Chan v Minister for Immigration and Ethnic Affairs

Chan v Minister for Immigration and Ethnic Affairs - [1989] HCA 62 - HCA 1989 case summary — Zoe

[14]

I agree with the conclusion reached by McHugh J. that a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran [5] . There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" [6] and Lord Goff of Chieveley spoke of "a real and substantial risk of persecution" [7] . Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca [8] where Stevens J., with reference to a statutory provision (which reflected the language of Art. 1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic [9] , observed that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibility" [10] . I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen [11] , per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

[55]

"Persecution" is not defined in the Convention, although Arts 31 and 33 refer to those whose life or freedom may be threatened. Indeed, there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution: see Grahl-Madsen, op. cit., p. 193; Goodwin-Gill, The Refugee in International Law (1983), p. 38. Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity. The Handbook in par. 51 expresses the view that it may be inferred from the Convention that a threat to life or freedom for a Convention reason is always persecution, although other serious violations of human rights for the same reasons would also constitute persecution. It is unnecessary for present purposes to enter the controversy whether any and, if so, what actions other than a threat to life or freedom would amount to persecution. The delegate, in finding that the appellant was discriminated against "due to the apparent perception the local authorities had of his family", must have found that he suffered a deprivation of liberty for a Convention reason in that the appellant was exiled to an area away from his home village and in that he was detained on successive occasions after he had attempted to escape. There was no evidence of any other form of discrimination and discrimination in that form necessarily amounted to persecution. Nor is there any basis upon which the delegate could have found that the "attention" to which the appellant may be subjected were he to be returned to China would amount to something less than a threat to his liberty. The past experience of the appellant points to the contrary. Having regard to that experience and to the absence of any evidence of any substantial changes in circumstances in the appellant's country of nationality, the conclusion was inevitable that the appellant was unwilling to avail himself of the protection of that country owing to a well-founded fear of being persecuted for a Convention reason. It follows in my view that the conclusion reached by the delegate on the basis of the findings made by him was so unreasonable as to amount to an improper exercise of the power to determine refugee status conferred upon him by s. 6A(1)(c) of the Migration Act. It was, in the words of Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [29] , "so unreasonable that no reasonable person could have come to it".

[187]

Courts in the common law world have also given different interpretations to the term "well-founded fear" in contexts arising out of the Convention or Protocol. In Immigration and Naturalization Service v. Cardoza-Fonseca [58] , the United States Supreme Court, citing its earlier judgment in Immigration and Naturalization Service v. Stevic [59] , said that in s. 208(a) of the Immigration and Nationality Act 1952 US, as amended by the Refugee Act 1980, a "moderate interpretation" of the term "well-founded fear of persecution" would indicate "that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility". But in Reg. v. Home Secretary; Ex parte Sivakumaran [60] , the House of Lords held that "the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country". Lord Keith of Kinkel, who framed this definition, did so after referring to the passages which I have quoted from Cardoza-Fonseca . In that context, it seems likely that Lord Keith considered his own definition more restrictive than that of the United States Supreme Court. The House of Lords also unanimously rejected the holding of the Court of Appeal in that case that a well-founded fear was demonstrated by proving actual fear together with "good reason for this fear, looking at the situation from the point of view of one of reasonable courage circumstanced as was the applicant for refugee status" [61] . In addition, Lord Goff of Chieveley, who also approved "the reasonable degree of likelihood" test, expressly rejected the argument that the applicant had only to show that on the objective facts his fear of persecution for a Convention reason was reasonable and plausible [62] . Lords Bridge of Harwich, Templeman and Griffiths expressed their agreement with Lord Goff's speech.

[194]

The definition of "refugee" in the Geneva Convention has been traced to the International Refugee Organisation ("I.R.O.") Constitution adopted by the General Assembly of the United Nations in 1946: Cox, op. cit., p. 338. The I.R.O. Constitution stated that no refugee with "valid objections" should be compelled to return to his or her country of origin. One of the "valid objections" was persecution or "fear based on reasonable grounds of persecution because of race, religion, nationality or political opinion " The I.R.O. Manual declared that "reasonable grounds" were to be understood as meaning that the applicant has given "a plausible and coherent account of why he fears persecution". Subsequently, the Economic and Social Council of the United Nations in 1949 appointed an Ad Hoc Committee on Statelessness and Related Problems. The Committee drafted a provisional Convention in 1950 and this led to the Convention that was done at Geneva in July 1951. In its Final Report to the Council, the Committee declared that it had drafted the Convention to afford at least as much protection to refugees as had been provided by previous agreements. This declaration might suggest that a "well-founded" fear under the Convention is established, having regard to the I.R.O. Manual interpretation, if the applicant gives a plausible and coherent account of why he or she fears persecution. But as Cox, op. cit., has pointed out at p. 351 the I.R.O. approach was dictated by its inability to form an independent and objective view about conditions prevailing in the country of origin and the State parties to the Convention and Protocol will frequently have detailed knowledge of conditions in the country of the applicant's nationality. It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality. The practice of the I.R.O. under its Constitution, therefore, is no guide to the meaning of "well-founded fear" in the Convention and Protocol definitions notwithstanding the declaration of the Ad Hoc Committee in its Final Report.

