Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; 222 CLR 1

Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; 222 CLR 1 - HCA 2004 case summary — Zoe

[14]

The respondents are Ukrainian nationals. The first respondent had suffered serious harm from some fellow citizens in Ukraine because he was a Jehovah's Witness. The nature of that harm will be explained below. The first respondent needed to establish that he feared persecution for reasons of religion, that his fear was well-founded, that he was outside Ukraine owing to such fear, and that he was unable or, owing to such fear, unwilling to avail himself of the protection of his country of nationality.
The respondents are de facto husband and wife. The second respondent is not a Jehovah's Witness, and it was the position of the first respondent that was the focus of attention. The respondents left Ukraine in December 1998, and arrived in Australia in the same month. In February 1999, they applied for protection visas. On 7 May 1999, their application was refused by a delegate of the Minister. They applied for review of that decision by the Refugee Review Tribunal ("the Tribunal"). In September 2000, the Tribunal affirmed the delegate's decision. The respondents sought judicial review of the Tribunal's decision in the Federal Court of Australia. The matter came before Wilcox J, who found no error of law in the Tribunal's reasons, and who, on 9 April 2001, dismissed the application. The respondents then appealed successfully to the Full Court of the Federal Court (Lee, Moore and Madgwick JJ). Before considering the decision of the Full Court, it is necessary to examine the case that was put to the Tribunal, the findings of the Tribunal, and the Tribunal's reasons for affirming the delegate's decision.
The first respondent said that he became interested in the Jehovah's Witnesses religion in about May 1998. He was given some literature by a friend, and started to attend meetings on Sunday evenings. He began to distribute publications to his neighbours, and to engage in other forms of proselytising. Sometimes his activities were received with hostility and insults. On an occasion in June 1998, a group of drunken teenagers set upon him as he was returning to his home unit. They called him "a stinking sectarian", and punched and kicked him. He suffered severe injuries. An ambulance was called. He was given emergency treatment at a hospital, and then spent a week at home in bed. A policeman visited him at home, and asked for his account of what happened. The first respondent, who did not know the identity of his attackers, did not make a formal statement.
On an occasion in July 1998, there was an apparent attempt to set fire to the front door of the unit in which the first respondent was living. Written on a nearby wall were the words: "Death to sectarians! Bitch, if you want to live, stop your filthy activities, or else!"
In September 1998, on an occasion when the first respondent went into a building to distribute magazines, he was attacked and beaten by four men.
The first respondent's religious beliefs and activities also incurred the resentment of his employer. He was dismissed on a ground that he regarded as spurious. He then decided to leave Ukraine.
The Tribunal took account of country information from the United States Department of State, the British Home Office, and the Australian Department of Foreign Affairs and Trade. That information was consistent. It contained no suggestion that the Ukrainian government was not in control of the country, or that the police force and the judicial system were not reasonably effective and impartial. It said that the Ukrainian government permitted freedom of religious practice in the case of "traditional religions", which included Jehovah's Witnesses, although "new religions", such as Scientology, were treated differently. It was noted that, as part of the Soviet Union for most of the 20th century, Ukraine was a society in which, for a long time, the public practice of religion had been strongly and officially discouraged, and that sections of the community were still likely to be hostile to religious proselytising. The Tribunal noted that there were more than 100,000 Jehovah's Witnesses in Ukraine, and that the Church itself, in its published material, did not claim to be persecuted there.
The Tribunal found "that the [first respondent] was assaulted and that he was assaulted because some individuals were affronted by his religious beliefs. However, these incidents must be seen as individual and random incidents of harm directed at the [first respondent] and not as persecution for a Convention reason."
The first respondent set out to convince the Tribunal that the government of Ukraine, both directly and through the state-controlled media, encouraged persecution of Jehovah's Witnesses. That proposition was rejected. The first respondent also asserted that the police condoned violence towards Jehovah's Witnesses. The Tribunal did not accept that. The Tribunal said:

[18]

In the light of what the Full Court later said, it is to be noted that the Tribunal twice expressed the conclusion that it was not satisfied that the Ukrainian authorities were unable or unwilling to protect citizens from violence based on antagonism of the kind here involved.
It is also to be noted that the first respondent's case before the Tribunal was that the government of Ukraine actively encouraged persecution of Jehovah's Witnesses. It was not asserted that the judicial system, or the police force, of the country lacked the power to deal effectively with unlawful violence, if they wanted to do so. The allegation was not one of absence of power, or even one of mere absence of will. It was one of positive encouragement of certain forms of unlawful violence. That was the context in which the Tribunal's reasons were expressed. As sometimes happens, by the time the case reached a further level of decision-making, a new point was made. But a fair reading of the Tribunal's reasons requires an understanding of the case it was addressing.
The respondents were unrepresented before the Full Court. The reasons of the Full Court record that, during the hearing of the appeal, an issue emerged that had not been raised before Wilcox J. How it emerged does not appear. The issue was said to relate to "the Tribunal's rejection of the [first respondent's] claim that the Ukrainian authorities were either unable or unwilling to provide protection to their citizens". To describe that as the first respondent's claim is perhaps not entirely accurate. His claim was that the authorities were unwilling to provide protection in the sense that they were the instigators of the harm. The Full Court said that the Tribunal was entitled to find that there was no evidence that the Ukrainian authorities encouraged persecution of Jehovah's Witnesses. "However, the Tribunal did not address the question of possible future harm befalling the [respondents] or whether the Ukrainian government was able, in a practical sense, to prevent such harm, given the history of violence towards [the first respondent] on account of his religious beliefs. These matters were relevant in determining whether the [respondents'] fear of persecution was well-founded."
The Full Court went on:

