Last Updated: Tuesday, 22 April 2014, 11:13 GMT

Yesus v Minister for Immigration and Ethnic Affairs

Publisher Australia: Federal Court
Publication Date 9 July 1996
Citation / Document Symbol No. G34 of 1996
Reference [1996] 808 FCA, New South Wales District Registry
Cite as Yesus v Minister for Immigration and Ethnic Affairs, No. G34 of 1996, Australia: Federal Court, 9 July 1996, available at: http://www.refworld.org/docid/3ae6b72d0.html [accessed 23 April 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

THE FEDERAL COURT OF AUSTRALIA

CATCHWORDS:

ADMINISTRATIVE LAW - Judicial review of decision of Refugee Review Tribunal as to refugee status - error of law - whether Tribunal Member failed to apply relevant legal principles

IMMIGRATION - Refugees - Applicant an Ethiopian national - UN Convention relating to the Status of Refugees 1951 - "well-founded fear of persecution" test - relevant legal principles where applicant was a refugee when left country of nationality and circumstances in country of nationality are alleged to have changed - whether changes in country of nationality sufficient to allay fear of persecution

IMMIGRATION - UN Convention relating to the Status of Refugees 1951 - meaning of "persecution" - consideration to be given to less extreme forms of persecution when changed circumstances alleged Migration Act 1958 (Cth): s 476

UN Convention relating to the Status of Refugees, 1951

UN Protocol relating to the Status of Refugees, 1967

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v Wu (1996) 136 ALR 481

Morato v Minister for Immigration & Ethnic Affairs (1992) 39 FCR 401

Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84

Singh v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Branson J, 30 May 1996, unreported)

Wu v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432

BERHANU WELDE YESUS v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. G34 of 1996

CORAM: MADGWICK J

PLACE: SYDNEY

DATE: 9 JULY 1996

Date of hearing: 30 April 1996; 22 May 1996.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

No. G34 of 1996

BETWEEN BERHANU WELDE YESUS, Applicant

AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, Respondent

CORAM: MADGWICK J

PLACE: SYDNEY

DATE: 11 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, to be dealt with according to law.

2.   The first respondent is not to remove the Applicant from Australia prior to the redetermination of the matter by the Refugee Review Tribunal.

3.   The First Respondent pay the Applicant's costs.

REASONS FOR JUDGMENT: MADGWICK J

Introduction

This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") to review the decision of Ms Smidt, a member of the Refugee Review Tribunal, given on 22 December 1995 that the applicant "is not a refugee" and therefore not entitled to a protection visa. Without such a visa, the applicant will be returned to his native land, Ethiopia, where he claims he will face persecution.

The general statutory framework has been frequently rehearsed in judgments of this Court and I will not repeat it here. Suffice it to say that, ultimately, the question for the Tribunal was whether, as at the date Mr Yesus sought a protection visa, the Tribunal (standing in the stead of the primary decision-maker upon administrative review) was satisfied that Mr Yesus was a "refugee" within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Convention). Under the Convention a refugee is a person who:

"...owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular racial group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."

The grounds of the application are these:

"(i) that the decision involved an error of law:

(a) being an error involving the incorrect interpretation of the applicable law.

Particulars

The second respondent erred in its interpretation of the term persecution as used in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

(b) being an error involving an incorrect application of the law to the facts as found by [the Tribunal Member].

(ii)  The Tribunal erred in law in finding that the detention without trial suffered by the applicant in Ethiopia was not imposed because of his membership of a particular social group.

(iii) The Tribunal erred in law in failing to determine whether the prolonged detention without trial in Ethiopia amounts to persecution within the meaning of the Convention Relating to the Status of Refugees.

(iv) The Tribunal based its decision upon a fact, namely, that the arrest and detention of the applicant was because of a genuine suspicion of his involvement in human rights abuses, and that fact did not exist.

..."

The Applicant seeks the following:

"(i) An order that the decision of [the Tribunal Member] ... be set aside and remitted to the Tribunal, differently constituted, to be dealt with according to law.

(ii)  An order restraining the first respondent from removing the applicant from Australia prior to the redetermination of the matter by [the Tribunal Member].

(iii) Costs."

(iv) above appears to have been based upon a plain misreading of the decision (see page 13 thereof) but, in any case, in my view, is manifestly mistaken in its premise and warrants no further discussion.

The substantial questions

It was argued that two legal errors were made:

(a) The Tribunal Member failed to apply the relevant legal principles governing cases where circumstances in the country of nationality are said to have changed so as to remove justification for a fear of persecution which was well-founded when an applicant to be accorded refugee status left that country; and

(b) The Tribunal Member misdirected herself as to the meaning of the term "persecution" in its application to the present case.

