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[2002] FCA 234
respondent. Application for review dismissed; applicants to pay the respondent's costs (order dated 13 March 2002).
The Federal Court dismissed the applicants' challenge to the Refugee Review Tribunal's refusal of protection visas. The Court held the Tribunal applied the correct legal test for 'persecution' and, on the facts (discrimination, difficulty with documentation, inferior medical treatment, occasional harassment), the Tribunal's conclusion that those matters did not amount to persecution was open on the evidence. The Court also clarified that 'protection obligations' in s 36(2) of the Migration Act refers to core Convention protections such as non-refoulement and non-penalisation for unauthorised entry.
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The applicants, an Iranian husband and his Iraqi‑born wife and three children, arrived in Australia without visas on 1 February 2000. They were placed in immigration detention and applied for protection visas in July 2000. Their claims were founded principally on the wife's background as an Iraqi‑born person resident in Iran: lack of genuine identity documentation, routine and cumulative discrimination (school ridicule of children, difficulty enrolling or progressing at school, being treated unfairly in hospitals, having to pay bribes to obtain documentation), episodic detention of sons by disciplinary/security authorities, and fear of being unable to return to Iran because of the confiscation of birth certificates and an unregistered marriage.
1 cited instrument linked from this judgment.
The Refugee Review Tribunal (the Tribunal) accepted many of the factual complaints but concluded that the discrimination and other treatment did not amount to "persecution" for the purposes of the Refugees Convention. The Tribunal therefore affirmed the delegate's refusal to grant protection visas.
The applicants sought judicial review under s 476 of the Migration Act 1958 (Cth). Lee J in the Federal Court dismissed the review application and ordered the applicants to pay the respondent's costs (orders dated 13 March 2002). The Court held the Tribunal had applied the correct legal test for persecution and that its conclusion, that the facts did not amount to persecution, was open on the evidence (paras 1–3, 15–16, 25–31).
Two principal legal strands shaped the Court's decision.
First, the Court examined the statutory context: s 36(2) defines a criterion for a protection visa as being a non‑citizen to whom Australia has "protection obligations under the Refugees Convention" (para 5). Lee J emphasised that "protection obligations" in s 36(2) should be read narrowly, confined to the specific obligations Australia undertook as a Contracting State, notably non‑penalisation for unauthorised entry from a territory where life or liberty were threatened and non‑refoulement, rather than every treaty duty such as the full panoply of anti‑discrimination or welfare obligations (para 9). That construction frames the legal threshold to be satisfied in protection visa claims.
Second, the Court analysed the established judicial formulations of "persecution". Lee J relied on McHugh J's exposition in Chan Yee Kin (quoted at para 25) and the High Court's statement in Minister for Immigration & Multicultural Affairs v Haji Ibrahim (quoted at para 26). These authorities describe persecution as unjustifiable, discriminatory conduct for a Convention reason that interferes with basic human rights or dignity, that the state authorises or fails to prevent, and that is so oppressive or likely to be repeated that the person cannot be expected to tolerate it. The Court also noted that persecution can include harms short of loss of life or liberty, and may be inflicted as part of systematic harassment directed at a group (paras 25–26).
Applying those principles to the Tribunal's reasons and the evidence, Lee J found the Tribunal had not misconceived the law (paras 29–30). Although the Tribunal accepted that the wife and children endured discrimination, bribery-related hurdles, occasional denial of medical attention and school disadvantages, it concluded those consequences did not amount to persecution. The Court described that as a conclusion of degree and evaluation, one that was open to the Tribunal on the material before it. That evaluative judgment did not disclose jurisdictional error; the fact the Federal Court might have preferred a different conclusion was irrelevant (para 30). Accordingly, the Court dismissed the review (para 31).
The Court also made obiter observations about certain factual findings: the Tribunal's statement that the husband and children left on "genuine Iranian passports" did not accord with the material and the Court could not see what the Tribunal relied upon (para 18). Separately, the Court observed that the wife's account of leaving Iran on a false passport obtained by bribery was consistent with other accounts and not inherently implausible (para 20). Those remarks did not affect the outcome.
