The European Union's Qualification Directive
137 Despite the reticence demonstrated, outside Australia, in articulating the content of the concept of persecution, in Art 9(1) to (3) of its Qualification Directive, the European Union took a step which in our opinion is not so dissimilar to ss 91R(1) and (2). Like ss 91R(1) and (2) it does not purport to be an exhaustive definition. Art 9(1) to (3) of the Qualification Directive provides:
1. In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must:
(a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).
2. Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.
3. In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.
138 The European Court of Justice has made it clear that the terms of Art 9 mean, much like s 91R, that not all violations of human rights constitute persecution. Rather, the violation must be "sufficiently serious": X, Y and Z, Joined Cases C-199/12, C-200/12 and C-201/12, 7 November 2013. In those cases, which dealt with homosexual asylum seekers, the Court expressed the view that the "mere existence" of legislation criminalising homosexual acts could not be regarded as an act affecting the applicants "in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of article 9(1) of the Directive" (at [55]).
Academic writing
139 Turning now to consider the views of some academic writing on the issue whether any detention, confinement or imprisonment for a Convention reason necessarily amounts to persecution, the following materials indicate that commentators accept that a qualitative assessment is involved, although they may differ on the measures or reference points by which that assessment should be undertaken.
140 In Grahl-Madsen, it is noted, at page 193 of volume 1, that there are at least two schools regarding the question whether persecution includes any threat to freedom. Reference is made to the view expressed by one commentator (Vernant), who quoted "persecution" with "severe measures and sanctions of an arbitrary nature, incompatible with the principles set forth in the Universal Declaration of Human Rights", as opposed to a less liberal view, represented by another commentator (Zink), who interpreted "persecution" so as to mean only deprivation of life or of physical freedom, whilst also excluding deprivation of physical freedom for a very short period of time. After discussing various cases in France and Germany, Grahl-Madsen gave the following summary at page 201, which suggests that a qualitative assessment is involved:
We may conclude that there is precedent for considering the following measures or sanctions "persecution" in the sense of the Refugees Convention, provided that the circumstances warrant it:
(1) threats to a person's life;
(2) imprisonment or other forms of detention or internment for a period of three months or more, it remaining an open question whether deprivation of physical freedom for shorter periods may constitute "persecution"; however, deprivation of liberty for 10 days or less has been deemed not to amount to "persecution";
(3) numerous arrests or summonses for interrogation;
(4) removal to a remote or designated place within the home country;
(5) infliction of bodily harm and serious threats to a person's health;
(6) extradition to a country where the person may be subjected to measures mentioned under (1) or (2).
141 To similar effect is the description given by Zimmermann and Mahler, "Article 1A, para. 2 (Definition of the Term 'Refugee'/Définition du Terme 'Réfugié')" in Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, 2011) at page 348 ([227] and [228]):
To determine whether a severe violation of human rights amounting to persecution has been taking place, a complex bundle of factors such as "the nature of a freedom threatened, the nature and severity of the restriction and the likelihood of the restriction eventuating in the individual case" has to be taken into consideration. Possible factors are the intensity of the acts and their duration; the danger of or the actual recurrence of such acts; whether the acts occur are individual cases or as part of a larger campaign of systematic human rights violations; and finally the effect of such acts on the health, family life, or participation in political life of the person concerned. The most difficult part, however, is how to weigh the different aspects…
With regard to a required duration, and it has been argued that a short duration shall, in general, not suffice or that an isolated act is not sufficient, but that there has to be a sustained, persistent, or systematic risk of human rights violations in order to amount to persecution. However, the example of torture proves the contrary. In this case the violation of human dignity is so severe that even a single incident and a short period of time trigger persecution. At least with regard to very basic rights a single incident should accordingly be regarded as sufficient to be tantamount to persecution and that the "persistency as a usual but not a universal criterion of persecution."
(Citations omitted.)
142 A third example is to be found in Hathaway and Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014). At page 198, in responding to a criticism that a human rights framework might diminish attention being given to "individuated vulnerabilities", the authors write:
While an understandable concern, the truth is that international human rights law not only allows, but actually requires, careful scrutiny of particularized circumstances… courts relying on human rights norms to identify serious harm for refugee law purposes have appropriately insisted, for example, that personal attributes such as "age and frailty" may have an impact on seriousness of harm… (Citations omitted.)
