AEK16 v Minister for Immigration and Border Protection

The Federal Circuit Court's decision 13 Before the Federal Circuit Court, the appellants identified six grounds of judicial review in relation to the Tribunal's decision, but pressed only four of those grounds. Three of the grounds of judicial review that were pressed (Ground 1, Ground 3 and Ground 5) bear no resemblance to the ground of appeal pressed in this Court. Rather, the ground of appeal in this Court relates only to the findings of the Federal Circuit Court on what was then Ground 6 of the judicial review application. Counsel for the appellants confirmed at the hearing of the appeal that this was the case. 14 As it appeared before the Federal Circuit Court, Ground 6 of the judicial review application was expressed in the following terms: Ground 6 The Tribunal applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958 and / or failed to address an integer / claim regarding the detention claim. Particulars (a) The Applicant claimed denial of access to services (para [23]-[24] at CB 107). (b) The Tribunal addressed as 'societal discrimination and failed to make findings that the Applicant claims of denial constituted serious or significant harm. (c) The Tribunal applied the wrong test. (d) Tribunal thereby committed jurisdictional error. 15 That ground is expressed, it must be said, at a level of generality which does not illuminate the argument. The Federal Circuit Court's reasons for judgment deal with that ground as follows (at [25]-[29]): 25. The applicant argues that, while the Tribunal accepted that there was some societal discrimination against the applicant on the basis of her religion, it did not deal with her claim that she was denied transport on buses and in taxis. 26. The Tribunal record of this claim is at [17] of its reasons: … She also said they had been denied (some) transport on buses and in taxis; ... 27. At [30], the Tribunal stated that it accepted that the applicant experienced 'some limited discriminatory treatment as Muslims in Burma, particularly since 2011'. Further, at [37], the Tribunal stated that it accepted that 'the applicant has been subject to a range of discriminatory treatment'. However, it was not satisfied that there was a real chance of her suffering serious harm in the reasonably foreseeable future in her home region in Burma. 28. On a proper understanding of the Tribunal's reasons, it accepted the applicant's claim to have been discriminated by having been refused some transport but found that the possibility of such treatment did not amount to serious harm. Whether or not conduct amounts to serious harm is ordinarily a matter of fact and degree. What is clear is that the Tribunal actually considered this aspect of the applicant's claim. The Tribunal determined as a matter of degree that it was not sufficiently serious to bring the applicant within the definition of a refugee or for her to satisfy the complementary protection criterion for a protection visa. 29. Ground six is rejected.

The appeal to this Court 16 The single ground of appeal in this Court comprises four paragraphs, each of which purport to challenge the Federal Circuit Court's reasoning at [27] and [28] of its reasons for judgment, as I have set out above. 17 The appellants' ground of appeal in this Court is expressed in the following way: Grounds of appeal 1. His Honour erred at paragraphs [27] & [28]: (a) By finding that the Second Respondent considered, other than by a conclusory statement, whether the Appellants being Muslims, who were found by the Second Respondent at [36] to be subject to a range of discriminatory behaviour in Burma, had a real chance of suffering harm in the reasonably foreseeable future in their home region in Burma. (b) By failing to note that the Second Respondent referred to a UNHCR test of when discrimination will amount to persecution but failed to apply such test. (c) By stating that the Tribunal determined that as a matter of degree the discriminatory treatment was not sufficiently serious to bring the Appellants within the definition of Refugees for them to satisfy the complementary protection criteria. (d) By failing to find that the Second Respondent failed to deal with the denial of services in buses and taxis which was capable of supporting a finding of serious harm under s5J (5) (e) of the Migration Act 1958. 18 In their written submissions on the appeal, the appellants develop these grounds, it would seem, in two ways. First, they make a general submission that persecution and discrimination are concepts which "have a number of factors in common", but go on to submit (at [8]): persecution requires more than merely less favourable and unfavourable treatment. It is the consequences of the conduct rather than the nature of the conduct which distinguishes the two concepts. 19 Then, by reference to the first appellant's statutory declaration before the Tribunal, in which she raised claims of having been denied access to buses and taxis, and having been denied by vendors access to foods and household goods, and described her treatment as if she were a slave, the appellants submit that the Tribunal failed to appreciate the degree of discrimination being claimed by the appellants and, I infer, submit the Tribunal failed to appreciate that the level of discrimination being claimed was capable of constituting persecution for the purposes of the Refugees Convention. 