Before this decision, Chan Yee Kin and Haji Ibrahim were already authoritative statements of the content of "persecution" in Australian refugee law. Federal Court and Full Court decisions (including Gersten and others) had reiterated that not every discriminatory act amounted to persecution; harm short of life/liberty could suffice, but it must be of significant seriousness and have the requisite causation and state‑acceptance or failure of protection.
Poorvadi confirms and applies those principles. The decision reinforces two significant points:
The multi‑element test for "persecution" (unjustifiable/discriminatory conduct for a Convention reason; interference with basic human rights/dignity; state authorisation or failure to prevent; so oppressive or likely to recur that the person cannot be expected to tolerate it) remains the governing approach (paras 25–26).
There is a strong measure of deference to the Tribunal's evaluative judgment. If the Tribunal applies the correct legal test and reaches a conclusion of fact or degree that is open on the evidence, the Federal Court will not substitute its own view merely because it might have decided differently (para 30). That principle is central to administrative and appellate restraint in judicial review of merits decisions.
Additionally, Poorvadi clarifies statutory construction of "protection obligations" in s 36(2) as limited to core Convention protections (para 9), a point of practical importance when framing the legal threshold for protection visas.
Paragraph 9: "All such obligations may come within a broad meaning of the term 'protection obligations'... but, as used in s 36(2) ... that term is limited to the more specific obligations undertaken by Australia ... not to penalize a refugee ... and not to expel or return (refoul) a refugee..."
Plain English: s 36(2)'s reference to 'protection obligations' is not an invitation to import every treaty duty; it is concerned with the Convention's core protections relevant to asylum, like non‑refoulement and not punishing people who arrive without papers after fleeing persecution.
Paragraphs 25–26: Quoting Chan and Haji Ibrahim on persecution.
Plain English: Persecution is serious, targeted discrimination for a Convention reason that interferes with basic human dignity; it can take many forms and does not have to be physical harm or state policy; it suffices if the state allows it or cannot stop it, and the conduct is so bad or likely to continue that fleeing the country makes sense.
Paragraph 30: "The question whether the facts ... constituted persecution was a matter of degree ... the conclusion formed by the Tribunal ... was a finding that was open to the Tribunal ... Whether it was the preferred conclusion ... is irrelevant."
Plain English: Whether conduct amounts to persecution often depends on judgment calls about severity; as long as the Tribunal applied the right legal test and its conclusion was reasonable on the evidence, the Court will not overturn it just because it might have reached a different view.
Paragraphs 18–20 (obiter): Tribunal's passport finding and wife's account of bribery.
Plain English: The Court noticed an inconsistency in the Tribunal's factual statement about passports, and said the wife's claim that exit was secured by bribery was plausible and not inherently unbelievable, though these observations did not alter the final decision.
Poorvadi is most directly applicable to cases where:
The claimed harm is cumulative social and bureaucratic discrimination (difficulty obtaining identity documentation, inferior access to education or medical care, harassment, episodic detention) rather than direct physical torture or threats to life/liberty.
The claimant relies on membership of a group (ethnic, national or social) as the Convention reason for adverse treatment.
The Tribunal accepts the factual complaints but concludes, as a matter of degree, that the consequences do not reach the level of persecution.
A judicial review is before the Federal Court alleging legal error (misstatement of "persecution") or failure to consider relevant material.
In such patterns, Poorvadi signals that courts will not remedy a merits conclusion that persecution is not established if the Tribunal applied the correct legal test and the conclusion was available on the evidence (para 30).
This deep dive is limited to the decision text itself; Poorvadi cites and applies established authorities (Chan; Haji Ibrahim; Gersten) and treats subsequent authority (Roguinski; Thevendram) as instructive for procedural or evidentiary propositions (paras 20, 29). Poorvadi itself reinforces the settled approach to the definition of "persecution" and the principle of deference to Tribunal findings of degree. Practitioners should expect courts to rely on the same Chan/Haji Ibrahim formulations and to treat Poorvadi as an example of the restraint exercised where the Tribunal's evaluative conclusion is open on the evidence.
(Note: for a detailed account of how later courts specifically treated Poorvadi, one must consult subsequent case law databases; this judgment itself does not contain those later references.)
