Issues and conclusions
As the submissions were developed in the appeal it became apparent that the issue raised by the applicants was narrow in compass. Counsel for the applicants contended that the Tribunal had incorrectly applied the law to the facts as found: see s 476(1)(e). This was said to arise because of repeated references by the Tribunal to various matters not being sufficiently serious to be comprehended by the notion of persecution. Those matters were the general harassment of the applicant husband and his family evidenced by his difficulty in securing employment and the difficulties experienced by his children at school, the threatening phone calls received in the context of his brothers' deaths, and the taking of and denial of the right to farm his land. All but the last mentioned matter could clearly, in appropriate circumstances, constitute harassment or deprivation of the type which is comprehended by the notion of persecution. It is not entirely clear whether the expropriation or confiscation of property is a matter founding a claim of refugee status under the Convention: see Hathaway, The Law of Refugee Status, 1991, Butterworths at 111, 119-120 and 166 though I will, for present purposes, assume that it is.
Counsel for the applicants referred to passages from the judgments of Mason CJ and Dawson J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 in support of the submission that the Tribunal had misconceived what is comprehended by the notion of persecution. In my opinion, the treatment of the Tribunal of the circumstances of the applicant husband and his family on the facts it found does not manifest such a misapprehension. It is to be noted that the Tribunal found it unnecessary to address the reason why the applicant husband and his family were subjected to some discrimination, harassment, other mistreatment and threats. However the challenge to the Tribunal's decision was limited to its consideration of whether prior persecution had been demonstrated and whether a well founded fear of persecution had been made out.
In Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 Hill J surveyed the law as to what might constitute persecution and the approach to be taken by a judge in judicial review proceedings to conclusions reached by the Tribunal about whether a well founded fear of persecution had been demonstrated in any particular factual context. His Honour said at 271:
As I have already noted, where there is a matter of fact and degree involved, as there almost invariably will be when the question arises whether particular conduct amounts to persecution, the Tribunal will be the final arbiter. It is difficult not to feel sympathy for the applicant. It is difficult to be other than moved by his evidence that his life was "basically hell". But it is of little avail to the applicant that a judge of this Court feels moved. The Court is not empowered to decide the merits of an applicant's claim for refugee status. Its jurisdiction is much narrower. It is empowered only to consider whether the Tribunal, in determining that it was not satisfied that the applicant was a person to whom Australia had Convention responsibilities committed a reviewable error.
See also Ye Hong v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Tamberlin J, 2 October 1998, unreported).
In my opinion, the judgment exercised by the Tribunal and the assessment it made of each of the matters identified by counsel, and their cumulative effect, was an assessment open to it. The difficulties experienced by the applicant family in the form of general harassment and intimidation may well be of a character that, in certain circumstances and if sufficiently serious, might give rise to a well founded fear of persecution. However in this case the Tribunal's conclusion on this issue was plainly open to it on the facts before it. Similarly, as discussed by Hill J in Prahastono, difficulties experienced in gaining or obtaining employment can, but will not necessarily, establish a well founded fear of persecution. Again, this was a matter that the Tribunal was properly able to view, in the factual context of the case, as not sufficiently serious to found a conclusion that the applicant husband or his family were refugees. The same can also be said, in my opinion, of the view the Tribunal took of the removal of the applicant husband from land he had been farming. The applicant husband had given evidence that it was not land he owned, but rather, land which he had simply occupied from 1980 to 1983 and had cleared and commenced to farm. His complaint was that he was not allowed to continue to occupy and farm the land and was not allocated 15 acres which was an entitlement enjoyed by others who had migrated to Northern Cyprus. It was a complaint the Tribunal was entitled to view as being not of sufficient gravity to constitute "persecution" in the Convention sense.
The approach of the Tribunal to the threatening phone calls is more problematic. If it had found, as a matter of fact, that the deaths of the applicant husband's brothers were or may have been politically motivated then that would plainly colour any consideration of the threatening phone calls that the applicant husband received and which seemingly increased in frequency after the death of one of the brothers. It is not clear what findings the Tribunal made as to when the calls commenced, how often they were made, whether there had been any increase in their frequency after the brother's death, or whether they related to the brother's death. Nonetheless it was common ground in these proceedings that the Tribunal accepted that the calls had been made over a considerable period of time. Of significance, however, was the refusal of the Tribunal to accept the contention of the applicant husband that his brothers had been killed because of their political opinion or because of connections to the Greek community or himself. The Tribunal refused to accept this contention after examining material which had been tendered on behalf of the applicant husband designed to establish that there were connections of this type. In refusing to accept that these features attended the deaths of the brothers, it was open to the Tribunal to treat the threatening phone calls with less gravity than might otherwise have been the case. The Tribunal was, in my opinion, entitled to approach the matter in the way it did and its approach does not manifest any misconception of what is comprehended by the notion of persecution.