High Court Cases 

Persecution - meaning of - meaning of "state protection"

Persecution - meaning of - sustained or systemic violation of basic human rights demonstrative of a failure of protection - meaning of "systemic"

Procedure of RSAA - burden of proof - responsibility to establish refugee claim - whether need to present evidence as to the reasons for the potential harm

State protection - meaning of - whether duty to guarantee protection at all times - whether isolated acts of harm establish breach of duty of protection

Well-founded fear - determination of - whether duty to speculate on matters which are no more than guesswork

Well-founded fear - objective assessment - whether objective assessment overrides fear of applicant

Held:

1   Systemic, in the sense used in the decision (and on other occasions in refugee jurisdiction) means no more than a connected system of an established political or social order, not dependent upon or confined to one particular part (see para [14]).

Canada (Attorney General) v  Ward [1993] 2 SCR 689 (SC:Can); Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (HL); DG v Refugee Status Appeals Authority (High Court Wellington, CP213/00, 5 June 2001, Chisholm J); Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) (RSAA); Refugee Appeal No. 2039/93 Re MN (12 February 1996) (RSAA) and Refugee Appeal No. 73939-73942/2002 (16 April 2003) (RSAA) referred to.

2   Isolated or random incidents without more rarely comprise the sort of violation of basic human rights that amount to persecution within the meaning of the Refugee Convention, unless there has been a failure of the State to protect an individual from future acts denying human rights in terms of Convention reasons. What is necessary is that the "systemic denial" of human rights arises through the failure of the State to protect the individual who is the subject of those acts. The act or event could on rare occasions be a single act (such as torture), but what is necessary for a refugee claimant to establish (in a clear and Convention way) is that the State to which he or she does not wish to return has displayed an inability to protect the claimant. The wrongful act or acts directed against a complainant may be different to the continuing actions of a State in failing to protect its citizen. This leads to such failure being likely to continue to provide such protection in the future, so as to justify a well-founded fear of persecution continuing (see paras [18] & [19]).

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 (HCA) and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 397 (HCA) explained.

3   It has been frequently said that no government adhering to democratic values or protection of human rights can guarantee protection of all of its citizens at all times. It is not possible, or even desirable, to define in absolute terms the nature of the duty of protection which a State owes to its people, in terms of refugee principles. An isolated act might be a persecutory act (such as for example the painting of a swastika on the home of a Jewish citizen) but it would not amount to persecution in terms of refugee law unless the State, through its system or methods or weakness, was unable or unwilling to control such acts (see paras [20] & [21]).

Canada (Minister of Employment and Immigration) v Villafranca (1992) 18 Imm LR (2d) 130 (FC:CA) applied.

4   The use of the term "systemic violation" in the present case was entirely appropriate, being the standard violation with which refugee jurisprudence is concerned before there can be intervention in terms of the Convention. There has to be a fear (well-founded) of being persecuted for Convention reasons as a result of which a refugee applicant is unwilling to avail himself of protection from his originating country because that country is able to provide or afford such protection in a broad and general sense. Without that an applicant cannot succeed. One act alone could be said to be a "persecution", but it would not result in "Convention persecution" where the critical part is absent, namely that the persecution cannot be prevented because of the sustained failure of State protection in relation to one or more core human rights. It is the failure or inability of the State to protect its citizen that is the issue (see para [22]).

5   If the plaintiff required the RSAA to determine that the detention of him and other police officers was for a Convention reason, then he needed to present some evidence to the RSAA as to the possible reasons why he was held hostage, and those which were of significance for a Convention reason. It is for the plaintiff to ensure that all information or evidence of submissions that he wished to have considered by the RSAA be provided.

Jiao v Refugee Status Appeals Authority [2002] NZAR 845 (Potter J) referred to.

6   The RSAA has to predict as best it can what the future may bring to a refugee claimant but it is not bound to speculate on matters which in the end are no more than guesswork. There may be things feared by an individual but upon which, objectively assessed, there is no tenable foundation (see para [27]).

