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H v Chief Executive of the Department of Labour

High Court Wellington AP 183/00
14 March 2001; 20 March 2001
Gendall J

Immigration Act 1987 - humanitarian appeal - employment - discrimination in the obtaining of - Immigration Act 1987 s 47 and s 115A

Immigration Act 1987 - humanitarian appeal - relationship with grant or denial of refugee status

Persecution - meaning of - discrimination in employment

The appellant, a citizen of Vietnam, applied unsuccessfully for refugee status, his appeal being dismissed by the Refugee Status Appeals Authority (RSAA).  His immigration appeal to the Removal Review Authority (RRA) was also dismissed.  The latter decision was challenged by way of an appeal to the High Court under the Immigration Act 1987, s 115A.  The issue was whether discrimination faced by the appellant in obtaining employment amounted to persecution for reasons of political opinion.  Both the RSAA and RRA had concluded that two or three rejections due to an imputed political opinion did not amount to persecution, but to discrimination only and that it was improbable and remote that the appellant would be at risk of detention or other form of retribution if he returned to Vietnam.  In the High Court it was submitted that as a matter of law discrimination in employment, condoned by the state, amounts to persecution.  That is, such "must" not "may" be persecution.  As the appellant had been unable to obtain employment through discrimination condoned by the state, it must follow that he was the victim of persecution.  The appellant's position was that through being denied employment through state discrimination and persecution this not only qualified him to be categorised as a refugee but also (irrespective of this) amounted to exceptional circumstances of a humanitarian nature within the statutory test of the Immigration Act 1987, s 47.

Held:

1.    Discrimination in employment may amount to persecution but it can never be said as a matter of law that it must do so.  It is a matter of fact and degree depending upon all the circumstances.  There must be a denial in a key way of a human right.  Refugee law is concerned with actions that deny human dignity in any key way which requires an assessment of degree.  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 [19]).

Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260; Chen v Minister for Immigration and Ethnic Affairs (1995) 58 FCR 96 followed. Q v Refugee Status Appeals Authority (High Court, Wellington, CP 57/2000, 24 October 2000, Durie J) referred to.  Thalary v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 437 distinguished.

2.    It is not necessary for the RRA to "scope" or provide an exhaustive definition of the term "persecution".  What is required is for the Authority to make a measured assessment of whether the proven facts constitute persecution in the particular circumstances of the case (see para [20]).

3.    The test as provided in the Immigration Act 1987, s 47 is wider than, and different to, that of determining whether refugee status exists for Convention reasons.  But they may well overlap particularly where refugee status has been sought, but not granted.  Obviously, a person who has refugee status will come within the s 47 criteria, but equally obviously it does not follow that a person who is not a refugee cannot satisfy the s 47 test.  It still remains a stern or high test (see para [21]).

Rajendra Patel v Removal Review Authority [2000] NZAR 200 (CA) referred to.

4.    The assertion by the appellant that the RRA erred as a matter of law by not finding that discrimination of employment condoned by the state (without more) amounts to persecution so as to justify either a designation of refugee status or satisfaction that "exceptional circumstances of a humanitarian nature" test fails.  The RRA was correct in holding that such "may", but not "must", meet the test required (see para [23]).

Appeal dismissed

Other cases mentioned in judgment

[no other cases were mentioned]

Counsel

JS Petris for the appellant
M Hodgen for respondent
 

GENDALL J

[1] The appellant is a citizen of Vietnam, now aged 31, who has been in New Zealand since 10 May 1998.  He arrived initially on a student visa.  He sought refugee status from the New Zealand Immigration Service to enable him to reside here permanently.  His request was declined and he appealed to the Refugee Status Appeals Authority ("RSAA") but such appeal was dismissed.  He then appealed to the Removal Review Authority ("the Authority") pursuant to s 47 of the Immigration Act 1987 ("the Act").  That appeal was dismissed.  He appeals against the decision of the Authority pursuant ot s 115A of the Act.

Statutory provisions

[2] Section 115A Immigration Act 1987 provides:

[3] Section 47, as enacted in the 1999 amendment provides that a person unlawfully in New Zealand may appeal to the Authority against the requirement to leave.  The appellant was unlawfully in the country after 14 March 2000 when the revocation of his work permit became effective.  Section 47(3) sets out the grounds upon which an appeal may be brought (they being substantially those contained in the previous s 63B(2)).  Those grounds are: Background facts as found by the RSAA and the Authority