[20]

It is not completely clear what the Full Court meant by its references to the Ukrainian government's ability "in a practical sense" to prevent harm to the first respondent. It appears, however, that what the Full Court had in mind was that the first respondent had suffered harm in the past (in the manner and on the occasions described above), and that there was no assurance that the same would not happen to him again in the future. The suggested error of the Tribunal, said by the Full Court to be jurisdictional error, lay in failing "to consider the right question, namely, whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm". Since the Tribunal had found that the three attacks on the first respondent were random and unco-ordinated, that the attackers were different, and that each group was unknown to the others, the "pervasive pattern of harm" must be the hostility, in certain elements of the community, towards "sectarian" religious practice and proselytising, and the propensity of some of those elements to express their hostility in a violent manner. The Full Court said that the practical ability, or lack of ability, to provide protection was relevant in determining whether the first respondent's fear was well-founded. It did not advert expressly to whether it was also relevant to determining whether that which the first respondent feared was persecution, or to whether the first respondent's unwillingness to avail himself in Australia of the protection of the Ukrainian authorities was "owing to" such fear.
It was pointed out in Minister for Immigration and Multicultural Affairs v Khawar[1] that, although the paradigm case of persecution contemplated by the Convention is persecution by the state or agents of the state, it is accepted in Australia, and in a number of other jurisdictions, that the serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the state. But not all serious harm inflicted upon a person by his or her fellow-citizens amounts to persecution, even if it is inflicted for one of the reasons stated in the Convention. The word used by Art 1A(2) is "persecuted", not "harmed", or "seriously harmed". Furthermore, it is used in a context which throws light on its meaning.
The immediate context is that of a putative refugee, who is outside the country of his nationality and who is unable or, owing to fear of persecution, unwilling to avail himself of the protection of that country. As explained in Khawar[2], we accept that the term "protection" there refers to the diplomatic or consular protection extended abroad by a country to its nationals. In the present case, the first respondent must show that he is unable or, owing to his fear of persecution in Ukraine, unwilling to avail himself of the diplomatic or consular protection extended abroad by the state of Ukraine to its nationals. Availing himself of that protection might result in his being returned to Ukraine. Where diplomatic or consular protection is available, a person such as the first respondent must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. As the Supreme Court of Canada put it in Canada (Attorney General) v Ward[3], a claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Art 1A(2). In Applicant A v Minister for Immigration and Ethnic Affairs[4], Brennan CJ referred to Art 1C(5), which refers to the possibility that circumstances may change in such a way that a refugee can no longer refuse to avail himself of the protection of the country of his nationality. This indicated, he said, that the definition of "refugee" must be speaking of a fear of "persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality"[5].
The wider context is that of an instrument which provides an important, but defined and limited, form of international responsibility towards a person whose fundamental human rights and freedoms have been violated in a certain respect in the person's country of nationality. Because it is the primary responsibility of the country of nationality to safeguard those rights and freedoms, the international responsibility has been described as a form of "surrogate protection"[6]. "Protection" in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2). The wider context was referred to by Dawson J in Applicant A[7] when he said that international refugee law was meant to serve as a substitute for national protection where such protection was not provided in certain circumstances, and by Lord Hope of Craighead who said in Horvath v Secretary of State for the Home Department[8] that the general purpose of the Convention is to enable a person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community. A further part of the context is Art 33 of the Convention, which prohibits the expulsion or return of a refugee to the frontiers of territories where his life or freedom would be threatened on account of one of the factors referred to in Art 1A(2).
Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath[9] where she said, in relation to the sufficiency of state protection against the acts of non-state agents:

[22]

