BRGAA of 2007 v Minister for Immigration and Citizenship

Before the Federal Magistrate 6 The appellant advanced two grounds before Burnett FM: · The Tribunal committed a jurisdictional error by failing to consider whether threats of disappearance and death made to the appellant and the physical ill treatment by an officer of the Israeli Special Forces could by themselves amount to serious harm and give rise to real chance of persecution in circumstances where such treatment was designed to frighten and intimidate the appellant even if such threats were not intended to be acted upon; and · The Tribunal failed to deal with or understand that part of the appellant's case that the Israeli Government had failed or was unable to protect the applicant from persecution, whether such persecution resulted from the appellant's criminal record or his status as an Arab Israeli. 7 In relation to the first ground, his Honour held it was clear that the Tribunal had considered the question whether there was truly a future threat to the appellant's life or liberty (at [27]). His Honour continued: "[28] The task for the Tribunal was to determine whether there was a danger or risk of serious harm in the future giving rise to a 'real chance of persecution'. The issue is whether the Tribunal applied the correct test in focussing on the risk of danger to the Applicant in the future rather than focussing on whether past threats themselves constituted 'a threat to (the Applicant's) life or liberty'. [29] Given the state of authority the Tribunal did apply the correct test consistent with authority and it follows there was no error of law associated with its determination. [30] It is not the task of the Court in this proceeding to review the merits of the Tribunal's decision nor to substitute for the Tribunal's views of the evidence before it this Court's views. In the absence of a jurisdictional error this ground fails." 8 His Honour found that it was apparent from its decision that the Tribunal adopted a correct approach at law in concluding that the threats did not give rise to a well founded fear of persecution for a Convention reason. As the Tribunal did not accept that the appellant had a well founded fear of persecution for a Convention reason, and the ground of review before the Court fails in limine as no basis arose for State Protection. 9 In relation to the second ground, his Honour observed that the Tribunal clearly found that the appellant's experiences before his departure from Israel did not amount to persecution for a Convention reason. His Honour continued: "[37] Clearly the entitlement for State protection only arises where there has first been a finding that the Applicant has a well founded fear of being persecuted for Convention reasons. It was submitted that until such a finding was made there is no need to proceed to the next question of whether the Applicant is unable or unwilling to avail himself of the protection of a foreign country. I accept as correct the Respondent's submissions that there was no need in the instant case for the Tribunal to turn to the question of whether there had been a failure of State protection until the Tribunal had first concluded that the Applicant had a well founded fear of being persecuted for a Convention reason and that the requirements of section 91R of the Act had been met. It follows that the Tribunal was not obliged to make any determination about the availability of State protection, it having earlier decided that the Applicant did not have a well founded fear for a Convention reason. [38] This ground too must fail." 10 Accordingly, his Honour dismissed the application.

Appeal to this Court 11 By notice of appeal filed 14 August 2007 the appellant raised the following grounds: 1. the Federal Magistrate erred in law by finding that the Tribunal had not made a jurisdictional error in circumstances where the Tribunal failed to consider whether threats of disappearance and death made to the appellant by Israeli security forces could, by themselves, amount to 'serious harm' for the purposes of s 91R Migration Act 1958 (Cth). 2. the Federal Magistrate erred in law in deciding that threats of disappearance and death could not, by themselves, amount to "serious harm" within s 91R Migration Act. 12 At the hearing, the appellant obtained the leave of the Court to add a further ground of appeal, namely: 3. The Federal Magistrate erred in law in failing to decide upon the appellant's argument that the Tribunal had made a jurisdictional error by failing to consider whether physical harassment of the appellant by Israeli Special Forces, including detaining the appellant and pointing a gun at him, could amount to "serious harm". 13 The appellant sought the following orders: 1. That the appeal be allowed. 2. That the decision of the Federal Magistrates Court made on 25 July 2007 be set aside. 3. That the matter be remitted to the Tribunal for consideration according to law. 4. That the respondent pay the appellant's costs of the appeal and the application to the Federal Magistrates Court.

