FEDERAL COURT OF AUSTRALIA

SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 262

SLGB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 482 of 2003

SELWAY J

18 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking orders for prohibition, certiorari, mandamus and injunction in relation to a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal was not satisfied that the applicant was a refugee and confirmed the previous decision not to grant him a protection visa.  For the reasons given below I am of the view that the applicant has not identified any jurisdictional error in the process, reasoning or decision of the Tribunal.  The application is dismissed.

2                     The applicant is a citizen of South Africa.  He arrived in Australia on 16 December 2000.  On 29 January 2001 he applied for a protection visa.

3                     In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) had to be satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).  In general terms the Minister had to be satisfied that the applicant was a “refugee” as defined in the Convention as being a person who:

‘… owing to a 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.’

4                     The applicant claimed that he had a well-founded fear of persecution by reason of his political views.  He lived with his family in Durban, South Africa.  He claimed to be a member of the African National Congress (“the ANC”).  He also said that he was a “coloured” person.  He said that he was at risk from the rival Inkatha Freedom Party (“the IFP”) members (many of whom were Zulu persons, but some of whom were coloured persons) on the basis that he was a member of the ANC.  He also claimed to be at risk from other coloured persons who supported the National party, rather than the ANC.  He stated that members of one or other of these groups had attacked his friends and him on various occasions and made death threats against him.  He said that the situation became particularly frightening immediately before the South African local government elections in December 2000.  He claimed that the police would not protect him because he was coloured and because they were supporters of the IFP. 

5                     His application for a protection visa was heard by a delegate of the Minister who dismissed it on 15 February 2001.  The applicant then sought a review of that decision by the Tribunal.  The applicant gave evidence to the Tribunal.  The Tribunal described that evidence as follows:

‘The applicant told the Tribunal that he had become an active member of a student chapter of the ANC, run by a particular youth organiser. In his final year at school (during the year 2000) he participated in political activities designed to support the ANC in the elections scheduled to be held at the end of the year. His activities primarily consisted of pasting up posters after school. One afternoon, when thus engaged, he and his friends were confronted by a group of youths. After some argument, in which it became apparent that the youths were Inkatha Freedom party supporters, there was a scuffle and the applicant’s friend was kimfed by one of the opposing youths. The applicant and his friends reported this incident to the police who recorded the information but the assailant was not arrested.

On another occasion, the applicant found himself in a political row with someone at soccer practice after school. Although the other youth punched the applicant, the applicant withdrew from the situation because he recognised the aggressive youth as a gang member.

Another time, a group of youths came to the applicant’s house. He was not there but they bothered his mother. From his mother’s description later, the applicant knows that they were not any of his friends or acquaintances.

To minimize harm, the applicant was escorted to school and back by his uncle. Nevertheless, he said that there was ongoing harassment for reason of his political opinion, to the point where he felt that he could not speak publicly any more. In answer to the Tribunal’s question, the applicant said that he attributes the harassment to his pro-ANC political views. It was not race: he noted that two of the particular IFP gang who harass him are coloured youths like himself.

The applicant’s aunt, speaking as a witness in this case, said that she was receiving phone calls from her sister - the applicant’s mother - expressing fears about what was happening to the applicant. Her concerns were such that the family decided that the applicant should come to his aunt in Australia as soon as his final school exams were finished. These took place in November 2000 and the applicant arrived here in mid-december.

The Tribunal put it to the applicant that his concerns were restricted to the local area. The Tribunal acknowledged that Durban was known to be an IFP stronghold but put it to the applicant that there were many other areas where the IFP had no presence. The Tribunal put it to the applicant that he had handled the situation well to date (by moving away from confrontation, as at the soccer field); he had avoided serious harm; and had now completed his schooling: so why could he not pursue his tertiary education at a place other than Durban?

The applicant replied that he had been to some other places - for example, he had been to Johannesburg. Even there, he had been advised to keep his ANC keyring hidden because where he was staying with his cousin, there were many IFP supporters. The applicant felt he would not be safe elsewhere.  The applicant’s aunt noted that the applicant had been sent away from Durban by his family during the holidays, but there were IFP supporters everywhere.  The aunt also noted the fate of the young woman who worked as the organiser of the applicant’s student ANC group – the one who gave them the ANC posters to stick up. This young woman was shot just two weeks after the applicant left South Africa and the murderers have not been identified or found or brought to justice. The aunt noted that the applicant could not rely on state protection: as a coloured, he was likely to get short shrift from the police. Coloureds generally faced a lack of support, she opined.