It is to be borne in mind throughout that the "decision" under consideration by the Court is the decision of the Tribunal that it was not satisfied that Mr Yesus was a Convention refugee; the Tribunal's decision ought not be seen as a decision not to determine that Mr Yesus is a refugee: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 493. The practical consequence of this is that the Court should place some emphasis upon the subjective nature of the judicially reviewable decision and exercise caution in inferring legal error from an approach of the Tribunal to factual questions: ibid especially at 494.

From intelligence officer to prisoner Mr Yesus is an Ethiopian national, now aged 47, with a wife and children still in Ethiopia.

In 1969, when he was about 21, he underwent police training. In 1971 he commenced work in the government of the Emperor Haile Selassie. He was an intelligence officer in the government department whose nearest Australian counterpart (one hopes it is not a close one) might be the Department of the Prime Minister.

Haile Selassie was overthrown in 1974 by forces known as "the Dergue", which regime was, after a time, headed by the infamous Colonel Mengistu. Mr Yesus remained at his post. Mengistu's became another of the appalling regimes which have so often disfigured our century. The Tribunal member recorded that

"the Dergue was responsible for human rights violations on a massive scale between 1974 and 1991. Tens of thousands of people were murdered, tortured or had "disappeared" after being detained... The period of greatest repression occurred during the Red Terror ... between 1976 and 1978 ... [In] a brutal campaign against suspected government opponents ... perhaps tens of thousands of people, many of them teenagers, were arrested, tortured and summarily executed ... At least 10,000 people were killed in Addis Ababa alone during this period".

After the darkness of such a night, most governments, including the merely seriously brutal, might appear as morning.

In 1977, Mr Yesus apparently moved to the Ministry of the Interior. For the eleven years to 1988, he worked abroad in Sudan and Egypt, seemingly spying in the service of the Dergue regime and promoting its brand of political activities, under the cover of diplomatic accreditation.

Upon his return to Ethiopia in 1988, he took 12 months' leave and was then, in about August 1989, appointed Chief of Security for the Dire Dawa region, comprising about half a million people (the population of Ethiopia is about 53 million). His job there was to be "responsible for internal security" and to furnish the sinews of insurrection, provided by the Dergue rulers of Ethiopia, to a dissident group in neighbouring Somalia.

In September 1990, he fell foul of a close Mengistu adviser over an investigation, which Mr Yesus had prompted, into apparent local corruption by some Dergue party faithful. He was arrested and imprisoned: no charge was laid against him.

A new set of goalers

In May 1991, the present regime, styling itself the Ethiopian People's Revolutionary Liberation Front (EPRLF), took revolutionary control of Addis Ababa, and opened the prisons. Mr Yesus went home. Soon after, the entire security apparatus of the former regime was dismantled and, as the Tribunal Member found, "all personnel associated with it" (my emphasis) were arrested. At first Mr Yesus was exempted because someone considered him to be a "political prisoner" of the old regime. But in July 1991 the new security officials arrested him.

He was apparently regarded as a senior figure, for he was interned with about 115 others "who had held senior positions" in his Ministry. The conditions were, as the Tribunal Member noted without hyperbole, "poor". The detainees were allowed out of their converted ammunition- store quarters only once a day, and they were beaten when they went to the toilet. Conditions improved after about three months, following Red Cross intervention.

Despite the fact that no charge of any kind was laid against him, Mr Yesus remained imprisoned until May 1993. The EPRLF had come to power with the support of Western governments. Under pressure from them, the regime instituted a habeas corpus procedure which enabled prisoners to be brought before a court. Mr Yesus' wife procured this to be done in May 1993. The prosecutor then said that "no evidence against Mr Yesus was currently held by the Special Prosecutor's Office [which had been established with the avowed purpose of bringing to book those responsible for the appalling human rights abuses of the Mengistu regime], but they expected to gather some in the future" (emphasis added). Two years had gone by since the search for evidence might have begun. Mr Yesus was released on making a substantial bail deposit, but without other conditions.

Upon his release, Mr Yesus thought that he was the subject of surveillance. Having regard to his background, his qualifications to express this opinion would appear adequate.

He found work within about a month near the Kenyan border. He was informed by a relative that his wife had been detained for questioning. There is no suggestion that she might have attracted official attention otherwise than on account of her marital relationship with the applicant. As things turned out, she was released after 12 hours' detention. The relative also told Mr Yesus that a good friend, with a bureaucratic background of some similarities to his own, and who had been arrested by the new regime and then released at the same time asMr Yesus, had been re-arrested. Mr Yesus fled to Kenya.