Relevant legislation 14 The relevant legislative provision in these proceedings is s 91R Migration Act which is as follows: Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harmfor the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill‑treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

Threats as "serious harm" in section 91R: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs 15 The leading case considering the term "threat to person's life or liberty" in s 91R is the High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 54. Both counsel in the proceedings before me addressed issues arising from this case in considerable detail. 16 In that case the claimant was a national of Sri Lanka who claimed that, as a result of his political activities in Sri Lanka, he had received numerous threats to his life from members of an opposition political party. The Tribunal had accepted that the claimant had received intimidating and threatening phone calls and letters, but held these phones calls and letters did not involve serious harm to the claimant. The Tribunal upheld the decision of the delegate of the Minister to refuse a visa to the claimant. The claimant applied to the Federal Magistrates Court to have the decision of the Tribunal set aside, wherein the claimant was successful. The Minister then appealed to the Federal Court. In considering s 91R, Marshall J found (his Honour's decision was reported at (2004) 139 FCR 405) as follows: "(at 410) Counsel (for the claimant) submitted that the Federal Magistrate was correct to conclude that the making of a threat to life is serious harm for the purpose of s 91R(1)(b). Counsel contended that the apprehension attending a threat to life is the type of psychological injury to which the Refugees Convention is directed... ...(at 411) (The RRT) considered that the death threats did not constitute serious harm. In my view this finding was entirely open to the RRT... It could not, in my view, have been the intention of Parliament that threats in the form of declarations of intent, could prima facie constitute serious harm. Even with the qualification to s 91R(2)(a), which the respondent submits must operate to exclude from its scope, threat which do not have the capacity to instil fear, it is clear that that application of the (claimant's) definition would be productive of anomalous consequences... ... (at 412) Counsel for the respondent contended in written submissions that 'if an applicant fears he or she will lose their life there is no doubt the harm feared would constitute persecution'. That is to elevate the element of fear to an impermissible level. All instances of alleged serious harm have the potential to agitate their victim but this is not the hallmark of their categorisation as instances of serious harm. Rather, serious harm contemplates that a person's livelihood or well-being will be jeopardised in a material way. This is not to deny that threats of the kind directed at the (claimant) can never constitute serious harm, but they do not, of themselves, automatically qualify for that description." 17 Accordingly, his Honour allowed the appeal and re-instated the decision of the Tribunal. 18 On appeal from Marshall J, the High Court considered the meaning of "threat" in s 91R. The findings of their Honours relevant to the proceedings before me include the following: · In summary Gleeson CJ and Kirby J noted (at 545) that: o the word "threat" can mean either a communication of an intention to harm, or a likelihood of harm o section 91R(2)(a) gives, as an instance of serious harm, a threat to the person's life or liberty. The serious harm in question is future harm. Elsewhere in s 91R(2), the word "threatens" appears three times in a context where it clearly bears the meaning of a likelihood of harm rather than a communication of intention to harm o in s 91R(2)(a) it is clear that "threat" is used in the sense of likelihood of harm. "A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person's life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications." · Gummow J said in summary: o it was clear from para 19 of the Explanatory Memorandum accompanying the Migration Legislation Amendment Act (No 6) 2001 (Cth), which introduced s 91R into the Migration Act, that Parliament intended that the degree of apprehended "harm" feared in the context of claims of persecution should not rise above the level of harm accepted by the parties to the Refugee's Convention as constituting persecution. This is made even more clear by s 91R(1)(b) and (c) (at 547-548) o the notion of "serious harm" for the purposes of s 91R(1)(b) is "given further treatment in s 91R(2)" (at 548), which states instances of serious harm for the purpose of s 91R(1)(b) o Counsel for the claimant had urged a reading of s 91R(2)(a) which included a past or current communication of an intention to kill or deprive a person of liberty which, considered objectively, was capable of instilling fear in the person and does so. However the six paragraphs of s 91R(2) should be considered together, taking their colour from the specification of "serious harm" in the opening words of the subsection. His Honour observed: "This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty" (at 549) o a "threat" in such circumstances may be an indication of evil to come, but may not have been based upon any direct statement to that person by any official source (at 549). · In summary, Callinan and Heydon JJ held: o section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances. If any threat or relevant risk is not current or prospective, there can be no well founded fear of persecution (at 555) o neither the Refugees Convention nor s 91R of the Migration Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite well founded fear (at 555). 19 Accordingly, their Honours dismissed the appeal.

