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DG v Refugee Status Appeals Authority

High Court Wellington CP213/00
8 May 2001; 5 June 2001
Chisholm J

Judicial review - approach of High Court on judicial review

Judicial review - discretion to grant relief - whether error of law had material effect on RSAA decision

Persecution - meaning of - sustained or systemic violation of basic human rights demonstrative of a failure of protection - whether "sustained" and "systemic" synonymous - whether test conjunctive or disjunctive

Persecution - meaning of - isolated incidents of harm - whether must be part of systemic conduct directed against claimant - whether global judgment required

Persecution - meaning of - whether failure of a government to protect automatically constitutes persecution

Persecution - meaning of - whether past harm alone sufficient

Well-founded fear - whether remote chance of harm sufficient

Well-founded fear - whether a distinction between a real chance and a real possibility

Well-founded fear - whether the threshold has been satisfied calls for the exercise of judgment by the decision-maker

Well-founded fear - whether finding that chance slight in relation to claimant inconsistent with finding there was a real possibility of future violence generally

Well-founded fear - whether a claimant unwilling to avail herself of the protection of her country of origin must also establish a well-founded fear of persecution

The plaintiff, an Indonesian citizen who is also Chinese by race, unsuccessfully sought refugee status on the basis of events which occurred during the May 1998 riots.  Her appeal to the Refugee Status Appeals Authority (RSAA) failed on the grounds that the anticipated harm on return to Indonesia could not be described as persecution and the fear of persecution was in any event not well-founded.  In particular while the harm suffered by her and her family during the riots was distressing, it was not sufficiently sustained or systemic to constitute persecution; although there was a possibility of future violence in Indonesia, the risk of the applicant being affected by that violence was remote and unrelated to her ethnicity or religion; and given the country material relating to conditions in Indonesia, there was no real chance that she would be at risk of persecution if she returned to Jakarta.  In addressing the persecution issue the RSAA, by a slip of the tongue, applied a test of "sustained and systemic violation of basic human rights" instead of "sustained or systemic" as used by Professor James C Hathaway, The Law of Refugee Status (Butterworths, 1991) 104-105.

Held:

1    It is well settled that the specialist nature of the RSAA's jurisdiction imposes constraints on the scope of the High Court's power to review.  If there is an evidential basis on which the view reached by the RSAA can be supported it is not for the High Court to substitute its own assessment (see para [17]).

R v Immigration Appeal Tribunal; Ex parte Syeda Khatoon Shah [1997] Imm AR 145 at 153 (QBD) referred to.

2    The test of persecution formulated by Professor James C Hathaway in The Law of Refugee Status (Butterworths, 1991) 104-105 (a sustained or systemic violation of basic human rights demonstrative of a failure of state protection) has been endorsed at the highest level and used by the RSAA itself.  It was an error or law in the present case for the RSAA to apply a conjunctive rather than disjunctive formulation.  Compared with the traditional "sustained or systemic denial of basic human rights" approach which involves a relatively low threshold, the RSAA's "sustained and systemic denial of basic human rights" approach could carry the connotation that a higher threshold is to be applied.  "Sustained" and "systemic" are not used as synonyms.  However, as the error did not materially affect the RSAA's decision, intervention by the High Court was not justified (see paras 21, 22 & 36).

Canada (Attorney General) v Ward [1993] 2 SCR 689, 773 (SC:Can); Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (HL) and Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379, 407 (HCA) referred to.

3    Failure of a government to protect individuals or groups does not automatically constitute persecution (see para [24]).

4    Even if past events can be construed as "serious harm", it is still necessary to consider the prospective situation.  Unless some form of serious harm can be reasonably anticipated in the future, the claim to refugee status will fail (see paras [25] & [26]).

5    A remote chance of harm is insufficient to establish a well-founded fear of persecution.  See para [29].

6    A distinction should not be drawn between a "real chance" and a "real possibility" (see para [30]).

S v Refugee Status Appeals Authority (High Court, Wellington, CP 203/97, 7 April 1998, Gallen J) referred to.

