Minister for Immigration and Multicultural Affairs v S152-2003

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Hayne,Heydon JJ,McHugh J,Kirby J
• Judgment Date: 21 April 2004
• Neutral Citation: 2004-0421 HCA A,[2004] HCA 18
• Docket Number: S152/2003
• Date: 21 April 2004

[2004] HCA 18

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Hayne AND Heydon JJ

S152/2003

Minister For Immigration And Multicultural Affairs

Appellant

and

Respondents S152/2003

Respondents

Migration Act 1958 (Cth), s 36(2).

Convention relating to the Status of Refugees, Art 1A(2).

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

Immigration — Refugees — Applications for protection visas by de facto husband and wife nationals of Ukraine — Well-founded fear of persecution — Husband claimed to suffer religious persecution as Jehovah's Witness — Refugee Review Tribunal found that incidents of which husband complained were individual and random incidents and did not amount to persecution, and that the chance that he would suffer persecution in future was remote — Tribunal rejected claim that state encouraged or condoned persecution of Jehovah's Witnesses — Whether Full Court of Federal Court erred in concluding that Tribunal committed jurisdictional error in failing to consider a different claim of whether the husband might suffer future harm from private individuals because of religious belief and whether the government of Ukraine was able in a practical sense to stop such harm occurring — Absence of evidence before Tribunal to support a conclusion that Ukraine did not provide level of protection required.

Immigration — Refugees — Applications for protection visas — Relevance of attitude or capacity of state to whether fear of harm well-founded, to whether there is persecution, to whether a person is outside country of nationality owing to well-founded fear of persecution and to unwillingness of person to seek protection of state — Protection theory and accountability theory — Non-state actor — Harm by non-state actors — Persecution by non-state actors — State complicity in persecution — Persecution tolerated or condoned by state — Failure of state protection — Unwilling or unable to provide protection.

International law — Treaty — Interpretation — Refugees Convention — ‘Persecution’ — Different theories of persecution — Meaning of treaty provisions — Proper approach to meaning — Primacy of text — Approaches of courts in countries of refuge — Protection theory and accountability theory — Whether a third theory applicable.

Words and phrases — ‘well-founded fear’, ‘persecution’, ‘protection’.

1 Gleeson CJ, Hayne AND Heydon JJ. The issue in this appeal concerns the application of the definition of ‘refugee’ in the Refugees Convention as amended by the Refugees Protocol (‘the Convention’) in a case where the feared conduct in a person's country of nationality is that of private individuals, and where neither the government nor its officers encourage, condone or tolerate conduct of the kind in question.

Gleeson CJ

2 The respondents applied for protection visas, relying on s 36(2) of theMigration Act 1958 (Cth) (‘the Act’), and claiming that they were persons to whom Australia had protection obligations under the Convention. Article 1A(2) of the Convention provides that the term ‘refugee’ shall apply to 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.’

3 The respondents are Ukrainian nationals. The first respondent had suffered serious harm from some fellow citizens in Ukraine because he was a Jehovah's Witness. The nature of that harm will be explained below. The first respondent needed to establish that he feared persecution for reasons of religion, that his fear was well-founded, that he was outside Ukraine owing to such fear, and that he was unable or, owing to such fear, unwilling to avail himself of the protection of his country of nationality.

4 The respondents are de facto husband and wife. The second respondent is not a Jehovah's Witness, and it was the position of the first respondent that was the focus of attention. The respondents left Ukraine in December 1998, and arrived in Australia in the same month. In February 1999, they applied for protection visas. On 7 May 1999, their application was refused by a delegate of the Minister. They applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’). In September 2000, the Tribunal affirmed the delegate's decision. The respondents sought judicial review of the Tribunal's decision in the Federal Court of Australia. The matter came before Wilcox J, who found no error of law in the Tribunal's reasons, and who, on 9 April 2001, dismissed the application. The respondents then appealed successfully to the Full Court of the Federal Court (Lee, Moore and Madgwick JJ). Before considering the decision of the Full Court, it is necessary to examine the case that was put to the Tribunal, the findings of the Tribunal, and the Tribunal's reasons for affirming the delegate's decision.

