Case: Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374
Outcome: cited
Counsel argued that the Tribunal had erroneously held that persecution under the Convention required a course of systematic conduct aimed at an individual or a group and/or a systematic violation of human rights. This formulation was said to be contrary to the decision in Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374 and contrary to the proposition that individual acts of persecution could be enough to support an inference of a well-founded fear of persecution in the future. 11 Her Honour observed that the Tribunal appeared to have accepted that the husband's fear of persecution was genuine. She cited decisions in the Federal Court which had discussed the meaning of systematic persecution. She considered the Tribunal's reasons. She noted that the mere use of the word 'systematic' could not of itself be indicative of error. Whether it was erroneously used would depend on the circumstances. Her Honour said (at [30]): 'In this case the Tribunal, earlier in its decision, had commented that in appropriate cases persecution may be indicated by single acts of oppression. It therefore cannot be said that the Tribunal was necessarily in error when it referred to "a course of systematic conduct aimed at an individual or a group". The real question is whether the Tribunal erroneously required the applicant to show that there had been a repeated course of persecutory conduct in order to meet this criterion.' Upon an analysis of the Tribunal's decision her Honour found it not to disclose any such error. 12 There was another complaint of discrimination based on language law relating to the use of the Russian language in Latvia. A fine was said to have been imposed upon the husband for failing to speak the State language in the course of business. It was submitted to her Honour by the Minister's counsel that persecution would not include the application of a legitimate law of general application. Her Honour said (at [41]): 'The application of this exception was not discussed by the Tribunal. In the light of the Tribunal's main finding on the matter it was unnecessary to do so. However this consideration provides a further basis, according to Mr Reilly, for concluding that the Tribunal's finding that the law which required that Latvian be spoken in the workplace did not constitute persecution.' She further stated (at [42]): 'This submission is, in my view, well based. However it is unnecessary in the circumstances to have resort to it. For in my opinion the Tribunal was entirely justified in finding that the fining of Latvian citizens, including the applicant, for failing to speak Latvian in the workplace is not "sufficiently serious conduct" to amount to discrimination or persecution.' 13 In relation to the wife who was said to have suffered assaults while in Latvia, her Honour said (at [30]): 'The Tribunal was not satisfied that ethnic Russians as a group were subjected to systematic or sustained human rights violations. There was "some discrimination" and "occasional violence" directed against Russians.' Her Honour found (at [30]): 'Having made this finding it was clearly open to the Tribunal to conclude, as it did, that the mere fact of being an ethnic Russian in Latvia was not sufficient to give rise to such a well-founded fear. Nor was it prepared to find that the assaults committed upon the applicant were sufficient to give rise to a well-founded fear of persecution. The Tribunal's reasoning could, as I have already commented, have been more transparently stated. However its purport was, in my view, sufficiently clear to display that, given the beneficial construction which this court is required to apply, no error has been shown.' 14 In relation to the State protection question her Honour said that (at [31]): '... the Tribunal noted that it could find no independent reports to suggest that, inter alia, "Latvian police do not protect ethnic Russians".' She construed that finding as (at [31]): '...a finding that the applicant would be able to seek the protection of the Latvian police.' And added (at [31]): ' This finding has not been challenged on appeal, nor could it be. It was clearly open for the Tribunal to reach this conclusion on the basis of the evidence before it. The independent evidence on the subject was all one way. The complaints in the applicant's statement about the police reactions to her husband's or her friend's complaints were hardly sufficient to counteract this material, despite the strength of the language she used.' For those reasons she found the first ground relied upon by the applicants had not been made out. 15 On the question whether the Tribunal had failed to observe requisite procedures it was submitted on behalf of the wife that the Tribunal had failed to make findings as to whether the attacks were inflicted for a Convention reason. Her counsel urged that the question whether she had been targeted by reason of her ethnicity went to the core of the issue of whether she had a well-founded fear of persecution and was a matter upon which the Tribunal was obliged to make a finding. 16 Her Honour accepted that the Tribunal had made no explicit finding that the attacks against the wife were perpetrated for a Convention reason. However, a reading of its decision made clear that the Tribunal accepted this to have been established. It referred to some discrimination against ethnic Russians and observed that occasionally violence is directed against them. Her Honour said (at [36]): 'It is important to note that the only evidence before the Tribunal as to acts of violence being perpetrated against ethnic Russians was that of the applicant and her husband relating to the attacks upon themselves.' She did not consider that a breach of s 430 of the Act had occurred and she dismissed the application. 17 I mention the basis upon which the matters which were put to her Honour in 1999 and the basis upon which she dismissed the applications for review because the grounds for review at that time were limited to those set out in s 476 of the Act and it might be argued that, in an application for prerogative relief, wider grounds were available particularly for breach of procedural fairness (other than actual bias which was preserved as a ground of review under the old s 476). Those grounds were precluded from the scope of judicial review under the previous regime.