Horvath was a case not unlike the present. A Roma citizen of Slovakia claimed asylum in the United Kingdom, saying that he feared serious harm by skinheads against whom the Slovak police failed to provide adequate protection. It was found that, although the appellant's evidence as to the harm inflicted on him was credible, Slovakia provided citizens with a sufficient level of state protection against violence. On those findings, four members of the House of Lords held that there was no persecution, no well-founded fear, and no inability, or unwillingness owing to such fear, on the part of the appellant to avail himself of the protection of Slovakia. The fifth member, Lord Lloyd of Berwick, agreed in the result, but confined his reasons to the third ground. The outcome of the case may be compared with Canada (Attorney General) v Ward[10] where the Supreme Court of Canada upheld a claim that the Convention applied. In that case the issues were narrow. The person making the claim had been sentenced to death at a court martial by a paramilitary organisation in Ireland. The Attorney General of Canada conceded that the government of Ireland was unable to protect him[11]. She also argued that state complicity is a prerequisite to persecution, but conceded that a state's inability to protect its citizens amounts to complicity if what is involved is otherwise persecution on a Convention ground.
Problems of interpretation of instruments may arise because, although a provision was not intended to be confined in its operation to a certain kind of case, such a case was in the forefront of the contemplation of the drafters, and dominated their choice of language. When that occurs, the provision may operate smoothly and coherently in its application to the paradigm case, but in other cases it may give rise, not to impossibility of application, but to difficulty. In a case where the harm feared by a putative refugee is harm inflicted by the state, or agents of the state, in the country of nationality, the significance for the application of Art 1A(2) of the complicity of the state in the harm inflicted is clear. Assuming the harm to be sufficiently serious, and the reason for it to be a Convention reason, the fear of harm will be well-founded (because of its source); it may readily be characterised as persecution, and identified as the reason the person in question is outside the country of nationality; the external protection, which may involve being sent back, is illusory; and the unwillingness to seek such protection may be explained and justified by the fear of persecution. (It is unnecessary in the present case to examine what is involved in the concept of inability to seek external protection. There is a Ukrainian Embassy in Australia, and before that there was a consulate. The first respondent must rely upon unwillingness.) Even where the harm feared is harm not inflicted by the state, or agents of the state, but where the state is complicit in the sense that it encourages, condones or tolerates the harm, the same process of reasoning applies. The attitude of the state is relevant to a decision whether the fear of harm is well-founded; it is consistent with the possibility that there is persecution; it is consistent with the person being outside the country of nationality because of a well-founded fear of persecution; and it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the state's encouragement, condonation or tolerance of the persecution.
What of a case such as the present? The Full Court held that the Tribunal failed to consider Ukraine's ability to provide internal protection, the question being "whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm". In addition to rejecting explicitly a claim that the state encouraged the harm suffered by the first respondent, the Tribunal, on more than one occasion, said that it was not prepared to find that the Ukrainian authorities were unable or unwilling to protect him. This was in a context where there were two physical attacks on the first respondent and one on his property, the attacks were random and unco-ordinated, the police had interviewed the first respondent about one of them and he had been unable to identify his attackers, he had never made a statement to the police, and the police were found to have "responded appropriately".
The first respondent is outside his country of nationality owing to a fear resulting from a violent response of some Ukrainian citizens to his religious proselytising. The Tribunal's conclusion that the violence was random and unco-ordinated was not merely an assertion. It was a finding based on the evidence, and it was directly relevant to the case the first respondent was seeking to make, which was that the violence was orchestrated and state-sponsored. The first respondent did not set out to demonstrate that his country was out of control. On the contrary, he was claiming that the government was in control, and was using its power and influence to harm people like him. The new case, raised for the first time in the Full Court, has to be related to the terms of Art 1A(2). What kind of inability to protect a person such as the first respondent from harm of the kind he has suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country's protection?
No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
In fact, there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. According to the account of events he gave to the Tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers. The Tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom[12].
The first respondent sought to explain and justify his unwillingness to seek the protection of the Ukrainian authorities, either at home or abroad, on the basis that they were the instigators, directly or indirectly, of the attacks on him. That case was rejected by the Tribunal. The Full Court found no fault with that part of the Tribunal's decision. The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards. It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards. The question of Ukraine's ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the Tribunal. Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the Tribunal's reasons. If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.
The Tribunal's finding that it was not satisfied that the Ukrainian government was unable to protect the first respondent, and its finding that the first respondent was not a victim of persecution, must be understood in the light of the terms of Art 1A(2), the evidence that was before the Tribunal, and the nature of the case the first respondent sought to make. Once the Tribunal came to the conclusion that the contention that the Ukrainian authorities instigated or encouraged the harm suffered by the first respondent must be rejected, and that the attacks on him or his property were random and unco-ordinated, then its finding about the government's willingness and ability to protect the first respondent must be understood as a finding that the information did not justify a conclusion that the government would not or could not provide citizens in the position of the first respondent with the level of protection which they were entitled to expect according to international standards. That being so, he was not a victim of persecution, and he could not justify his unwillingness to seek the protection of his country of nationality. It was not enough for the first respondent to show that there was a real risk that, if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality.
Wilcox J was correct to conclude that the Tribunal's reasons disclosed no errors of law and no jurisdictional error. The appeal should be allowed. The orders of the Full Court, save as to costs, should be set aside. In place of those orders, it should be ordered that the appeal to the Full Court be dismissed. In accordance with the terms of the grant of special leave to appeal it should be ordered that the appellant pay the respondents' costs of the appeal.
McHUGH J. The Full Court of the Federal Court of Australia set aside a decision of the Refugee Review Tribunal ("the Tribunal") that the respondents were not refugees within the meaning of the Refugees Convention[13]. The Full Court held that, in reaching its decision, the Tribunal had fallen into jurisdictional error. The error consisted in failing to consider whether the respondents might suffer future harm from random acts committed by private individuals because of the male respondent's religious belief and whether the government of their country of nationality was able in a practical sense to prevent such harm occurring. The issue in this appeal is whether the Full Court erred in holding that the Tribunal had fallen into jurisdictional error.
In my opinion, the Tribunal acted within its jurisdiction in reaching its decision and committed no error of law that required its decision to be set aside. When a person fears persecution for a Convention reason from the random and uncoordinated acts of private individuals, the ability of that person's country to eliminate or reduce the risk of persecution may be relevant in determining whether the person has a well-founded fear of persecution. It is likely to be relevant to that issue when the persecutor is known or readily ascertainable. But determining whether the government of the country of nationality is able to prevent harm from the random and uncoordinated acts of private individuals is not a necessary element in determining whether the person's fear of harm from random acts is well-founded. The need for such a determination is a variable factor that may be decisive in some cases but irrelevant in others. Nor is the absence of protection of the person by the State, in the context of a purported duty to protect, an element of persecution.
In determining the issue of well-founded fear, the critical question is whether the evidence established a real chance that the asylum seeker will be persecuted for a reason proscribed by the Convention, if returned to the country of nationality. If the evidence shows that the persecutors have targeted the asylum seeker, the ability of the country of nationality to protect that person will be relevant to the issue of well-founded fear. If the evidence shows no more than that private individuals randomly harm the class of persons to which the asylum seeker belongs but fails to show that that person has a real chance of suffering harm, the ability of the country to eliminate those acts is irrelevant. Every year motor car accidents cause the death of or serious injury to thousands of Australians. But that does not mean that every driver who fears death or serious injury from a motor accident has a well-founded fear that he or she will suffer death or serious injury in that way. The inability of Australian governments to eliminate those deaths and injuries does not determine whether the fear is well-founded.
In the present case, the Tribunal found that in the past the male respondent had not suffered acts of persecution for a Convention reason and that there was only a remote chance that he would suffer such acts in the future. That was a factual conclusion open to the Tribunal and was not reviewable in the Federal Court. Having made that finding of fact, the Tribunal was not bound to determine whether the country of nationality had the ability - in a practical sense or otherwise - to eliminate those acts.