7    Whether the threshold of well-foundedness has been satisfied in any particular case will call for the exercise of judgment by the adjudicating Authority.  While those cases where there is no more than a remote chance that persecution will be suffered might be resolved with relative ease, it is much more difficult to arrive at a judgment in cases close to the borderline.  Many judicial pronouncements have attempted to pin down where the line is to be drawn.  This is not the occasion to add to those pronouncements (see para [31]).

8    The decision of the RSAA that the chance of the outcome feared by the plaintiff eventuating was so slight it could be discounted was not inconsistent with the RSAA's conclusion that there was a real possibility of future violence in Indonesia generally which was only intended as a commentary on the Indonesian situation generally (see para [32]).

9    A finding that a refugee claimant is unwilling to avail herself of the protection of her country of origin cannot avail her if she is unable to establish a well-founded fear of being persecuted.  Both requirements have to be satisfied (see para [34]).

Dayal v Refugee Status Appeals Authority (High Court, Wellington, CP 50/97, 26 August 1997, Gallen J) referred to.

Application for review dismissed

Other cases mentioned in judgment:

Rajudeen v Minister of Employment and Immigration (1984) 55 NR 129
Refugee Appeal No. 71404/99 (29 October 1999)
Refugee Appeal No. 2039/93Re MN (12 February 1996)

Counsel
J S Petris for the plaintiff
M Hodgen and BJR Keith for the second defendant

[Editorial note: The principal decision of the RSAA on refugee claims by Indonesian citizens who are also Chinese by race is Refugee Appeal No. 71404/99 (29 October 1999).

The jurisprudence of the RSAA on the meaning of persecution has been summarised more recently in Refugee Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545; Refugee Appeal No. 71462/99 (27 September 1999); [2000]INLR 311 and Refugee Appeal No. 2039/93 Re MN (12 February 1996).  The issue of past persecution is addressed at length in Refugee Appeal No. 70366/96 Re C (22 September 1997); [1997] 4 HKC 236]

CHISHOLM J [1] The plaintiff is an Indonesian citizen of Chinese ethnic origin.  She is single, 26 years of age.  Upon arriving in New Zealand in 1998 she sought refugee status -

if she returned to Indonesia.  Her application was declined by the New Zealand Immigration Service and her appeal to the Refugee Status Appeals Authority failed.

[2] This application for review of the Authority's decision relies on two alleged errors of law on the part of the Authority.  It is claimed that the Authority erred, first, in its approach to the meaning of the word "persecuted" in the Refugee Convention; and, secondly, in determining whether there was a "well-founded fear" of being persecuted in terms of the Convention.  To some extent these causes of action overlap.  The first defendant abides the decision of the Court.

Background

[3] The plaintiff lived in Jakarta with her parents and her sister.  Prior to the riots in May 1998 she encountered difficulties on account of Chinese ethnicity in connection with an identification card, her entry into university, and by virtue of insults shouted at her by Indonesians when she was walking along the street.  During the May riots she was injured when she went outside the family home and a Molotov bomb dropped in front of her.  Despite the injury she was able to flee with her family.  As she was leaving the neighbourhood she saw a neighbouring home being ransacked by Indonesians and a neighbour's daughter being abused (later she heard that this girl had been raped).

[4] On returning three days later the plaintiff's father found that both the family home and his electronic shop had been looted, the house having been partially destroyed and the shop totally destroyed.  Once the home was repaired the plaintiff's parents were able to return to it, being joined later by the plaintiff and her sister.  Since that time her parents have established a canteen outside their home.  They are assisted in that business by the plaintiff's sister.