The Tribunal asked the applicant about the fate of his family since he left Durban. The applicant replied that they were still living in the same house; his two brothers were still at school. The applicant was the only one who was targeted because he was the only family member who publicly worked for the ANC. However, his father had been asked for his (the applicant’s) whereabouts one evening in the local bar or club, by one of the gang members. The applicant feels that he is still being wanted by the IFP gang, despite his absence.

The applicant’s aunt added that the family would be known as ANC supporters because her own relative had served several years in jail during the apartheid regime as an ANC supporter and was not released until Mandela came to power in 1994.

The Tribunal put it to the applicant that the ANC was the ruling party and enjoyed popularity in South Africa; it was difficult to believe that the state would not offer protection to those of its citizens who were being harassed by members of a minor party because of their support for the ANC. The adviser replied that the state was struggling with law and order issues and in those circumstances was unable to protect the minority groups (in the applicant’s case, the coloureds).’

6                     The Tribunal accepted that the applicant was involved in politics and that he supported the ANC.  It accepted that he had been involved in scuffles and that one of his friends had been cut with a knife.  The Tribunal also looked at “country information”.  It found that there had been “a history of antagonism” between the ANC and the IFP, particularly in KwaZulu-Natal Province.  It noted that Durban was an IFP stronghold.  The Tribunal concluded:

‘There is nothing before the Tribunal which suggests that the applicant cannot access state protection. The police acted properly on the one occasion when their help was sought, although they were unable to bring the assailant to justice. The independent evidence immediately above indicates that the police in KwaZulu-Natal are conscious of the dangers of political violence and have acted to defuse it, and with some success. The same evidence also indicates that the leaders of the IFP have established – again with some success – rules of behaviour for their members, which indicates that the youths who are abusing the applicant are either not members of the IFP (and simply claim membership) or are undisciplined members acting outside party guidelines. It appears from the applicant’s testimony that the youths abused him opportunistically – that is, when they happened to see him. The testimony did not indicate that they waited at a specific time or place, such as when he came out from school every day. They did not appear to be systematic political operatives, but rather, unemployed youths with anti-social traits.

The applicant has not been harmed in the past, although his friend suffered a knife wound. The applicant has rightly moved away from situations of physical conflict. There is no reason why these rules of sensible behaviour would not continue to keep him safe in the future. On the other hand, as the IFP-ANC problem is largely confined to KwaZulu-Natal, there is no reason why the applicant should not relocate to another place within South Africa. In any other places, he will find himself in the political majority. He wishes to continue with his studies; there are colleges and other institutions in many cities beside Durban; and there is freedom of movement within South Africa. He has relocated to Australia without apparent difficulties and it is reasonable to assume he could make similar adjustments to living away from Durban but within South Africa.

In short, the Tribunal is not satisfied that the applicant has suffered harm that was of a type and gravity that could be rightly called persecution. It is not satisfied that he was or will be denied state protection. It finds it reasonable that the applicant can relocate away from his home province where the specific type of harm he fears is more likely to occur.

The Tribunal is satisfied that harm amounting to persecution has not befallen the applicant in the past for a Convention reason; and that the chance that such harm will befall him in the reasonably foreseeable future is remote. It follows that the tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason.’

7                     The Tribunal was not satisfied that the applicant had a well-founded fear of persecution.  It affirmed the decision not to grant a protection visa.

8                     On 5 May 2003 the applicant instituted proceedings in this Court seeking to review the Tribunal’s decision.  That application gave no hint as to the grounds upon which review was sought.  There were subsequently two amended applications filed.  The submissions made by Mr Patel, who eventually appeared for the applicant, bear no relationship to the grounds set out in the amended applications.  Mr Patel has not filed a Notice of Acting.  However I am prepared to assume that he has instructions, given that his client contacted the Court on at least one occasion seeking adjournments on his behalf. 