Cumulative discrimination and borderline cases: Poorvadi confirms that cumulative discriminatory measures can, in some circumstances, constitute persecution (citing UNHCR Handbook and authorities). However, it leaves open precise thresholds for when bureaucratic or systemic disadvantages cross into persecution. The decision emphasises evaluative judgment, so future cases will continue to grapple with calibrating severity and repetition.
Role of plausibility findings: Lee J noted the Tribunal's inconsistent factual statement about passports (para 18) and observed the plausibility of bribery-based exit accounts (para 20). It remains open how significant such apparent inconsistencies will be when they do bear on credibility or when they interact with findings about whether state protection is effectively available.
Interaction between "protection obligations" construction and non-discrimination claims: The Court construes s 36(2) narrowly (para 9), but there remains a practical question about how wider Convention duties (e.g. nondiscrimination) influence the assessment of persecution where the state denies citizens and non‑citizens practical access to basic services. Poorvadi does not foreclose broader uses of Convention material as contextual country information, but it restricts s 36(2) itself to the core protective obligations.
Standard of review in mixed questions of law and fact: The case reiterates deference but does not exhaustively articulate boundaries where a Tribunal's conclusion of degree might be so unreasonable as to disclose jurisdictional error. Future litigation will refine the line between permissible evaluative disagreement and legal error in applying the persecution test.
Practical takeaway for practitioners: when arguing persecution on the basis of social, bureaucratic or cumulative discrimination, build the evidentiary case to show not only incidents of disadvantage but the degree, repetition, state complicity or inability to protect, and the resultant interference with basic human dignity or rights. The Tribunal's evaluative judgment is pivotal, and if it is open on the material, judicial review will be limited.
REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that protection visas not be granted to the applicants. 2 The applicants are husband and wife and their three children. The husband (48) is a motor mechanic and an Iranian citizen. His wife (47) is an Iraqi citizen who came to Iran with her parents in about 1962. The husband and wife were married in 1979. The three children are a son (17), a daughter (15) and a son (6). Two sons, (21) and (20), remain in Iran. 3 The applicants came to Australia from Iran, entering the "migration zone" without a visa on 1 February 2000. Under ss 13 and 14 of the Act the applicants became "unlawful non‑citizens" upon entry and, pursuant to ss 189 and 196 of the Act, were placed in "immigration detention" where they have been kept ever since. In July 2000 the applicants applied for protection visas. 4 Section 65 of the Act provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant a visa but, if the Minister is not so satisfied, the grant of a visa is to be refused. 5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 7 The Convention is a treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees". Sub‑Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…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;…" Exception to, or cessation of, the operation of that definition is set out in, inter alia, sub‑Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub‑Articles applied to the applicants. 8 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention, save for the obligations set out in Article 32 which, by a statement of reservation, Australia declined to accept when it acceded to the Convention on 22 January 1954. 9 Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All such obligations may come within a broad meaning of the term "protection obligations" but, as used in s 36(2) of the Act, that term is limited to the more specific obligations undertaken by Australia as a Contracting State, not to penalize a refugee who has entered Australia without authority having come directly from a territory where the life or freedom of that person was threatened for a Convention reason, and not to expel or return (refoul) a refugee where the life or freedom of the refugee would be so threatened. 10 When interviewed shortly after arrival, the husband gave the following reasons for leaving Iran. "Just for the sake of my children because of their young age. We had security problems. My children were detained several times[;] my wife is Iraqi. She speaks Arabic. While we were living in Abadan and war was not going on we didn't have any problems. I lived in Abadan until 1980. We came to Tehran to stay and when my children went to school if there was any problem at school I went there [and] I would receive abuses straight away because my wife is Iraqi. This first happened several years ago when my sons were detained by the disciplinary forces because they were wearing short sleeved T-shirts. Socially it affcted [sic] me a lot. It affected my morale. Because I was a mature person I was trying not to get involved. I have not had dealings with the disciplinary forces. By disciplinary forces I mean the government authorities. The last time my sons were detained was 3 months ago. They were arrested by the disciplinary forces which belong to the committee fighting against misconduct. I went to Vozora St in Tehran and signed an undertaking that I wont [sic] let them do it any more. They had been with their girlfriends." 