Application for judicial review dismissed.

Other cases mentioned in judgment

[No other cases were mentioned]

Counsel

J S Petris for the plaintiff
I C Carter and J K Cumming for the first and second defendants

[Editorial note: To the extent that the judgment of Gendall J at [12] suggests that Article 1A(2) of the Refugee Convention posits both a subjective state of mind and an objective assessment, the RSAA has explicitly rejected the argument that a refugee claimant is required to establish both subjective fear as well as an objective risk of harm.  The Convention requires only that the objective risk be established. See for example Refugee Appeal No. 70074/96 (17 September 1996); [1998] NZAR 252, 260-263; Refugee Appeal No. 72668/01 [2002] NZAR 649 at [132] - [140] and Refugee Appeal No. 72635/01 (6 September 2002); [2003] INLR 629 at [56] & [57]. These authorities may not have been brought to the attention of Gendall J.

In March 2004 the Third Colloquium on Challenges in International Refugee Law was convened by the Program in Refugee and Asylum Law, University of Michigan Law School, Ann Arbor. The Colloquium, led by Professor James C Hathaway, brought together nine invited refugee law experts to consider the question whether there is a subjective element in the "well-founded fear" element of the refugee definition. The unanimous conclusion reached was that there is no subjective element and that the test is entirely objective. The Colloquium has now issued the Michigan Guidelines on Well-Founded Fear. These Guidelines explain why the focus of this aspect of the refugee definition is fundamentally objective, even as it requires that account be taken of the particular circumstances of each applicant for refugee status. The Guidelines are available on the Reference page of the New Zealand Refugee Law website <www.refugee.org.nz>.]

GENDALL J [1] The plaintiff is a Fijian national who seeks judicial review of a decision of the Refugee Status Appeals Authority ("the Authority") which dismissed his appeal from a decision of the Chief Executive of the Department of Labour ("Chief Executive"). He wished to he granted refugee status so that he could remain in New Zealand, but his application was declined and his appeal dismissed.

Background facts

[2] Mr K was born in Fiji in 1957 and is a citizen of that country. His de facto wife and three of his children came to New Zealand in August/September 2001 and they applied for refugee status. That was declined and appeals to the Authority were dismissed.

[3] Mr K arrived in New Zealand on 28 April 2002 and he too sought refugee status within two weeks of his arrival. His application to the Refugee Status Branch ("RSB") of the New Zealand Immigration Service was declined on 18 March 2003. He appealed against that decision and the Authority in a written decision dated 12 August 2003 dismissed the appeal. The Authority had before it extensive written submissions by Mr K's counsel, summarised in the decision as follows:

"(i)  The appellant was found credible by the RSB and has a genuine fear of living in Fiji.

(ii)  The Authority has not given reasons for its assessment that the harm experienced by the appellant in Fiji does not amount to persecution.

(iii)  The displaced Fijian Indians living in a camp near Lautoka in Fiji are prima facie refugees.

(iv)  The land on which the appellant had a business has been taken by ethnic Fijians.  The eviction of Fijian Indians from land following the expiry of leases raises issues of racial discrimination and amounts to persecution.

(v)  Counsel's submissions also referred to a statement of Mahendra Chaudrey in April 2003 warning of the possibility of another coup and enclosed a newspaper extract in which this statement was reported."

[4] The Authority's decision accurately summarised the appellant's case, referring to him being a police officer in the Fijian Police Force for five years up until 2002. He contended that he was discriminated against in favour of less qualified indigenous Fijian candidates. The Authority noted that the appellant had been held hostage, after the coup, for three days at a police station with a group of other police officers. Between May and September 2000 his home and shop were burgled 10 times and in exchange for alcohol and cigarettes the police investigated the burglaries. Reference was also made to two attempted rapes against the teenage stepdaughter (who had also been declined refugee status), of Mr K. The police were called and pursued the intruder but did not apprehend him. The Authority referred to events in October 2001 when Mr K and his wife were advised that the lease of their home and shop had expired and they were required to vacate. The Authority, after referring to the well-understood clause in the Refugee Convention (which defines a refugee in Art 1A(2)), identified the principal issues as being:

"(a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

(b) If the answer is yes, is there a Convention reason for that persecution?"