9                     Mr Patel made oral submissions on 13 February 2004.  After using all the time available for oral submissions without finishing his own he was given leave to file further submissions in writing provided that they were less than four pages long.  He has filed written submissions which would seem to encompass all of the oral submissions that he previously made.  He has nevertheless been able to keep them within five pages, apparently by the expedient of using a font size so small that the submissions are very difficult to read.  I have relied upon those written submissions as encompassing the arguments that the applicant wishes to put in support of his case. 

10                  Both parties acknowledge that in order to succeed the applicant must establish that there is a “jurisdictional error” see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  The applicant says that once a jurisdictional error is identified then the matter must be returned to the Tribunal for further hearing.  Plainly that is not the case.  Even if a jurisdictional error is identified, this Court will usually only interfere if that error affected the result or, at least, could have done so (see Re Refugee Tribunal Ex parte Aala (2000) 204 CLR 82 at 109, 122) and even then only where it is appropriate to grant the relevant relief: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 395-396 [33].  Consequently, where a decision is supported by a number of independent grounds only one of which is affected by jurisdictional error it is unlikely that the decision of the Tribunal would be set aside.

11                  The first argument is that the Tribunal misunderstood the claim put by the applicant.  It is argued that the applicant’s case was that he was persecuted because he was both an ANC supporter and he was coloured.  It was argued that this was “a particular social group” for the purposes of the Convention and that the failure of the Tribunal to consider the issue in that context meant that the Tribunal had fallen into jurisdictional error. 

12                  It seems to me that this is not a case where reference to a “particular social group” has much relevance.  Arguably there were two aspects of the applicant’s claim before the Tribunal.  The first was whether he had a well-founded fear.  As to that, the applicant himself in his evidence to the Tribunal identified the basis of his fear as being his political belief and actions, rather than his race.  As he accepted, those that he feared included members of his own race. 

13                  The other aspect of his claim was that the authorities would not or were incapable of protecting him.  Apparently his aunt gave evidence that they would not protect him because he was coloured.  Whether this should be viewed as a separate basis of a well founded fear or merely as evidence supporting his case that the State would not protect him from persecution by his political opponents does not seem to me to be critical.  The real question is whether the Tribunal understood and addressed the claim that the applicant put to it: see Dranichnikov at 394 [24]; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [16]-[18].

14                  In my view the Tribunal did understand the case that the applicant (including his aunt) had put to it.  That case is clearly described in the Tribunal’s reasons.  The case was answered in three ways.  First, the Tribunal did not accept that the applicant was at real risk of political violence.  Second, it did not accept that the police would not protect him.  Third, it did not accept that he could not relocate to another place in South Africa where he would be safe.  Those findings necessarily answered the case that the applicant had put to the Tribunal, regardless of whether that case is considered as one based upon race, or upon political belief, or upon both race and political belief or upon being a member of a social group.

15                  The second ground of alleged jurisdictional error is that the Tribunal misapplied the definition of “persecution” and “serious harm”.  The applicant argues that the Tribunal should have found that the previous incident involving the applicant being “punched” and other incidents in which he was taunted or harassed were capable of establishing that the applicant had been persecuted.

16                  Of course, the issue before the Tribunal was not whether the applicant had been “persecuted” in the past but whether he had a well-founded fear of persecution if he was returned to South Africa.  What had happened in the past was only relevant because the applicant referred to it to explain his current subjective fear, and as evidence from which it might be inferred objectively that something similar might occur in the future: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574-575; M66 in the matter of an application for writs of Prohibition, Mandamus and Certiorari against the Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1482 at [24]; SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1315 at [97].  To that extent the question apparently addressed by the Tribunal of whether the applicant had in the past “suffered harm amounting to persecution” was not a question it needed to address as such, although the facts it found were relevant to the question it did need to answer.  On the other hand, if its answer as to whether the applicant had been persecuted in the past showed that it misunderstood the meaning of the word “persecution” then it might be argued that its consequent conclusion “that the chance that such harm will befall him in the reasonably foreseeable future is remote” may be based upon an error of law.

17                  The question then is whether the conclusion reached by the Tribunal that the past events it identified did not amount to persecution evince an error of law in its understanding of that word?  In my view it did not. As was pointed out by the Full Court of this Court in SBBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 281 at 287-288 the meaning of “persecution” must now be understood in light of the provisions of s 91R of the Act which provides in part:

‘(1)      For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

            (a)        that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

            (b)        the persecution involves serious harm to the person; and

            (c)        the persecution involves systematic and discriminatory conduct.