[25]

A delegate of the Minister for Immigration and Multicultural Affairs refused the respondents' applications. The Tribunal affirmed the delegate's decision. The Tribunal found that the husband had been assaulted on two occasions and that a fire had been lit outside his property on another occasion "because some individuals were affronted by his religious beliefs". It was the husband's case before the Tribunal that the government of Ukraine encourages the persecution of Jehovah's Witnesses and that members of its police force condone violence towards Jehovah's Witnesses. He claimed that the harm that he suffered was the result of the policies of the Ukrainian government. In evidence before the Tribunal, the husband said that Ukraine was "a country where they whip up hatred against the JWs". He also said "the authorities do not want young people (like the [husband]) being active in the church as they may be more successful in spreading the word". The husband said that the arson attack "confirmed what dreadful conditions there were for members of the JW faith in the Ukraine". However, the Tribunal rejected the husband's claim that "the government in the Ukraine and ... its tame press ... actively encourages persecution of Jehovah's Witnesses".
The Tribunal found that the incidents of which the husband complained were individual and random incidents and did not constitute persecution. It rejected the claim that the Ukrainian government encouraged or condoned attacks on Jehovah's Witnesses. The Tribunal found that, although a police officer came to the husband's apartment after the first assault, he took the matter no further when the husband "for some reason" did not make a statement. However, the husband claimed that he went to the police station after the second assault and that the police officers would not take his or another person's statement. The Tribunal found that, even if this was so, there were at least two police stations where the husband could have complained. One of them was the station that had sent the officer who had investigated the first assault. In addition, said the Tribunal, the husband could have gone to the office of the Procurator-General. He also had the option of complaining to his Church.
In concluding that the Ukrainian government did not encourage or condone attacks on the Witnesses, the Tribunal took into account a "recent Country Information report" of the Department of Foreign Affairs and Trade. That report stated that Jehovah's Witnesses were considered to be one of the traditional religions in Ukraine which "are respected almost as native traditional religions". The Tribunal said that the official website of "the Jehovah's Witnesses, a sophisticated and well-resourced organisation", showed that its membership in Ukraine was increasing and that it had "823 congregations across the country". It said that these matters indicated "that the organisation is not being suppressed by the authorities; nor are Ukrainians terrified to join or frightened to continue their membership of the church".
The Tribunal said:

[56]

Rejection of the protection theory of the Convention is not necessarily inconsistent with the accountability theory of the Convention. But once it is accepted that State culpability is not an element of "persecution", it is difficult to accept the accountability theory. It could only be accepted if the Convention was exclusively concerned with State persecution of persons or if international refugee law in 1951 was concerned only with the creation of rules applicable to the relationship between States and their citizens. German courts have adopted both these rationales to justify the accountability theory of the Convention[51].
No doubt the widespread State persecution of refugees was the catalyst for enacting the Convention. But the Convention's reference to persecution is general; it does not refer to persecution by a State or its agents. To read down the general words of the Convention to give effect to the catalyst for the Convention would be contrary to the principles for interpreting treaties as laid down in Art 31 of the Vienna Convention on the Law of Treaties. Under those principles, primacy is given to the text although context, object and purpose must also be considered[52].
Furthermore, nothing in the Convention supports the view of the German courts that the Convention was concerned with the creation of rules applicable to the internal relations between States and their citizenry. On the contrary, the terms of the Convention show that it was concerned with imposing obligations on the signatories to the Convention. It was not directed to persecuting States; it was directed to the signatories to the Convention. It specified the criteria for determining who was a refugee and what obligations each signatory country owed to refugees who sought asylum in that country.
Moreover, as Professor Goodwin-Gill has pointed out, "there is no basis in the 1951 Convention, or in general international law, for requiring the existence of effective, operating institutions of government as a pre-condition to a successful claim to refugee status"[53]. Hence, to read a requirement of State conduct into the Convention's definition of "refugee" is to add a further element to the definition[54].
In my view, the accountability theory has no part to play in interpreting Art 1A(2) of the Convention.

