INTERNATIONAL ASSOCIATION OF REFUGEE LAW JUDGES
(IARLJ)

Australia/New Zealand Chapter Meeting, Sydney, 9 June 2004
 

THE INTERSECTION OF HUMAN RIGHTS LAW
AND REFUGEE LAW:

ON OR OFF THE MAP?  THE CHALLENGE
OF LOCATING APPELLANT S395/2002


Rodger Haines QC, Deputy Chair, Refugee Status Appeals Authority 

INDEX

INTRODUCTION
TWO DIFFERENT REGIMES
DO THE NORMATIVE AND PALLIATIVE REGIMES INTERSECT?
Understanding being persecuted
Three broad approaches to being persecuted
Application of the contextualised approach to interpretation
Identifying core human rights
Three qualifications
VOLUNTARY BUT PROTECTED ACTIONS
APPELLANT S395/2002 REVISITED
CONCLUSION
INTRODUCTION1

[1] The majority decision (McHugh, Kirby, Gummow & Hayne JJ) in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 (HCA) is remarkable not because of the striking disagreement with the minority (Gleeson CJ, Callinan & Heydon JJ) on the issue whether there was any question to be determined and not because of the largely correct holding that refugee claimants do not have a duty to avoid being persecuted.  It is remarkable because the question whether individuals can or should modify their conduct to avoid being persecuted is a quintessentially human rights issue which falls for analysis in the “being persecuted” limb of the definition2; but two of the majority judges (Gummow & Hayne JJ) at [83] explicitly rejected the relevance of human rights norms, stating that considering what an individual is entitled to do was of little assistance and leads to error.  In their view the sole issue is that of risk (ie well-foundedness).  The other members of the majority (McHugh & Kirby JJ) at [45] largely agreed that the analysis properly belongs to the well-founded element, but (without elaboration) allowed that international human rights standards could be relevant in the largely secondary context of determining the proper bounds of state action in penalising homosexual conduct.

[2] In the result, having determined (controversially) that there was a live issue for determination and having identified that issue as being whether a refugee claimant ought to modify his or her conduct to reduce the risk of being persecuted, the majority focussed on the issue of risk and thereby carried out the analysis in the wrong “box” (the well-founded element).  This paper argues that a more principled approach would require a court or tribunal, prior to addressing the issue of risk, to first determine the nature of the “right” asserted by the claimant.  If that right lies within the parameters recognised by international human rights law, a risk of being persecuted for exercising that right could properly be regarded as satisfying the “being persecuted” limb of the definition.  If, on the other hand, the right lies outside those parameters, the risk of being persecuted is not logically encompassed by the notion of “being persecuted”.

[3] The better view is that the correct starting point of the inquiry is the nature of the right sought to be exercised.  If the right is not a core human right, the persecution standard of the Refugee Convention is simply not engaged.  If, however, the right in question is a fundamental human right, the next stage of the inquiry is to determine the metes and bounds of that right.  If the proposed action in the country of origin falls squarely within the ambit of that right the failure of the state of origin to protect the exercise of that right coupled with the infliction of serious harm should lead to the conclusion that the refugee claimant has established a risk of “being persecuted”.  In these circumstances there is no duty to avoid the anticipated harm by not exercising the right, or by being “discreet” or “reasonable” as to its exercise.  

[4] On this approach a refugee claimant cannot, in the exercise of his or her human rights, be expected or required to exercise “discretion” or to otherwise avoid the predicament of “being persecuted”.  This outcome, while close to that of the majority, is arrived at by an entirely different route.  The analysis is done in the “being persecuted” element, not in the well-foundedness assessment.  In short the respectful submission is that the majority arrived at the right result for the wrong reasons.

