conclusions
52 This case has a number of unusual features. One such feature is the time taken by the Tribunal to review the delegate's decision. Almost seven years passed from the time that the application for review was lodged to the time that the review was completed. The Tribunal's criticisms of the husband for having relied upon matters that went back some fifteen or twenty years (in its terms, matters "long in the past" and "in the distant past") need to be understood in that context.
53 Tribunal findings are often based primarily upon disbelief of the claimant. Such findings can be difficult to challenge on judicial review. However, another feature of this case that is somewhat unusual is the fact that the Tribunal accepted virtually all that the husband said about his past mistreatment. His claim (and the claims of the other appellants) failed essentially because the Tribunal was not prepared to conclude, on the basis of the primary facts that it found, that the discrimination to which the husband had been subjected was the product of anti-Semitism.
54 Normally, whether or not a particular inference should be drawn is solely a matter for the Tribunal. There are cases, however, where the Tribunal has gone about its task in a way that indicates jurisdictional error. The present is such a case.
55 The husband's evidence contains an astonishing litany of complaints. These range across a broad spectrum. Had the Tribunal found the husband not to be a credible witness, there would be little that he could say on an application for judicial review. However, the Tribunal made no such finding. Quite to the contrary. It accepted that each event, as described, had occurred. However, it concluded, after setting out each individual finding, that there was no evidence to suggest that the particular event had been brought about by anti-Semitism.
56 The Tribunal undoubtedly was influenced by country information purporting to describe the current position of Jews in Latvia. According to the country reports, anti-Semitism, though virulent and widespread in the past, is no longer a significant phenomenon. The Latvian authorities now take appropriate action against those who engage in (at least overt) anti-Semitic activities. The law prohibits such behaviour, and the courts impose penalties upon those who engage in it.
57 The Tribunal gave some examples of this new approach. It noted that in March 2000, criminal charges were brought against a magazine which had published a vicious diatribe against Jews. The magazine was charged with having incited ethnic discord. The fact that charges were laid was considered by the Tribunal to be highly significant. It noted, in addition, that other anti-Semitic journals had been the subject of official criticism, though not criminal charges.
58 The Tribunal also noted that in November 1999, two Latvian citizens were charged with desecrating a cemetery in the Jewish ghetto of a particular town (which may have been the cemetery in which the husband's father was buried). In addition, it referred to country information stating that various members of neo-Nazi groups had been convicted of attempting to destroy the "Victory Monument" in Riga, although it is not clear whether the charges that were brought in relation to that matter had anything to do with their status as neo-Nazis.
59 I will deal briefly with the husband's contention that he was denied procedural fairness by the Tribunal. I agree entirely with the Federal Magistrate that this contention is without substance. It is plain from the transcript of the hearing before the Tribunal that the husband was trying its patience. His submissions were prolix, and often strayed from what was truly relevant. Having observed the husband in the course of his address to me, I can well understand the Tribunal's frustration.
60 The husband also contended before me that the Tribunal had been biased, not just ostensibly, but actually as well. He argued that the Federal Magistrate had failed properly to consider this ground of review. I reject that contention. There is nothing in the material to suggest bias, actual or ostensible.
61 The real issue raised by this appeal seems to me to be whether the Tribunal properly understood the true nature of the husband's claims and, if it did, whether it adequately addressed those claims.
62 This issue is raised in the amended notice of appeal, though it is not expressed with any precision. Essentially, the husband contends that the Tribunal failed to appreciate the actual basis upon which he claimed to fear persecution when it referred dismissively to his evidence as simply involving matters "long past". Although some of the events that he described had occurred up to twenty years before, as the Tribunal noted, the husband's case was that they had had a continuing impact upon him. Moreover, he claimed that he would be subjected to similar acts of discrimination if he were required to return to Latvia. For example, he would be unable, as a practical matter, to complete his legal studies because his academic record would be forever tainted. There would be little point in gaining a degree if one could do nothing with it. Even without completing his studies, the stigma attached to that record would prevent him from obtaining a licence which he would now need if he were to attempt to return to paralegal work. His prospects of obtaining any gainful employment without either a degree, or a licence, and in the face of continuing anti-Semitism, would be slim.