[57]

The findings of the Tribunal show that the individual assaults and the other conduct of which the husband complained were not part of a pattern. Nor did they involve sustained discriminatory conduct. The Tribunal regarded them as individual acts by different perpetrators. However, the Full Court said that "[t]hese findings clearly raised an issue about whether there was a risk of harm for a Convention reason that the authorities could not provide protection against". And, as I have said, the Full Court held that the Tribunal had fallen into jurisdictional error by not considering whether, in a practical sense, the State was able to provide protection against individual acts by different perpetrators. Hence, as I have indicated, the Full Court must have considered that that question was a necessary element in determining whether the husband and wife had a well-founded fear of persecution.
In its ordinary meaning, persecution involves selective harassment or oppression of any kind. The terms "harassment" and "oppression", particularly the former, imply repetitive, or the threat of repetitive, conduct. In its ordinary meaning, persecution always involves discrimination of some kind although discrimination is not necessarily persecution[55]. The harassment or oppression will ordinarily be motivated by enmity or by the desire to achieve an objective. It frequently involves the infliction of systematic harm over a period directed against those who hold particular beliefs or who refuse to comply with the persecutor's wishes.
In the Convention, however, the notion of persecution is not at large. Either expressly or by necessary implication or inference, the Convention controls and narrows the meaning of persecution for its purposes. Thus, the selectivity and motivation of the harassment or oppression is defined by reference to five matters: reasons of race, religion, nationality, political opinion and membership of a particular social group[56]. Further, not every kind of harassment or oppression constitutes persecution for the purpose of the Convention. The Convention is concerned with persons who are outside their country of nationality and are unable or unwilling to seek the protection of that country because of a well-founded fear of what will happen to them if they return to that country. This factor, together with the imposition of obligations on the country where asylum is sought, indicates that the feared harm must be of a serious nature that goes beyond simple discrimination and requires the country of asylum to protect the refugee. It is not to be supposed that the Convention required signatory States to give asylum to persons who were persecuted for a Convention reason but who were unlikely to suffer serious infringement of their rights as human beings. Thus, for the purpose of the Convention, the feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person[57]. Implicit in that statement is the further proposition that there is a real chance that the feared conduct will be repeated or, if it has not already occurred, will occur, if the asylum seeker returns to the country of nationality.
Most forms of persecution involve sustained discriminatory conduct or a pattern of discriminatory conduct against an individual or a group of individuals[58]. But a well-founded fear of persecution may be established for the purpose of the Convention although it does not derive from conduct that is part of a pattern or involve sustained discriminatory conduct. The fear may arise from an announcement as to a future course of conduct or from a single act[59] that was directed at the asylum seeker or at others. It is not necessary that the asylum seeker should have been persecuted in the past[60]. The Convention looks to the future. What has occurred in the past does not determine whether a person is a refugee for the purpose of the Convention. In determining whether that person has a well-founded fear that he or she will be persecuted if returned to the country of nationality, the past is a guide - a very important guide - as to what may happen[61]. But that is all.
The Convention does not refer to persecutors. It refers to persecution, not persecutors. The persecution to which the Convention refers may be carried out by the State or its agents or by one or more private citizens[62]. From the victim's point of view, the result is the same. In determining whether a person has a well‑founded fear of persecution, however, it may matter a great deal whether the State or its agents or a private individual or individuals will inflict the persecution.
Where fear of persecution springs from the conduct of the State and there is a real chance that the conduct will continue and affect the asylum seeker, a finding that the fear is well-founded will be virtually inevitable. Similarly, where the persecutory conduct of State agents is widespread, a finding that the fear is well-founded will be virtually inevitable. On those hypotheses, refusal to return to the country of nationality is the only practical means of avoiding the real chance of persecution. More difficult issues arise where the persecution is the work of private individuals, particularly where there are many of them and their conduct is uncoordinated, or where the persecution is perpetrated by isolated State agents. As Gaudron J pointed out in Minister for Immigration and Multicultural Affairs v Haji Ibrahim[63], "a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion". If the threat of persecution arises from an individual or a small group of individuals and the State is prepared to act against the individual or group, in most cases the threat is likely to be eliminated or greatly reduced. In such a case, the proper conclusion may well be that the fear is not well-founded because there is no real chance that the persecutory conduct will occur. If the State refuses to act or tolerates the conduct of the individual or group, the State itself will be complicit. On that hypothesis, unless there is only a remote chance that the asylum seeker will be persecuted, ordinarily the proper conclusion is that the fear is well-founded. Both the State and the individual or group will be guilty of persecution.
The case that presents most difficulty is one where harm to individuals for a Convention reason may come from any one or more of a widely dispersed group of individuals and the State is willing but is unable to prevent much of that harm from occurring. In societies divided by strongly held ethnic or religious views, it commonly happens that members of one group have a real chance of suffering harm - often violent harm - because of the pervasive but random acts of members of another group. Such harm occurs although the State makes every effort to prevent it. In such cases, it would be a misuse of language to say that the fear of persecution is not well‑founded because the State has "a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected"[64]. In Horvath, relying on the protection theory, the House of Lords limited the scope of the definition of "refugee" by requiring that a State be unwilling or unable to eliminate persecutory conduct by private individuals. Nothing in the Convention, however, supports this limitation. It should not be read into the Convention.
If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well‑founded[65] irrespective of whether law enforcement systems do or do not operate within the State. In Haji Ibrahim, all members of this Court recognised[66] that persons may be persecuted for a Convention reason although the State is unable to protect them because a civil war is raging in the country. No different view should be taken where in peace-time a State is unable to protect its citizens from harm inflicted for a Convention reason. As Gleeson CJ pointed out in Haji Ibrahim[67], "[p]ersecution and disorder are not mutually exclusive". In the same case, Gaudron J said that persecution may exist for the purpose of the Convention "whether or not the conduct occurs in the course of a civil war, during general civil unrest or ... [where] it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution"[68].
In order to establish that fear is well-founded in cases of private persecution, an asylum seeker will no doubt have to show more than that persons holding the same beliefs, opinions or membership of races, nationality or particular social groups are being persecuted. The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution. That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims. Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group. Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted.
In many - perhaps most - cases, however, more will be needed than proof that a percentage of members holding beliefs, opinions or membership similar to the asylum seeker have been harmed for a Convention reason. Statistical percentages based on experience of past events are usually an accurate guide to the chance of similar events occurring in the future. Insurance companies and financial institutions, for example, bet heavily on such statistical percentages when estimating the chance of future events occurring. But a percentage chance based on the results of a number of events, by itself, seldom throws light on whether a future event is likely to affect any particular person, place or property. To make the percentage useful for predicting the occurrence of an individual event, the predictor has to know a good deal about the inputs that form the basis of the statistical calculation. The predictor must know, for example, the source and nature of the inputs, the period and the area over which they were collected and their significance for the subject of the prediction.
Each year, a significant percentage of Australians, aged between 50 and 60, suffer heart attacks. But that says little about the chance of any individual in that age bracket suffering a heart attack. The statistical chance of such a person having a heart attack has predictive value only when other factors concerning the individual are known - weight, levels of cholesterol or blood pressure, smoking, diet, exercise and genetic predisposition, for example. When they are known, their correlation with the risk of heart attack may convert an insignificant percentage concerning the age group as a whole into a high risk for the individual.
Hence, in determining whether an asylum seeker has a well‑founded fear of persecution, usually the decision-maker has to know a good deal more than that other persons holding similar beliefs, opinions or membership have been persecuted. It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those that the asylum seeker will likely face. Only then will the experience of other members of the relevant category throw light on whether there is a real chance that the asylum seeker will be persecuted.
However, once the asylum seeker is able to show that there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the State and its agencies have taken all reasonable steps to eliminate the risk. Nothing in the Convention supports such a conclusion.