[5] On one view the majority decision has the potential of deflecting refugee law from employing international human rights standards to inform the meaning of “being persecuted”.  This would be most unfortunate as Australia appears to be alone among the major common law refugee jurisdictions (Australia, Canada, New Zealand, UK, USA) in not expressly adopting a human rights approach to “being persecuted” and is in danger of isolating itself from truly significant advances in human rights.  In the sexual orientation context, it is striking, to say the least, that none of the majority judgments draw on recent international jurisprudence on the rights of homosexuals.  The decision of the Supreme Court of the United States of America in Lawrence v Texas 123 S. Ct. 2472 (2003) and that of the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 are of direct relevance to the issues of “discretion”, “reasonableness” and “avoidance”.  The decisions of the Human Rights Committee in Toonen v Australia (Comm No 488/1992, UN Doc CCPR/C/50/D/488/ 1992, 4 April 1994) (sodomy laws) and Joslin v New Zealand (Comm No 902/1999, UN Doc CCPR/C/75/D/902/ 1999, 30 July 2002) (same sex marriage) are of similar  relevance as are a raft of decisions of the European Court of Human Rights, including Dudgeon v United Kingdom (1981) 4 EHRR 149 (ECHR) (criminalising homosexual acts), Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 (ECHR) and Smith and Grady v United Kingdom (1999) 29 EHRR 493 (ECHR) (ban on homosexuals in the military).

[6] Appellant S395/2002 should be seen as a missed opportunity to apply international human rights norms to inform the meaning of the “being persecuted” element of the Refugee Convention.

TWO DIFFERENT REGIMES

[7] It is said by Paul Sieghart in The International Law of Human Rights (Clarendon Press, Oxford, 1983) xix that international human rights law was born after the Second World War.  Until then, how a sovereign State treated its own citizens was, in the consistent tradition of international law, a matter exclusively for its own sovereign determination, and beyond the scope of legitimate criticism by others.  That is no longer the case.  Such matters are now the subject of the legitimate concern of all mankind, and capable of objective assessment and judgment by reference to common standards of internationally agreed, and legally binding, rules - collectively known as “international human rights law”, and in effect for many of the world’s nations, at all events in the form of treaty law.

[8] The international human rights regime is normative.  Its function is to judge whether states are fulfilling their duties under internationally agreed human rights norms and, through monitoring and publicising, to deter future abuse; or as Deborah E Anker puts it in  “Refugee Law, Gender, and the Human Rights Paradigm” (2002) 15 Harvard Human Rights Journal 133, 134, to change the behaviour of states.

[9] Human rights norms derive principally from the International Bill of Rights, being the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) as well as the more specialised instruments relating to race (CERD), gender (CEDAW) and children (CRC).  The institutions of this regime are the international monitoring bodies, namely the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of all Forms of Discrimination against Women, the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child.   There are no significant enforcement mechanisms.  The Human Rights Committee, for example, even under the individual complaints procedure of the First Optional Protocol, can only express non-binding “views”.  While a spirited attempt has been made to assert that the views “should be considered authoritative” (see Elizabeth Evatt, “The Impact of International Human Rights on Domestic Law” in Huscroft & Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (Hart, 2002) 283, 300) the accepted (and better) view is that “views” are neither authoritative nor binding.  See the rejoinder to Evatt by Paul Rishworth, “The Rule of International Law?” op cit 267, 275-279 and Scott Davidson, “Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee” op cit 305, 314-318.

[10] Refugee law is closely connected to human rights law but its function is entirely different.  Whereas the human rights regime identifies the duties undertaken by states parties to “respect and to ensure” certain civil and political rights (ICCPR Art 2(1)) or to “achieve progressively the full realisation” of specified economic, social and cultural rights (ICESCR Art 2(1)), the Refugee Convention addresses the situation where human rights are abused at a serious level.  It provides protection to those compelled to flee because human rights are being abused.  Its role is palliative.  It provides what Professor Hathaway has described as the human being’s one truly autonomous remedy: flight when circumstances become unbearable: Professor James C Hathaway, “New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection” (1995) 8 JRS 288, 293-294.
DO THE NORMATIVE AND PALLIATIVE REGIMES INTERSECT?

Understanding being persecuted

[11] The Refugee Convention does not protect against all forms of harm.  At the heart of the definition of the term “refugee” is the requirement that the individual establish a well-founded fear “of being persecuted”.

