Collector of Customs v Pozzolanic Enterprises Pty Ltd

REASONS FOR JUDGMENT The applicant, Mr Ibnu Prahastono, applies to the Court for judicial review of a decision of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing a protection visa. He says that the Tribunal erred in law in reaching its decision. In his application to the Court, the applicant initially identified what were said to be two errors of law. The first was an alleged incorrect interpretation of the meaning of the word "persecution", adopted by the Tribunal; the second, the incorrect application of the law relating to the definition of "refugee" to the facts of the case as found by the Tribunal, by failing to recognise the suffering of the applicant as persecution. If what is meant by this ground is that it was not open to the Tribunal on the facts as found to come to its conclusion, there is a question of law involved. If, however, it was reasonably open for the Tribunal to find, as it did, then the question whether the facts as found entitled the Tribunal to conclude as it did involves a question of law which in the present proceedings is non-justiciable: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 (Proposition 5). The applicant also sought to rely upon there having been no evidence to justify the Tribunal's finding that the applicant and his family, given their individual circumstances, would be able to re-acquire Indonesian nationality on return to Indonesia. Before me, however, counsel reformulated the questions of law said to arise. As no substantial change is brought about by the reformulation, I gave leave to amend the application. No question of prejudice arose. Before identifying and discussing the so-called errors of law, it is convenient to narrate the facts as found by the Tribunal. The applicant was a citizen of Indonesia. He arrived in Australia with his wife and three children on 31 November 1989, travelling on a valid Indonesian passport. He made application for refugee status for himself and four children (a child had been born in the meantime in Australia) on 7 December 1993. As a consequence of legislative changes, his application is now treated as being an application for a protection visa. It is a criterion for the grant of such a visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the "Refugees Convention", an expression defined in the Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Refugees Protocol Relating to the Status of Refugees. Thus the issue before the Tribunal, standing in the shoes of the Minister, was whether it was satisfied that the applicant was a person to whom Australia had protection obligations under the Treaty as amended by the Protocol. The applicant's father had been a lieutenant colonel in the army at the time of the coup in Indonesia in 1965. Certain sections of the army had indirectly been involved in helping the communists seize power. The ring leaders were executed and the applicant's father was detained for one year, but then released. He was required for the next five years to report monthly to the intelligence bureau. He was not permitted to travel. The father died in 1978, by which time the father was, the applicant said, "a very broken and frustrated man". According to the applicant (whose evidence the Tribunal accepted) the applicant's family was under constant monitoring by governmental agencies. He was able to complete his education but when he sought employment the question of his father's involvement in the coup was always raised. He was unable to work in the public service. He said: "My life was basically hell, even though we moved the problem never went away." The applicant had trained in Australia to be a pilot and held an Australian Commercial Pilot's Licence. However, in Indonesia he was refused a pilot's license on the quoted ground that he was partially colour blind. The applicant knew of others who had been granted a license, notwithstanding similar colour blindness. When he sought employment in Indonesia he needed a clearance certificate. He was unable to get such a certificate because of his father's involvement in the coup. It may, however, be noted that the Tribunal expressed the view that the requirement for a clearance certificate, a form G30S clearance, was generally no longer needed in Indonesia. The Tribunal appears to have accepted, however, that the applicant would be denied work with the government should he seek it. Notwithstanding, the applicant had been employed at various times, including in the private sector in a car-wash as a leading hand and worked with a relative. He was excluded from university at the end of his first year (or perhaps second year, the reasons are not clear on this) when he was not allowed to sit for a religious examination because he did not have a clearance certificate. About once a month "people" put faeces on the applicant's house and threw stones on the roof. The applicant complained to the police but the problem persisted. The applicant and his family were subjected to harassment. When they passed a shop some people would say "Oh PKI, pass". Other matters upon which the applicant relied as showing alone, or cumulatively, persecution were: (1) In 1967 the applicant was refused entry to a mosque because of his father's PKI link. So the applicant practised his religion at home. The Tribunal was unable to say on the evidence before it whether this was a continuing problem. (2) His first marriage was dissolved after two years in 1977 because of the pressure of the social stigma of the applicant's father having been suspected of being a PKI supporter in 1965. (3) People had abused his first wife. They would whistle and say "PKI, PKI ", touch her as she passed and say "You are stupid". (4) The applicant's second wife was met with