The applicant's humanitarian antecedents

In Kenya, Mr Yesus applied to the United Nations High Commissioner for Refugees (UNHCR) for protection.

Naturally enough, one might think, before according him refugee status (and a broader definition of "refugee" was available to the UNHCR than under the present Act), the UNHCR considered whether he was excluded from the Convention under Article 1(F)a. That article provides as follows:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that he had committed a crime against peace, a war crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes."

The Tribunal Member said that "in the absence of sufficient evidence, Mr Yesus should be given the benefit of the doubt and not excluded". The Tribunal Member agreed with "the UNHCR determination that there is insufficient evidence to exclude Mr Yesus from the Convention under Article 1F(a)". In fairness to Mr Yesus, it should be recorded that what the UNHCR said was this:

"at the time it was assessed that the existing proof of [his] being involved in activities included in article 1F did not rise to the level of `reasonable grounds for believing' ".

And that, for present purposes, is and must be the entire end of that matter. To Australia Mr Yesus chose not to accept UNHCR assistance in Kenya, because such assistance required that he remain in refugee camps, where he feared that he would be killed; such had apparently been the fate there of other former office-holders in the Dergue government. He procured a false Ethiopian passport and travelled to Egypt, arriving there in March 1994. By May 1995 an application he had made in September 1994 to the Australian Embassy in Cairo for entry to Australia under the "Refugee and Special Humanitarian Program" was still unresolved. He then sent a friend to the Ethiopian Embassy to renew his false passport. However, an Egyptian employee of that Embassy, who knew Mr Yesus, recognised his photograph in the false and falsely-named passport. The passport was kept by the Embassy.

Mr Yesus, fearing that the Egyptian government might repatriate him to Ethiopia, procured a second false passport on which he travelled to Australia. He arrived here in June 1995 when he made the subject visa application.

Was the applicant ever a refugee?

At pages 12-13 of her decision the Tribunal Member dealt with the status accorded to Mr Yesus by the UNHCR.

She stated the broader test of refugee status available to the UNHCR (under the Organisation of African Unity (OAU) Convention) and concluded:

"It is unclear whether Mr Yesus was found to be a refugee because he met the definition contained in [the Convention] or that contained in the OAU Convention.

In any event, UNHCR recognition of someone as being "of concern under the Mandate of the [UNHCR]" ... is not in any way binding on the Tribunal."

Nevertheless, that seems hardly adequate as a consideration of Mr Yesus' position as at the time when the UNHCR investigated him. That time was very shortly after he left Ethiopia, his country of nationality. On the material evidently accepted by the Tribunal Member as having a real chance of being true, any conclusion other than that Mr Yesus was, then, a refugee, would in my opinion be simply perverse: he was plainly, as the Convention requires:

"owing to well-founded fear of being persecuted for [the reason of] ... membership of a particular social group ...[,] outside the country of his nationality and ... unable or, owing to such fear, ... unwilling to avail himself of the protection of that country",

I hesitate to attribute such a conclusion to the Tribunal Member. It seems, therefore, that either the Tribunal Member made no finding as to Mr Yesus' actual status as a Convention refugee or otherwise when he fled Ethiopia, or that she decided without saying so, or simply assumed, that he was a refugee. I proceed, therefore, on the basis that she either did find, or must have found, if she had turned her mind to the question, that Mr Yesus was then a Convention refugee.

Changed circumstances?

The inescapability of such a conclusion about his status requires a consideration of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. It was accepted by the High Court that it is the facts as they exist at the date that a claimant seeks refugee status in Australia which must be determined, rather than the date when he left his country of nationality (the question of the appropriate time for the factual determination is still, despite some change in the statutory framework, that time: Singh v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Branson J, 30 May 1996, unreported). But, as Gaudron J pointed out in Chan at 414-5.

It is one thing to say that an applicant must have a well-founded fear of being persecuted at the time his application is considered. It is quite another thing to say, as was said by the Full Court of the Federal Court, that, in a case involving changed circumstances, the question whether such fear is well-founded is to be answered by reference to the situation prevailing when the application is considered ... I do not think it correct to say that the question whether a fear is well-founded is to be answered by reference to the situation at the time of the determination and in isolation from the past experiences of the applicant.

The definition of "refugee" looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression "once bitten, twice shy", that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be "well-founded fear" at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.