[5] Since the riots a number of events have occurred: the plaintiff's mother has been abused whenever she goes shopping; stones have been thrown at her father's car; in June 1998 some Indonesian men shouted insults at the plaintiff, chased her, and when she fell one of them touched her buttocks but fortunately they fled after her cousin came to her rescue; stones have been thrown at Chinese homes in her neighbourhood; windows in her family home have been broken on two occasions; and although no-one in her family has been physically attacked, her family car has been stopped at traffic lights by Indonesians wanting jewellery and money.  The plaintiff said that the police failed to take any action when she complained to them after she had been chased, after the family car had been held up at the traffic lights and after their home had been broken into on two occasions.  She believes this was because her family is Chinese.

[6] The plaintiff is Catholic.  Although she did not experience any difficulties in practising her faith, she understood that a church near her family home had been burnt down.  She also understood that someone had threatened to throw a bomb inside the church she liked to attend.

[7] Since arriving in New Zealand in September 1998 the plaintiff has remained in contact with her family through letters and telephone calls.  These communications have led her to believe that although the situation in Indonesia remains unpredictable, her father's business is "going well".  Her father has told her, however, that when he was in church he was approached for money and that he was struck on the head and chest when he refused the request.  When he complained to the police they "took down a report".

[8] According to an English translation of a letter of 19 February 2000 to the plaintiff from her mother, the plaintiff was encouraged by her mother to remain in New Zealand as the situation in Indonesia was not "stable or safe".  Her mother described fighting between Muslim and Christian people and commented that their target is mostly Chinese people.  Reference was also made to widespread property destruction and to difficulty in securing employment except employment with people having a Chinese background.

[9] The plaintiff told the Authority of her understanding that three months prior to the appeal hearing (in May 2000) there had been further riots in Jakarta and that the house of an uncle had been burned because he was a Christian.  This was the only occasion of which the plaintiff was aware on which a house in her neighbourhood had been attacked and burned since the riots in May 1998.  She believed that her family had been lucky to avoid an attack on their home.  She feared that if she returns to Indonesia it would not be possible for her to find employment.

[10] Evidence was also given by a person of Chinese ethnic origin who used to live in Jakarta but now lives in New Zealand (since 1995).  He told the Authority that it was not safe for ethnic Chinese to live in Indonesia because Indonesians are jealous of them.  He described various incidents and produced a range of country information.  He acknowledged, however, that he did not encounter any difficulties when he visited Jakarta about a year before the appeal hearing.  Additional country information was produced to the Authority by counsel for the plaintiff.

Authority's decision

[11] The Authority's decision is comprehensive.  Evidence of the plaintiff and her witness, which has been outlined under the previous heading, was accepted by the Authority.

[12] When considering whether there was a real chance that the plaintiff would be persecuted if she returned to her home country the Authority said:

Mr Petris complained that these comments by the Authority did not accurately reflect his submissions and that in any event the Authority's approach was erroneous in law.

[13] The Authority concluded that the appellant had not suffered persecution in Indonesia.  While it accepted that prior to the 1998 riots she had encountered some "discriminatory harassment" and that there had been events involving the plaintiff and her family during and after the riots:

Mr Petris claimed that these conclusions are also erroneous in law and reflect an incorrect application of the concept of persecution to the facts as found.

[14] With reference to its decision in Refugee Appeal No. 71404/99 the Authority accepted that "[a]t the very least ... there must be a real possibility of further violence in Indonesia generally".  But it concluded that the risk faced by any individual Chinese is at its highest, a random risk, best expressed by the phrase of being "in the wrong place at the wrong time".  It considered that statistically the chance of any individual Chinese suffering harm was remote.  It noted that since the attacks on ethnic Chinese in Lombok in January 2000 there had been no further attacks and that localised outbreaks of violence in Indonesia had not involved attacks on ethnic Chinese.  The Authority also noted that since the riots in May 1998 the plaintiff's family had been able to resume their lives and had been able to conduct a business from their own home.