[12] This term is not defined in the Refugee Convention or in any other relevant international instrument.  The Rome Statute of the International Criminal Court, 1998 Article 7(2)(g) does provide a definition of “persecution” in the context of “crime against humanity”:
“Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

[13] The requirement of intention is understandable in the context of a statute which provides for the prosecution and punishment of serious crimes.  Criminal law concepts such as mens rea and actus reus are in this context integral to the attribution of criminal responsibility.  The Refugee Convention, however, is not an instrument of accountability.  Its focus is not on the perpetrator, but on the victim.  It even avoids the term “persecution”.  Rather it employs the passive voice “of being persecuted”.  The inclusion clause has as its focus the predicament of the refugee claimant.  The language draws attention to the fact of exposure to harm rather than to the act of inflicting harm.  The focus is on the reasons for the refugee claimant’s predicament rather than on the mindset of the persecutor, a point recognised in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [33] (Gleeson CJ, Gaudron, Gummow & Hayne JJ) and [65] (Kirby J) (HCA) and see Refugee Appeal No. 72635/01 (6 September 2002); [2003] INLR 629 at [168] (NZRSAA).  Even s 91R of the Migration Act 1958 (Cth), while departing from the Refugee Convention by employing the term “persecution”, does not require the intentional infliction of harm.  The Rome Statute definition is therefore of little assistance.

[14] Commentators have stressed the open-ended nature of the term  “being persecuted” in Article 1A(2) of the Refugee Convention and have pointed out that the drafters of the Convention intentionally left the meaning undefined because they realised the impossibility of enumerating in advance all of the forms of maltreatment which might legitimately entitle persons to benefit from the protection of a foreign state:  Professor Hathaway, The Law of Refugee Status (Butterworths, 1991) 102.

[15] Taking as the starting point of our inquiry the fact that the term “of being persecuted” was deliberately left undefined and further given the impossibility of enumerating in advance all forms of maltreatment, should one even try to arrive at a principled understanding of “being persecuted”?  The only answer possible is that the refugee definition must be interpreted in a principled manner.  

[16] This may be difficult where the decision-maker is faced not with the text of the Convention, but with a domestic statute which not only departs from the text of the Convention, but also seeks to impose a particular “vision” of what the definition ought to be.  See generally Alice Edwards, “Tampering with Refugee Protection: The Case of Australia” (2003) 15 IJRL 192, 202-204; Roz Germov & Francesco Motta, Refugee Law in Australia (Oxford, 2003) at 189-192.  This paper will assume, however, that the text of the Convention must prevail and only the Convention text will be addressed.  

Three broad approaches to being persecuted

[17] Three broad approaches to “being persecuted” can be identified.  

[18] First, the application of the domestic human rights standards of the country of intended asylum.  The disadvantages of a domestic standard are clear.  First, the Refugee Convention is an international treaty and must be interpreted as such.  Second, there will be no uniformity in the application of the Refugee Convention.  This is inherently undesirable in the context of an international human rights treaty.  Third, a domestic standard simultaneously allows too easily the intrusion of ideology and also the implication of censure of the state of origin.  More fundamentally, if in the country of asylum abuses of human rights occur (even if not approaching the level of “being persecuted”), the refugee decision-maker may be blind or indifferent to refugee claims based on similar abuses in the claimant’s country of origin, or may be deterred from recognising refugee status in case this is seen as a judgment on the decision-maker’s own country or indeed on his or her personal political opinions or religious beliefs.

[19] The second approach is to seek the meaning of “being persecuted” in dictionaries.  But most words have several shades of meaning and the sense in which a word is used in any treaty or statutory provision depends on the context and purpose of the treaty or provision.  The need to interpret the terms of a treaty in their context and in the light of the object and purpose of the treaty precludes an interpretive approach which, to adapt the description given by Gaudron & Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 25 (HCA) is undertaken with the text in one hand and a dictionary in the other - even assuming that both English and French dictionaries are ambidextrously employed.  The dangers inherent in the use of dictionaries to interpret the Refugee Convention were explicitly recognised by Kirby J in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [108] (HCA).  