To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution: see the United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems, (1950), United Nations Document E/1618, p. 39; the Handbook, p. 13;

Grahl-Madsen, pp. 176-177; Kashani v. Immigration and Naturalization Service (1977) 547 F.2d 376, at p. 379 (7th Cir.); Cardoza-Fonseca v. Immigration and Naturalization Service (1985) 767 F.2d 1448, at p. 1453 (9th Cir.), affd (1987) 480 U.S. 421. Mason CJ (at 390-1) regarded the lack of material indicating an intervening change in a persecuting regime since a purported refugee had escaped it as of fundamental importance. He said:

... There was simply no material before the Federal Court which entitled it to conclude or assume that the regime in China was different from that in power when Mr. Chan escaped in 1974 or that the regime would not be likely to take adverse action against him. It was the same regime as was in power when Mr. Chan was subjected to interrogation, exile, detention and imprisonment.

The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr. Chan's fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear had dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons. As I have said, the required justification was not established. However, I should not be taken as saying that the delegate failed to meet his obligations under s.13 of the Act. As I see it, his error was one of acting upon impermissible reasons and then reaching unreasonable conclusions.

Dawson J spoke to like effect at 399:

"Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status."

Toohey J (at 408) regarded the method of approaching the matter impugned in Chan as involving an error of law:

"In my view the Full Court fell into error because of the way it approached the current situation. While it is true that the determination of the appellant's refugee status was to be made in the light of the circumstances then prevailing, there was no basis for concluding that the political situation in China had changed relevantly since the appellant left it. If, as it did, the available material pointed to the appellant having a "well-founded fear of being persecuted for reasons of ... political opinion" at the time he left the country of his nationality, there was nothing to indicate that the circumstances giving rise to that well-founded fear had altered in any relevant respect at the time refugee status was sought.

It follows that the decision of the Full Court of the Federal Court should be set aside and the orders of Keely J restored."

Finally, McHugh J said (at 432-3):

"In many cases, the same result will be reached whether one begins by asking whether an applicant was a refugee when he or she left his or her country of nationality and whether the circumstances have since changed or whether one simply examines the circumstances in the country of nationality at the time a claim for recognition is made on a State party. But in the present case the appellant claims that it is important to distinguish between the two approaches because if he was a refugee in 1974 there was no evidence that the circumstances which gave rise to him being a refugee at the time had ceased to exist. However, the delegate seems to have approached the case on the basis that the conditions which existed when the appellant left China have not changed. On that basis the delegate must have reached the same decision whichever of the two approaches he adopted."

(In each instance, the emphasis has been added)

In my opinion, at least Mason CJ, Toohey and Gaudron JJ regarded a failure to give decisive weight to a well-founded fear of persecution held at the time of fleeing the country of nationality by an applicant for refugee status (absent material clearly indicating a change in circumstances sufficient, in Gaudron J's words, "to allay a fear grounded in past experience") as involving an error of law. Because of that, and in any case for the reasons stated by Mason CJ and Gaudron J, I likewise conclude. Since, as I have indicated, this case must proceed upon the basis that Mr Yesus was a refugee on persecution grounds when he left Ethiopia, the question then necessarily facing the Tribunal became: was there evidence clearly indicating such a change in circumstances? The Tribunal Member neither expressly stated this as a criterion of her decision, nor do her stated reasons indicate that she applied such a criterion without saying so. I say this bearing in mind the caution required in relation to a decision about the decision-maker's own satisfaction as to certain criteria and all the well-known general strictures of principle against a court, on judicial review of an administrator's decision, either permitting itself to encroach upon the proper domain of the decision-maker, namely, the factual assessment and the weighing of permissible values in the case at hand, or

"combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law" (per Kirby J in Wu at 505-6).

As the High Court held in Minister for Immigration and Ethnic Affairs v Wu (1996) 136 ALR 481 at 491,

"...the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."

The Tribunal's "Reasons" are entitled to a "beneficial construction" and the Court ought not conclude that the Tribunal erred in law unless this clearly appears: Wu v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432 at 444. The Court ought to approach judicial review of administrative decision sensibly and in a balanced way, not by a "minute examination of reasons" "with an eye keenly attuned to the perception of error" Politis v FCT (1988) 16 ALD 707 per Lockhart J at 708; and Muralidharan v Minister for Immigration & Ethnic Affairs & Anor (1996) 136 ALR 84 per Sackville J at 94-95. The Court should not give justification for any perception that it is "unduly interfering with" an administrative decision of this character: Muralidharan, per Sackville J at 94.

