BJH23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 996
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJH23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 996
File number(s): PEG 84 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 2 November 2023 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal (“Tribunal”) decision – protection visa – persecution – refusal.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the Tribunal failed to consider the applicants’ claims, misdirected itself as to the matters in issue and by failed to consider a claim that had not been articulated.
Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 5K, 5L, 36, 474, 477 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff M1 of 2021 v Minister for Home Affairs (2022) 96 ALJR 497
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZRPA v Minister for Immigration and Citizenship [2012] FCA 962
SZQFR v Minister for Immigration and Citizenship [2013] FCA 574
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Division: General Number of paragraphs: 35 Date of hearing: 28 September 2023 Place: Heard in Perth, delivered in Sydney (via videolink) Counsel for the Applicants: Mr T. Lettenmaier Solicitor for the Applicants: Kotze Law Counsel for the First Respondent: Mr C. Beetham Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
PEG 84 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJH23
First Applicant
BJJ23
Second Applicant
BJK23
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicants are citizens of the Republic of South Africa (“South Africa”) who arrived in Australia on 28 June 2017. The first and the second applicants are married and the third applicant is their daughter. On 27 July 2017 the applicants lodged an application for protection visas with what is now the Department of Home Affairs (“Department”). In it, the first applicant alleged that he feared persecution in his country of nationality because of an altercation in restaurant there (“Restaurant Incident”) between himself, a person of European descent, and a female diner, a person of African descent, following a dispute between their children in the restaurant’s play area. The altercation was recorded and posted on social media and resulted in mass media interest, personal threats made via social media and the involvement of a private security group. Although the form 866B entitled “Persons included in this application and family composition” said that the second and third applicants did not make their own claims for protection, the second applicant did make a separate claim in her form 866C entitled “Personal details for each person included in this application”. The third applicant’s claim for visa was as member of the family unit including one or both of her parents.
On 18 October 2019 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision.
The applicants’ application for judicial review was filed outside the limitation period set by s.477 of the Migration Act 1958 (Cth) (“Act”) but on 28 September 2023 with the agreement of the parties, the time within which to bring the proceeding was extended to 24 May 2023.
In proceedings for judicial review of a Tribunal decision, the Court’s task is to determine whether the Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons that follow the application will be dismissed.
RELEVANT LEGISLATION
The Act relevantly provides:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
…
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(2)A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
…
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)a characteristic is shared by each member of the group; and
(b)the person shares, or is perceived as sharing, the characteristic; and
(c)any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
…
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
CLAIMS BEFORE THE DEPARTMENT
The Tribunal summarised the claims the applicants made to the Department in support of their visa applications as follows:
•The applicant was involved in an altercation with a black female on 19 March 2017 at a restaurant chain. Video of the incident was uploaded onto social media and then reported on in the news. As a result of this incident the applicant and his family received threats from members of the public.
•Media waited around the applicants’ home and ‘black individuals’ sought the applicant at his work place and his gym. His parents were also targeted, leading them to flee their home and ultimately South Africa. The applicant's mother and step-father are now in Australia and have lodged a separate Protection visa application.
•The Rustenburg Commando and the Afrikaner [sic] Resistance Movement contacted the applicant and took him to a safe house; Applicant 2 and their child stayed at a friend's home. Each of their Facebook accounts were deleted and the SIM cards removed from their phones so that they could not be traced.
•… The applicants have also experienced robberies and a home invasion.
•The applicant and his family fear being harmed as a consequence of the incident at the restaurant.
Further claims and submissions made in a 5 October 2022 submission by the applicants’ representative were summarised by the Tribunal as follows:
a.The Caucasian population of South Africa is a minority group, and racial tensions are rife in that country.
b.The … Restaurant Incident was merely a disagreement between two parents and would not have caused people to ‘lift an eyebrow’ if the two parents had been of the same race.
c.The … Restaurant Incident is ‘a demonstration of exactly how fragile the tension is...a white man must live in fear the whole time of offending a black person in any way as the consequences can literally be life threatening."
d.After the … Restaurant Incident the applicants were persecuted by black action groups as well as individuals, and were threatened with death, rape, and intimidation. They will be in extreme danger if they return to South Africa.
e.Their presence may even cause racial tension to explode or at the very least escalate to the point where the government will have to act to calm the black masses.
In that submission it had been argued:
1)The family is very much aware that it will only take a very small incident to re-ignite the animosity against this family if they return to South Africa.
2)They will have to literally stay in hiding as the “[Restaurant] incident” will attract immediate media attention if any small misstep from any of the family members comes to light.
(emphasis added)
The Tribunal set out the more detailed claims made by the applicants in a submission dated 30 January 2023 as follows:
The January 2023 Statement makes more detailed submissions about the history of racial tension in South Africa, and the cultural differences between the black and white populations. It expands on the submission that the aftermath of the … Restaurant Incident illustrates the extent of the racial tension between black and white populations, and sets out the risk to the applicants if they return to South Africa in the following terms:
Not safe to return
48) As with most international racist events, (such as George Floyd), the media is always ready to pounce again on any flair-up of news regarding the incident.