[20] The third interpretive approach is based firmly on accepted principles of treaty interpretation as mandated by customary international law, now codified in Article 31 of the Vienna Convention on the Law of Treaties, 1969 namely:

    A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

[21] The contextualised approach to interpreting Article 1A(2) can now be said to be the dominant common law approach.  For Canada see Canada (Attorney General) v Ward [1993] 2 SCR 689, 709, 733-734 (SC:Can).   For the United Kingdom see R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629, 638-639, 651, 656, 660 (HL); Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305 (HL); Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495F (HL) and Sepet v Secretary of State for the Home Department [2003] 1 WLR 856; [2003] 3 All ER 304 (HL) at [7] and [38].  In Australia the Vienna Convention principles were expressly applied in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 230 (Brennan CJ), 240 (Dawson J), 252-255 (McHugh), 277 (Gummow J), 292 & 294 (Kirby J).  

Application of the contextualised approach to interpretation

[22] Application of the interpretive principles codified in the Vienna Convention on the Law of Treaties has led to the acceptance in the United Kingdom, Canada and New Zealand of two central propositions:
(a)    That central to the definition of the term “refugee” is the concept of state protection.  The refugee scheme is surrogate or substitute protection, activated only upon failure of state protection.  See the seminal judgment of the Supreme Court of Canada in Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (SC:Can) delivered by La Forest J:
At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination.  International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national.  It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.  The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.  For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection; see The Law of Refugee Status (1991), at p135.
The principle of surrogacy, long part of the jurisprudence of the NZRSAA (Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [49]) was recognised also by the New Zealand Court of Appeal in Butler v Attorney-General [1999] NZAR 205, 216-217 (CA) and more recently by the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495E (HL).
(b)    That underlying the Refugee Convention is the commitment of the international community to the assurance of basic human rights without discrimination and that persecution is to be understood as the sustained or systemic denial of core human rights.  See again Ward at 733:
Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.  This is indicated in the preamble to the treaty as follows:
Considering that the Charter of the United Nations and Universal Declarations of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.
This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates.  It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention.  Hathaway, supra, at p.108, thus explains the impact of this general tone of the treaty on refugee law:
The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.
This theme sets the boundaries for many of the elements of the definition of “Convention refugee”.  “Persecution”, for example, undefined in the Convention has been ascribed the meaning of “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”; see Hathaway, supra, at pp.104-105”.

[23] This approach was expressly adopted in Horvath at 495F (Lord Hope with whom Lords Browne-Wilkinson and Hobhouse agreed) and in Sepet at [7] and [38] (Lords Bingham, Steyn, Hoffmann, Hutton & Rodger).  For New Zealand see Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [50].

[24] In Australia the picture appears less clear, at least to this possibly uninformed observer.  In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (HCA), while it appears to have been accepted that persecution may be constituted by the “denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned” (see [76]) there was nevertheless a fundamental divergence between Gleeson CJ at [19] - [24] and McHugh & Gummow JJ at [73] over the question whether the Refugee Convention is to be understood as providing surrogate protection, as suggested by Professor Hathaway in The Law of Refugee Status at 124 and accepted in Horvath and in Butler v Attorney-General.  Kirby J at [111], having recognised the dangers in the use of dictionary definitions of the word “persecuted”, appears to have acknowledged the force of Professor Hathaway’s formulation of persecution as a violation of basic human rights demonstrative of a failure of state protection.  More recently in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 Gleeson CJ, Hayne & Heydon JJ at [19] - [21] accepted both the “surrogate protection” understanding of the Refugee Convention and the need to understand persecution as the violation of fundamental human rights and freedoms.  For his part, McHugh J at [72] - [74] continued to formulate an understanding of persecution without express recognition of the utility of employing international human rights norms other than that of non-discrimination.