Mr Yesus left Ethiopia in August 1993. To recapitulate the position, there is evidently, on the material not disbelieved by the Tribunal, a real chance that in the preceding two years he had been, under the same regime as still exists in Ethiopia,

1.   arrested without charge, along with all personnel associated with him;

2.   held in custody without charge for 22 months;

3.   routinely beaten or held in otherwise very "poor" conditions for 3 months while in custody;

4.   released (in May 1993) over the objections of the prosecuting authorities, notwithstanding their advice that in two years they had assembled no evidence against him, and then only on bail and with an indication that the authorities intended pursuing an active interest in him;

5.   subsequently to his release put under surveillance;

6.   made aware, on the eve of his fleeing his homeland, that the authorities had arrested his wife and detained her for lengthy questioning;

7.   also reliably then told that a close friend, released from prison at the same time as Mr Yesus, had been re-arrested.

The decision as to whether disentitling change had occurred in the 25 months since Mr Yesus left Ethiopia to the time for factual determination of his status concerned "human fate, the fate of [a man claiming to be a refugee]" (in a phrase picked up by Toohey J in Chan at 407), and change sufficient to allay that man's formerly well-founded fear. The question is not whether there had been some changes in the erstwhile persecuting regime's practices, but whether any such change or changes would suffice to allay formerly well-founded fears of future persecution held by an already persecuted man.

When one examines the material relied on by the Tribunal Member for indications of such change, the harvest is somewhat lean:

Of between about 1300 (Decision at 18) and 1750 (at 19) former officials and members of the Dergue government "still" in custody as at late 1994 or early 1995, "(m)ost have been held since 1991 and none were charged until late 1994" (emphasis added).

* "Arrests of former officials and members of the security forces continued in 1994 and early 1995. Arrests often occurred after public denunciation sessions organised by government-supported "Anti-Red Terror Committees" (at 19).

* In February 1995 the Chief Special Prosecutor "could not say when all detainees would be charged. The detainees were being tried in three stages, starting with the "policy and decision makers", then the "field commanders, both military and civilian", then the "actual perpetrators" of murder, torture and other crimes" (p 20) (emphasis added).

Mr Yesus would thus appear to run a real risk of falling within the group conceived as the second most urgently in need of attention.

* In December 1993, Amnesty International wrote:

"It is probable that if former members of the Ethiopian security police, allegedly responsible for human rights abuses, are returned to Ethiopia they would be arrested for investigation and possibly detained for a long period without charge or trial. They would not face any real risk of torture or extrajudicial execution."

* In 1995, apparently, the present government was operating concentration camps thought apt for people like Mr Yesus:

"... the attendants at this rehabilitation programme were former members of the WPE, the entire members of the army (that is the members of the ground force, air force, navy and the police force) and other security personnel of the Dergue regime. Most of them stayed six months in different concentration (rehabilitation) centres. Some stayed for a year as prisoners. Those who have been suspected to have participated in the "red terror" and in other serious crimes (such as war crimes) are still detained without charge. We do not know when they will be brought to trial." (p 20).

* On the other side of the ledger, and it is not clear how far this represents a change in conditions from late 1991 to mid 1993, the "treatment in detention of the Dergue/WPE detainees has been broadly commendable, in contrast to the treatment of some recent political prisoners" (p 20) - emphasis added.

* The strongest piece of evidence cited by the Tribunal Member was this:

"African Rights, a London based human rights organisation advised on 10 November 1995 that:

The Ethiopian government is responsible for a variety of abuses of human rights including arbitrary detention, harassment and surveillance.

However, the officials of the former government are not a significant target of these abuses. They are not considered to be a significant political threat and, and the proceedings against them for crimes they are alleged to have committed during the previous government are being conducted according to due process of law, with considerable scrutiny.

In my opinion, in the period immediately following the defeat of President Mengistu, there were widespread and in some cases arbitrary arrests of former government officials. However, this is no longer the case, and those

former government officials in detention at present, or at risk of being detained for alleged crimes undertaken under the previous government, are not at serious risk of arbitrary detention or other abuses."

The essence of the Tribunal Member's approach, so far as relevant here, was this (at 21):

"The independent evidence before the Tribunal does not indicate that former government officials are currently at risk of detention or other serious harm amounting to persecution because they are part of a cognisable or recognisable particular social group made up of former government officials. ...

From the evidence before the Tribunal it is clear that only those former government officials who have been accused of involvement in human rights abuses or war crimes during the Mengistu years are currently in detention or at risk of being detained in Ethiopia. ... They are at risk of detention because they are believed to have committed crimes.