63 I acknowledge that the Tribunal's reasons for decision are thorough and appear to be comprehensive. Indeed, they run to some fifty-seven pages of closely typed text. However, I am not satisfied that the Tribunal understood that its task in this case went beyond simply setting out in detail every complaint that the husband put forward, and then adjudicating upon each complaint individually.
64 The husband's case was that he had been subjected to a lifetime of anti-Semitism which the authorities had not only done nothing to prevent, but had actively condoned. He argued that Latvia's new-found willingness to prosecute those who desecrate Jewish cemeteries or who publish anti-Semitic articles (assuming that such willingness existed) in no way answered his well-founded fear of a more insidious form of discrimination in the future.
65 The husband's case was, of course, primarily circumstantial. He described a series of misfortunes that had befallen him, and invited the Tribunal to conclude that they formed part of a pattern. He did not claim that when he lost his job he was told, in terms, that it was because he was Jewish. Rather, he sought to have the Tribunal infer that, when considered in context, the decision to fire him had been influenced by anti-Semitism. The same, he argued, could be said of his experiences with the University, the Latvian State Conservatorium, the courts, and his experiences with his landlord. A glaring illustration of his ongoing difficulties was said to be the refusal of the Latvian authorities to recognise what was obvious, namely, that he had been a permanent resident of Latvia for his entire life.
66 In a sense, and without any intended deprecation, the husband's case can be subsumed within Oscar Wilde's famous aphorism that to lose one parent may be regarded as a misfortune, but to lose both looks like carelessness.
67 Such an approach to the drawing of inferences is hardly novel. Indeed, much of the law relating to inferences proceeds precisely upon reasoning of this type. In the particular case of similar fact evidence, there may be no basis for a conclusion that a single act, viewed in isolation, was done intentionally (and not accidentally). However, when that act is repeated the inference becomes powerful, and eventually (if repeated time and again), irresistible.
68 It is of course possible, as the Tribunal noted, that the husband was denied admission to the University, and to the Latvian State Conservatorium, not because he was Jewish, but for any one of a number of other reasons. The same could be said of his expulsion from the University, the landlord's assault upon him, his eviction from his apartment, and his inability to qualify for privatisation vouchers. It may be that he could not find regular employment, and was fired from the only position that he was able to secure simply because his work was not up to standard. It may also be that he lost every court case that he brought because, on each occasion, his case was presented poorly.
69 Nonetheless, when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 ("VTAO") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background.
70 It was submitted on behalf of the Minister that although the Tribunal appeared to have dealt with each claim separately, it had also considered the husband's claims in their entirety. For example, at one point, prior to stating its overall conclusion, the Tribunal said:
"In reaching its decision the Tribunal has considered all documents lodged by and on behalf of the applicant."
71 Needless to say, this statement by the Tribunal does not indicate that it had considered the husband's claims in their entirety. It merely recites the material that the Tribunal took into account in arriving at its final conclusions.
72 It is true that at one point, towards the very end of its reasons for decision, the Tribunal stated:
"Having considered the evidence as a whole, the Tribunal is not satisfied that the [husband]is a person to whom Australia has protection obligations …" (emphasis added)
73 The difficulty is that this statement appears after the Tribunal has already considered each claim in isolation, and separately held that there was no evidence to suggest that anti-Semitism had anything to do with what had occurred. In a sense, therefore, it is literally true that the Tribunal had considered the evidence "as a whole". However, that is not the sense in which the Tribunal was obliged to perform its task. It had to consider whether, on the facts as found, the various events described, taken together, were in any way the product of anti-Semitism.
74 There is nothing in either the structure or content of the Tribunal's reasons to suggest that it in fact approached the matter in this way. Rather, the Tribunal appears to have dealt with the husband's complaints in a somewhat piecemeal fashion. It simply set out each complaint and then declined to draw the inference that the event had been occasioned by anti-Semitism immediately thereafter. Of course, if one views a series of events in isolation, there is less likelihood that one will attribute to them a common cause.