Identifying core human rights

[25] If the human rights interpretation is to be adopted, it is necessary to identify the sources of core norms of international human rights law for the purpose of refugee determination.  Customary international law is of limited assistance primarily due to the difficulty in establishing the two essential elements, namely State practice and opinio juris.  As Bruno Simma and Philip Alston convincingly demonstrate in “The Sources of Human Rights Law: Custom, Jus Cogens and General Principles” (1992) 12 Australian YBIL 82, this can be a difficult exercise, fraught with doctrinal controversy.  Given that only a small handful of human rights can be established in customary international law, there is substantial doubt whether custom really is an adequate means of identifying fundamental human rights for the purpose of interpreting the inclusion clause of the Refugee Convention.  In this situation treaty law provides a more solid and compelling legal foundation.  

[26] The Refugee Convention itself provides guidance as to the human rights to which reference should be made in the determination of refugee status.  The Preamble makes explicit reference to the Universal Declaration of Human Rights, 1948 (“UDHR”):
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.

[27] The human rights enunciated in the UDHR were subsequently translated into binding treaty form by the International Covenant on Civil and Political Rights, 1966 (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”).  The three instruments must be read together.  On accepted principles of treaty interpretation the phrase “being persecuted” is appropriately to be understood against the background of these norms.  Professor Hathaway in his Law of Refugee Status (1991) at 106 explains the point in the following terms:
Among the myriad treaties, declarations, rules and other standards adopted by states, the International Bill of Rights, consisting of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, is central.  More than any other gauge, the International Bill of Rights is essential to an understanding of the minimum duty owed by a state to its nationals.  Its place derives from the extraordinary consensus achieved on the soundness of its standards, its regular invocation by states, and its role as the progenitor for the many more specific human rights accords.  Reference to the International Bill of Rights in deciding whether or not a state has failed to provide basic protection in relation to core, universally recognised values is moreover consistent with the Convention’s own Preamble and General Assembly Resolution 2399 (XXIII).

[28] Returning to the subject in “The Relationship Between Human Rights and Refugee Law: What Refugee Law Judges Can Contribute” in IARLJ, The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary (1998) 80, 85 Professor Hathaway points out that reliance on core norms of international human rights law to define forms of “serious harm” within the scope of persecution is not only compelled as a matter of law, but makes good practical sense, for at least three reasons:
1.    One must look at how states themselves have defined unacceptable infringements of human dignity if we want to know which harms they are truly committed to defining as impermissible.  Human rights law is precisely the means by which states have undertaken that task.

2.    Refugee decision-makers who use human rights law to define harms within the scope of “being persecuted” are not combatting the views of governments, but rather relying on the very standards which governments have said to be minimum standards.  This is what he calls a dynamic “dialogue of justification”.

3.    International human rights law provides refugee law judges with an automatic means - within the framework of legal positivism and continuing accountability - to contextualise and update standards in order to take new problems into account.  Because international human rights law is constantly being authoritatively interpreted through a combination of general comments, decisions on individual petitions, and declarations of UN plenary bodies, there is a wealth of wisdom upon which refugee decision-makers can draw to keep the Convention refugee definition alive in changing circumstances.  This flexibility of international human rights law makes it possible to address new threats to human dignity through refugee law, but to do so without asserting either subjective or legally ungrounded perceptions of “what’s right, and what’s wrong”.

[29] Elaborating on the capacity of international human rights law to update itself, Professor Hathaway went on to suggest that while his Law of Refugee Status (1991) restricted itself to the UDHR, the ICCPR and the ICESCR, with the benefit of nearly (then) eight years of progress on human rights law, he acknowledged that one could today interpret “being persecuted” by reference to an enlarged set of international human rights instruments.  However, he cautioned that one should not rush to embrace every new Convention on human rights, much less mere declarations or statements of principle as legally relevant to defining harms within the scope of “being persecuted”.   In his IARLJ paper at p 86 he said:
If we believe that the standards relied on should really be agreed by states to be authoritative, if we believe in the importance of genuine accountability through a dialogue of justification with governments, in short, if we want refugee status determination to be taken seriously as law-based rather than as an exercise in humanitarian “do-goodism”, then we have to exercise some responsible constraint on the impulse to embrace every new human rights idea that comes along.

