N98/25680 [1999] RRTA 561 (3 March 1999)

The Applicants attended a hearing before the Tribunal on 19 February 1999. The hearing was conducted with the assistance of an interpreter in the Indonesian-English medium. The Applicants are represented by an adviser who attended the hearing. The Applicants brought forward one witness, [deleted].

A criterion for a protection visa is that at the time of the decision the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Convention): ss.5(1) and 36(2) of the Act. Australia is a party to the Convention and, generally speaking, has protection obligations to people who are refugees as defined therein.

Article 1A(2) of the Convention defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

This definition has been considered by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 (Chan), Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 (Applicant A) at 354 and MIEA v Guo Wei Rong & Anor (1997) 144 ALR 567 (Guo) at 575-6, and by the Federal Court in a number of cases, notably Kuldip Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 (Ram). These cases have established the following general principles.

In Guo, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. In Applicant A, Gummow J at 375 referred to the primary meaning of the term "persecution" in ordinary usage:

The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; ...

Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the reason for the persecution must be found in the singling out of one or more of the five Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Taking all of the evidence into account, and [deleted], the Tribunal is not satisfied that the Applicants face a real chance of Convention-related persecution in Indonesia. They are not refugees. Having considered the evidence, the Tribunal is not satisfied that the Applicants are persons to whom Australia has protection obligations under the Convention, or that they satisfy the criterion set out in s.36(2) of the Act for protection visas.