questions such as why she had married the applicant. People said of their child that she was a PKI. (5) Although the applicant and his second wife had moved to a new area (Malans), faeces were regularly put on their house walls and stones thrown at the house. (6) The applicant had had problems obtaining a passport The Tribunal formed the view that the applicant was not a refugee within the meaning of the Convention and Protocol. It did so because it was of the view that while the applicant faced discrimination he did not, nor did his family face persecution. The Tribunal's process of reasoning is exposed in the following passage taken from the reasons: "Everyone has a fundamental right to 'life, liberty and security of person' (International Bill of Human Rights Article 3), a right to a basic education (International Bill of Human Rights Article 26), the right to practise their religion (International Bill of Human Rights Article 18), the right to earn a livelihood (International Bill of Human Rights Article 23), and the right not to be subjected to arbitrary interference with his privacy, family, home, correspondence, attacks on his honour and reputation (International Bill of Human Rights Article 12). Breach of a fundamental right may amount to persecution: Hathaway, op cit, at pages 104-5 and Chen Ru Mei v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, op cit. However, persecution must either emanate from the authorities, or be conduct which the authorities will not or cannot prevent and must be of a level of seriousness which warrants a finding that the conduct amounts, individually and/or cumulatively, to persecution under the Convention. However, in this case, the Tribunal finds that the harassment he and his family experienced in Indonesian society does not amount to breach of these rights. In this case, the Tribunal accepts that the Applicant experienced ostracism in society, including at the mosque in 1968, and some discrimination in his tertiary studies and employment. However, though he has encountered unfair conduct, as in the apparent discriminatory refusal of his commercial pilot's licence in Indonesia, the Tribunal finds that even considered cumulatively, the discrimination is not of such a level of seriousness as to amount to persecution within the Convention. The Applicant's fundamental rights to a basic education and to earn a livelihood have not been breached. The Applicant has completed high school and two years of university studies, and he has maintained employment, albeit he is not able to work for the government in Indonesia. The Applicant (and/or his wife and children) has not been detained, questioned, monitored or harassed by the authorities in Indonesia and the Tribunal finds that the harassment he and his family experienced in Indonesian society is not of such a level of seriousness, individually and/or cumulatively, as to amount to persecution within the Convention. The Tribunal finds that there is no evidence before the Tribunal to suggest that the discrimination which the Applicant may suffer on return might be of greater severity that [sic] what he has suffered in the past. Accordingly, having considered the material before the Tribunal, the Tribunal finds that if the Applicant returns to Indonesia, there is not a real chance that he will face persecution on the basis of imputed political opinion, or any other Convention ground." THE FIRST SUGGESTED ERROR OF LAW The gravamen of the first submission was that the Tribunal had adopted the wrong legal test as to what constituted persecution. It was said that the Tribunal had found that discrimination in relation to education and employment did not amount to persecution unless: (i) it involved a breach of a fundamental right to a basic education and to earn a livelihood, or (ii) it allowed only a job that was extremely dangerous or grossly out of keeping with one's qualifications, or (iii) employment was extremely difficult to find It was said that in setting the test for persecution too high, the Tribunal had misread or misapplied the decisions of this Court in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 (the decision of the Full Court on appeal is reported at (1994) 35 ALD 225) and Chen v Minister for Immigration and Ethnic Affairs (1995) 58 FCR 97 and of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The reference in the submissions to these, and other authorities said to be inconsistent with the reasons in the present case may, at first sight, appear to add support for a case based upon reviewable error. In entertaining these submissions I must, however, keep steadily in mind two related propositions made abundantly clear from the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. First, this Court is confined to judicial review. It must not turn judicial review into merits review. The Court has no jurisdiction to set aside a decision so as to avoid "administrative injustice or error". Second, and it follows from the first, the Court should not engage in a minute dissection of the reasons of the decision-maker, parsing and analysing them until there is teased out some suggested legal error. So, as was said in Pozzolanic, in a passage cited with approval by Brennan, Toohey, McHugh and Gummow JJ in Wu (at 272), the Court should not be: "... concerned with looseness in the language ... nor with unhappy phrasing ... The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." At the heart of the submission, and indeed at the heart of the difficulty which faced the Tribunal in the present case, is the need to draw a line between "persecution", as that word is used in the Convention, and something which is mere discrimination. I say "mere discrimination" because persecution and discrimination are not mutually exclusive. Some forms of discriminationwill amount to persecution in the Convention sense. A useful starting point for any discussion on the concept of persecution is the judgment of McHugh J in Chan at 429-31 His Honour 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... 