[30] Conceding that drawing the bright line is not a simple task, Professor Hathaway made the following suggestions in his address at op cit 86:
 
At a minimum, though it seems to me that a commitment to legal positivism requires, first, that we focus on legal standards - primarily treaties - not on so-called “soft law” which simply doesn’t yet bespeak a sufficient normative consensus.  While we can logically resort to these evolving standards as a means to contextualize and elaborate the substantive content of genuine legal standards, they should not, in my view, be treated as authoritative in and of themselves.  
Second, as among authoritative legal standards, it is important not to rely on treaties that remain short on serious support from states.  Until and unless we are able honestly to say that a given treaty enjoys general support, it ought not to be used to interpret a term in what is meant to be a universal treaty on refugee protection.  In practical terms, one might reasonably consider looking for ratification of a given treaty by a respectable super-majority - for example, two thirds of the United Nations membership, including some support in all major geo-political groupings.

[31] Applying this test Professor Hathaway was of the view that one could today interpret “being persecuted” by reference to not only the International Bill of Rights, but also by consideration of the Convention on the Elimination of all Forms of Racial Discrimination, 1966 (“CERD”), the Convention on the Elimination of Discrimination Against Women, 1979 (“CEDAW”) and the Convention on the Rights of the Child, 1989 (“CRC”).  This approach was adopted by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [51].

[32] In addition to employing the international human rights instruments referred to, it is only appropriate that regard be had to the interpretation of those instruments by the “treaty bodies” set up under the instruments, particularly the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of all Forms of Discrimination Against Women, the Committee on the Elimination of Racial Discrimination and of the Committee on the Rights of the Child.  The binding effect and jurisprudential quality of the decisions of these bodies may be a matter of controversy but the decisions are at least of persuasive authority.  On occasion it might also be appropriate to draw on the jurisprudence of the European Court of Human Rights.

Three qualifications

[33] Out of an abundance of caution, three qualifications are noted.

[34] First, in the context of Article 1A(2) of the Refugee Convention, the identification of basic human rights is directed to a single, limited end, namely the illumination of the meaning of the phrase “being persecuted”.  There is no other purpose.  The function of refugee law is palliative.  It does not hold states responsible for human rights abuses.  The determination of refugee status is no more than an assessment whether, in the event of the refugee claimant returning to the country of origin, there is a real chance of that person “being persecuted” for a Convention reason.

[35] Second, only a highly select group of human rights treaties are to be the point of reference.  This avoids the danger of over-inclusion.  As Philip Alston points out in “Conjuring Up New Human Rights: A Proposal for Quality Control” (1984) Am. J. Int’l L 613, new “rights” can be claimed with little thought, debate or agreement.  Not everything that may serve to improve the well-being of individuals can or should be accepted as a human right.

[36] Third, the intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population.  As Professor Hathaway explains at op cit 103-104:
As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.  The existence of past or anticipated suffering alone, therefore, does not make one a refugee, unless the state has failed in relation to some duty to defend its citizenry against the particular form of harm anticipated.

[37] In summary the normative and palliative regimes intersect at the phrase “of being persecuted” in Article 1A(2) of the Refugee Convention.
VOLUNTARY BUT PROTECTED ACTIONS

[38] Sometimes an applicant for refugee status bases his or her claim on the risk that would accrue in the country of origin if he or she were to engage in an activity there which should arguably be allowed as a legitimate exercise of basic, internationally recognised human rights.  These cases have frequently proved troubling and difficult, and have usually been resolved with no clear articulation of relevant legal principles.

[39] Understanding the predicament of “being persecuted” as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection means that the refugee definition is to be approached not from the perspective of what the refugee claimant can do to avoid being persecuted, but from the perspective of the fundamental human right in jeopardy and the resulting harm.  If the right proposed to be exercised by the refugee claimant in the country of origin is at the core of the relevant entitlement and serious harm is threatened, it would be contrary to the language context, object and purpose of the Refugee Convention to require the refugee claimant to forfeit or forego that right and to be denied refugee status on the basis that he or she could engage in self-denial or discretion on return to the country of origin; or, to borrow the words of Sachs J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 at [130], to exist in a state of induced self-oppression.  By requiring the refugee applicant to abandon a core right the refugee decision-maker is requiring of the refugee claimant the same submissive and compliant behaviour, the same denial of a fundamental human right, which the agent of persecution in the country of origin seeks to achieve by persecutory conduct.  The potential complicity of the refugee decision-maker in the refugee claimant’s predicament of “being persecuted” in the country of origin must be confronted.  The issue cannot be evaded by dressing the problem in the language of well-foundedness, that is, by asserting that the claim is not a well-founded one because the risk can or will be avoided.