Mr Yesus has argued that the situation of those who were employed by Ministry of the Interior is different from that of other former government officials. However, Mr Yesus himself has stated that while all employees of the Ministry were detained in 1991, most have now been released and only senior officials now remain in custody [but, I interpolate, Mr Yesus would surely be a "senior official"]. This is in keeping with the independent evidence before the Tribunal which indicates that detentions were widespread and somewhat arbitrary to begin with, but only those genuinely suspected of involvement in human rights abuses or other crimes remain in detention, or at risk of detention, today. I am aware that there has been criticism of the prolonged detention without charge of those accused of involvement in human rights abuses and war crimes under the Mengistu regime. I am also aware of criticisms regarding issues such as the lack of adequately trained defence lawyers to assist those facing charges by the SPO. However, whether these problems constitute an abuse of the human rights of those detained is not a matter for this Tribunal. The purpose of the Convention is not to guarantee that applicants for refugee status receive a fair trial in their country of nationality regardless of offence of which they are accused, nor is it to ensure that none of their human rights are violated on their return to their country of nationality. The purpose of the Convention is protect individuals from persecution because of their race, religion, nationality, membership of a particular social group or political opinion. From the evidence before me, I am not satisfied that Mr Yesus faces a real chance of prolonged detention without charge for any of these reasons."

Considerable effort was made by Tribunal staff to investigate these matters, and it would be right for the Court in general to approach the Tribunal's conclusions with respect for its accumulated expertise in checking and assessing claims such as are at issue here. Nevertheless, it seems to me that the Tribunal Member's assessment of the matter legally miscarried.

It is necessary to recall the words of Mason J: "an applicant should not be compelled to provide justification for his continuing to possess a fear which ... was well-founded ... when he left his country of nationality"; and of Gaudron J: "The definition of "refugee" looks to the mental and emotional state of the applicant as well as to the objective facts ... circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience". To be faithful to such an approach, in answering the question necessarily posed for the Tribunal, it is surely necessary to look for evidence to establish change of the root and branch kind which would be necessary to allay the fears Mr Yesus reasonably held when he crossed the border into Kenya.

The body of people who would ordinarily be regarded as senior officials of the security personnel of the Dergue regime are readily enough seen as a sub-group of the group of security personnel which the Tribunal Member, correctly in my opinion, acknowledged (see p 4) would be a "particular social group" within the meaning of the Convention. As such, there is no difficulty in regarding such senior officials as themselves constituting a "particular social group". In our own country, people would ordinarily regard, say, the senior personnel of ASIO as a "cognisable group in society", to use the language of Black CJ in Morato v Minister for Immigration (1992) 39 FCR 401 at 406. This is despite the fact that the precise boundaries of the group's membership are uncertain: if somebody spoke with Australian informality of "the ASIO brass", for example, one would know well enough what group was referred to.

Thus, the question becomes: what are the post-1993 changes in relation to that group? Since the question, as a matter of legal principle, involves whether there has been enough change to allay Mr Yesus's fears of his persecution as a member of that group, the question cannot be answered without focusing on how that group is, or may be, viewed generally in Ethiopia, and on what is actually known of present Ethiopian officialdom's perceptions of the group. These matters are necessarily relevant to whether Mr Yesus' fears continue to be well-founded.

As to likely, or at least really possible, general Ethiopian perceptions, there was apparently nothing to make theTribunal reject Mr Yesus' claim that "all [Ministry of Interior] employees, even drivers," were detained upon the demise of the Dergue regime (p 10). How is it possible to believe that a formerly oppressed people could or would then come within four years (from 1991) to regard the senior people of the security departments of a generally loathed and loathsome dictatorship with other than odium? Truly, who in Australia can now resist a stirring of unease, despite the lack of any reasonable ground for positive belief that Mr Yesus was personally involved in serious wrong-doing, that it is a man of such background who makes this application to be suffered to live among us?

As to officialdom, as late as 1995, concentration camps (though euphemised, as these places usually are, as centres for "rehabilitation") which had been thought fit for "security personnel", were still operating. Some "senior officials [of Mr Yesus' former Ministry]" still then remained in custody, without charge, because of mere, if "genuine", suspicion of involvement in serious crimes under the Dergue regime (p 21). In February 1995 the Chief Special Prosecutor apparently had no idea when the detainees would be charged, let alone tried (p 19). The "field commanders [including] civilian [ones]" were ranked more in need of trial than actual murderers, torturers and authors of analogous crimes (pp 19- 20).

None or all of the considerations that the current regime may be more respectful of human rights than its predecessor; that Western governments may be right in their support for the current regime and reasonably beg delay in ultimate judgment of it, or that the apparent initial fervour of the current Ethiopian authorities to mete out what they doubtless saw as justice, if rough, to all of those perceived to have been their erstwhile opponents may have salutarily diminished, can disguise the fact that Mr Yesus was treated abominably, and that erstwhile colleagues of his are, apparently, still being treated abominably, at the hands of the same regime.