20 The second way in which the appellants challenge the findings of the Federal Circuit Court is by submitting that these same claims, as made by the first appellant, were particular claims made by the first appellant concerning her own circumstances and the particular level of discriminatory treatment she would face on return to Myanmar, whereas the Tribunal dealt with her claims at the level of generalised country information without considering these personal circumstances, other than by way of a conclusory statement. The appellants submitted this was a failure by the Tribunal to deal with clearly articulated claims or arguments relying on established facts: see generally the judgment of Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365, where his Honour (at [75]-[82]) sets out in detail many of the authorities dealing with this kind of jurisdictional error. I note the appellants did not refer to this authority, although they did refer to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389. 21 The Minister submits that the Tribunal's reasons for decision expressly dealt with and took into account the appellants' personal circumstances, and accepted the evidence of the first appellant concerning discrimination. He further submits that it is an incorrect reading of the Tribunal's findings to describe them as based solely on country information. Finally, he submits it was open to the Tribunal to characterise the claims made by the first appellant as claims relating to harm of a kind not amounting to significant harm for the purposes of complementary protection, and not amounting to persecution for the purposes of the Refugees Convention.

Discrimination and persecution 22 Neither the submissions on behalf of the appellants, nor the submissions on behalf of the Minister developed or addressed in any detail the authorities concerning the distinction between persecution and discrimination for the purposes of the Refugees Convention. Nor did they address or develop in any detail the authorities dealing with what constitutes "significant harm" for the purposes of complementary protection. That may well be explained by the fact that the ground of judicial review before the Federal Circuit Court did not seek to address those distinctions either. Although in the appellants' submissions before this Court there are some general references to that distinction, no argument was developed in the appeal which would require this Court to address those authorities. That is particularly so when to do so would, in substance, involve permitting the appellants to raise a new ground of review in relation to the Tribunal's decision that was not raised before the Federal Circuit Court. The appellants made no application to raise a new ground of review and despite the references in their written submission to the distinctions between persecution and discrimination and the content of each of those concepts, it is not necessary to do more than set out briefly the current state of Australian law on these matters. 23 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Mason CJ said, at 388: The Convention and the Protocol do not define the words 'being persecuted' in Art. 1A(2). The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason. (Emphasis in original.) 24 While it is plain that the kind of persecution with which Art 1A is concerned involves discriminatory treatment, because the reason or occasion for selective treatment is a Convention attribute (see, e.g. Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225 at 233), it is equally clear that not all discriminatory treatment will be considered of a sufficiently serious nature so as to constitute persecution: see, for example, the observations of McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; 204 CLR 1 at [55]. 25 Between 2001 and 2014, for the purposes of the application of the Art 1A criteria in the Refugees Convention, a statutory definition of "persecution" was set out in s 91R of the Act. Section 91R(1) provided that persecution required, inter alia, "serious harm" and "systematic and discriminatory conduct". Section 91R(2) then provided a non-exhaustive list of instances of "serious harm" for the purposes of sub-s (1). 