[68]

Before the Tribunal, the applicants' claim to fall within the Convention definition of "refugee" substantially relied upon the basis that Ukraine, and in that sense its state apparatus, agencies and officials, was complicit in the attacks suffered by the male applicant. It was submitted that Ukraine had encouraged the violence directed at the male applicant through the media and otherwise. This was the essential evidentiary case presented, upon the basis of which the applicants sought protection visas in Australia. Obviously, if such a case could be made good, the applicants would have enjoyed good prospects of success. Persecution of members of the Jehovah's Witness religion by the official apparatus of nation states is not unknown in history, including recent history. Discrimination against Jehovah's Witnesses has been claimed in Australian history and considered by this Court[75].
However, upon this case of complicity and involvement by Ukraine in the harm suffered by the male applicant, the applicants failed before the Tribunal. They did so on the evidentiary merits. The reasons given for their loss in this respect are compelling. They were grounded in country information from reliable governmental and other sources to the effect that state authorities in Ukraine generally accept traditional religions (of which Jehovah's Witnesses are treated as one). The reasons were also supported by the references to the website of the international organisation of the Jehovah's Witnesses Church naming certain countries as unfriendly and worse to members of their denomination. Some of the neighbours of Ukraine are amongst those countries so named. However, Ukraine itself is not mentioned. On the contrary, the website indicates that there are more than 100,000 members of the Jehovah's Witnesses in Ukraine and that there are 823 congregations.
In these circumstances, the finding by the Tribunal against the applicants, on the case that they propounded, was scarcely surprising. Certainly, it was supported by the evidence. There is no indication of jurisdictional or other legal error in that determination. No one now suggests otherwise.

[69]