[15] Attention was also directed towards the implications of the plaintiff's Christianity.  The Authority concluded that there was no evidence to indicate that inter religious violence had broken out in Jakarta and it construed the attack on the plaintiff's father in church and the burning of a Christian neighbour's home as "isolated and random" incidents.  It was not prepared to accept that there was a real chance that the plaintiff would be the victim of violence because of her religious beliefs if she returned to Jakarta.

[16] Finally the Authority addressed the plaintiff's claim that the family's experiences during the riot coupled with absence of state protection was sufficient to establish that the appellant had a well founded fear of persecution.  It responded:

Again it is submitted by Mr Petris that the approach adopted by the Authority was erroneous in law.  He maintained that if the Authority had applied the proper legal test it would have concluded that the plaintiff was a refugee within the meaning of Article 1A(2) of the Refugee Convention.

Scope of review

[17] It is well settled that the specialist nature of the Authority's jurisdiction imposes constraints on the scope of this Court's power to review.  The comments in R v Immigration Appeal Tribunal, Ex Parte Syeda Khatoon Shah [1997] Imm AR 145 (CA) at page 153 are apposite:

If there is an evidential basis on which the view reached by the Authority can be supported it is not for this Court to substitute its own assessment.

First cause of action

[18] This cause of action revolves around the approach of the Authority to the concept of persecution.  Mr Petris's primary submission was that the Authority's reasoning -

reflected an unduly narrow approach which was erroneous in law.  He submitted that application of this erroneous test to the facts accepted by the Authority had produced an outcome which was not sustainable in law.  He also relied on four subsidiary errors of law concerning the concept of persecution.

[19] Although the Authority made reference to its earlier decision in Refugee Appeal No. 2039/93 to support its test of a "sustained and systemic violation of core human rights", it can be inferred that its approach actually derives from The Law of Refugee Status, Hathaway, 1991, which states at p 104:

It can be seen immediately that the conjunctive approach used by the Authority does not replicate the disjunctive approach used by Professor Hathaway.  This issue was not specifically addressed by Mr Petris, but Crown counsel argued that the Authority's conjunctive approach was not significant because the words "sustained" and "systemic" are used as synonyms rather than alternatives.

[20] On my reading of his text, Professor Hathaway has carefully formulated his definition around the disjunctive approach.  His chapter on persecution makes two other specific references to the definition of "persecution" and on each occasion the disjunctive "sustained or systemic" is utilised (see pp 102 and 112).  The Professor's approach has been endorsed at the highest level.  See, for example, the decisions of the Supreme Court of Canada in Canada (Attorney General) v Ward [1993] 2 SCR 689 at 733 and the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 All ER 577 at pp 581 and 597.  Equally significantly the Authority itself seems to have utilised Professor Hathaway's approach in the past.  Indeed, the earlier decision relied on by the Authority on this occasion specifically recognises that "the sustained or systemic denial of core human rights" represents the appropriate standard.

[21] There seems to have been a slip of the tongue by the Authority on this occasion.  On the face of the decision there are no indications that the Authority was intending to depart from the traditional test.  At the same time this does not seem to be a situation where this Court could deal with the matter by simply turning a blind eye to the error because, as noted by Toohey J in Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) at p 407:

Compared with the traditional "sustained or systemic denial of basic human rights" approach which involves a relatively low threshold, the Authority's sustained and systemic denial of basic human rights" approach could carry the connotation that a higher threshold is to be applied.  In my opinion the Crown's submission that "sustained" and "systemic" have been used as synonyms is unrealistic.

[22] So I approach the matter on the basis that the Authority's slip of the tongue on this occasion constitutes an error of law.  Whether that error should prompt the Court to exercise its discretion in favour of granting relief and refer the matter back for reconsideration is another matter.  That issue is best determined once the other alleged errors of law have been considered.

[23] The other errors of law relied on by the plaintiff in relation to this cause of action can be summarised: first, the specific hostile acts against the plaintiff and her family, which the Authority accepted had occurred, must have amounted to persecution; secondly, the destruction of the plaintiff's family home/business and threats, all of which were also accepted by the Authority, constituted "serious harm" and must also have amounted to persecution; thirdly, failure of the Indonesian police to provide protection to the appellant (also accepted) constituted persecution; and, finally, the Authority's conclusion that the past acts of violence against the family did not amount to persecution constituted an incorrect application of the "persecution" concept to the facts as found by the Authority.