[5] In a careful decision the Authority accepted past events as stated by Mr K for the purposes of determining the appeal. It accepted that he had suffered discriminations during his career as a police officer. Nevertheless it concluded:

"The totality of discrimination experienced by the appellant throughout his career, the incidents of crime experienced by him and his family in the aftermath of the May 2000 coup, and the family's subsequent eviction do not reach the level of gravity of harm inherent in the concept of persecution which, it is reiterated, is defined as the sustained or systemic denial of basic or core human rights demonstrative of a failure of state protection."

[6] The Authority described the treatment experienced by the appellant and his family during the coup as traumatic, but said that the focus of its inquiry had to be on the likely future treatment the appellant would or might experience in Fiji. It referred to an earlier decision when it examined the likelihood of Fijian Indians suffering persecution in light of the May 2000 coup and subsequent events. That decision found that the presumption of state protection applied to Fiji and that the political situation in Fiji had reverted to normal following the coup, with elections being held in August 2001 and the country having a fully functional government, with an independent judiciary willing to hear constitutional challenges. That Authority noted that the instigator of the coup had been imprisoned and it concluded that there was no country information to suggest that Fijian Indians had suffered persecution in Fiji, and that there was no real chance of persecution faced by any individual Fijian Indian whether that person was from an urban or rural area.

[7] The Authority had conducted extensive searches of country information and receiving reports of consequences flowing from an economic downturn in Fiji following May 2000 with persons suffering hardship, but they would appear to be only a small portion of Fijian Indian population with indigenous Fijians being in a similar predicament. It concluded that the current position in Fiji regarding risk of harm for Fijian Indians was the same as that earlier assessed in Refugee Appeal No. 73373-5/2001, namely that there was no real chance of persecution faced by individual Fijian Indians in that country.

[8] The Authority went on to consider the individual circumstances of Mr K which had to be taken into account alongside the Fijian country information. It observed that he and his family were the victims of isolated harassment and crime during a period of social upheaval almost three years ago but that

"...there is nothing about his circumstances that indicates that he faces any greater risk of persecution in Fiji than any other Fijian Indian. Country information, including that canvassed in Refugee Appeal No. 73373-5/2001, demonstrates that Fijian Indians such as the appellant do not have a well founded fear of persecution in Fiji."

[9] The Authority referred to the presumption that state protection is available in Fiji, and the well-established principle of refugee law that nations are presumed to be capable of protecting their citizens. It said that Fiji was an open democratic society with a developed legal system, which made serious efforts to protect its citizens from harm. It clearly fell within that description, and although random acts of crime occur in all parts of the world, the Convention was not intended to protect persons against any and all forms of serious harm. The Authority noted that the Fijian Police had acted quickly when complaints had been made to it and such actions being consistent with a recognition of the basis used to protect citizens of that country and that the appellant had not been able to present any evidence. The Authority concluded that the appellant was not a refugee within the meaning of Art 1A(2) of the Refugee Convention and refugee status was declined.

Grounds for judicial review

[10] There being no right of appeal from the decision of the Authority, as has commonly become the practise judicial review under the Judicature Amendment Act 1972 is sought. Mr K alleges that there were two errors of law. These are described in the statement of claim as follows:

"(1) The Authority made an error of law in defining persecution as including a need for 'systemic violation of basic or core human rights' or alternatively the term 'systemic' was incorrectly used in the sense of a need to show a number of acts or series of acts of violation of basic or core human rights.