[4] The appellant came to New Zealand on 10 May 1998 and applied for refugee status in September 1998.  He is a citizen of Vietnam and arrived on a student's permit.  He had previously left Vietnam in 1988, travelled to and worked in Czechoslovakia.  Thereafter he travelled to Germany in 1991 where he lived until 1996.  As happened in New Zealand, he applied for refugee status in Germany, but was unsuccessful.  He was returned from Germany, along with a number of other Vietnamese citizens in early 1996.  Because of his extended departure outside the time a Vietnamese citizen was permitted by the Government to stay away, he and the others were detained in custody for about one month and secured their release upon payment of a fine of approximately US$300 each.  Thereafter he lived with his family in Vietnam (they still remain there) and tried "two or three times to obtain a job but was rebuffed by prospective employers since he had lived overseas for some time 'as a refugee'".  His belief was that they did not accept him because he had been critical of the [Vietnamese] regime.  Thereafter, when able to obtain his own passport, the appellant left Vietnam in May 1998 arriving in New Zealand on a student permit.  Whilst in New Zealand he participated in a demonstration in front of the Vietnamese embassy in August 1999 as one of a relatively large group of protesters.  He supported, in a relatively small way, the publication of a Vietnamese newspaper, published in Australia which, it was said, condemns the Government.  The appellant's evidence or contention was that he feared that if he returned to Vietnam again he might be imprisoned, and that he would be unable to obtain employment because of discrimination exercised against him, based upon Government initiatives and sanctioned by the Government.  The full facts are set out in more detail in the decisions of the RSAA and the Authority but for the purpose of this judgment that summary will suffice.

The decision of the RSAA

[5] That tribunal in a decision that encompassed 12 pages reveals a careful assessment of the facts and principles.  The appellant's credibility is accepted and he was regarded as a reliable witness.  The RSAA correctly identifies the principle issues, for its purposes, as whether objectively on the facts found there is a real chance of the appellant being persecuted if returned to Vietnam and, if so, was there a Convention reason for such persecution.  In truth the appellant's case boiled down to a contention that discrimination faced in obtaining employment amounted to persecution by reason of his political opinion.  The RSAA reviewed some of the decided cases and contents of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (1992), and the well known text of Professor Hathaway, the Law of Refugee Status (1991).  The RSAA referred to an earlier decision of it (with a differently constituted panel), recognising that at the extreme end of the spectrum deprivation of the right to work might amount to persecution if "for example the asylum seeker had no other income or family support and was thus left destitute".  It noted that a substantial impairment of the ability to earn a living, coupled with the discriminatory factors, may also amount to persecution.

[6] The RSAA accepted the statement in the Handbook that "serious restrictions on his right to earn his livelihood" amounts to persecution but only to the extent that at the extreme level, the restrictions are "tantamount to the deprivation of life or cruel, inhuman or degrading treatment".

[7] In the end, and after analysis of Australian decision the RSAA said this:

[8] The RSAA referred to the appellant's evidence that he was rejected "two or three times" during his first six months back in Vietnam for employment because he had disclosed that he had been a refugee overseas.  The Authority came to the conclusion that two or three rejections due to an imputed political opinion do not amount to complete deprivation of employment for this reason.  The Authority referred to the appellant's acceptance of the fact that it is difficult for anyone to find a job, no doubt due to the economic difficulties of Vietnam, that being the reason he left Vietnam in 1998, and that his brother remains unemployed.  The RSAA added: [9] The Authority concluded that the appellant had not been persecuted in the past and that the chance that he would suffer the same or other punishment should he return to Vietnam was remote.  It concluded there was no "real possibility of occurrence" of the concerns the appellant said he had and his fear of persecution was not well founded.  In terms of the Convention the fear of persecution had to be objectively well founded.  The appeal was dismissed.

The decision of the Authority

[10] The Authority said that what the future held for the appellant in terms of employment remained very speculative because although country reports recorded that Vietnam was a very poor country, it was undergoing transition to a more market orientated economy and there continued to be growth in many industries particularly in the main urban areas.  The Authority expressed some scepticism that the appellant's lack of success in his "two or three applications" for jobs could be directly attributed to discrimination, but she concurred with the conclusion of the RSAA that the appellant's two or three unsuccessful attempts to find employment during 1996 "hardly amount to a complete deprivation of employment and falls woefully short of establishing persecution".  She came to the view that any difficulty in finding a job, even if there was some element of discrimination involved, did not place the appellant in any exceptional category and that he faced very much the same problems as the majority of his countrymen.  She agreed with the RSAA that it was improbable and remote that the appellant would be subject to risks of detention or other forms of retribution on his return to Vietnam and concluded that there were no exceptional circumstances of a humanitarian nature such as to make it unjust or unduly harsh for the appellant to be removed from New Zealand.