Can verbal threats by themselves amount to "serious harm"? 20 The key issue arising in respect of grounds 1 and 2 in these proceedings concerns the meaning of "threats" in the context of "serious harm" in s 91R Migration Act. As is clear from perusal of s 91R, Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution unless the persecution involves serious harm to the person: s 91R(1)(b). Without limiting the meaning of "serious harm" in the context of s 91R(1)(b), s 91(2) gives examples of "serious harm", including "a threat to the person's life or liberty" (s 91R(2)(a)). Further, it is clear from the decision of the High Court in VBAO 231 ALR 54 that, as a general proposition, verbal threats will not of themselves constitute serious harm within the meaning of s 91R. 21 In these proceedings the appellant submits that verbal threats, if they are likely to be repeated in the future, are capable, in themselves, of amounting to serious harm for the purposes of s 91(1)(b) depending on the circumstances of the case. In particular, Mr Rangiah for the appellant submitted that: · the Tribunal accepted that on three separate occasions in 2001, 2002 and 2004 the appellant was detained and threatened by members of the Israeli Special Forces, including verbal threats to the effect that if remained in Israel he would "get a bullet in his head", and the physical threat of having a gun pointed at him · even if, as the Tribunal found, the Israeli Special Forces did not intend to carry out the threat to shoot him if he remained in Israel, there remained the distinct possibility that similar threats would be made in the future. In this case, however the Tribunal did not consider whether such threats were likely to be made in the future and did not consider whether such threats could, by themselves, amount to "serious harm" · the making of threats in the future, which are designed to intimidate and frighten and do have that effect, can amount to serious harm within s 91(2)(b). Threats such as pointing a gun and indicating that the person will be shot unless he or she complies with a demand are capable of inflicting serious psychological harm · in VBAO 231 ALR 54 the High Court did not directly consider the broader issue of whether threats can, in some circumstances, amount to "serious harm" within s 91R(1)(b) · section 91R(2) merely provides instances of conduct which may constitute "serious harm" · Marshall J in VBAO 139 FCR 405 accepted that verbal threats directed at the respondent can in some cases constitute serious harm, although they do not, of themselves, automatically qualify for that description. The High Court approved the judgment of Marshall J. 22 In response, Ms Wheatley for the first respondent submitted in summary: · the Tribunal accepted that the appellant was stopped by the Israeli Special Forces on three separate occasions in 2001, 2002 and 2004, and searched and threatened by an officer Heem. However, the Tribunal also noted that, according to the evidence of the appellant, Heem knew where the appellant lived and had ample opportunity to harm the appellant if he genuinely intended to do so. The Tribunal considered that the threats were designed to frighten and intimidate the appellant, and that neither Heem nor the Israeli Special Forces intended to act on them. Accordingly, the Tribunal found that the threats in this case did not fall within s 91R(1)(b) and did not give rise to any real chance of persecution in the reasonably foreseeable future · the Tribunal applied the correct legal test in its findings · Burnett FM considered these matters and correctly held that the Tribunal applied the correct test in focussing on the risk of danger to the appellant in the future, rather than focussing on whether past threats themselves constituted a threat to the appellant's life or liberty.