The applicants appeared before the Tribunal (and in the Federal Court) without legal representation. This made it appropriate for the Tribunal and that Court to adopt an approach of special vigilance. This is because of the duty imposed on the Tribunal by the Act to approach its own functions in a generally inquisitorial and not strictly an adversarial manner[76]. Furthermore, the Federal Court would be aware of the importance of refugee decisions under the Act and that unrepresented applicants could not be expected to know about all the many nuances of that law. Trained lawyers often find it difficult to distinguish jurisdictional from non-jurisdictional error. I have confessed to difficulty myself. In such circumstances, it was proper for the Federal Court to engage in its own scrutiny of the approach adopted by the Tribunal and by the primary judge to see if a relevant undisclosed error appeared warranting a rehearing before the Tribunal. This is what the Full Court did.
The Full Court's consideration of the alternative case which it felt was open to the applicants and unconsidered by the Tribunal and the primary judge, was probably enlivened by the then recent publication of this Court's decision in Minister for Immigration and Multicultural Affairs v Khawar[77]. That decision was announced on 11 April 2002. That was after the primary judge had delivered his judgment, after the hearing in the Full Court and little more than a month before the publication of the Full Court's reasons. It can be assumed, as the Full Court indicated, that the decision was therefore at the forefront of its thinking[78].
In Khawar, as in this case, the applicant for refugee status was unable to succeed on the case common in persecution claims, namely persecutory activity by the apparatus of the state, its agencies and officials, in the country of nationality of the applicant for refugee status. In Khawar the complaint, by a female citizen of Pakistan, was that she was the victim of repeated violence by non-state actors (her husband and his family) which state agencies (namely the police) had failed to investigate or follow up by laying charges in respect of complaints by women, including Mrs Khawar, who alleged domestic violence against them by their husbands and by members of their husbands' families.
In Khawar, this Court by majority[79] held that "persecution" within the Convention definition of "refugee" could exist as a matter of law although the relevant harm was inflicted on the applicant by non-state actors. Such non-state actors could include private citizens. "Persecution" could arise where the relevant conduct was tolerated or condoned by the state in a discriminatory manner[80]. The principle endorsed by the Court rejected the notion that "persecution" as used in the Convention's criteria for "refugee" status inherently implied a necessity of intolerable conduct by agents of the state in inflicting, condoning or tolerating the persecution ("the accountability theory")[81]. I considered that it was sufficient if the "persecution" involved serious harm and the failure of state protection. In my reasons, at some admitted risk of oversimplification, I adopted the concise formula which Lord Hoffmann had propounded in R v Immigration Appeal Tribunal; Ex parte Shah[82] and Lord Clyde had endorsed in Horvath v Secretary of State for the Home Department[83]:

[77]

In his reasons in this appeal, McHugh J has suggested that the protection theory of "persecution" is as flawed as the accountability theory[92]. He points to the primary duty of a national court to give effect to the Refugees Convention according to its language[93]. According to McHugh J, the notion of "persecution" itself contains no foothold for importing a necessity of some state involvement (by conduct or relevant omission), and this Court should now reject that approach and accept a new theory of its own ("the third theory"). The new theory of "persecution" would confine the consideration of responses, if any, of state agencies and officials to the question whether the "fear" is "well-founded". The consideration would not be relevant to whether the impugned conduct was "persecution".
I accept the power of the arguments of text and policy that McHugh J has deployed in support of his approach. On the other hand, there are some contrary indications in the Refugees Convention, its history, nature, language and purpose, that suggest that the protection theory of persecution may not be incorrect.
Historically, the Refugees Convention arose out of the egregious history of Europe before, during and immediately after the Second World War, where huge numbers of refugees were displaced and forced to seek asylum because of state organised, condoned and tolerated conduct persecutory of such persons. The Convention is an international treaty. It is made by nation states, between nation states, imposing serious obligations upon nation states that cut across the normal duties and rights of nationality. In such circumstances, the reading of "persecution" in the Convention definition, to imply at least some passive involvement of the state of nationality, its agents and officials, would be unsurprising.
The Refugees Convention is not, at first blush, a treaty addressed as such to the conduct of private individuals and corporations having no connection with the state of nationality. The language of the Convention definition of refugee seems to support the connection, at least to some extent. The "fear" will not ordinarily be "well-founded" at all if the asylum seeker can properly look to the state of nationality, its agencies and officials, to sanction the conduct of private individuals who are acting oppressively. The limited categories of "reasons" for relevant persecution nominated in the Convention (race, religion etc) are commonly of a kind of interest to governmental agencies and officials, both positively and negatively. By definition, the claim for protection is made outside the country of nationality. It is so serious as to warrant the conclusion that the claimant is "unable" or "unwilling" to avail himself or herself of the protection of the country of nationality. A desire not to return to that country is insufficient. To impose obligations on the country of refuge, something more, in the form of a failure of protection of the country of nationality, is required. One can accept that "protection" in the Convention definition means external, not internal, protection. But treaties, like local texts, must be read as a whole, not word by isolated word[94]. The reason for the inability or unwillingness of the claimant to avail himself or herself of the protection of the country of nationality casts light upon the "persecution" that has contributed to, or caused, that reaction.
The ultimate purpose of the Convention is to shift a very important obligation of external protection from the country of nationality to the international community. On the face of things, this may suggest that there is some good reason for doing so - either the active participation or collusion of that country, its agencies and officials in the persecutory acts, or the failure of that country to afford protection where ordinarily, by international standards, that could be expected.
I do not decide finally, in this appeal, whether the third theory suggested by McHugh J should now be accepted by this Court. It is not necessary to do so in order to reach a conclusion. On the outcome of this appeal, we are unanimous. The points of difference are not determinative. Nor was a third theory fully argued at the hearing and supported by reference to legal writings and relevant materials. A further reason for hesitation before embracing it at this stage is that, to date, no other final court has adopted the third theory. Whilst this is not a reason for inaction where this Court concludes that error is clearly shown, it is desirable, so far as possible, to observe common approaches to the interpretation and application of an international treaty. This is particularly so in a treaty of major practical significance in the principal countries of refuge which have hitherto generally followed the protection theory, including Australia and the United Kingdom.
Whilst reserving the issue for another day, it is therefore appropriate for me to continue to approach the alleged conduct of non-state actors in accordance with the protection theory that I have previously accepted as applicable to claims of "persecution" under the Convention, at least where there is a functioning state apparatus as in Ukraine[95].

