, to the inability of the government to control “the manifestation of this ancient evil” within Russian society.  The point being made by these commentators was that the economic and social conditions in the Russian Federation were conducive to the spread of “distrust and hatred” of Jews.  Neither commentator identified any specific act of discrimination that might amount to persecution, although Goble indicated that local officials participated in unidentified acts of anti-Semitic discrimination (which may have amounted to persecution).

37                  The Tribunal also referred to a passage in the 1998 Anti-Semitism World Report which read as follows:

Russia has made considerable political, economic and social progress since the collapse of the Soviet Union.  In the past year Russia’s minorities, including the Jewish population, faced few, if any, obstacles to full participation either in Russian public life or in minority religious and cultural activities.  The emigration of Jews to Israel has declined accordingly.  At the same time, Russian society has continued to be highly volatile and riddled with complex problems, including widespread corruption amongst officialdom, mass tax evasion, demoralization in the armed forces and virtually unchecked gangsterism.  The health of President Yeltsin and uncertainty as to who will succeed him has also continued to cause concern.  Russian Jewry’s greatest concern in 1997 was, as before, the inability and/or lack of will of the authorities to take adequate political and legal measures to deal with ultra-nationalist activists, particularly their publications, which are easily accessible in large population centres.  On the other hand the fact that the high visibility in public life of a number of politicians, bankers and industrialists of Jewish extraction has provoked few, if any, overt expressions of anti-Semitism in mainstream circles is a positive sign.

I reject the applicant’s contention that the reference in this passage to “mainstream circles” is a reference to state authorised activities.  The expression is, so it seems to me, intended to refer to the dominant social groups in the Russian Federation, as contrasted with groups on the societal fringe, such as ultra-nationalists. 

38                  Having regard to the foregoing, I reject the applicant’s submission that the Tribunal’s conclusion concerning the prevalence of persecution and harassment of Jews in the Russian Federation was contrary to the “uncontradicted evidence of widespread manifestly persecutory acts against individual Jews by non-state agents of persecution”.  I accept that, if account were taken of all the country information to which the Tribunal referred, it was open to the Tribunal to reject the applicant’s claims regarding persecution.  The applicant’s submissions at this point boiled down to an invitation to differ from the Tribunal in its assessment of the country information. 

39                  As appears from the foregoing, there is no error patent in the Tribunal’s statement of legal principles.  Further, it apparently appreciated that some forms of discriminatory harassment may amount to persecution for the purposes of the Convention, whilst others may not.  Under the legislative scheme that governs the determination of protection visa applications, it is for the Tribunal to determine whether as a matter of fact a government’s apprehended action or inaction amounts to persecution.  There will ordinarily be no error where the legal principles are correctly stated and applied.  Even though the material before the Tribunal may be capable of amounting to persecution, it would not follow that the Tribunal erred in failing to make a finding of a well-founded fear of persecution. 

40                  Further, although the infelicitous expression and the paucity of analysis in the Tribunal’s reasons raises doubts about its decision, these doubts do not inevitably result in a finding of reviewable error:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  The task of the Court in reviewing a Tribunal decision is a limited one.  It is concerned neither with the Tribunal’s expression nor with the merits of the Tribunal’s decision.  Its concern is to identify whether there has been an error of the kind identified in s 476(1) of the Act. 

41                  All this said, I am of the view that the Tribunal’s statement by way of conclusion that, “in general, anti-[S]emitism does not manifest itself as persecution of individuals; the country information cited above does indicates [sic] that there have been individual incidents of harassment”, demonstrates reviewable error.  The Tribunal apparently concluded that none of the “individual incidents of harassment” described in the country information to which it referred was capable of amounting to persecution but only to discriminatory harassment.  This statement demonstrates an erroneous understanding of what may constitute persecution.  Selective harassment directed against an individual because of his or her adherence to a particular religion will ordinarily amount to persecution if the harassment constitutes an infringement of a fundamental human right or of human dignity that a person cannot be expected to tolerate.  The Convention affords protection when the country of nationality does not.  In this case, the country information included the 1996 UNHCR Report stating that “Human Rights monitors and academic researchers have compiled ‘numerous’ cases of rapes, beatings, arson and some murders in which the attackers either indicated the motivation for the attack was anti-Semitic, or the attacker was identified as belonging to an anti-Semitic organisation”.  Plainly enough, acts of this description are capable of amounting to persecution.  If they were not dealt with by the responsible authorities in the country of nationality, then they are capable of attracting the protection of the Convention. 

42                  Though no exception can be taken to such statements of the law as the Tribunal made, they do not prevent the conclusion that the Tribunal misconceived or misapplied the concept of “being persecuted”.  The Tribunal accepted all the country information set out in its reasons (which included the 1996 UNHCR Report) and confined its comment upon it to the one sentence.  There is nothing in the Tribunal’s reasons that might correct the impression conveyed by that sentence that the Tribunal found (contrary to the applicable law) that none of the discriminatory harassment mentioned in the country information referred to by it was capable of amounting to persecution.  There is no basis for saying that the sentence was simply the result of a loose use of language, since nothing else appears. 

43                  To adapt the remarks of Gleeson CJ in Yusuf at [4], this is a case in which the failure by the Tribunal to deal with some assertions of fact made by the visa applicant has consequences for judicial review.  In Yusuf at [75] McHugh, Gummow and Hayne JJ made the point that a failure on the Tribunal’s part to make findings about claims of past persecution “may well reveal error”.  In this case, the failure on the Tribunal’s part to make findings about the applicant’s claims of prospective persecution reveals error about what constitutes a well-founded fear of “being persecuted”.

44                  The applicant claimed that, if he returned to the Russian Federation, he stood a real chance of being subjected to acts of the kind mentioned in the 1996 UNHCR Report (and the other country information) simply by reason of being a Jew, and that the Russian Federation would not take steps to stop acts of this kind.  The Tribunal did not deal with these assertions (other than to say, erroneously, that none of the acts of discriminatory harassment mentioned in the country information could amount to persecution).  Its error was not, of course, the failure to set out its findings; but the failure showed that the Tribunal did not inquire into and determine whether or not it was satisfied that the applicant had a well-founded fear of “being persecuted” as required by the Act.  That is, the Tribunal failed to address the requisite question, and misconceived the nature of the opinion that it was required to form. 

45                  The nature of the error made by the Tribunal in this case is much the same as the nature of the error which the Full Court found in Hagi-Mohamed v Minister for Immigration and Multicultural Affairs [2001] FCA 1156.  In that case, the Court held that the failure by the Tribunal to determine the appellant’s claim in accordance with correct legal principles constituted an error of law within s 476(1)(e) of the Act consistently with the decision in Yusuf.

46                  As already noted, the applicant did not challenge all the Tribunal’s findings that were adverse to him.  Nonetheless, it is appropriate to set aside the decision of the Tribunal made on 9 December 1998, affirming the delegate’s decision not to grant the applicant a protection visa, and to refer the matter to which the decision relates to the Tribunal for determination according to law.  It is appropriate to direct that the matter be re-heard by a differently constituted Tribunal.

Associate:

Dated:              17 September 2001