75 In my view (and with respect to the Federal Magistrate who saw the matter differently), the Tribunal did not, at any stage, ask itself whether the events recounted by the husband (and which it found had occurred) were simply the product of misfortune or coincidence, or whether there was a common cause for their occurrence. The only common cause that suggests itself is anti-Semitism.
76 A failure on the part of the Tribunal to consider a claim that is in fact advanced and properly supported by the material before the Tribunal is capable of giving rise to jurisdictional error. It amounts to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ (at 242-243) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 81-83 per Gaudron J. See also Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 (at [78]). This has nothing to do with merits review. It is rather a failure on the part of the Tribunal to discharge its statutory duty. Counsel for the Minister conceded as much. In my opinion, the Tribunal constructively failed to exercise jurisdiction in this case.
77 I should add that the country information upon which the Tribunal placed so much reliance did not really address a number of aspects of the husband's claim. The fact that the Latvian authorities are now prepared to prosecute those who desecrate Jewish cemeteries no doubt represents a welcome change to what the country information itself suggests was past practice. The same can be said of the willingness of the Latvian authorities now to prosecute magazine proprietors who publish anti-Semitic material. However, these facts in no way answer a claim based upon discrimination of a more covert and insidious nature of the type that the husband maintains still prevails today.
78 Counsel for the Minister submitted that even if every one of the husband's claims were accepted, and even if it were to be further accepted that they were all the product of anti-Semitism, none of the matters that he recounted in fact amounted to "serious harm" as required by s 91R of the Migration Act. Counsel therefore submitted that, looking to the future, he could not have a well-founded fear of persecution.
79 The difficulty with that submission is that the Tribunal did not turn its mind to the issue of "serious harm", except in the context of the events of 1995 involving the daubing of the Star of David, and verbal abuse.
80 Despite the constraint upon the meaning of "persecution" by the requirement that it involve "serious harm to the person" (as required by s 91R(1)(b) of the Migration Act), it is by no means certain that a well-founded fear of racial or religious discrimination in relation to matters such as education, employment and housing cannot amount to "serious harm" within the meaning of that expression in s 91R(2).
81 There may be cases where such discrimination, based upon race or religion, can be characterised as persecution, provided that it involves systematic and discriminatory conduct as well as serious harm to the person.
82 Section 91R(2) provides a non-exhaustive list of "instances of serious harm". These include threats to a person's life or liberty, significant physical harassment or ill treatment, and matters of economic hardship. In relation to "significant economic hardship", "denial of access to basic services", and "denial of capacity to earn a livelihood of any kind" the economic hardship in question must threaten the person's capacity to subsist. This too imposes a significant constraint upon what may amount to persecution.
83 However, it must be remembered that the list does not constitute a definition of "serious harm". That expression plainly has a residual meaning beyond the examples given, though that meaning is informed by those examples. See generally NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95.
84 It is possible that individual instances of discrimination will not of themselves amount to "serious harm", but when considered cumulatively satisfy the requirements of s 91R. See, for example, VTAO,where Merkel J took a similar approach. In that case his Honour found, just as I have done, that the Tribunal's failure to consider a series of claims cumulatively gave rise to a constructive failure to exercise jurisdiction.
85 Plainly, the Tribunal in the present case did not consider whether the husband's claims, considered cumulatively, could amount to "serious harm". Whether those claims in fact rise to that level, bearing in mind that we are dealing with the future, and not the past, is a matter for the Tribunal, and not for this Court. See SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 per Jacobson J (at [19]). Given that the point is arguable, I consider that the matter should be remitted to the Tribunal to be determined according to law.
86 It follows for the reasons set out above that the appeal should be allowed. The orders of the Federal Magistrate dismissing the application for review, and ordering the appellants to pay costs, should be set aside. In lieu thereof, a writ of certiorari should issue directed to the Tribunal, quashing its decision. A writ of mandamus should also issue directing that the matter be heard and determined according to law.
87 The appellants should have their costs, if any, of the proceeding before the Federal Magistrates Court. They are entitled also to have their costs, if any, of the appeal to this Court.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.