REFUGEE APPEAL NO. 2376/95
|E M Aitken (Member)
|T E Gutnick (UNHCR Member)
|Representative for NZIS:
|Date of Hearing:
|Date of Decision:
|4 July 1996
The Inclusion Clause in Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees relevantly provides that a refugee is a person who:-
"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
The Authority has previously recognised in cases of dual nationality that the express terms of Article 1A(2) of the Convention apply (see Refugee Appeal No. 2187/94, re MJR (2 November 1994) at page 3.) That is, paragraph 2 of article 1A(2) stipulates:
"In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and the person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well founded fear, he has not availed himself of the protection of one of the countries of which he is a national." (own emphasis added).
In the context of this case, the four principal issues are:
1. Is the appellant genuinely in fear?
2. Is it a fear of persecution?
3. Is that fear well-founded?
4. Is the persecution feared persecution for a Convention reason?
In this regard, the Authority refers to its decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 re LAB (11 July 1991). In the same decision, the Authority held that in relation to issue 3, the proper test is whether there is a real chance of persecution.
ASSESSMENT OF THE APPELLANT'S CASE
1.Is the appellant genuinely in fear?
We first consider the appellant's credibility. The appellant introduced a new claim at the hearing based on his activities with other former Soviet journalists which had not previously been disclosed either at the RSB interview, or in his original application for refugee status. The appellant also claimed for the first time that the Israeli police condoned the harassment caused by orthodox Jews in response to the appellant's attempt to celebrate the New Year. Notwithstanding this new information, we find that this does not detract from the overall credibility of the appellant's claim. In delivering his evidence, we found the appellant to be frank and matter-of-fact. Further, the appellant's evidence at the hearing was, in all other aspects, materially consistent with that previously given before the RSB.
We accept therefore that the appellant has a genuine subjective fear. Based on his previous experiences, the appellant fears that he would be deprived of employment opportunities, access to medical facilities and face similar discriminatory treatment amounting to persecution due to his perceived status in Israel as a foreign national, and as a non-Jew.
Finally, the appellant also gave evidence at the hearing that he was subject, on occasion, to harassment by orthodox Jews when attempting to celebrate the New Year. There was no evidence before the Authority, however, that the appellant had encountered any other form of restriction on his ability to celebrate or partake in other Christian celebrations.
The Authority notes at this point, that in articulating his claimed fear of persecution, the appellant has never relied on his inability to practise his religion as the basis or one of the bases of his claim. Indeed, according to the appellant's own evidence, while he identifies himself as a Christian, he does not consider himself to be "religious". Nor is there any evidence, on the particular facts of this case, that the "practice" by the appellant of his Christian beliefs, in the form of celebration of Christian festivals, is so intrinsic or fundamental to his individual existence such that the harassment referred to can be said to be persecutory in nature.
Therefore, notwithstanding the appellant has not himself raised such a claim, for the sake of completeness, we consider that there is no factual basis upon which the Authority could conclude that the appellant has a genuine fear that he is unable to practise his Christian faith in Israel. The Authority does, nevertheless, accept that the appellant has a genuine fear that he would suffer "general harassment" in the form of verbal abuse and threats, and that he may even be killed in a manner analogous to the late Prime Minister Rabin, at the hands of orthodox Jews.
2.Is it a fear of persecution?
We address first the appellant's fear that if he returned to Israel he would be deprived of employment opportunities and medical facilities.
The right to work is an economic and social right recognised in the 1966 International Covenant on Economic, Social and Cultural Rights. The right to work is also a second generation right which appears third in Professor Hathaway's Hierarchy of Rights (please refer Hathaway, The Law of Refugee Status (Butterworths Canada 1991) at pages 108-111).
Similarly, the right to the enjoyment of the highest attainable standard of physical and mental health is recognised in article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights. The right to medical care is a third level right in terms of Professor Hathaway's Hierarchy of Rights (supra, at page 111).
The Authority has previously accepted Professor Hathaway's finding that,
"... the deprivation of certain of the socio-economic rights, such as the ability to earn a living, or the entitlement to food, shelter, or health care, will at an extreme level be tantamount to the deprivation of life or cruel, inhuman or degrading treatment, and hence unquestionably constitute persecution." (own emphasis added, refer Refugee Appeal No.732/92 re CZZ (5 August 1994) page 17).