APPELLANT S395/2002 REVISITED

[40] Approaching the majority decision from the perspective of a human rights understanding of “being persecuted”, a number of observations can be made.  

[41] First, the apparent rejection by Gummow & Hayne JJ at [83] of the human rights framework for determining what an individual is entitled to do is, with respect, insupportable.  As a matter of treaty interpretation the well-founded element cannot do the work which properly belongs to the “being persecuted” element.  Failure to recognise that the issue of voluntary but protected actions falls to be analysed as a human rights issue within the “being persecuted” element dangerously distorts the refugee enquiry into an apparently simplistic examination whether there is a risk of serious harm.  The analysis by Gummow & Hayne JJ at [66] of the term “persecution” is, in the circumstances, superficial and the discussion of “applicable principles” at [72] to [77] unfortunately makes no reference to the principles of treaty interpretation firmly established in the Court’s own jurisprudence.  Consequently when their Honours at [80] state that a claim for protection cannot be answered by telling the applicant to hide the fact that he or she holds the political or religious beliefs in question, they do not explain why.  

[42] Second, the decision of McHugh & Kirby JJ is likewise notable for the absence of any meaningful discussion of “being persecuted”.  Specifically, while [31] is given the heading “Persecution”, it only addresses the topic indirectly by stating that consideration must be given to:
The extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality.

But the question is not what an individual can be expected to tolerate.  Rather the enquiry is into the nature of the right asserted by the refugee claimant and the limits of that right.  In other words, understanding the predicament of “being persecuted” as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection means that the refugee definition is to be approached not from the perspective of what the refugee claimant can be expected to tolerate or expected to do to avoid being persecuted, but from the perspective of the fundamental human right in jeopardy and the resulting harm.  If the right proposed to be exercised by the refugee claimant in the country of origin is at the core of the relevant entitlement and serious harm is threatened, it would be contrary to the language, context, object and purpose of the Refugee Convention to require the refugee claimant to forfeit or forgo that right and to be denied refugee status on the basis that he or she could engage in self-denial or discretion on return to the country of origin.

[43] One would readily agree with the statement at [41] that it would undermine the object of the Refugee Convention if the signatory countries required refugee claimants to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups, before those countries would give them protection under the Convention.  But this is a statement of a conclusion and the judgment regrettably offers no principled explanation as to why behaviour should not have to modified or hidden.

[44] Third, such recognition as McHugh and Kirby JJ at [45] give to international human rights standards is rather awkwardly expressed:
[45] If a person claims refugee status on the ground that the law of the country of his or her nationality penalises homosexual conduct, two questions always arise.  First, is there a real chance that the applicant will be prosecuted if returned to the country of nationality?  Second, are the prosecution and the potential penalty appropriate and adapted to achieving a legitimate object of the country of nationality?  In determining whether the prosecution and penalty can be classified as a legitimate object of that country, international human rights standards as well as the laws and culture of the country are relevant matters.

In this commentator’s view, international human rights standards do not have the secondary importance assigned here.  Furthermore, it is deeply troubling to find that “the laws and culture of the country” are considered to be relevant matters.  One of the strengths of the human rights approach to “being persecuted” is that it precludes the intrusion of cultural relativism.  In this respect the Toonen decision is likewise flawed in conceding the possible relevance of the laws and culture of the country of origin.  See further Sarah Joseph, “Gay Rights under the ICCPR - Commentary on Toonen v Australia” (1994) 13 University of Tasmania Law Review 392 and Joseph, Schultz & Castan (eds), The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 2nd ed (Oxford, 2004) at para 16.38.  Indeed it has already been argued that Toonen would be differently decided by the Human Rights Committee in the case of Muslim states that apply Islamic law: Mashood A Baderin, International Human Rights and Islamic Law (Oxford, 2003) 117.