(2) The Authority failed to make a finding concerning the reasons for the plaintiff being held a hostage during the May 2000 coup."

In a second cause of action Mr K pleads that:

"The Authority failed to address the issue raised by the Plaintiff of the possible changes in Fiji in the immediately foreseeable future, including a coup which would be adverse to the Plaintiff."

Discussion

[11] New Zealand has treaty obligations in respect of people to whom international protection is afforded by the 1951 Convention relating to the status of refugees and the 1967 Protocol ("the Convention"). The Convention defines a "refugee" in Art 1A(2) as a person who:

"Owing to a 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 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

[12] Procedures for determining refugee status are left by the Convention to contracting States and there has been a wealth of decisions, in New Zealand and elsewhere on these matters. Before the Convention criteria can be satisfied an applicant must genuinely fear persecution which must be well-founded. Fear is of course a subjective thing but whether or not it is well-founded is determined objectively. In addition a well-founded fear of persecution, must be of a persecution for a "Convention reason". The position is as is set out in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 (HL) per Lord Keith at 992-993:

"...the question whether the fear of persecution held by an applicant for refugee status is well-founded is likewise intended to be objectively determined by reference to the circumstances at the time prevailing in the country of the applicant's nationality. This inference is fortified by the reflection that the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the individual in question."

[13] The House of Lords made it clear that the true objective of the Convention is not just to assuage fear however plausibly entertained but to provide a safe haven for people whose fear of persecution is in reality well-founded. Lord Templeman said at p996:

"...in order for a 'fear' of 'persecution' to be 'well-founded' there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution. The Convention does not enable the claimant to decide whether the danger of persecution exists. The Convention allows that decision to be taken by the country in which the claimant seeks asylum."

These are matters which have been considered many times by the Court, and by the Authority, and are beyond argument.

[14] In the present case the Authority found objectively on the facts that there was no real chance of the appellant being persecuted if he returned to Fiji, whether for a Convention reason or not. Those are findings of fact which cannot be disturbed on a judicial review application. Counsel says there was an error of law because the Authority defined the persecution in terms of "systemic violation of basic or core human rights". Systemic, in the sense used in the decision (and on other occasions in refugee jurisdiction) means no more than a connected system of an established political or social order, not dependent upon or confined to one particular part. The reference about which objection is taken is one which has been used on many occasions and not just by the Authority. It is derived from Hathaway, The Law of Refugee Status (1991) 104 to 108 having been used and referred to other decisions of the Authority and was quoted or adopted with approval by the Supreme Court of Canada in Canada (Attorney-General) v Ward [1993] 2 SCR 689, 773, and the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 All ER 577,581. Hathaway defines "persecution" as:

"Persecution may be defined as the sustained or systemic violating of basic human rights demonstrative of a failure of state protection."

And further at p108:

"Refugee law ought to concern itself with actions which deny human dignity in any key way, and that a sustained or systemic denial of core human rights is the appropriate standard."

[15] That view has been adopted in New Zealand in DG v Refugee Status Appeals Authority and Chief Executive Department of Labour (CP213/00, High Court, Wellington, 5 June 2001, Chisholm J), and the Authority has adopted it in a number of appeals for example, Refugee Appeal No. 103/93, Re HBS and LBY (13 February 1995); Refugee Appeal No. 2039/93 (12 February 1996); and indeed in the appeal decision involving other family members of Mr K namely Refugee Appeal No. 73939-73942/2002.

[16] Mr Petris submits that persecution is not limited to a series of acts and can arise from a single act. He seeks the support for that submission from a dicta of McHugh J in Minister for Immigration v Ibrahim [2000] HCA 55, [2000] 204 CLR 1 at 32 where His Honour was discussing the meaning and legal status of "systematic conduct". But the Judge was simply explaining what he had meant when he used those words or the notion of "systematic conduct" in an earlier case Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 397. In that case he had said:

"A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purpose of the Convention."