Nor can those considerations mask the fact that the present Ethiopian rulers so behaved and are behaving on the evident theory that, because Mr Yesus and his senior colleagues had employment of a certain kind in a certain kind of bureau (that is, they were a group defined by their employment), some members of which are, in a dictatorial regime, apt to be associated with human rights crimes, they may, apparently without enough actual evidence even to frame a charge, be subjected to detriment on suspicion of their personal involvement in one or more such crimes. Even on the view that there is no smoke without fire, to treat someone who might be merely smoke-stained as a person fit to be charged with being one of the fire-lighters is surely persecutory.

To summarise to this point,

(a) the Tribunal Member did find or, had she turned her mind to it, must have found, that Mr Yesus was a Convention refugee when he left Ethiopia;

(b) the Tribunal Member failed, in my opinion, to appreciate the consequences in law, and their legally necessary significance for other factual issues, of that fact;

(c)  Those consequences and that significance are that, absent adequate evidence of change sufficient to allay the fears that made Mr Yesus a Convention refugee when he left Ethiopia, he must continue to be regarded as having that status;

(d) In the result, the Tribunal Member failed to consider whether such changes as there have been were so sufficient.

(e) In this case, on the material accepted by the Tribunal, there appears to be real difficulty to say the least of it, in concluding that there had been sufficient change to allay Mr Yesus's fears. Hence, it cannot be said that the Tribunal's failure to address the relevant legal issues was necessarily without practical result.

Persecution

It is no doubt true that the purpose of the Convention, as the Tribunal Member noted, is not to guarantee applicants for refugee status that none of their human rights will be violated on their return to their home country.

It is also no doubt true that, in some cases, violations of what are regarded as fundamental legal rights in Australia will need to be recognised, however unappealing the prospect, as not amounting to persecution. No doubt also, the judgment of what may amount to persecution is a question of degree. The Tribunal Member otherwise stated her understanding of "persecution" in the following terms (at 3):

"Persecution Persecution is not precisely defined in the Convention or in Australian law. However, it is generally agreed that it means serious harm or discrimination or abuses of fundamental human rights inflicted on a group or an individual as part of a systematic course of conduct by the government or other groups or individuals in the country of nationality. Loss of life, prolonged detention and torture are clearly forms of persecution. Serious forms of social, economic or political discrimination may also be considered persecution under the Convention.

For example, serious restrictions on the right to work, to earn a livelihood, to gain a basic education, to practice a religion or to participate equally in the political life of a national may amount to persecution, depending on the circumstances. (Chan's case Mason CJ p. 388, McHugh J, p. 430 and James C Hathaway, The Law of Refugee Status, Butterworths Canada LTD, pp 103-105).

Minor forms of discrimination or harassment would not generally be considered serious enough to amount to persecution. However, if an applicant faces a number of relatively minor forms of discrimination and harassment and the combined effect of these problems is of a serious nature, then the harm involved may amount to persecution. (United Nations Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988 paragraph 53).

Prosecution for breaking the law in an applicant's country of nationality would not usually be considered persecution under the Convention. However, if the law is applied in a discriminatory fashion or in a manner that suggests that the reason for the prosecution is not to deal with a common crime, but to oppress or suppress the person facing charges, and the penalty imposed is of a serious nature, then the harm may constitute persecution (The UN Handbook, paragraph 56-57; See also the discussion in Hathaway p. 169)."

Without trying to parse every word and giving a "beneficial construction" (supra) to the passage, this may not be enough to attract criticism in a process of judicial review. But the tests that, ultimately, the Tribunal member actually applied are apparent from her conclusions (at 22):

"I am not satisfied that Mr Yesus faces a real chance of prolonged detention without charge for [any Convention reason]";

and

"I find that Mr Yesus faces no more than a remote chance of being killed or of being abducted and disappearingor return to Ethiopia because he is a former employee of the Ministry of the Interior."

Prolonged detention without charge, or "disappearance", let alone death, are obviously at the high end of the range of conduct that can amount to persecution. But that range is broad. Mason CJ dealt with the meaning of persecution in Chan in the following way (at 388):

"... no doubt ... some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. ... the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage [emphasis supplied] if he returns. ... The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason."