Consideration 23 In my view, the following issues are clear. 24 First, in order to constitute a well founded fear of persecution, any threat or relevant risk must be current or prospective, rather than historical only: VBAO 231 ALR 54, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. However, it is reasonable that a Tribunal should have regard to events that have occurred, to assist in its decision as to whether it is likely that the claimant will in future be subject to persecution. As Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in Guo 191 CLR at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events." 25 Second, in this case the Tribunal reviewed, in detail, the appellant's account of events which had taken place over the years, including the communication of threats and what appeared to be some harassment of the appellant by Heem, with a view to determining whether the appellant had been persecuted during that time, and whether it followed that the appellant continued to have a well founded fear of persecution. Further the Tribunal clearly considered, in detail, the claims of the appellant, and made findings in respect of each claim. However, the Tribunal concluded that it was not satisfied that the incidents of harm referred to by the appellant constituted "serious harm" for a Convention reason when taken cumulatively, or further that the Israeli authorities had a genuine, continuing interest in the appellant for a Convention reason, or that there was a real chance that the appellant would be seriously harmed for a Convention reason by the Israeli authorities in the reasonably foreseeable future if he were to return to Israel. The finding of the Tribunal that, in summary, the threats were to intimidate and frighten the appellant, and were not threats upon which Heem or the Israeli Special Forces seriously intended to act, were in my view open on the evidence before the Tribunal. 26 Third, it is clear from VBAO 231 ALR 54 that verbal communication of threats without more does not constitute "serious harm" within the meaning of s 91R(1) or s 91R(2) Migration Act. Mr Rangiah submitted that threats such as pointing a gun at a person's head and indicating verbally that the person will be shot unless he or she complies with a demand can constitute "serious harm". However the Tribunal in its decision thoroughly reviewed the incident including where a gun had been pointed at the appellant and verbal threats made, and considered that this did not constitute serious harm. As I have already said, the High Court in VBAO 231 ALR 54 has held that verbal threats, without more, do not constitute "threats" amounting to serious harm for the purposes of s 91R. It is useful to compare the facts of this case with those in VBAO 231 ALR 54, where the claimant had not only been verbally threatened but also had claimed to have been beaten and had his hair cut by rival political groups, but the court declined to quash the decision of the Tribunal that "serious harm" had not been caused to the claimant. In these proceedings the Tribunal considered the evidence of additional events upon which the appellant relied, but was not satisfied that "serious harm" had been or would be occasioned. This finding was open to the Tribunal on the facts before it. 27 Fourth, although Mr Rangiah also submitted that a series of threats designed to intimidate and frighten could cause serious psychological harm, which would itself be "serious harm", it is for the appellant to make the case of well founded fear of persecution before the Tribunal. On the material before me there appeared to be no evidence that the appellant had sustained such serious psychological harm or would sustain such harm if he returned to Israel. 28 Finally, and notwithstanding Mr Rangiah's persuasive arguments, I am satisfied that the High Court's findings in relation to the meaning of the word "threat" as an instance of serious harm in s 91R(2)(a) Migration Act extend to the concept of threat as "serious harm" within s 91R(1)(b). I do not consider that a "threat" as a species of serious harm for the purposes of s 91R(1)(b) is, for example, of potentially broader application in that section in comparison with its meaning in s 91R(2)(a). The section makes it plain that, in considering serious harm within the meaning of s 91R(1)(b), while not limiting what is serious harm for the purposes of para (1)(b), regard should be had to the specific instances in s 91R(2). In my view, the findings of the High Court's in VBAO 231 ALR 54 in relation to the meaning of "threat", while specifically referable to s 91R(2(a), are equally applicable to any concept of "threat" as "serious harm" within the meaning of s 91R(1)(b). To find otherwise would, in my view, ignore the plain meaning of s 91R, the fact that categories in s 91R(2) are clearly meant to assist in the interpretation of s 91R(1)(b), and the clear findings of their Honours' in VBAO 231 ALR 54. 29 It follows that in my view no jurisdictional error in this respect is apparent from the decision of the Tribunal. 30 The Federal Magistrate similarly found that no jurisdictional error appeared from the decision of the Tribunal, because the Tribunal had applied the correct test in this case in relation to whether verbal threats could constitute "serious harm" within s 91R. In making this finding, his Honour relied on VBAO 231 ALR 54 and the Federal Court decision in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 212. His Honour did not, as claimed by the appellant, decide that threats of disappearance and death could not, by themselves, amount to "serious harm". His Honour's findings were limited to the case before him (in particular at [27]-[30]). I find no error in either his Honour's approach or decision in relation to this issue. 31 Accordingly the appellant's first and second grounds of appeal cannot be sustained.