[17] In Ibrahim (supra) McHugh J said that his use of the term "systematic conduct" has proved unfortunate because what he meant by using that expression:

"I used it as a synonym for non-random.. . ."

And (at p32) he said:

"Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status if a person fears being persecuted on a number of occasions or 'must show a series of co-ordinated acts directed at him or her which can he said to be not isolated but systematic. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.. ..If [the term 'systematic conduct'] is to be used, those who use it should make it clear they are referring to 'non-random' acts. ..."

Those remarks were made in the course of a dissenting judgment on a case which had unique facts of an applicant and his family fleeing Somalia after being attacked, enslaved and subject to rape.

[18] The thrust of Mr Petris' argument is that there need not be sustained actions. For the purpose of his argument he makes no distinction between "systemic" and "systematic" and I need not get into a semantic discussion about that. Mr Petris says that it is incorrect to use the term "systemic" in the sense of a need to show numbers of adverse acts. Strictly speaking that is so, but it will always be very much a matter of degree. Isolated or random incidents without more rarely comprise the sort of violation of basic human rights that amount to persecution within the meaning of the Convention, unless there has been a failure of the State to protect an individual from future acts denying human rights in terms of Convention reasons.

[19] What is necessary is that the "systemic denial" of human rights arises through the failure of the State to protect the individual who is the subject of those acts. The act or event could on rare occasions be a single act (such as torture), but what is necessary for a refugee claimant to establish (in a clear and Convention way) is that the State to which he or she does not wish to return has displayed an inability to protect the claimant. The wrongful act or acts directed against a complainant may be different to the continuing actions of a State in failing to protect its citizen. This leads to such failure being likely to continue to provide such protection in the future, so as to justify a well-founded fear of persecution continuing.

[20] It has been frequently said that no Government adhering to democratic values or protection of human rights can guarantee protection of all its citizens at all times. As was said by Hugessen JA in Canada (Minister of Employment and Immigration) v Villafranca [1992] 18 Imm LR (2d) 130, 132:

"Thus, it is not enough for a claimant merely to show that his Government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however, much they may merit our sympathy, do not become Convention refugees simply because their governments have been unable to suppress the evil. Where, however, the State is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, ... a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection."

[21] It is not possible, or even desirable, to define in absolute terms the nature of the duty of protection which a State owes to its people, in terms of refugee principles. An isolated act might be a persecutory act (such as for example the painting of a swastika on the home of a Jewish citizen) but it would not amount to persecution in terms of refugee law unless the State, through its system or methods or weakness, was unable or unwilling to control such acts.

[22] The use of the term "systemic violation" in the present case was entirely appropriate being the standard violation with which refugee jurisprudence is concerned before there can be intervention in terms of the Convention. There has to be a fear (well-founded) of being persecuted for Convention reasons as a result of which a refugee applicant is unwilling to avail himself of protection from his originating country because that country is able to provide or afford such protection in a broad and general sense. Without that an applicant could not succeed. As I have said one act alone could be said to be a "persecution", but it would not result in "Convention persecution" where the critical part is absent, namely that the persecution cannot be prevented because of the sustained failure of State protection in relation to one or more core human rights. It is the failure or inability of the State to protect its citizen that is the issue.

[23] Mr Petris' argument is based upon an intricate semantic analysis and I reject it. As a matter of fact the Authority found that although Mr K and his family had been victims of isolated harassment and crime almost three years ago and during a period of social upheaval. But they are citizens of an open democratic society with a developed legal system which made serious efforts to protect its citizens from harm. Actions of Fijian Police following two incidents involving the family were consistent with a basic duty of protection owed by a State to its citizens. The Authority acknowledged the random acts of crime occur in all parts of the world but what was important was whether there was risk of injury inconsistent with the basic duty of protection owed by a State to its citizens. Factual findings of the Authority cannot be impugned and its reference, in the context of this case, to the concept of persecution was entirely in accordance with established authority and did not constitute error of law.