143 In considering the relationship between persecution and human rights such as those the subject of Art 9 of the ICCPR, Hathaway and Foster state (at page 239):
Persecution often takes the form of "detention, arrest, interrogation, prosecution, [and] imprisonment" - whether by way of police or other officially mandated custody, house arrest, "involuntary hospitalisation" or even "being involuntarily transported". Importantly, though, not every constraint on free movement amounts to a violation of an internationally guaranteed human right: international human rights law requires only that any deprivation of liberty be "on such grounds and in accordance with such procedures as are established by law" and - assuming this first requirement is met - expressly disallows only "arbitrary" arrest or detention. It follows, for example, that ordinary policing efforts do not normally infringe this standard, assuming that they are conducted in accordance with valid criminal law and are not arbitrarily conceived or enforced. Beyond the basic requirements of lawfulness and avoidance of arbitrary action, international human rights law requires further that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." Taken together, these three requirements provide a sound and workable basis for the assessment of persecutory harm under refugee law. (Citations omitted.)
144 The authors elaborated upon each of these requirements as follows. First, an arrest or detention must be truly on grounds and in accordance with procedures as are established by law. Accordingly, persons facing arrest or detention at the hands of non-state actors will almost always face the risk of persecutory harm.
145 Secondly, even where an arrest and/or detention takes place within a genuine legal framework, it must not be "arbitrary". This includes conduct which is not only against the law but also conduct which is authorised by law but is discriminatory or shows elements of inappropriateness, injustice, lack of predictability, and due process of law.
146 Thirdly, even if an arrest and/or detention is both lawful and not arbitrary, it must be effected in a manner that comports with the duty of states to ensure that all persons deprived of their liberty are treated with humanity and with respect for the inherent dignity of the human person. Hence, if the arrested or detained person is subjected to "truly undignified conditions", even if falling short of inhuman or degrading treatment, this bespeaks a risk of breach of international human rights norms and constitutes serious harm. In our view, these remarks confirm the appropriateness of an evaluative or qualitative exercise of the relevant facts surrounding a loss of liberty.
147 The authors then state, at page 204, that under a human rights framework "a finding of serious harm requires careful consideration of whether a generally accepted right as codified in international law is, on the facts of the case, at risk of being violated" (emphasis in original). They discuss at length the checks and balances they perceive to inhere in this approach, ranging from the need for the feared treatment to fall within a human rights norm as defined by a "widely ratified" international human rights treaty, to the incorporation of notions of derogable and non-derogable rights, internal limitations on rights and a proportionality approach.
148 Other commentators propose a different approach: see, for example, Price at pages 103-136, arguing against what he describes as a "humanitarian approach" to the concept of persecution in the Convention, and in favour of what he calls a "legitimacy approach".
149 Storey, in "Persecution: Towards a Working Definition", in Chetail and Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar, 2014) at page 476, makes the following observations, with which we respectfully agree:
Thus both refugee law and human rights law make clear that it is only if violations of human rights attain a sufficient severity or disproportionality that they amount to persecution or ill treatment.
Furthermore, under a human rights approach it remains the case that persecution has to be shown to be person-specific. Not every violation of human rights will have equally serious consequences for different individuals. There is broad acceptance of the need for the human rights approach to be applied contextually. In Goodwin-Gill's formulation, whether a human rights violation will amount to persecution will "again turn on an assessment of a complex of factors, including (1) the nature of the freedom threatened, (2) the nature and severity of the restriction, and (3) the likelihood of the restriction eventuating in the individual case". As stated by Symes and Jorro, "[b]y this sensible linkage between formal breach of a human right and its conversion into persecution by means of the gravity of its invasion, the principal criticism of the Hathaway approach, that it might extend the forms of harm capable of constituting persecution too far, is overcome."
(Citations omitted.)
150 Indeed, perhaps with the exception of some of the United States decisions, almost all of the decisions to which we have referred (from Australia and other jurisdictions) have considered the question of what conduct should be characterised as persecution from the perspective of interferences with basic human rights. The matter was clearly put, with respect, by Brennan CJ in Applicant A (at 232):
When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied.
151 In our view, it is unnecessary for the purposes of this appeal to choose between the competing academic approaches to the analysis of what kind of conduct may constitute "being persecuted" for the purposes of Art 1A. Whether or not the preferable analysis is to measure it against human rights norms, the point of referring to this approach in some detail here is to put beyond doubt that, on any view, the evaluation of whether what a person claims to fear is "serious harm" will be a question of fact and degree, often complicated and quite specific to the individual concerned, and involving consideration of domestic and international justifications for interference with, and limits placed on, the enjoyment of human rights in a particular country of nationality.