SZMGR v. Minister for Immigration & Anor

"[13] [The Tribunal's] conclusion was based on two key findings:
i) “the threats in this case do not give rise to any real chance of persecution for a Convention reason in the reasonably foreseeable future”; and
ii) “if the Tribunal were to accept, which it does not, that the threats against the applicant placed him at a real risk of harm in [Britonia], the Tribunal is satisfied that the level of state protection available to him in [Britonia] is sufficient to remove such a risk”.

[14] The Tribunal’s reasons for arriving at both of these findings raise some concerns. These include whether the Tribunal properly appreciated the low probability of the possibility of future harm, which is sufficient under the ‘real chance’ test of a well-founded risk of persecution. Also, whether it properly took into account the applicant’s personal history, when it gave emphasis to the law enforcement framework available to protect the general population of Britonia.

[15] [The applicant] submits that the Tribunal considered only the risk of the applicant suffering death or serious physical assault, as he was threatened, and that it failed to appreciate his claim that the past harassment in itself had caused serious harm amounting to ‘persecution’. It then failed to assess the risk of this continuing in the future if he returned to Britonia. For the same reason, the Tribunal had also considered the issue of future state protection too narrowly.

[17] Contrary to the Minister’s submission that the Tribunal addressed the full breadth of the applicant’s claims, I am satisfied that the Tribunal did confine its examination of the future risk of the applicant suffering ‘serious harm to the person’ within s.91R(1)(b), and failed to consider whether the harassment which the applicant had suffered in Britonia, and feared in the future, itself amounted to ‘persecution’ within s.36(4) read with s.91R(1) and (2) of the Migration Act

[19] The Tribunal’s narrow focusing of the applicant’s refugee claim is confirmed in other parts of its ‘findings and reasons’. Thus:
• Its opening summary of his claims referred only to his being “repeatedly threatened until he departed Britonia”, without referring to the range of harassments which he had suffered in Britonia, and their effect on his life, before he departed.
• Its factual findings, which accepted the applicant’s history, emphasised that “the fatwa that was issued against him in [year] had no apparent consequences and he was not subjected to any form of punishment or harm in the subsequent [number of] years he remained in Britonia”. The suggestion that the applicant had not suffered ‘harm’ either confirms that the Tribunal narrowly focused the issue of persecution, or that it overlooked or disbelieved the serious harassment, short of the infliction of actual bodily violence, which the applicant claimed to have suffered. I consider it unlikely that the Tribunal was unaware of this history, and it certainly does not appear to have disbelieved it. Rather, I conclude that the Tribunal thought that it was irrelevant to its consideration of a well-founded fear of persecution for it to consider whether the harassment itself amounted to ‘persecution’.
• Similarly, the Tribunal’s consideration of state protection addressed the ability of Britonia to protect its inhabitants against “radical Islamic elements, as dangerous as they may be”, “terrorism”, “serous criminal behaviour, whether or not committed by radical Muslims”, and “violence”. It did not examine the past or possible future ability of the Britonian authorities to prevent the applicant being harassed in the manner and with the consequences described by him.

[26] In VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1, the High Court addressed the meaning of “threat to the person’s life or liberty” in the instance of persecution provided in s.91R(2)(a). Callinan and Heydon JJ said that s.91R(1) “provides a manifestation of a statutory intent to define persecution, and therefore serious harm, in strict and perhaps narrower terms than an unqualified reading of any unadapted Art 1A(2) of the Convention might otherwise require”. However, this does not provide support for reading the provision as now excluding serious harassment of a person which lacks a likelihood or real chance of death or serious physical harm. Nor can such support be found in the joint judgment of Gleeson CJ and Kirby J.

[32] I consider that it would have been open to a Tribunal to have concluded, looking at the applicant’s history broadly, that the applicant had faced, and would face, such an intolerable life in Britonia that his flight from that country was well ‘understandable’, and that the harassment he feared in that country involved, cumulatively, such a serious infringement of his human rights and human dignity as to ‘involve serious harm of the person’ within s.91R(1)(b).

[33] I therefore am satisfied that the Tribunal made a material jurisdictional error by confining its consideration of the applicant’s circumstances to his risk of death or serious physical assault. I am satisfied that he is entitled to the relief he claims, and to the costs of the proceedings."