High Court Cases 

High Court Wellington CP No. 57/2000; [2001] NZAR 472
20 October 2000; 24 October 2000
Durie J

Persecution - meaning of - whether every breach of a human right is persecution - whether obligation on RSAA to provide exhaustive definition of persecution

The plaintiff, a citizen of Vietnam, had been twice visited by police officers for criticising the Vietnamese government to a small circle of friends and was warned that he might be interrogated if he continued in that manner.  His parents were warned for disseminating similar views.  They in turn had warned the plaintiff he would be questioned on his return to Vietnam.  The Refugee Status Appeals Authority (RSAA) found that while the Vietnamese government restricted privacy rights and freedom of speech, that the plaintiff's comments would not attract serious interest or severe penalties.  The low level of interest of the police fell well below a level of harm that could be described as persecution.  The issue in the High Court was whether a low level of police interest in the plaintiff could amount to persecution where this could involve an infringement of the plaintiff's freedom of thought and opinion.

Held:

1.    While a breach of human rights by the state may carry a presumption of persecution, depending on the circumstances of the case, it was going too far to suggest that every such breach is per se persecution.  Underlying refugee law is the principle that the international community will provide a surrogate protection for those denied proper protection in their home country.  That necessarily involves a selection, or a determination, according to normative judgments, of whether the likely treatment of the applicant for refugee status will amount to persecution in the circumstances of the particular case.  That approach is also consistent with the opinion of Professor James C Hathaway, The Law of Refugee Status at p 108 that refugee law ought to concern itself with actions that deny human dignity in any key way, which in itself requires an assessment of degree.  It also appears to be the approach adopted by the RSAA itself when it has had occasion to examine the matter more exhaustively.  While states must not resile from such steps as may be necessary to advance human rights, it pushes the law beyond all known boundaries to suggest that the international community is obliged to provide surrogate protection whenever a human rights breach appears likely (see para [5]).

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA); Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL); Damouni v Minister for Immigration, Local Government and Ethnic Affairs (1989) 37 ALR 97 (French J); Refugee Appeal No. 71404/99 (29 October 1999) (NZRSAA) and Refugee Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545 (NZRSAA) referred to.

2.    Accordingly it was not necessary for the RSAA in this case to scope the meaning of persecution or provide some exhaustive definition of the term in order to dispose properly of the matter before it.  It was enough that the Authority found, after reviewing the nature of the police action and the circumstances of the country, that the level of interrogation to which the plaintiff was likely to be exposed was not such as was likely to amount to persecution in terms of the Refugee Convention (see para [6]).

Application for review dismissed

Other cases mentioned in judgment

[no other cases were mentioned]

Counsel

JS Petris for the plaintiff
C Geiringer & J Foster for the second defendant

DURIE J

Introduction

[1] The plaintiff, a citizen of South Vietnam, has been declined refugee status in New Zealand and seeks to review a decision of the Refugee Status Appeals Authority affirming that position.  Twice before coming here he had the misfortune to be visited by police officers for criticising the Vietnamese Government to a small circle of friends whereupon he was warned that he might be interrogated if he continued in that manner.  His parents were likewise warned for disseminating views after the plaintiff wrote to them from New Zealand and that the plaintiff would be questioned on his return.

[2] The Authority had no doubt that the Vietnamese Government restricts its citizens' privacy rights and freedom of speech.  Nonetheless after examining reports on the country's sate of affairs it formed the view that the plaintiff's generalised comments came nowhere near to approaching the sort of activity which might attract serious interest or severe penalties.  The Vietnamese police will have no more than a local or passing interest in the plaintiff, it was considered, and such a low level of police or state interest falls well below a level of harm that can be described as persecutory.  The substantive question before the Authority as I see it, was whether the plaintiff had a well founded fear of being persecuted in South Vietnam for his opinions, in terms of Article 1A(2) of the Refugee Convention.  For the reasons given it found that he did not.  The issues before me resolved themselves to a single question, in the course of argument, of whether a low level of police interest in the plaintiff could amount to persecution where this could involve an infringement of the plaintiff's freedom of thought and opinion.