Physical harassment 32 The appellant contended that the physical detention of the appellant and having a gun pointed at him, were acts capable of amounting to "significant physical harassment" of the appellant within the meaning of s 91R(2)(b) and "significant physical ill treatment" of the appellant within the meaning of s 91R(2)(c). The appellant also submitted that: · these acts, either alone or in combination with verbal threats to shoot the appellant, were capable of amounting to serious harm within the meaning of s 91R(1)(b) · the Tribunal did not address this issue · the issue was raised before the Federal Magistrate, who did not address it. 33 In my view there is no doubt that the Tribunal considered the circumstances involving the physical detention of the appellant and having a gun pointed at him with a view to identifying whether the appellant had been subjected to "serious harm" within s 91R. In particular, I note the reference by the Tribunal to the following evidence: "In summer of 2001 he was on his way to a beach in Haifa when the Israeli Special Forces stopped his car. He was forced out of the car at gun point and was told to sit on the roadside. His car was searched for bombs. He was kept for an hour, was told to shut up and was called a filthy Arab. He was also told to go or he would not be around for long. This he took to mean he should leave Israel." 34 The Tribunal continued later in its decision: "The applicant was asked about the incident in summer of 2001. He confirmed that he was on his way to a beach in Haifa when the Israeli Special Forces stopped his car. He was forced out of the car at gun point and was told to sit on the roadside. His car was searched for bombs or electronic devices that could trigger a bomb. He was told by one of the officers, Heem, that his place was not in Israel and that if he was in the Occupied Territories he would get a bullet in his head." 35 In its findings and reasons, the Tribunal said: "The Tribunal accepts that the applicant was stopped by the Israeli Special Forces on three separate occasions in 2001, 2002 and 2004; searched and threatened by an officer called Heem. The Tribunal has little doubt that these threats which warned him of death and disappearance were unsettling and upsetting for the applicant. However, according to his oral evidence Heem was aware of his place of residence and had ample opportunity to harm the applicant if he genuinely intended to do so. The fact that the applicant suffered no other harm at the hands of Heem throughout this period is indicative of the fact that the threats were designed to frighten and intimidate him and that Heem or the Israeli Special Forces did not seriously intend to act upon them. The Tribunal, therefore, finds that the threats in this case did not fall within s 91R(1)(b) and do not give rise to any real chance of persecution in the reasonably foreseeable future." 36 I note the comments of the Tribunal that the appellant appears to have been subject to discriminatory treatment in Israel. However it is not correct to say that the Tribunal failed to consider whether the appellant has been subject to treatment constituting "serious harm" for a Convention reason. From its decision it is clear that the Tribunal considered thoroughly the treatment to which the appellant had been subjected, both specifically and in the context of the appellant's cumulative claim. Although the Tribunal did not discuss whether this treatment constituted "serious harm" specifically within the meaning of either ss 91R(2)(b) or (c), its findings (including that the treatment did not amount to "serious harm" within the meaning of s 91R(1)(b)) are open on the evidence before it. 37 Under the Migration Act it not the role of the Court to engage in a review of the merits of the appellant's claims or findings on the facts by the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. The appellant has claimed before me as a ground of appeal that the learned Federal Magistrate did not consider the issue before his Honour that physical ill-treatment by an officer of the Israeli Special Forces could by itself amount to serious harm. The first respondent submitted that his Honour did deal with this issue at [18] of his Honour's judgment which reads: "It was evident from the Tribunal's decision that it individually assessed each of the Applicant's experiences and considered whether each incident of harm amounted to 'serious harm'. Further it considered the incidents cumulatively and despite that matter was not satisfied that the Applicant's experiences amounted to persecution for a convention reason." 38 On the face of para [18] of his Honour's judgment, contrary to the submission of Ms Wheatley, it is not apparent that his Honour has dealt with the issue whether the physical ill-treatment of the appellant could constitute "serious harm". Indeed a general reference to the individual assessment by the Tribunal of each of the appellant's experiences, and a cumulative consideration by the Tribunal of relevant incidents, does not obviously demonstrate a specific consideration of the issue in question by the Federal Magistrate. 39 However as I noted recently in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747, although failure by a court to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice (QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281), it is also clear that the ground before his Honour, and raised on appeal before me, was not plainly arguable because no jurisdictional error is apparent from the decision of the Tribunal in relation to this issue. Even if para [18] of his Honour's judgment does not address the issue of physical ill-treatment of the appellant as claimed by the appellant, this is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing because the ground would have no prospects of success. 40 Accordingly, the third ground of appeal of the appellant cannot be sustained. 41 The appropriate order is that the appeal be dismissed.

1. The appeal be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Solicitor for the Appellant: Refugee and Immigration Legal Service