[45] Fourth, the dismissal by McHugh & Kirby JJ of “reasonableness” from the refugee enquiry must be treated with caution.  This is because some international human rights are subject to what might loosely be called a “reasonableness” enquiry.  

[46] See for example those provisions in the ICCPR which contain clauses subjecting the particular right to (inter alia) “the rights and freedoms of others”:  Article 12(3) (freedom of movement), Article 18(3) (freedom of thought, conscience and religion), Article 19(3) (right to hold opinions without interference), Article 21 (peaceful assembly) and Article 22(2) (freedom of association).

[47] Because international human rights law in some circumstances imposes an obligation to respect the rights and freedoms of others, it cannot be said that as a matter of law the ‘reasonableness’ of the refugee claimant’s proposed conduct is in all circumstances irrelevant.  Inverted commas are employed here to give recognition to the fact that the ICCPR does not expressly condition any rights with the word “reasonable”.  It is necessary, however, to signal that many provisions require competing interests to be balanced.  In this balancing exercise a reasonableness test has been adopted by the Human Rights Committee.  The following passage is from Toonen at para 8.3:
The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code.  As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16 on article 17, the “introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances”.  The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. [citations omitted]
CONCLUSION

[48] In a broad sense the majority decision in Appellant S395/2002 and the human rights approach converge on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right.  However, the paths taken to this point of convergence are quite different.  In the human rights approach, the analysis is located in the “being persecuted” element, not in the evaluation of risk and not in the Convention ground.  In the High Court, international human rights standards, while routinely acknowledged as being relevant to the determination of the “being persecuted” element, do not appear to have been developed to any degree and there are suggestions in Appellant S395/2002 that in the context of voluntary but protected actions, the focus is rather on the assessment of risk and the definition of the particular social group.  If this is how the decision of the High Court is to be correctly understood, then it is (with respect) wrong.  The human rights approach, on the other hand, places human rights at the centre of the “being persecuted” analysis in the belief that this provides a principled and disciplined framework for analysis.

[49] The human rights standard requires the decision-maker to determine first, the nature and extent of the right in question and second, the permissible limitations which may be imposed by the state.  Instead of making intuitive assessments as to what the decision-maker believes the refugee claimant is entitled to do, ought to do (or refrain from doing), instead of drawing on dangerously subjective notions of “rights”, “restraint”, “discretion” and “reasonableness”, there is a structure for analysis which, even though it may not provide the answer on every occasion, at least provides a disciplined framework for the analysis.  A framework which is principled, flexible, politically sanctioned and genuinely international.  Under the human rights approach, where the risk is only that activity at the margin of a protected interest is prohibited, it is not logically encompassed by the notion of “being persecuted”.  A prohibition is to be understood to be within the ambit of a risk of “being persecuted” if it infringes basic standards of international human rights law.  Where, however, the substance of the risk does not amount to a violation of a right under applicable standards of international law, it is difficult to understand why it should be recognised as sufficient to give rise to a risk of “being persecuted”.



1. This paper is based on the decision of the New Zealand Refugee Status Appeals Authority in Refugee Appeal No. 74665/03 (7 July 2004), which although not published at the time of the Sydney conference, had been prepared in draft.  The full text of the decision is now available at the New Zealand Refugee Law website (www.refugee.org.nz) and at the website of the Refugee Status Appeals Authority (www.nzrefugeeappeals.govt.nz).

2. While it is common in refugee discourse to refer to “the persecution element” of the refugee definition, the author prefers to use the language of the Refugee Convention itself, namely “being persecuted”.  Not only is this mandated by principles of treaty interpretation, it also serves to emphasise the employment of the passive voice and that the inclusion provisions of Article 1A(2) of the Convention have as their focus the predicament of the refugee claimant.  The Convention defines refugee status not on the basis of a risk “of persecution” but rather “of being persecuted”.  The language draws attention to the fact of exposure to harm rather than to the act of inflicting harm.