The plaintiff's arguments

[3] Mr Petris for the plaintiff argued that any actual or threatened state action that inhibited the free and open exercise of a basic human right, if only through the creation of a climate of fear and duress, must in terms amount to persecution.  He submitted that the Authority was wrong in law in implicitly adopting a restricted definition of persecution so as to preclude itself from fully considering the merits of the plaintiff's case.  He argued:

• that the opening paragraph of the Convention's preamble was indicative of its primary purpose to protect human rights, the parties there considering that the Charter of the United Nations and the Universal Declaration of Human Rights have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

• that approach is reinforced by opinions in the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379.  McHugh J observed, at p 430, that the fundamental rights or freedoms otherwise enjoyed by nationals of a country may constitute persecution.  Mason CJ considered, at p 390, that discrimination which involves interrogation, detention or exile amounts prima facie to persecution unless the actions are so explained that they bear another character, Mr Petris submitting that the three elements may be treated disjunctively; and

• that the same approach is apparent in passages by Professor James C Hathaway in The Law of Refugee Status (1991) at pp 106-109 to the effect that the failure to ensure such rights as that of freedom of thought was tantamount to persecution.

Consideration of argument

[5] I do not think it necessary to pursue the argument in detail.  While in terms a breach of human rights by the state may carry a presumption of persecution, depending on the circumstances of the case, it must surely go too far to suggest that every such breach is per se a persecution.  I do not read Chan as supporting the plaintiff in this respect.  Underlying refugee law is the principle that the international community will provide surrogate protection for those denied proper protection in their home country (see Horvath v Secretary of State for the Home Department [2000] 3 WLR 379).  That necessarily involves a selection, or a determination, according to  normative judgments, of whether the likely treatment of the applicant for refugee status will amount to persecution in the circumstances of the particular case (see Damouni v Minister of Immigration Local Government and Ethnic Affairs (1989) 87 ALR 97).  That approach is also consistent with the opinion of Professor Hathaway, at p 108, that refugee law ought to concern itself with actions that deny human dignity in 'any key way', which in itself requires an assessment of degree.  It also appears to be the approach adopted by the Authority itself when it has had occasion to examine the matter more exhaustively.  I refer to Refugee Appeal No 71404/99, (29 October 1999) and more recently, though after the decision in this case, Refugee Appeal No. 71427/99, (16 August 2000).  While I accept that states must not resile from such steps as may be necessary to advance human rights, it pushes the law beyond all known boundaries to suggest that the international community is obliged to provide surrogate protection whenever a human rights breach appears likely.

[6] Accordingly as I see it, it was not necessary for the Authority in this case to scope the meaning of 'persecution' or provide some exhaustive definition of the term in order to dispose properly of the matter before it.  It was enough that the Authority found, after reviewing the nature of the police action and the circumstances of the country, that the level of interrogation to which the plaintiff is likely to be exposed was not such as was likely to amount to persecution in terms of the Convention.

Burden of proof

[7] A second ground in the plaintiff's pleadings that the Authority was in error in concluding that the appellant carries a burden of proof under the Convention, was not advanced in argument.  While the Authority was concerned to dispose of all arguments presented to it, it was not necessary to determine this issue having regard to the manner in which the Authority in fact disposed of the case.

Conclusion

[8] The plaintiff has not made out grounds to justify review and the proceedings are therefore dismissed.

[9] Counsel agreed that an order suppressing publication of the plaintiff's name and details that might lead to identification was appropriate and from an abundance of caution there is an order to that effect.

[10] The second defendant sought and is entitled to costs.  Though the issue is one of extreme importance to the plaintiff, as issues touching on human rights generally are, the issues of law were confined and somewhat settled in my view.  Costs are therefore awarded on the basis of category 1 band A, the argument extending over a period of two hours.
 

Solicitor for the plaintiff: JS Petris (Wellington)
Solicitors for the second defendant: Crown Law Office (Wellington)