[24] The genesis of Mr Petris's first and third alleged errors of law can be found in the following underlined passages in the judgment of McHugh J in Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 at p 429:

However, when the comments of McHugh J are read as a whole it is clear that he was intending to convey that isolated incidents will only constitute persecution if they can be seen as part of systemic conduct directed against the person as an individual or member of a class for a Convention reason.  That reasoning is, of course, entirely consistent with the traditional definition of persecution discussed earlier.  Whether or not persecution is established in any particular case will be a matter of global judgment and so long as the Authority's conclusion was open to it on the evidence, and I think that it was, the first point of law taken by the plaintiff cannot be made out.  Similarly, as McHugh J specifically noted, while failure by a government to protect individuals or groups against serious harm can give rise to persecution, whether or not that outcome arises in any particular case will depend on the circumstances.  In other words, failure of a government to protect individuals or groups does not automatically constitute persecution.  Again no point of law arises provided, of course, the Authority's conclusion was open to it on the evidence, and I think that it was.

[25] The second alleged error of law, to the effect that the persecution threshold must have been satisfied because the plaintiff and her family had suffered "serious harm" which the government had not prevented, relies on the following passage from The Law of Refugee Status at p 105:

Mr Petris also noted that this approach had been endorsed by Lord Clyde in Horvath v Secretary of State.  It is significant, however, that the quotation relied on by Mr Petris carries a footnote (after the words "serious harm") to the effect that persecution is very much a question of degree and proportion.  This again illustrates that we are in the realm of global factual assessment rather than issues of law.  Moreover, even if past events could be construed as "serious harm", it is still necessary to consider the prospective situation.  Unless some form of serious harm can be reasonably anticipated in the future, the claim for refugee status will fail.  This point of law has not been made out.

[26] Mr Petris's fourth alleged error of law is in a similar category.  His submission seems to come down to a proposition that the past acts of violence accepted by the Authority should have lead the Authority to the conclusion that persecution had been established.  There are two flaws in that proposition.  First, on the evidence before it the Authority was not bound to reach the conclusion that the past acts amounted to persecution.  Secondly, even if those past acts amounted to persecution the Authority was still obliged to apply the words of Article 1A(2) which require a prospective appraisal.  Either way the point of law could not be made out.  Despite Mr Petris's attempt to derive some support from Rajudeen v Minister of Employment & Immigration (1984) 55 NR 129, I do not think that decision can assist.  In that case the evidence was so clear cut that the Federal Court of Appeal (Vancouver) came to the view that only one conclusion was open to the Board, namely, that the applicant qualified as a refugee.  In other words, the Court was really dealing with a Wednesbury unreasonableness situation.  This is not such a situation.

Second cause of action

[27] This ground of review revolves around the requirement in the Refugee Convention that there be a "well-founded fear" of being persecuted.  Mr Petris is critical of the following comment of the Authority which, he said, did not reflect his submissions:

He denied that he had attempted to argue before the Authority that a remote chance of harm could support a well-founded fear of persecution.  He said that his submission to the Authority, which relied on SWH v Refugee Status Appeals Authority & Anor (Wellington Registry, CP203/97, 7 April 1998, Gallen J), was to the effect that a fear that is not fanciful, too remote or extreme could satisfy the required threshold.

[28] Mr Petris claimed that if the Authority had applied that test to its findings of fact it must have come to the conclusion that there was a well-founded fear.  He emphasised the Authority's acknowledgement that there was a real possibility of further violence in Indonesia.  He argued that it had been deflected from arriving at the proper conclusion by its reliance on what he described as its "statistical analysis".  Mr Petris also submitted that if the plaintiff had suffered serious harm in the past and the authorities had failed to protect her, then in the absence of any substantial changes in Indonesia there was ample justification for concluding that the plaintiff was in terms of the Convention "unable or unwilling" to avail herself of the protection of her home country.  He rounded off his submissions on this cause of action by contending that in the end result an overly scientific approach by the Authority had caused it to lose sight of the words used in the Convention.