11 The husband provided the following statement in support of his application for a protection visa in July 2000: "1 My refugee claim is bound up with that of my wife. I am an Iranian citizen who married a woman born in Iraq in 1979. My family were very against our marriage because they knew this would mean endless problems for the family. We had to be married at home with a Mullah in attendance because we could not get our marriage registered officially because of my wife's birthplace. 2 All our married life we have had problems and all our life together I have had to bribe officials and to put with the discrimination that I have received because of my relationship. I have had to witness the suffering of my wife and children who have suffered more than myself. I could never get an official job, such as in the government because of my relationship. 3 I have had to battle with everyone for all these years because of the constant insults to my family. Because of my wife I felt like a stranger in my own country. 4 Because I love my wife and I knew nothing was going to change for her or my children, I had to try and find a way out of the situation. I have no option to go to Iraq as my wife will not be allowed entry there, much less myself or the children. 5 Because of my wife's statelessness, I have no opportunity to try and leave the country legally with the family. We felt that with our three youngest children we would try and escape the discrimination and persecution of Iran. I paid a middleman to obtain a passport for my wife which included my children. My children cannot be on my passport because of my wife's birthplace. 6 My statement should be taken in conjunction with that of my wife. Although I would have the right to return to Iran, neither my wife nor my children have this, so I find myself in a similar situation to my wife with nowhere to find safe haven." 12 The wife, when interviewed shortly after arrival, said as follows when asked why she had left Iran: "Iraq - My father was a merchant & went broke - there was the war & all was destructed - when the war came we went to Iran - no food everything expensive - homes gone during the war Iran - Everywhere the [sic] went they were called Arabs - 1st arrived tried to live in Diar al Ajab but couldn't & went Tehran. I would go school I could not communicate, food expensive, here they respect women & children I still have 2 children still in Iran. They are doing their military service-thought I could sponsor them later." 13 In support of her application for a protection visa, the wife provided a further statement as follows: "1 I am a married woman from Iraq who has come to Australia with my husband and three of my children. I was born in Iraq in Basra and my family left for Iran when I was 6 years old. I do not remember anything of the trip to Iran and I was not told why we had to leave. We went to Khoramshahr where we lived. My father had relatives in Iran and maybe that was the reason we went to that area. My sisters and myself were never able to go to school. We were always considered foreigners. My father managed to work as a driver with a van. 2 At first, in that city close to the border there were many who spoke Arabic. Our main problems started after the Iran/Iraq war in late 1979 and 1980. I met my husband because he used to come to our city to work. His sister in law was my family's friend and that is how we met. My husband's family were not happy we were getting married because I am from Iraq but we married anyway at home. We were not able to register our marriage because I am from Iraq and I could not get permission to marry an Iranian. My husband's family are still not happy with the situation because of our ongoing problems. My husband has given up his family to be with me. 3 We lived in a house we rented in Abadan from 1979. One year later my first son was born. After this child was born we had to bribe officials to put the child's name on my husband's certificate and also to put the child's name on my certificate which had been issued after bribery by my father years before. We also had to pay a bribe to get my name and my husband's name on the child's birth certificate. These bribes were not as expensive as when the children were older. Each child had to go through the same procedure and we were constantly paying bribes for everything to do with the children's schooling. 4 When I would go to the hospital for the births or medical checks before the birth I would always have problems. I would be ignored, even if I was in pain, and my husband had to always pay much more for any treatment I received than for other Iranian women. After my birth in the delivery room, I would be left in the corridor, and this always happened as soon as they heard my accent and knew I was from Iraq. 5 This treatment of me was much worse because of the war and I could get little help from my husband who was not allowed into the ward. When I asked for medication I would be ignored. My husband was also scared of making a fuss in the hospital because he was under pressure for having married me. For two of my births I was not even given a bed, I was on a mattress on the floor. We would only get medical treatment for our children because my mother, who was old, would take the children to the doctor saying that this was her neighbour's child. 6 Nothing can be done in Iran without a birth certificate. As soon as the education authorities realised I was born in Basra, we would start to have problems and be presented with endless hurdles to get our children educated. My second child could not be enrolled after a few years of primary school and as he was under pressure at school, he stopped his education. One of the 5 children started high school but could not finish even first year because of the endless problems created by the authorities. 