Further, substantial impairment of one's ability to earn a living, coupled with other discriminatory factors could, depending on the circumstances, constitute persecution (refer Refugee Appeal No. 732/92, supra)
We are therefore satisfied that (in the particular circumstances of this case) the appellant's fear that he would face serious restrictions on his right to earn a living is of sufficient gravity to amount to persecution. We similarly find that the total restriction on the appellant's right to obtain medical care will, at an extreme level, constitute persecution.
In terms of the general harassment to which the appellant was subject from other immigrant workers or local residents during his employment at the orange plantation, we find that the appellant's fear is one of discrimination and not persecution.
For reasons already stated, the Authority finds that while the denial of the appellant's right to celebrate the New Year may be considered discriminatory, the Authority does not, on the facts of this particular case, consider it to be persecutorial in nature towards the appellant. Nor does the Authority consider that such discriminatory measures of harassment and the inability to celebrate New Year, when considered cumulatively, to rise to the level of persecution.
We accept, however, that the appellant's fear that he would be killed by orthodox Jews is of sufficient gravity to amount to persecution.
3. Is that fear well-founded?
We consider first the well-foundedness of the appellant's fear regarding employment opportunities.
Although the appellant is not required to establish that he has been a victim of past persecution in order to fall within the Refugee Convention, his previous experiences relating to employment in Israel are indicative of the circumstances he would face upon his return there in the future.
The appellant was trained as a journalist in Azerbaijan, but was unable to obtain work in his profession in Israel largely due to his lack of sufficient knowledge of Hebrew. However, despite facing some discriminatory treatment in Israel, we find that the appellant was nevertheless able to support his living by working as a labourer in various positions on a casual basis.
The appellant also placed much emphasis at the hearing on his lack of proficiency in Hebrew as the principal reason for his employment difficulties. The appellant was nevertheless able to develop a working knowledge of basic spoken Hebrew during the course of his stay in Israel. The Authority has also considered the appellant's own evidence that there were available government assisted programmes which allowed new immigrants such as the appellant to attend Hebrew language courses free of charge. The appellant stated that he could not attend such classes as he had to work and, as far as he was aware, there were no evening classes which provided tuition in Hebrew.
We therefore find that there is no evidence, based on his previous experiences in Israel, to suggest that the appellant has been substantially deprived of his right to earn a living. We further consider that it is open for the appellant, upon his return to Israel, to avail himself of the opportunity to improve his employment prospects further, and receive formal tuition in Hebrew. Accordingly, we find that the appellant's fear of persecution, in the form of denied employment opportunities, is not well-founded.
Secondly, in respect of the denial of access to medical care, we similarly find that the appellant was subject to discriminatory treatment only in being unable to register at a government hospital due to his non-Jewish status. We find, however, that, the appellant was able to receive private medical treatment from Soviet-trained doctors at home. We find the appellant's fear of persecution in the form of denied access to medical care cannot be said to be well founded.
The appellant has also referred the Authority to the untimely demise of the late Prime Minister of Israel, Mr Rabin whom the appellant claims was killed due to his perceived "anti orthodox- Jew" stance. We do not consider that the appellant has the kind of high profile warranting his being targeted in this manner by similar fundamentalist Jews. We therefore find that the risk of the appellant being killed under similar circumstances falls well below the level of a real chance. Given our finding that the other harassment to which the appellant was subject, in the form of threats by orthodox Jews, did not rise to the level of persecution, it is not necessary to consider the well-foundedness of the appellant's fear in this regard.
The Authority has, nevertheless, considered whether these measures of harm, when considered cumulatively, amount to persecution but concludes that they do not. We therefore find that even if the appellant's fear of persecution was based on cumulative grounds, it is not well-founded.
4.Is the persecution feared persecution for a Convention reason?
We accept that the appellant fears persecution by reason of his status as a foreign national of Armenian ethnicity. We therefore find that the appellant's claim is based on the Convention grounds of nationality and race.
We further find that the harm which the appellant fears at the hands of local orthodox Jews is by reason of the appellant's Christian religion.
Accordingly, having found that the appellant's fear of persecution upon his return to Israel on either ground is not well-founded, his appeal must fail. It is therefore not necessary for the Authority to consider the appellant's fear of persecution vis-á-vis his return to Azerbaijan.
For the above reasons, the Authority finds that the appellant is not a refugee within the meaning of Article 1(A)2 of the Refugee Convention. Refugee status is declined. The appeal is dismissed.
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