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 purpose of the Convention.... 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... 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 refugees would constitute persecution: par.151. In Oyarzo v Minister of Employment and Immigration [1982] 2 FC 779 at p783 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), s2(1). The Court rejected the proposition that persecution required deprivation of liberty [1982] 2 FC at p782. 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..." So, it may be accepted that while, perhaps a fortiori, deprivation of liberty will amount to persecution, something short of that will suffice. Denial of access to employment or education might be persecution. Nothing in the above passage requires the conclusion that deprivation of employment, or for that matter education, will necessarily be persecution, even if done for a Convention reason. It will be necessary to look at all of the facts. We can, at this point, put to one side education for it is not suggested that the applicant wishes to engage in any further educational activities. The judgment of Mason CJ in the same case refers to the notion of significant harm, detriment or disadvantage where persecution is to be found. His Honour said (at 388): "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." In Li Shi Ping at first instance before Drummond J ((1994) 35 ALD 557), it was argued that the applicant would face "employment difficulties" if returned to China. His Honour said (at 585), in a passage cited by the Tribunal: "Such a detriment is I think well capable of constituting 'persecution' within the meaning of that term in the Convention definition of 'refugee': see Chan, supra, per McHugh J at CLR 430-1." On appeal ((1994) 35 ALD 225)(and the Tribunal was criticised for not having noted that there had been an appeal, albeit that for relevant purposes the appeal did no more than affirm the judgment at first instance) the above passage was referred to with approval by Carr J, with whom the other members of the Court, Sheppard and Gummow JJ, agreed. His Honour continued at 231: "The only evidence before Mr Barnsley relating to the consequences of being denied employment ... was to the effect that once sacked from a work unit for political activities a person would be very likely confined to obtaining employment in the private sector. The evidence was that employment in the private sector in China accounted for less than 1% of all urban workers. Employment would therefore be extremely difficult to find." The decision of Drummond J in Li Shi Ping was referred to on a number of occasions by the Tribunal in the course of its reasons in the present case. On the first occasion, there is a reference to a right to work at a job that was not extremely dangerous or grossly out of keeping with the applicant's qualifications. The reference to Li Shi Ping would not seem particularly apposite. However, I would not suggest that any error of law had been committed in saying, as I take the Tribunal to be saying, that persecution may arise not only in the case where no employment at all is available to an applicant, but also where employment is available but is dangerous or demeaning. The second reference to Li Shi Ping is unexceptionable and need not be repeated. The third reference is in the following passage: "As to the proposition that a denial of work for a Convention reason also could amount to persecution within the Convention, the Tribunal notes that The International Bill of Human Rights Article 23(1), states that the right to work is a fundamental right, and that to some extent, breach of the right to work for a Convention reason has been acknowledged in Australia as amounting in some circumstances to 'persecution' within the Convention. The Tribunal notes that the right to work is not absolute; still, if employment is 'extremely difficult' to find because of a Convention reason this may amount to denial of the right to work (see Li Shi Ping at 585)." Again, it is hard to see why what is there said misapplies authority. The next case said to have been misapplied was Chen v Minister for Immigration and Ethnic Affairs. The error is said to have been the citation of a passage at 102 (letter F) while neglecting what was said at 102-4. In the first of these passages the Full Court, comprising Northrop, Spender and Lee JJ, said (at 102), speaking of "persecution": "Whether it may have a broader meaning to include, where such actions are undertaken for a Convention reason, measures in disregard of human dignity, the imposition of serious economic disadvantage, denial of access to employment or education, denial of rights enjoyed by compatriots and, perhaps, denial of freedoms fundamental to the existence of a democratic society, is undecided..." In the later passage, their Honours, after referring to Chan, said (at 104): "Having regard to the guidance provided by the judgments in Chan, it should be concluded that the denial of access to employment, if that denial is arbitrary and indefinite and part of a process of harassment by authorities for the purpose of suppressing political dissent, may involve detriment or disadvantage of such a magnitude as to constitute harm amounting to persecution for a Convention reason..." It is difficult to see how the failure to quote the passage cited detracts from the initial passage cited, which should be taken to be concerned with discrimination in employment of a less severe nature. Reference