[24] The second error of law alleged is that the Authority failed to make any finding concerning the reasons for Mr K being held hostage during the May 2000 coup. He was then a police officer and he was held hostage along with a group of other police officers for three days at a police station. Those officers included two indigenous Fijian police officers and Mr K's complaint was that the rebels treated the indigenous officers rather better than the Fijian Indian officers. After three days all officers were released and Mr K continued in his role as a police officer. The Authority referred to Mr K's complaint that during his police career he had been discriminated against through being passed over for promotion in favour of indigenous Fijian officers. What is abundantly clear however is that the group of police officers held hostages in the coup were not held as a result of persecution for Convention reasons. They were held simply because they were police officers, no doubt sworn to preserve and protect the people of Fiji. The decision does not go on to make further reference to that event, but any "failure" to go into detailed reasons why Mr K was detained along with other police officers at that time cannot possibly be elevated into an error of law.

[25] If the plaintiff required the Authority to determine that the detention of him and other police officers was for a Convention reason, then he needed to present some evidence to the Authority as to the possible reasons why he was held hostage, and those which were of significance for a Convention reason. As was emphasised in Jiao v Refuge Status Appeal Authority (High Court, Auckland, M207-PL02, 29 July 2002, Potter J) it is for the plaintiff to ensure that all information or evidence of submissions that he wishes to have considered by the Authority be provided. In this case however the clear inference to be drawn from the known facts was simply that police officers were held hostage because of their status as police officers. The reason for the detention in those circumstances seemed obvious. This allegation said to be an error of law fails.

[26] As to the second cause of action, the appellant claims the Authority failed to consider the possible changes in Fiji in the immediately foreseeable future including the possibility of a further coup. That allegation fails on the facts. Whilst the Authority had before it a newspaper article dated 16 April 2003 in which a political party leader spoke of rumours of another coup, the Prime Minister was reported to have denied any substance to that. The Authority in para [24] correctly identifies the focus of its inquiry to be on the "likely future treatment the appellant will experience in Fiji. In this regard the current situation in Fiji is of critical importance". The Authority refers to the political situation reverting to normal with fair elections being held in a functional Government and independent judiciary operating. The leader of the coup had been imprisoned. There were no reports of racially motivated attacks or violence suffered by Fijian Indians occurring and the Authority came to the conclusion that there was no information before it to suggest that the Fijian Indians had suffered persecution and (viewing the future):

"that there was not a real chance of persecution faced by any individual Fijian Indian."

[27] Of course, the Authority has to predict as best it can what the future may bring to an appellant but it is not bound to speculate on matters which in the end are no more than guesswork. There may be things feared by an individual but upon which, objectively assessed, there is no tenable foundation. There was no credible evidence before the Authority which would have justified it coming to the view that, or even hold genuine concerns about the possibility existed that a further coup might occur. Newspaper reports of a politician's statements fall far short of reliable information. Yet the fact remains however that the Authority did consider the issue and concluded that Fijian Indians generally do not have a well-founded fear of persecution for the future. It said it regarded the current situation as regards the risk of harm for Fijian Indians to be the same as assessed in Refugee Appeal No. 73373- 5/2001 noting that that Fiji had now been reinstated as a full member of the Commonwealth. That earlier decision sets out in significant detail the reasons why the Authority considered any fear of future persecution, by reason of possible other coups was unfounded.

Conclusion

[28] None of the matters ably argued by Mr Petris can be sustained. No reviewable error of law existed so as to require this Court to intervene in what was a careful decision of the Authority, which correctly applied the proper approach to the particular facts of Mr K's case. The application for judicial review is dismissed. As the plaintiff is legally aided there is no order for costs.

Solicitors for the plaintiff: J S Petris (Wellington)
Solicitors for the first and second defendants: Crown Law Office (Wellington)