(2)       Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

            (a)        a threat to the person’s life or liberty;

            (b)        significant physical harassment of the person;

            (c)        significant physical ill-treatment of the person;

            (d)        significant economic hardship that threatens the person’s capacity to subsist;

            (e)        denial of access to basic services, where the denial threatens the person’s capacity to subsist;

            (f)        denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.’

18                  Plainly enough being taunted and harassed, without more, would not fall within this understanding of “serious harm”.  A single incident of a punch would probably also not do so, at least in the absence of some evidence to show that it was “significant”.  Leaving aside the death threats that the applicant claimed he received, the Tribunal’s analysis of the previous harm endured by the applicant is consistent with the statutory definition.

19                  The other aspect, of course, is that the persecution must be “systematic”.  The Tribunal expressly found that it was not.  It found that the “youths abused [the applicant] opportunistically …  They did not appear to be systematic political operatives, but rather, unemployed youths with anti-social traits”.

20                  I am not satisfied that there was any jurisdictional error in the Tribunal’s interpretation of the word “persecution” or in its application of that definition to the facts that it found.

21                  The third alleged jurisdictional error was that the Tribunal erred in imposing a requirement upon the applicant that he suffered persecution in the past, rather than that he had a well-founded fear of persecution if he returned.  This issue has already been discussed above.  It is clear that the Tribunal did identify and answer the right question even if it unnecessarily answered the further question of whether he had suffered persecution in the past.  In my view there is no jurisdictional error on this ground.

22                  The fourth alleged jurisdictional error was that the Tribunal applied the wrong test as to whether the applicant could have safely relocated elsewhere in South Africa.  The basis of this alleged error is not explained, other than to suggest that there is something wrong with the obvious point made by the Tribunal that if the applicant could relocate from Durban to Australia then he may well have been able to relocate elsewhere within South Africa.  The question the Tribunal needed to address was whether it was reasonable for the applicant to re‑locate elsewhere within South Africa: see Perampalam v Minister for Immigration (1999) 84 FCR 274, 283-284; Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.  The Tribunal put that issue squarely to the applicant and to his aunt.  The applicant’s response was that he was at risk everywhere in South Africa and that he could not rely upon state protection anywhere in South Africa.  The Tribunal found that that was not even true in Durban.  It also specifically found that Durban is an IFP stronghold.  It found that “there is no reason why the applicant should not relocate to another place within South Africa.  In many other places he will find himself in the political majority.”  Not only is there no jurisdictional error in these conclusions, in the absence of any accepted reason having been put forward as to why he could not relocate, they are self evidently correct.

23                  The fifth alleged jurisdictional error is that the Tribunal misapplied the concept of “State protection”.  It is alleged that the Tribunal failed to understand that the issue of “State protection” arose in the context of whether or not the applicant had a well-founded fear of persecution.  The short answer to this argument is that it is apparent from the reasons set out above that the Tribunal did not misunderstand the concept.

24                  The sixth alleged jurisdictional error is that the Tribunal took account of irrelevant matters or alternatively failed to take account of relevant matters.  It is not apparent that this ground raises any issue that has not already been considered in relation to the first ground.  In any event, the applicant has not identified any jurisdictional error on this ground.

25                  The seventh alleged jurisdictional error is that the Tribunal failed to consider all claims made and articulated by the applicant.  It is also not apparent that this raises any issue not already discussed in relation to the first ground.  Again, no jurisdictional error is identified.

26                  The eighth alleged error is that the Tribunal relied upon adverse information which it did not disclose to the applicant and which it did not reveal in its decision.  The applicant does not claim to know what this information is - the argument seems to be that unless such “secret” information existed then the Tribunal could not have reached the conclusion it did.  It is a kindness to say merely that the argument discloses no jurisdictional error.

27                  For these reasons there was no jurisdictional error in respect of any of the three bases upon which the Tribunal reached its conclusion which are refereed to in [14] above.  As already mentioned, even if there had been a jurisdictional error which was limited only to one of those bases, but not the others, then it is not likely that any relief would have been granted in any event.  However, I am satisfied that there is no jurisdictional error in relation to any of the grounds.

28                  The application must be dismissed.

Associate:

Dated:              17 March 2004