was made on behalf of the applicant to the decision of Tamberlin J in Ji Kil Soon v Minister for Immigration and Ethnic Affairs (1994) 37 ALD 609. In that case the applicant had experienced discrimination in employment in Korea, which the Tribunal had found not to constitute persecution. The Tribunal's decision was upheld in a judgment which pointed out that there can be levels of discrimination or harassment and that in the circumstances the Tribunal's decision was open to it. What the cases cited do stand for is the proposition that discrimination in employment may amount to persecution in a particular case. However, at the heart of the applicant's submission there lies a different proposition, namely, that denial of employment must constitute persecution. That is not a proposition for which any of the cases so far cited is authority. Reference was made in the course of argument to Thalary v The Minister for Immigration and Ethnic Affairs (Mansfield J, 4 April 1997, unreported) where it was said that this proposition was established. The applicant in that case came from Andhra Pradesh. She claimed that she was unable to get a job there because she was a Christian and because of her political beliefs. There was no clear finding of fact in the Tribunal and this alone constituted a ground for having the matter remitted to the Tribunal. His Honour, after citing from Chan, continued: "In the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1992) at 15, reference is made to discrimination of a substantially prejudicial nature for the person concerned eg 'serious restrictions on his right to earn his livelihood ...'. Chapter 4 of Professor Hathaway's book The Law of Refugee Status, Butterworths 1991, discusses the nature of persecution at some length esp at 116-124. Included in the 'basic and inalienable rights' are those in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (United Nations' General Assembly, Resolution 2200 A (XXI), 16 December 1966) protecting the right to work, including just and favourable conditions of employment remuneration, and rest. In my view, the Tribunal erred in concluding that the ability to obtain work in private enterprise reflects the State upholding the 'right to work', where the State either imposes or tolerates a system which precludes certain of its citizens from working in government employment for reasons of religion or political beliefs. Far from treating its citizens equally, the State then is sanctioning discrimination against some of them for Convention reasons. It is difficult to envisage circumstances where such discrimination may, in a practical sense, be insignificant. That is the more so when there is a significant economic disadvantage consequent upon that restriction, although actual economic disadvantage in an immediate personal sense is not per se the critical matter... As I have said above, I am unclear whether the Tribunal in fact found that to be the case in any event. It would, therefore, but for the further point raised by the Minister, be necessary to refer this matter back to the Tribunal for further consideration." Ultimately, his Honour referred the matter to the Tribunal to consider the claim for persecution concerning employment. Despite a submission to the contrary, I do not think that the comments quoted above are part of the ratio. Ultimately, because no facts had been found, the matter was remitted to the Tribunal. But, even were I to regard these comments as part of the ratio, I would not be bound by them in any technical sense, although judicial comity would then lead to my following what was said unless convinced that it was clearly wrong. In my view, the true position can be explained as follows. Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances. Clearly, in an economy where there was no private enterprise at all, inability to obtain government employment for a convention reason would constitute discrimination because that would constitute an "act of oppression", to adopt the language of McHugh J in Chan. And it would be just as much oppressive and thus involve persecution if, instead of there being no ability to obtain employment, there is ability to obtain employment but limited to jobs which are dangerous or demeaning to the person employed to do them. If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution. That would not be oppressive, at least to any significant extent. Thus, generally, whether restriction on employment amounts to persecution in a Convention sense will depend upon all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person. Although Australia may not in all things be a model to be held up for universal admiration, it may be mentioned that permanent employment in the Australian Public Service is still limited to those of Australian nationality. It would not ordinarily have been said that this discrimination constituted persecution of those who do not qualify as Australian nationals, although obviously directed at such persons. In my view, there is nothing in the texts or cases which support the universal proposition that discrimination in employment must be persecution. No case has attempted an all-inclusive definition of "persecution" and that certainly is not a task which I wish to undertake in the present case. I am prepared to accept that the UNHCR Handbook is correct in the following passage upon which the applicant relies. But nothing in that Handbook permits me to reach a conclusion other than that the question whether discrimination becomes persecution involves an issue of fact and degree, and that this is an issue for the decision-maker and not for the Court. In my view, it was open for the Tribunal to find there to be no persecution in the present case. The Handbook relevantly says: "(b) Persecution