26 Following amendments made to the Migration Act in 2014 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), s 91R was repealed and s 5J was inserted. Section 5J set out a definition of the phrase "well-founded fear of persecution". The amending Act removed most references in the Migration Act to the Refugees Convention, and, according to the Explanatory Memorandum, sought to "replace them with a new statutory framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention". In the amending Act, s 5J appears under the heading "Schedule 5 - Clarifying Australia's international law obligations" and, unlike the previous s 91R, s 5J does not refer to the Refugees Convention. While s 91R and s 5J contain similar statutory definitions of "persecution" (both provisions defining persecution by reference to "serious harm" and "systematic and discriminatory conduct), s 5J contains further qualifications on the circumstances in which an applicant will have a "well-founded fear of persecution" for the purposes of the Migration Act and the criteria for a protection visa. For example, those qualifications include the inclusion in the statute of the "real chance" test from Chan Yee Kin, and an exclusion if a person could take "reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution". Section 5J(5) also includes a non-exhaustive list of instances amounting to "serious harm", which is identical to the list under s 91R(2). There does not appear to have been any detailed consideration by the High Court, or by Full Courts of this Court, of the amendments found in s 5J. 27 Section 5J commenced operation on 18 April 2015. Therefore, while s 91R was applicable at the time of the delegate's decision on 23 September 2014, s 5J was applicable at the time of the Tribunal's decision on 7 January 2016. 28 The Tribunal did not refer to s 91R, nor to s 5J, in its reasons. The appellants have not alleged any jurisdictional error in the Tribunal's approach that not all discriminatory treatment amounts to "persecution" for the purposes of Art 1A of the Refugees Convention and the criterion in s 36(2)(a) of the Migration Act. 29 Further, the Migration Act itself, in the form it took at the time of the Tribunal's decision, expressly provided (in s 36(2A)) a definition of "significant harm" for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act. Unlike s 91R and s 5J, the definition in s 36(2A) was expressly applied by the Tribunal in its reasons and no complaint about the Tribunal's approach to that definition is made by the appellants.

Tribunal's asserted failure to deal with first appellant's claims 30 What was more obviously developed by the appellants and does appear to have been a matter raised before the Federal Circuit Court, was the asserted failure of the Tribunal to deal with the first appellant's claims that she was denied transport on buses and taxis in Yangon, Myanmar, and was denied goods and services by some vendors, thus personally experiencing discriminatory treatment because she was a Muslim. The thrust of the appellants' submission on this issue appears to be that although the Tribunal noted these claims by the first appellant as part of her overall claims, it did not, in its reasoning, turn its mind to whether there was a real chance or a real risk that on return to Myanmar, the appellants would again personally experience this kind of harm. I infer the submission then proceeds along the lines that without considering this claim in particular, the Tribunal consequently failed to consider whether harm of that kind was capable of constituting persecution for the purposes of the Refugees Convention or "significant harm" for the purposes of the complementary protection provisions. 31 As the Federal Circuit Court noted in its reasons, the Tribunal did record these particular claims made by the first appellant at [17] of its reasons, where the Tribunal stated: The applicant then said that 'they' had received death threats from people saying they hated them (allegedly since 2011). She said they had also been abused with 'bad language' and had been hit on the street (though the applicant confirmed at the Tribunal hearing that neither she nor her husband had ever been physically assaulted). She also said they had been denied (some) transport on buses and in taxis; and that (some) vendors would not sell them products such as food and household items. She said they were discriminated against, 'as if they were third class citizens and even as slaves'. The applicant also said they saw strangers roaming around their local suburbs at regular intervals. The police do not assist; and she believed the persons she feared were connected to the police. 32 In the summary of its findings, which I have extracted at [8] above, the Tribunal accepted that the appellants had experienced "some limited discriminatory treatment as Muslims in Burma, particularly since 2011". On a fair reading of the Tribunal's reasons it is clear in my opinion that what the Tribunal characterises as "some limited discriminatory treatment as Muslims in Burma" is a reference to the kind of treatment claimed by the appellants and summarised by the Tribunal at [17] of its reasons. Further, I consider it clear this is the kind of treatment which the Tribunal characterises at [36] of its reasons as a "range of discriminatory behaviour in Burma". 33 The extract from the UNHCR Handbook (Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reissued Geneva, December 2011) the Tribunal then relies upon indicates, on a fair reading of its reasons, that the Tribunal was adopting what was said in the UNHCR Handbook about the level of discriminatory treatment that was required before such treatment could be said to amount to persecution. I consider it is tolerably clear that in relying on this extract from the UNHCR Handbook, the Tribunal intended to convey that it did not accept the treatment the appellants had identified, and which it had recorded at [17] of its reasons, rose to the level of persecution. 