Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: applied
The appellant submitted that, even if, upon analysis, she feared persecution only by a non-State actor for non-Convention reasons, the Tribunal erred by failing to consider whether there had been a failure by the Indonesian authorities, for Convention reasons, to provide protection to her. The appellant relied on the observation in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (' S152 ') that a state's inability to control the conduct of its police force may amount to a sufficient reason for a person to be unwilling to avail herself of the protection of her country of nationality once outside the country. That, however, assumes that a Convention reason is implicated. In oral submissions, the appellant submitted that, had the Tribunal applied the correct test, it would have been open to it to conclude that the failure by the authorities to protect the appellant was for a Convention reason: the High Court's decision in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 (' Khawar ') is authority for the proposition that criminal activity committed by a private individual, which is tolerated or condoned by the State because it systematically discriminates on Convention grounds, may amount to persecution. 40 More specifically and authoritatively, in Khawar it was recognised that, as Gleeson CJ put it (at [30] [31]): 'The references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation. In Ex parte Shah , Lord Hoffmann, in giving the example of the Jewish shopkeeper set upon with impunity by business rivals in Nazi Germany, referred to the failure of the authorities to provide protection, based upon race, as an "element in the persecution". The same expression was used by Lord Hope of Craighead in the passage from Horvath quoted above. Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group , if it be the case that women in Pakistan may be so described.' (Footnotes omitted, emphasis added.) See also Khawar at [79]-[80], [87] and [114] ff. 41 S152 effected no modification of Khawar . 43 The Tribunal had before it material from the appellant's father which she and her father had wished to have considered by the relevant Australian authorities. Her father suggested that he was treated differently and less favourably, when he complained, by the local police, Muslims, because he was Chinese. It was elsewhere asserted in the materials relied on by the appellant that all the police are Muslims. The Refugee Advice and Casework Service (Australia) Inc ('RACS') had submitted on behalf of the appellant that she 'fears that the police and authorities in Indonesia will not protect her because of the fact she is a Christian Chinese...'. Her solicitor had also submitted that the appellant's father had provided a statement detailing his experience with the police: 'He reported the matter to the police who took no action, he opined that it was due to the fact that he and his daughter were Chinese whereas the police and the rapist were Muslim.' The appellant's solicitor, citing Khawar (at [29]), submitted that '[o]n its face, this is a further case of persecution. Even if the original rape was not for a convention reason, the failure of the authorities to investigate and take action in respect of the rape can amount to persecution if such inaction was motivated by questions of race.' The Tribunal Member who first heard the appellant's case recorded that the appellant had 'also stated that her father and brother had reported the assault to the police but they took no action. The Indonesian authorities were not interested in protecting her.' The Tribunal Member asked the appellant 'how, in her view, the police could have done anything without more information.' According to the Member, the appellant did not respond to that question, but 'reiterated that the complaint was ignored because she was of Chinese descent so was ignored. There were fights between Muslims and Chinese Christians.' 44 The Tribunal appears to have accepted the appellant's claim that her attacker was a threat to her on account of her complaint to the police. It was also apparently accepted, at least, that the appellant had been raped; that this had been reported to the police; that they had, at best, done nothing useful directed towards apprehending the rapist, and that she had been raped again by the same man on account of the complaint to the police. 45 In such circumstances, it behoved the Tribunal, in light of the several ways in which the appellant put her case, to examine whether the appellant might qualify for refugee status. There is nothing abstruse or indirect in the proposition, which readily springs to mind, that despite anti-racist sentiments expressed and progress initiated at the highest levels of government, these may have had little effect at local police level.