Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 
Outcome: discussed
The second proposed ground is said to be a breach of s 91R(1) of the Act. The appellant contends that the Tribunal was in error of failing to find that the confiscation of the appellant's land amounted to persecution for a Convention reason. The appellant also contends that the Tribunal failed to consider the question of state protection ie. that state acquiescence in the use of private power may constitute persecution for a Convention reason: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1. 25 The third ground is failure to properly apply the provisions of s 91R(2) of the Act. In particular, the appellant contends that the Tribunal's finding that he did not suffer serious harm was flawed by a failure to consider the cumulative effect of various matters including the confiscation, his arrest and mistreatment and his inability to pursue his compensation claim. 26 The fourth ground is related to the second and third grounds. It is that the Tribunal failed, either actually or constructively, to exercise its jurisdiction under s 414 of the Act. In particular, the appellant contends that the Tribunal failed to consider the issue of state protection and the cumulative effect of the matters referred to in the third ground. 47 The essence of the appellant's submission is that the Tribunal misapplied the law because in making this finding it failed to appreciate that persecution may result from the conduct of private persons and the state or its agents: Khawar at [30] per Gleeson CJ. 48 As the Chief Justice observed in Khawar at [30] [31], tolerance or condonation by the state of the criminal conduct of private persons resulting in the withholding of protection may amount to persecution on one of the Convention grounds. 49 However, the difficulty with the appellant's submission on this ground of appeal is that it focuses upon the issue of the state's apparent acquiescence in the act of confiscation without addressing the question of whether the act of confiscation amounted to serious harm. 50 The confiscation of the appellant's land was the starting point of his claim to have a well-founded fear of persecution. It was an essential part of the claim but it was not to be considered in isolation. 62 In my opinion, the substance of the appellant's complaint is similar to that which was made in Khawar . It is that he suffered serious harm, albeit economic harm, that he is unable to take action to redress that harm without threat to his life or liberty because of the involvement of state authorities in the infliction of the harm, and that this amounts to persecution by those authorities: Khawar at [79] [80]. 63 The necessary Convention nexus is said to be imputed political opinion or membership of a particular social group, namely dispossessed farmers from the Fuqing Economic Zone. 64 In accepting that the appellant's mistreatment following the demonstration was serious enough to amount to persecution, the Tribunal must be taken to have formed the view that the appellant had suffered serious harm. But it failed to deal with the relationship between these events and the initial act of confiscation which it apparently regarded as a criminal act by the local government and the developers.