Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Outcome: cited
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. 31 In considering whether effective state protection was available, the appellant submitted that the Tribunal was required to consider whether there was a reasonably effective and impartial police force and a reasonably impartial system of justice: see S152 at [26]. The appellant argued that the Tribunal's reasoning reveals no consideration of whether effective state protection was available to the appellant 'on the ground' or at a 'micro' level, as was required: the question was, what would be available as a practical matter to a woman in the position of the appellant? 32 The appellant submitted that, had the Tribunal really questioned whether there was an effective and impartial police force and a reasonably impartial system of justice, as required by S152 , it would have dealt with the suggestion by the appellant's father that the police had not responded to his complaint of his daughter's rape because she is Chinese, and that the appellant was raped again after the complaint. 34 The Minister further argued that in a case of persecution by non-state agents the question of state protection may be relevant at three stages of the inquiry: whether the fear is well-founded; whether the conduct giving rise to the fear is persecution, and; whether the appellant is unable, or, owing to fear of persecution, unwilling, to avail herself of the protection of her state: S152 per Gleeson CJ, Hayne and Heydon JJ at [21]. It was for this reason that the High Court allowed an appeal from the judgment of the Full Court of the Federal Court in S152 that turned on a finding, similar to the appellant's argument in this appeal, that the Tribunal erred in failing to determine whether there was protection available 'in a practical sense'. 35 However, while the 'ability of the state to discharge its obligation to protect its citizens', may , as counsel for the Minister submitted, be relevant at three stages of the inquiry, it is here, in my view, relevant to the second question identified by Gleeson CJ, Hayne and Heydon JJ, viz 'whether the conduct giving rise to the fear is persecution' (at [21]). If the state, despite the good intentions of its leaders, is not able, at what might be called the operational or grass-roots level, to have its operatives provide an acceptable level of protection against serious harm, and the dereliction of those operatives has as its basis their discrimination of a Convention kind against the appellant, that situation, as Hale LJ put it in Horvath v Secretary of State for the Home Department [2000] 1 NLR 15, 'may turn the acts of others [ie non-state actors] into persecution for a Convention reason' (at 52 and quoted with approval by Lord Hope of Craighead in the appeal to the House of Lords (see [2000] UKHL 37 ; [2001] 1 AC 489 at 497)). 36 So much was uncontroversial in S152 . S152 was a case where harm had been inflicted by non-state actors for Convention reasons. The majority in the High Court took the view that (at [26]): ' [n] o country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged ... evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.' 37 In the present case, by contrast, (if the matter were sufficiently raised by the appellant), although the serious harm done to her by a non-state agent was not itself inflicted for a Convention reason, she might nevertheless be refugee if, for Convention reasons, namely, anti-Chinese racism merging into antipathy for Chinese women considered as a social group exhibited by the local police, the State failed, to provide a 'reasonably effective and impartial police force' (cf S152 at [26]) at a grass-roots level. That is, the State's weakness or incompetence, whatever its leaders' good intention, in having its norms carried out, might have permitted the local police to engage in Convention persecution themselves, by failure (for Convention reasons) to prevent and act against those who would cause the appellant serious harm. 38 As I read S152 , nothing in it, or otherwise in principle, denies that such a claim, if made out, may constitute the appellant a refugee. She would be in her predicament because of the risk of serious harm coming to her for a Convention reason. As the Convention definition puts it (see Article 1(A)(2)), she would be: '...owing to well-founded fear of being persecuted for [Convention reasons] ... outside the country of [her] nationality and ... , owing to such fear ... unwilling to avail [herself] of the protection of that country'. 39 As the 'Michigan Guidelines', developed by Professor Hathaway and others, put it: 'The causal link between the applicant's predicament and a Convention ground will be revealed by evidence of the reasons which led either to the infliction or threat of a relevant harm, or which cause the applicant's country of origin to withhold effective protection in the face of a privately inflicted risk. Attribution of the Convention ground to the applicant by the state or non-governmental agent of persecution is sufficient to establish the required causal connection.' (See: Hathaway, 'The Michigan Guidelines on Nexus to a Convention Ground', Michigan Journal of International Law (2002) vol 23, pp 211-222 at 215.) 41 S152 effected no modification of Khawar .