McHugh J put it in this way (at 430):

"... to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution: Weis, "The Concept of the Refugee in International Law", Journal du Droit International, (1960), 928, at p. 970. Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par. 151. In Oyarzo v. Minister for Employment and Immigration ([1982] 2 F.C. 779, at p. 783) the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of "Convention refugee" in the Immigration Act 1976 (Can.), s. 2(1). The Court rejected the proposition that persecution required deprivation of liberty ([1982] 2 F.C., at p. 782). It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason:

Goodwin-Gill, pp. 38 et seq. In Reg. v. Immigration Appeal Tribunal; Ex parte Jonah ([1985] Imm. A.R.7) Nolan J., sitting in the Queen's Bench Division, held as a matter of law that there was a well-founded fear of persecution when the adjudicator had found

"that if the appellant on his return to Ghana sought to involve himself once again in union affairs, he could be in some jeopardy, but there is no acceptable evidence to indicate that he would be at any material risk if he was to assume his residence in his remote family village where he spent ayear and a half immediately prior to coming to this country" ([1985] Imm. A.R. at p. 12).

His Lordship held that being "subjected to injurious action and oppression - by reason of his political opinion and membership of a social group opposed to the government" constituted a well-founded fear of being persecuted "in the ordinary meaning of the word" ([1985] Imm. A.R. at p. 13). In the United States, the Ninth Circuit has also taken a liberal view of the term "persecution". In Kovac v. Immigration and Naturalization Service ((1968) 407 F.2d 102, at p. 107 (9th Cir.)), the Court of Appeals construed the phrase "persecution on account of race, religion, or political opinion" in the Immigration and Nationality Act as meaning "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive". This definition of "persecution" was reaffirmed by the Ninth Circuit in Moghanian v. U.S. Department of Justice ((1979) 577 F.2d 141, at p. 142 (9th Cir.)). In Berdo v. Immigration and Naturalization Service ((1970) 432 F.2d 824, at pp. 845-847 (6th Cir.)), the Sixth Circuit approved a similar construction."

It may be the case that there is not a real chance that Mr Yesus would face arrest or detention on the most arbitrary of grounds, owing perhaps to some likely, primary preoccupation of the present regime with its most active opponents, and perhaps to some likely degree of abatement of its initial ardour for revenge.

But in my view it cannot necessarily be said on the material before the Tribunal that there is no real chance that he would be arrested and/or detained for some significant (if not "prolonged") period without charge and without evidence merely upon a "genuine" suspicion held, however rationally unfounded, or upon a mere accusation made by some person in authority that he had committed crimes against human rights in his former work. A liability to arrest, let alone to detention for a significant period without charge or evidence, is surely arbitrary enough to constitute a "significant detriment or disadvantage", "oppression" or "harm" which is "[seriously] offensive". Likewise, subjection to a situation in which mere general accusation of involvement in some broad category of serious crimes (without some reasonably specific charge or evidence) could be the basis for a significant deprivation of liberty is, in my view, persecution within the meaning of the Convention.

Another consequence of understanding "persecution" more broadly

But the matter does not stop there. Mr Yesus had apparently been subjected to relatively serious persecution by way of prolonged and arbitrary incarceration before he left Ethiopia. He might, accordingly, even allowing for

some improvement, reasonably fear governmental harassment falling short of irrational deprivation of his liberty.

He was able to give the examples, in addition to his own prolonged detention, of his being subjected, before his departure, to governmental surveillance, and arrest and interrogation of his wife and so on. To the extent that one allows the reality of a chance of some lesser degree of oppression than the fairly acute form which Mr Yesus primarily suffered before he left (which lesser degrees might escape any urgent concern of the regime's Western patrons or of human rights activists), one must logically increase the requirement for evidence of a change of heart on the part of those who control public order under the regime: there might be enough change to allay fear of the worst kinds of persecution but not of the least Convention- sufficient kinds. There is no indication that the Tribunal sufficiently appreciated this.

For these reasons, I think the Tribunal Member misdirected herself as to the meaning of the term "persecution" in its application to the present case. The Tribunal Member misapplied the concept of "persecution" by limiting it to some of its comparatively more serious forms in her practical consideration of it in the present context.

Among other things, this error of law led her to make another: the failure to consider whether, if there were changes sufficient to allay fears of persecution of especially grave kinds, such change was also sufficient to allay fears of persecution of lesser, but still Convention-sufficient, kinds.

Conclusion

Both claimed legal errors have, in my view, been made out and, in principle, the relief sought should be granted.

If there is no alternative proposal received by my Associate within 48 hours, accompanied by short written submissions supporting it, I will make orders in accordance with those claimed (and set out on page 2 hereof).

I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick.

Associate:

Dated: 9 July 1996

APPEARANCES

Counsel for the Applicant: G Craddock

Solicitor for the Applicant: Kessels & Associates

Counsel for the Respondent: R Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of hearing: 30 April 1996; 22 May 1996.

Search Refworld

Countries