[29] Given that the Authority rejected the submission it attributed to Mr Petris and that Mr Petris denied it was ever made, whether the submission was made in the first place really amounts of a non issue.  Both the plaintiff and second defendant agree that a remote chance of harm is insufficient to establish a well-founded fear of persecution.  That is the end of that particular issue.  Now I move to the remaining issues raised in relation to this cause of action.

[30] The Courts developed the "real chance" test to assist in determining whether a well-founded fear of being persecuted for a Convention reason has been established in any given situation.  After extensively reviewing the relevant authorities Gallen J concluded in SWH v Refugee Status Appeals Authority & Anor (supra) at p 14:

Read as a whole the judgment does not indicate to me that Gallen J was attempting to draw a distinction between a "real chance" and a "real possibility" and I do not see any reason to disagree with his analysis.

[31] Whether the threshold has been satisfied in any particular case will call for the exercise of judgment by the adjudicating Authority.  While those cases where there is no more than a remote chance that persecution will be suffered might be resolved with relative ease, it is much more difficult to arrive at a judgment in cases close to the borderline.  Many judicial pronouncements have attempted to pin down where the line is to be drawn.  I do not believe that this is the occasion to add to those pronouncements.  Despite Mr Petris's arguments I have not been persuaded that the Authority fell into error when it decided that the plaintiff had failed to establish a well-founded fear of persecution.  My reasons for having reached that conclusion can be summarised.

[32] In essence the plaintiff's appeal to the Authority failed because the Authority was not satisfied that the plaintiff had objectively established a well-founded fear in terms of the Convention.  The Authority decided that the chance of the outcome feared by the plaintiff eventuating was so slight that it could be discounted.  This is not inconsistent with the Authority's conclusion that there was a real possibility of future violence in Indonesia generally which was only intended as a commentary on the Indonesian situation generally.

[33] Once the Authority specifically directed its attention to Convention reasons it found that there was only a remote risk of people with Chinese ethnicity being targeted and that there was no evidence to suggest that the plaintiff personally would be targeted.  Adopting the reasoning in its earlier decision (Refugee Appeal No. 71404/99) the Authority decided:

I do not think that Mr Petris's categorisation of the Authority's reasoning as "statistical" or "scientific" is accurate.  The Authority was only using this reference to statistics to illustrate its conclusion that the chance of individual Chinese suffering harm was remote.  No error of law has been demonstrated..

[34] Mr Petris expressed his final point in relation to this cause of action in this way:

The problem with this submission is that a finding that the plaintiff is unwilling to avail herself of the protection of her country of origin cannot avail her if she is unable to establish a well-founded fear of being persecuted.  Both requirements have to be satisfied.  I do not read Dayal v Refugee Status Appeals Authority as authority to the contrary.  Again, no error of law has been demonstrated.

[35] This cause of action has not been made out.

Relief

[36] In the end result one error of law has been established, that error being more in the nature of a slip of the tongue.  Having reflected on the matter I have come to the conclusion that the error did not materially affect the Authority's decision.  I agree with counsel for the second defendant that the Authority's decision came down to three basic findings:

All those findings were open to the Authority on the evidence before it and were clearly arrived at after careful consideration.  While it is easy to feel sympathy for the plaintiff, I am afraid that intervention by this Court is not justified.

Outcome

[37] The application for review of the Authority's decision is dismissed.
 

Solicitors for the plaintiff: JS Petris (Wellington)
Solicitors for the defendants: Crown Law Office (Wellington)

1    In fact the correct reference to this decision is Refugee Appeal No. 2039/93.