[198]

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: Gagliardi, The Inadequacy of Cognizable Grounds of Persecution as a Criterion for According Refugee Status, Stanford Journal of International Law, vol. 24 (1987), 259 at p. 269; Goodwin-Gill, op. cit., at pp. 44-45; Grahl-Madsen, op. cit., at pp. 185-186; M.A. A26851062 v. Immigration and Naturalization Service [64] ; Gunaleela v. Minister for Immigration and Ethnic Affairs [65] ; Periannan Murugasu v. Minister for Immigration and Ethnic Affairs [66] . 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: Goodwin-Gill, op. cit., at p. 38; Hyndman, The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants, Human Rights Quarterly, vol. 9 (1987), 49, at p. 67; U.N.H.C.R. Handbook, par. 62; McMullen v. Immigration and Naturalization Service [67] ; M.A. A26851062 [68] ; Rajudeen v. Minister of Employment and Immigration [69] . 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: Weis, The Concept of the Refugee in International Law, Journal du Droit International, (1960), 928, at p. 970. Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par. 151. In Oyarzo v. Minister of Employment and Immigration [70] the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of Convention refugee in the Immigration Act 1976 Can, s. 2(1). The Court rejected the proposition that persecution required deprivation of liberty [71] . It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason: Goodwin-Gill, pp. 38 et seq. In Reg. v. Immigration Appeal Tribunal; Ex parte Jonah [72] Nolan J., sitting in the Queen's Bench Division, held as a matter of law that there was a well-founded fear of persecution when the adjudicator had found "that if the appellant on his return to Ghana sought to involve himself once again in union affairs, he could be in some jeopardy, but there is no acceptable evidence to indicate that he would be at any material risk if he was to resume his residence in his remote family village where he spent a year and a half immediately prior to coming to this country" [73] . His Lordship held that being "subjected to injurious action and oppression - by reason of his political opinion and membership of a social group opposed to the government" constituted a well-founded fear of being persecuted "in the ordinary meaning of that word" [1] . In the United States, the Ninth Circuit has also taken a liberal view of the term "persecution". In Kovac v. Immigration and Naturalization Service [2] , the Court of Appeals construed the phrase "persecution on account of race, religion, or political opinion" in the Immigration and Nationality Act as meaning "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive". This definition of "persecution" was re-affirmed by the Ninth Circuit in Moghanian v. U.S. Department of Justice [3] . In Berdo v. Immigration and Naturalization Service [4] , the Sixth Circuit approved a similar construction.

[200]

It remains to apply the definition of "refugee" in the Convention and the Protocol to the facts of the present case in order to determine whether the decision of the delegate was "so unreasonable that no reasonable person could have so exercised the power": A.D.(J.R.) Act, s. 5(1)(e), (2)(g). The appellant contended that in determining whether he was a "refugee" within Art. 1A(2) the relevant date was the date when he left China. If he was a refugee at that date, so it was argued, he remained a refugee for the purposes of the Convention unless he lost its protection as the result of some supervening act or condition. Certainly, the terms of par. 28 of the Handbook support this contention. The contention of the appellant is also supported by Grahl-Madsen, op. cit., at p. 177, who asserts that "once a person has become a refugee, he remains a refugee until he falls under one of the cessation clauses in the Convention". The appellant then submitted that s. C(5) of Art. 1 was the only arguable excluding provision. Moreover, he submitted that the onus was on the respondent to show under that sub-section that the Convention had ceased to apply to the appellant because the "circumstances in connexion with which he has been recognised as a refugee have ceased to exist". But as the argument for the appellant accepted, the words "circumstances in connexion with which he has been recognized as a refugee" create difficulties for the submission that s. A(2) of the definition looks at the situation when the applicant left his country of nationality or decided not to return to it and not to the situation where he seeks refuge in a particular country. It seems natural to construe the words of Art. 1C(5) as meaning recognition as a refugee by the State party which has given him protection as a refugee. This gives rise to the inference that the Convention applies to a person when a State party recognizes him as a refugee and ceases to apply to him when the circumstances which gave rise to that recognition cease to exist. This view is supported by the use of the present tense in Art. 1A(2) - "is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself". It is supported also by the fact that a State party does not have to determine whether it has any obligation to a person until he makes application to it to be recognized as a refugee.

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