5 The first respondent said that he became interested in the Jehovah's Witnesses religion in about May 1998. He was given some literature by a friend, and started to attend meetings on Sunday evenings. He began to distribute publications to his neighbours, and to engage in other forms of proselytising. Sometimes his activities were received with hostility and insults. On an occasion in June 1998, a group of drunken teenagers set upon him as he was returning to his home unit. They called him ‘a stinking sectarian’, and punched and kicked him. He suffered severe injuries. An ambulance was called. He was given emergency treatment at a hospital, and then spent a week at home in bed. A policeman visited him at home, and asked for his account of what happened. The first respondent, who did not know the identity of his attackers, did not make a formal statement.

6 On an occasion in July 1998, there was an apparent attempt to set fire to the front door of the unit in which the first respondent was living. Written on a nearby wall were the words: ‘Death to sectarians! Bitch, if you want to live, stop your filthy activities, or else!’

7 In September 1998, on an occasion when the first respondent went into a building to distribute magazines, he was attacked and beaten by four men.

8 The first respondent's religious beliefs and activities also incurred the resentment of his employer. He was dismissed on a ground that he regarded as spurious. He then decided to leave Ukraine.

9 The Tribunal took account of country information from the United States Department of State, the British Home Office, and the Australian Department of Foreign Affairs and Trade. That information was consistent. It contained no suggestion that the Ukrainian government was not in control of the country, or that the police force and the judicial system were not reasonably effective and impartial. It said that the Ukrainian government permitted freedom of religious practice in the case of ‘traditional religions’, which included Jehovah's Witnesses, although ‘new religions’, such as Scientology, were treated differently. It was noted that, as part of the Soviet Union for most of the 20th century, Ukraine was a society in which, for a long time, the public practice of religion had been strongly and officially discouraged, and that sections of the community were still likely to be hostile to religious proselytising. The Tribunal noted that there were more than 100,000 Jehovah's Witnesses in Ukraine, and that the Church itself, in its published material, did not claim to be persecuted there.

10 The Tribunal found ‘that the [first respondent] was assaulted and that he was assaulted because some individuals were affronted by his religious beliefs.However, these incidents must be seen as individual and random incidents of harm directed at the [first respondent] and not as persecution for a Convention reason.’

11 The first respondent set out to convince the Tribunal that the government of Ukraine, both directly and through the state-controlled media, encouraged persecution of Jehovah's Witnesses. That proposition was rejected. The first respondent also asserted that the police condoned violence towards Jehovah's Witnesses. The Tribunal did not accept that. The Tribunal said:

‘On the basis of the above information, the Tribunal is not satisfied that the authorities can be said to be unwilling or unable to protect their citizens. The fact that the [first respondent] experienced incidents about which he either did not make a statement, or did not persevere in any way if discouraged from making a statement, cannot be taken as evidence that the authorities condoned such incidents. On the occasion on which the police were alerted to an assault by the ambulance officers, they responded appropriately.’

12 The Tribunal also said:

‘In short, the Tribunal accepts the independent evidence of the US State Department, the British Home Office and DFAT, but more particularly of the official Jehovah's Witness website itself, that Jehovah's Witnesses in the Ukraine do not face State-sanctioned persecution. It accepts that harm may sometimes befall individual church members, probably more frequently when they go out and proselytise — putting themselves deliberately into an interaction with members of the general public — but that this harm befalls them on a one-off, individual basis.

In the case of the [first respondent], he has suffered two assaults and some property damage that can almost certainly be attributed to adverse reaction to his new-found religious beliefs. However, the Tribunal finds that they were individual attacks with different perpetrators being...