7 The continuous discrimination we suffer in all aspects of our life have made us finally decide to leave the country. I am a stateless person who has no rights to live in Iraq. In Iran although I am married to an Iranian, I have no citizenship rights in this country. I am considered not even officially married to my husband because we were unable to register our marriage. Consequently all my children are considered illegitimate and the only certificates they possess are false and obtained by bribery. 8 When I had to leave Iran, the only passport I could get was one obtained through bribery via a middleman who knew someone in the passports office in Teheran [sic]. This cost me about 150,000 toman. This passport which was issued illegally had the children who left with us included. We had to pay separately for the children to be included. Although I had this false passport in my name and which looked Iranian, I could not have used this to help my life in Iran because the only documents which are acceptable to authorities in our daily lives are birth certificates. 9 I left Iran because of the problems that my statelessness created for myself and for my children and husband. We have been through this experience of the escape from Iran because it may mean I can escape the discrimination of not having a country. The effects on my children of this discrimination and insecurity has been very difficult for them and my husband is called a criminal for having married me. 10 I fear I would not be readmitted to Iran as the false birth certificates we obtained for the children have been taken from us at the time the passport was obtained. That was part of the deal that we hand over the birth certificates. As our marriage is not registered, the Iranian government have [sic] no obligation to take me back, or the children." 14 The son, (17), said as follows when interviewed in February 2000: "Iran: Firstly there is no freedom for the young ones. The other problem b/c my mother is an Arab and was born in Basra they always hassle us for e.g. in school call us (some sort) of reptile LIZARD-eating Arabs - cricket eating Arabs. As soon as I get into any sort of trouble at school they laugh at me + my mother b/c she is an arab she doesn't come to my school. The security forces pulled me over when I was wearing a Michael Jackson shirt which was a present from Dubai & asked why it had a picture on it, or for eg. 2 of my brothers were detained & taken to [Komiteh] twice because having used my fathers car they had picked up 2 girls." 15 In the written statement of reasons provided by the Tribunal, pursuant to s 430 of the Act, the Tribunal recorded the claims of the applicants as follows: "The applicant wife claims that she did not attend school in Iran because she had no ID. She said that she does not know the reason her family left Iraq for Iran or her father's situation after their arrival in Iran. She claims that she still does not have genuine ID, only a false ID card that her husband obtained for her about 18 years ago. She also claims that she does not have any proper documentation and that she and her husband were unable to register their marriage because of the absence of such documentation and because of her background as an Iraqi who had entered Iran illegally. She said that she is unable to properly represent her children's interests at school as she is called names and humiliated or ignored when she attends on their behalf. She added that she is unable to communicate well in Farsi when required to discuss with teachers matters such as her daughter's uniform or her hair showing from under her scarf. She said that her husband cannot attend her daughter's school as it is a girls' school, and as he is often away for work he cannot attend her son's school either. She also claims that she and her husband had to pay bribes to have children's names added to their own documents and that when she required medical treatment she would be ignored or provided with inferior treatment. She said that she was often abused during the war between Iran and Iraq, especially by the mothers of Iranians whose sons had died in the war and were, therefore, regarded as martyrs. She said that she felt oppressed, and trapped at home. She added that her children are suffering from the problems the family has faced. She claims that her eldest children are avoiding national service, partly because they fear she will be apprehended which will cause them renewed difficulty. She claims that she left Iran on a false passport that carried her name and photograph. She claims that her husband obtained it through a people smuggler who informed her to go to a certain gate at the airport where they would be assisted by an official to leave Iran. She said that she gave the passport to a smuggler before boarding a boat for Australia from Indonesia. The applicant husband gave corroborative evidence concerning problems with documentation and difficulties faced by the family, essentially due to his wife's Iraqi heritage and her own lack of official documentation. He said that he left Iran on his own passport that he gave to a people smuggler in Indonesia. He said that he obtained his wife's passport through a people smuggler, adding that such people never divulge how they obtain such documents. He claims that checks at airports are less thorough on people of similar age to his wife. … A daughter of the main applicants gave evidence that she was often ridiculed at school and not allowed to compete in