Appeal to this Court

[11] The essence of the appellant's submissions on a point of law was that as a matter of law discrimination in employment, condoned by the State, amounts to persecution.  That is, such "must" (not "may") be persecution.  Counsel submits that because the appellant's evidence had been accepted that he had been unable to obtain employment through discrimination condoned by the State, it must follow therefore, that he was the victim of persecution.  The appellant's position was that through being denied employment through State discrimination and persecution this not only qualified him to be categorised as a refugee so as to be accorded such status, but also (irrespective of this) amounted to "exceptional circumstances of a humanitarian nature ..." within the statutory test of s 47 of the Act.

Law

[12] A detailed analysis is not necessary because it is apparent in my view that the finding of the Authority was one of fact.  It was based upon the law as contained in s 47, to which the Authority clearly directed itself.  However in deference to careful argument of counsel I will briefly deal with some of the legal submissions.

[13] Counsel for the appellant relies upon the Australian authorities and in particular a decision of Thalary v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 437.  That was a decision at first instance by a Federal Court (General Division of the South Australia District Registry).  There, the Court stated that a Refugee Review Tribunal:

[14] But it is necessary to record that those remarks are strictly obiter because the factual background was not known and ultimately because no facts had been found the matter was remitted to the Tribunal.  The Court assumed, for the purpose of its decision that religious/political beliefs precluded or inhibited eligibility for employment in the public sector.

[15] The question was later considered again that same year by the Federal Court, (General Division, New South Wales District Registry) in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260.  There, the Court reviewed the Authorities involving discrimination in employment and emphasised there could be levels of discrimination or harassment, and the cases stood for the proposition:

[16] Further, at p 268, Hill J said: [17] Support for such view is also found in the decision in Chen v Minister for Immigration and Ethnic Affairs & Anor (1995) 58 FCR 96 at 104: [18] The emphasis is on the word may and I fully agree with those remarks.  But just as it would be wrong to say such discrimination must not be persecution for a Convention reason, so too is it wrong to say it must amount to that.

[19] Discrimination in employment may amount to persecution but it can never be said as a matter of law that it must do so.  It surely is a matter of fact and degree depending upon all the circumstances.  That is of course trite but nevertheless true.  There must be a denial in a "key way" of a human right.  Refugee law is concerned with actions that deny human dignity in any key way which requires an assessment of degree and there is force in the comments of Durie J in Q v Refugee Status Appeals Authority (High Court, Wellington Registry, CP57/2000, 24 October 2000) at p 4 when he said:

[20] It is not necessary for the Authority to "scope" or provide an exhaustive definition of the term "persecution".  What is required is for the Authority to make a measured assessment of whether the proven facts constitute persecution in the particular circumstances of the case.

[21] Of course, the test as provided in s 47 is wider than, and different to, that of determining whether refugee status exists for Convention reasons.  But they may well overlap particularly where refugee status has been sought, but not granted.  Obviously, a person who has refugee status will come within the s 47 criteria, but equally obviously it does not follow that a person who is not a refugee cannot satisfy the s 47 test.  But it still remains a stern or high test; Rajendra Patel v Removal Review Authority [2000] NZAR 200 (CA).  The Authority made that clear.  It did not err in the way it applied its factual findings and conclusions to the high threshold test contained in s 47.  It found there were no exceptional circumstances of a humanitarian nature put before it by the appellant, either through his lack of success on two or three occasions of obtaining a job and his asserted fear of returning, or otherwise.  Those were matters of fact and are not open to review by this Court.

[22] The respondent's counsel in submissions acknowledged that discrimination in employment matters for Convention reasons may be persecution but submits that in this case discrimination, even if it was said to exist on the accepted facts presented by the appellant, did not as a matter of fact reach a level that justified a finding that there was persecution so as to either afford the appellant refugee status, or to enable him to satisfy the requirements of s 47.

[23] The assertion by the appellant, fundamental to his case, that the Authority erred as a matter of law by not finding that discrimination of employment condoned by the State (without more) amounts to persecution so as to justify either a designation of refugee status or satisfaction that "exceptional circumstances of a humanitarian nature" test fails.  The Authority was correct in holding that such "may", but not "must", meet the test required.

[24] In terms of s 47, the Authority considered the facts concerning discrimination and persecution along with all the other facts, and determined that in the circumstances they did not meet the threshold.  The Authority was entitled as specialist tribunal to make such finding of fact.  In rejecting counsel for the appellant's submission that discrimination must amount to persecution, did not err in law in doing so.

[25] On the facts of this case, the Authority's decision could not be said to have been reached through applying the law in any incorrect way.  The appeal is dismissed.  There is no order as to costs.
 

Solicitor for the appellant: JS Petris (Wellington)
Solicitor for the respondent: Crown Law Office (Wellington)