[79]

The Full Court concluded that the Tribunal had erred and, by inference, that the primary judge had failed to detect and require correction of that error. It accepted the uncontroversial principle that a foundation for the Federal Court's intervention would arise if the Tribunal "identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as to affect the exercise of its powers"[96]. But how, in the light of the foregoing analysis, could it be said that the Tribunal and the primary judge had erred by reference to these considerations?
The Full Court expressed the error that it detected in various ways. At one stage it said that the Tribunal had failed to ask itself the right question, namely "whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm"[97]. Elsewhere, the default was explained as the omission to consider "whether the Ukrainian government was able, in a practical sense, to prevent such harm, given the history of violence towards [the male applicant]"[98] and "whether there was a risk of harm for a Convention reason that the authorities could not provide protection against"[99].
With respect to the Full Court, I consider these findings of errors of omission and neglect on the part of the Tribunal, and of the primary judge, to be strained and unconvincing. There is no absolute obligation on the part of a state to "provide protection" to its nationals, whatever the circumstances. Nor, within the protection theory, can it reasonably be expected that a state will prevent every harm perpetrated against a national by antisocial elements in that person's society. No reasonable reader of the Convention could expect the text to effectively oblige the fulfilment of such standards. They are not the standards against which the obligations to provide protection were written in the Convention. They are not the standards that were accepted in Khawar. There it was demonstrated that a systematic and discriminatory denial of legal protection by agencies and officials of the state existed on a Convention ground. Such was not the evidence before the Tribunal in the present case. Certainly, it was not the evidence that the Tribunal accepted.
Every case turns on its own facts. Cases will doubtless exist where the evidence shows neglect or indifference on the part of the state to the action of private parties, or turning a blind eye to it, that will enliven the criteria for protection of a person as a refugee, either because the harm involved is so serious or the conduct so repeated and intolerable. Khawar was such a case. However, in this case the evidence of harm directed at the male applicant, and of the official response to it, fell far short of the circumstances that would attract the Convention to the case. Certainly, it was open to the Tribunal to so conclude on the evidence before it. As it did.
The Convention does not require or imply the elimination of all risks of harm. As Lord Hope of Craighead said in Horvath[100], the Convention adopts a "practical standard, which takes proper account of the duty which the state owes to all its nationals". It posits a reasonable level of protection, not a perfect one[101]. It must apply to the variety of nations in the world with their differing resources, traditions and institutional attitudes. It is not geared to the fears of the supersensitive. By the same token, it is not indifferent to conditions which reasonable human beings should not have to accept and are entitled to escape from and in respect of which they are entitled to seek protection from the international community[102] because they feel that invocation outside their country of nationality of protection from that country will only lead to their being returned to conditions of risk of harm that they ought not to have to tolerate[103].

[82]

It was therefore unsurprising that the Tribunal, having rejected the propounded case of systemic or institutional neglect or indifference to protecting the male applicant and having earlier rejected the claim of state complicity in the acts directed against him, rejected the suggestion that what had happened to him was "persecution" within the Convention. The Tribunal, instead, classified that harm as nothing more than "individual and random incidents of harm … and not as persecution". That was clearly a view of the facts open to the Tribunal on the evidence.
In accordance with the protection theory, such incidents would not amount to "persecution" without some indication of complicity or condonation and approbation of discrimination and violence against the male applicant on the part of Ukrainian state authorities and agencies. This was an inference which the Tribunal rejected. Such rejection was clearly open to the Tribunal on the evidence. It was not amenable to criticism, or correction, by the Full Court.
Contrary to the Full Court, I do not read the Tribunal's reasons as suggesting that harm inflicted on the male applicant for his religious beliefs could only amount to persecution if it were shown to have followed a coordinated pattern[104]. This is not what the Tribunal concluded. All that the Tribunal said was that the incidents were random. For that reason, they did not demonstrate any state complicity. Nor did they evidence serious neglect and discriminatory indifference on the part of state authorities and agencies to providing a level of protection proper to nationals in a civilised community. In such circumstances both the affirmative and negative aspects of "persecution" were duly considered by the Tribunal. There was no failure on the Tribunal's part to consider and decide any issue inherent in the case.
In a similar way, the primary judge gave proper consideration to both aspects of "persecution". There was thus no failure to address the relevant legal issue, nor did the Tribunal or the primary judge ask themselves the wrong question, ignore relevant material or rely on irrelevant material.
In the end, this is yet another case where persons who failed before the Tribunal on the merits, sought to re-canvass factual findings in an impermissible way and to argue their claim for judicial review in a manner significantly different from the argument advanced before the Tribunal[105]. The Federal Court must be attentive to the risk of oversight of relevant legal issues by vulnerable and unrepresented applicants for protection as refugees. The seriousness of the issues involved for those making such applications requires rigorous examination of suggested, or otherwise demonstrated, jurisdictional and legal errors[106]. By the same token, the Federal Court must also be careful not to read the Tribunal's reasons in an overzealous or overcritical way or to allow unsuccessful applicants to turn an application for judicial review into an attempted reconsideration of the factual merits[107]. Essentially, that is what the applicants tried to achieve. Their attempt fails.
As I approach this appeal it thus involves no new principle and no important proposition of law. It concerns nothing more than the application of the hitherto established law on refugees and the clear law governing the functions of judicial review of primary administrative decisions. To enliven a larger debate about the meaning of the Refugees Convention and the competing theories of "persecution" propounded in relation to it, another case will be necessary in which those theories have been thoroughly canvassed below and where deciding amongst them is important for the outcome. That is not the position here.

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