regional academic competitions between classes. A son of the main applicants gave evidence that he was also harassed at school and that his mother would be demeaned if she attended the school. He said that [he] truanted and ultimately dropped out of school as a consequence of problems such as the ridicule he encountered. He claims that he was stopped on the street and asked for his birth certificate and why his mother had come from Iraq." 16 Under the heading "Discussion of Evidence and Findings", the Tribunal said as follows: "The Tribunal accepts that the applicant wife's origins and her lack of documentation have the rolling effect of her and other family members experiencing difficulty to the present day in obtaining some documentation. Those problems would appear to stem essentially from the paucity of documentation held by the applicant wife. In view of factors such as the applicant wife's continuing presence in Iran and the enrolment of her children in education, and considering aforementioned country information, the Tribunal does not accept that certain continuing problems in obtaining documentation are attributable to discrimination based on race. The issue of when discriminatory treatment amounts to persecution has been canvassed by the Office of the United Nations High Commissioner for Refugees in Handbook on Procedures and Criteria for Determining Refugee Status January 1992. It is noted in the Handbook that: '54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.' (p.15) In Chan's case at 431, McHugh J. comments that: '…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.' While accepting that the applicant wife and her children have faced some discrimination in relation to their ethnic background and some difficulty in obtaining all necessary official documentation in Iran the Tribunal notes that all the children are able to enrol at school. Two of the children who gave evidence at the hearing have undertaken an education to secondary school and a third child had not reached school-age at the time of the family's departure from Iran. The Tribunal also accepts that the applicant wife has, in ways she has claimed, been poorly treated by teachers on certain occasions when she has sought to represent her children's interests and that she and her husband have sometimes had to pay bribes to regularise their documentation. It also accepts that part of the motivation for the applicant wife sometimes having medical treatment delayed or inadequately provided is her racial background. Similarly, the Tribunal accepts that the applicant wife encountered particular abuse during the period of the Iran-Iraq war in the 1980s. The Tribunal also accepts the corroborative evidence given by the applicant husband and children about problems of occasional harassment, ridicule and restrictions on certain educational opportunities, based at least in part on race. It finds, however, in weighing all the evidence and available information, that neither the applicant wife nor her children have encountered consequences amounting to persecution by reason of their race or family background…" 17 Although the ultimate determination of the Tribunal did not turn on the further findings of the Tribunal discussed below, it is appropriate to comment upon them. 18 The Tribunal stated that it noted that the applicant husband and children had left Iran on "genuine Iranian passports". That finding did not accord with the material set out above which states clearly that the children were included on a false passport obtained for the wife. It is not apparent on the papers before the Court what material the Tribunal relied upon for its finding. It was not a finding, however, that led to the Tribunal forming any adverse view of the credit of either adult applicant. 19 The Tribunal also stated that it did not find it plausible that the applicant wife could leave Iran on a false passport and concluded that she had possessed, and presented, a "genuine passport" on departure. 20 The wife's claim that she had obtained a false passport and safe passage through Tehran airport by payment of a bribe was consistent with many other claims to like effect of which the Tribunal would have been aware. There has also been comment by observers, of which the Tribunal would also have had knowledge, that exit from Iran can be obtained by payment of a bribe. It follows that it could not be said that such an account by the wife could be dismissed from the consideration of the Tribunal as being a circumstance that was implausible being beyond belief and inherently unlikely. (See: Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 at [26] - [32].) Again, however, the Tribunal did not proceed from that finding to form an adverse view on the credibility of either adult applicant. 21 Counsel appointed under O 80 of the Federal Court Rules to act for the applicants pro bono publico, submitted that the Tribunal had erred in law within the meaning of s 476(1)(e) of the Act, by misinterpreting the meaning of the term "well-founded fear of persecution", and had acted without jurisdiction, within the meaning of s 476(1)(b) of the Act, by failing to have regard to relevant material when making its decision. 22 Counsel's submissions were directed primarily to the circumstances in Iran of the applicant wife. 23 Counsel submitted that the degree of discrimination practised against the applicant wife, as described in the material accepted by the Tribunal, namely, her inability, and, derivatively, the inability of her husband, to represent the interests of the children in their education; her inability to receive proper medical treatment as required; and, her inability to leave her home without fear of abuse, constituted persecution of the applicant wife and, through her, of other members of her family. 