34 While the Tribunal at [37] of its reasons acknowledged the first appellant found this kind of treatment distressing, it is clear that the Tribunal considered the treatment did not rise to the requisite levels to satisfy either the Refugees Convention or the complementary protection provisions. On the present state of authority and the statutory scheme, I do not consider this approach by the Tribunal discloses any obvious jurisdictional error. As I have noted, the appellants' ground of appeal did not depend on, or develop, any particular line of argument about what level of harm should be considered to constitute persecution, nor did they seek to review the Tribunal's failure to refer to s 91R and/or s 5J of the Act. Those would have been quite different challenges to the Tribunal's decision and reasons for decision. 35 At the hearing of the appeal, counsel for the appellants submitted that the Tribunal had found that all Muslims in Myanmar would be subject to limited discrimination. That is not how I read the Tribunal's reasons and I do not accept that submission. At [36] of its reasons, the Tribunal said that "citizen Muslims" (that is, not Rohingya Muslims) "may be subject to a range of discriminatory behaviour". That finding is expressed as a possibility, not a certainty. Earlier in its reasons (at [21]) the Tribunal's finding was restricted to what it found had happened to the first appellant in comparison with "all Muslims", whom it found, based on country information, did not have a real chance of serious or significant harm in Myanmar. That is as far as the Tribunal's findings on these matters went. In reply, counsel for the appellants correctly accepted that this was the nature of the Tribunal's finding. 36 In my opinion, [36] and [37] of the Tribunal's reasons, read fairly and together, do indicate that the Tribunal considered the personal circumstances of the appellants and in particular the first appellant and was conscious of the matters it had referred to in [17] of its reasons when it made its findings in these paragraphs. 37 The Tribunal's finding at [36], as set out in [10] of these reasons, was expressed in general terms and not with particular application to the first appellant. However at [37] the Tribunal applied its general finding to the first appellant's circumstances, in particular by the last sentence: Even considering the applicants' age and other personal circumstances, and even considering the accepted evidence of discriminatory harm cumulatively, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm, should she return to her former home region in Burma (Rangoon). (Footnote omitted.) 38 This sentence demonstrates the Tribunal is turning its mind to the first appellant's particular circumstances. I consider that the reference to "other personal circumstances" and the reference to "accepted evidence of discriminatory harm", as well as the reference to "cumulatively" all indicate that in making this finding, the Tribunal remained conscious of, and was actively taking into account, the matters put forward by the first appellant which it had set out at [17] of its reasons. 39 Finally, there was some suggestion in oral submissions on behalf of the appellants that the alleged failure by the Tribunal to consider the claims the first appellant had articulated at [23]-[25] of her statutory declaration could be made out because the Tribunal had not expressly undertaken any assessment of the harm the first appellant might face, as opposed to any other Muslim living in Yangon or in Myanmar generally. I do not consider that the first appellant put her claims on any such basis. In those parts of her statutory declaration on which counsel relied, the first appellant is not making a claim that she will be treated differentially from other Muslims in Yangon, nor asserting that any such differential treatment will result in more harm to her than it might to other Muslims. Rather, whether read separately or in the overall context of her statutory declaration, it is clear that she is identifying as the basis or reason for the harm she fears, her status as a Muslim, rather than any other attribute or circumstance personal to her. See for example her evidence at [32] of her statutory declaration about "other Muslim minority" which is clearly a reference to herself as part of a larger group she describes as the "Muslim minority". This is clearly how the Tribunal understood the first appellant's evidence and I find it was open to it to do so. Indeed, in my opinion that was the apparent thrust of her evidence. 40 I am satisfied that the Tribunal dealt with the claims as they had been put forward to it by the first appellant, and the Federal Circuit Court was correct to reject the sixth ground of review as advanced by the appellants before it.

Conclusion 41 Accordingly, the appeal must be dismissed. There is no basis in the evidence for anything other than the usual order as to costs, which I propose to fix by way of a lump sum in accordance with the Court's Costs Practice Note (GPN-COSTS) dated 25 October 2016. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.