24 It appears to have been accepted by the Tribunal that the conduct directed towards the applicant wife was conduct engaged in for reason of race, nationality or membership of a social group, and that, if persecution had occurred, it would have been persecution for a "Convention reason". The issue to be determined by the Tribunal was whether the conduct so described could ground a well-founded fear that acts of persecution may occur in future if the applicants returned to Iran. 25 The meaning of the term "persecution" as used in the Convention has now been considered by courts in this country in a number of cases. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-430 McHugh J 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. He or she may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment: Gagliardi, "The Inadequacy of Cognizable Grounds of Persecution as a Criterion for According Refugee Status",Stanford Journal of International Law, vol. 24 (1987), 259 at p. 269; Goodwin‑Gill, op. cit., at pp. 44-45; Grahl-Madsen, op. cit., at pp. 185‑186; M.A. A26851062 v. Immigration and Naturalization Service; Gunaleela v. Minister for Immigration and Ethnic Affairs; Periannan Murugasu v. Minister for Immigration and Ethnic Affairs. Nor is it a necessary element of 'persecution' that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution: Goodwin‑Gill, op. cit., at p.38; Hyndman, 'The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants', Human Rights Quarterly, vol. 9 (1987), 49, at p. 67; U.N.H.C.R. Handbook, par. 62; McMullen v. Immigration and Naturalization Service; M.A. A26851062; Rajudeen v. Minister for Employment and Immigration. 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…" (Citations omitted.) 26 His Honour provided further elaboration of the meaning of the term in Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [65]: "Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is: · unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason · which constitutes an interference with the basic human rights or dignity of that person or the persons in the group · which the country of nationality authorises or does not stop, and · which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." In Haji Ibrahim Gaudron J said at [18]: "As a matter of ordinary usage, the notion of 'persecution' includes sustained discriminatory conduct or a pattern of discriminatory conduct against individuals or a group of individuals who, as a matter of fact, are unable to protect themselves by resort to law or by other means. That being so, conduct of that kind, if it is engaged in for a Convention reason, is, in my view, persecution for the purposes of the Convention." 27 Her Honour noted that the discriminatory conduct had to be "sufficiently serious" to constitute persecution. 28 In Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 855, a Full Court of this Court said at [45]: "It is clear that, while the word [persecution] means infliction of harm, not every kind of harm constitutes persecution. That having been said, harm short of interference with life or liberty may suffice. Many forms of social, political and economic discrimination may constitute persecution, including denial of access to employment and restriction on freedom of worship. Denial of access to education, food or health care constituted persecution in Chen. However that harm which is merely trivial or insignificant could not constitute persecution in the Convention sense…" 29 The Tribunal referred to the instructive words of McHugh J in Chan and thereby appeared to understand correctly the meaning of persecution to be applied to facts found. Of course, notwithstanding apparent awareness of the law, the reasons for decision provided by a Tribunal, or the absence of reasons, may disclose that, in truth, a Tribunal has not understood the relevant law and, consequently, has failed to apply the law correctly to the facts. (See: Roguinski v Minister for Immigration & Multicultural Affairs [2001] FCA 1327 per Kenny J at [43].) 30 But this is not such a case. There is nothing in the reasons provided by the Tribunal that indicates that the Tribunal misunderstood what could constitute persecution within the meaning of that term. In the end, the question whether the facts recited by the applicants constituted persecution was a matter of degree according to the perception of the Tribunal. On one view, the circumstances of daily life encountered by the applicant wife in Tehran could be said to be an infringement of dignity of a degree that neither the wife, nor members of her family, could be expected to tolerate. However, the conclusion formed by the Tribunal, that such acts did not constitute persecution, was a finding that was open to the Tribunal and one on which it could ground its ultimate determination that the applicant wife did not have a well-founded fear that persecution could occur in future if she returned to Iran. Whether it was the preferred conclusion on the material before the Tribunal is irrelevant to this proceeding. 31 It follows that the application must be dismissed. I certify that the preceding thirty‑one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.
Associate: Dated: 12 March 2002 Counsel for the Applicant: G R Donaldson (pro bono publico)
Solicitor for the Respondent: Australian Government Solicitor
Poorvadi
Minister for Immigration & Multicultural Affairs
Application for review dismissed; applicants to pay the respondent's costs (order dated 13 March 2002).