49) The family is very much aware that it will only take a very small incident to re-ignite the animosity against this family. Even their return top [sic] South Africa can turn into another media circus and an enlivenment of the whole incident.
50) Political groups (especially the EFF) are eager to capitalize on any weakness of the ruling government (ANC) that will benefit them. If this family returns and it become [sic] known, they will most likely demand action from the government against this white man who, in the eyes of the black people, represents the enemy they were trained to hate. The White man.
51) More likely is personal attacks by black individuals or smaller action groups, taking the law in their own hands as happened after the incident, and the veracity is unknown and there is no way the South African Police or the government can assure their safety or protection. These threats vary from Rape to Murder in the most horrific manner thinkable.
52) But most likely is the fact that neither of them will be able to find a job in South Africa, as no company will want to associate with this incident.
53) This means that they will not be able to make a living as he has no specific skill.
54) The psychological impact on his children because of this incident is also real and will add to their anxiety if forced to return to South Africa.
The second applicant made further claims before the Tribunal at hearing about the accessibility of education for the third applicant specifically in the context of the Restaurant Incident.
TRIBUNAL’S REVIEW
Evidence before the Tribunal
In its decision the Tribunal summarised the facts alleged in support of the applicants’ claim for a protection visa. Relevantly, it referred to:
(a)information including video footage and written articles about the Restaurant Incident was available online and certain sites were still being accessed by viewers at the time of the Tribunal decision;
(b)LinkedIn messages from 2022 that the first applicant exchanged with two separate identified individuals who sought information about him including his location and contact details;
(c)a media report of the death of a third party whose name was the same as the first applicant’s which was initially reported as the death of the first applicant;
(d)support provided to the applicants by the Rustenburg Commando and Afrikaaner Resistance Movement (“Commando Group”) after the Restaurant Incident which included taking the first applicant to a safe house, advising the deletion of their social media posts and removing their phone SIM cards to prevent them being traced;
(e)the first applicant’s evidence that following the Restaurant Incident and while he and his family had been in hiding, there had been unknown cars parked outside their home, but no break ins, and the second applicant’s evidence that friends had told her the media had visited their home in that period;
(f)the first applicant’s evidence that after he returned to work following the Restaurant Incident he had kept an outdoors appointment with two black people but it turned out to be, in his assessment, suspicious but nothing untoward happened which he speculated had been because he had been accompanied by “protection”;
(g)the second applicant’s evidence that while she was hiding following the Restaurant Incident, her work colleagues reported that members of the media and an unspecified number of “unfamiliar black people” attended her workplace and asked for her;
(h)the unauthorised taking of photographs of the third respondent at school by an employee of her school following the Restaurant Incident and the subsequent suspension of that employee and the deletion of the photographs from her telephone after the second applicant made a complaint;
(i)evidence of alleged police corruption in South Africa and evidence of the role and effectiveness of policing in combatting criminal activities;
(j)reports that vigilantism, including “‘mob justice’ attacks” and occasions of lynching arising out of poor police resourcing, was a concern in South Africa;
(k)positive references from the first and second applicants’ employers in Australia and evidence that the second applicant had undertaken further study in Australia;
(l)country information about the employability of white people in South Africa and evidence provided by the applicants’ representative, who was also South African, regarding his “lived experience of ‘Reverse Apartheid’”; and
(m)the first applicant’s evidence of his belief that he had to cut all ties with South Africa because of the risk of being identifiable and locatable there through government data matching were he to provide anyone there with any identity information, such as a driver’s licence.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal was not satisfied that the applicants are persons to whom Australia has protection obligations under ss.36(2)(a) or 36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
(a)despite seeming honest in that he had not told the Tribunal anything he believed to be untrue, the first applicant’s perception of events was not reliable compared with others’ because he lacked the ability to revisit events from the perspective of others, including independent viewers;
(b)the second applicant’s evidence of events was accorded some weight by the Tribunal as she had demonstrated an appreciation for how events might appear from the perspective of others;
(c)based on screenshots of various social media posts they had provided, the Tribunal accepted the applicants’ evidence that online threats directed to them had been made immediately following the Restaurant Incident. However, the Tribunal found that there was little evidence of threats directed to them through their telephones or personal social media because they had shut them down quickly following the Restaurant Incident;
(d)the Tribunal found that it was not far-fetched or fanciful to conclude that at least some of the online comments made immediately after the Restaurant Incident might have given rise to hot-headed attempts to seek retribution of some sort against the first applicant, although it was unclear whether it might have been serious harm or just an unpleasant argument. However, the Tribunal concluded that the online comments showed that the outrage felt at the time of the incident was inspired at least in part by the video footage showing that the first applicant had expected to behave as he with did with impunity. The Tribunal observed that the initial calls for violence were about accountability for his behaviour that was variously characterised as racist and violent towards women, and that subsequent consequences for him and the restaurant had changed that landscape to some extent. The Tribunal was not satisfied that any future online threats would be genuine expressions of intent, or that attitudes to the first applicant were still so heated in South Africa that they posed a risk of physical retribution;
(e)media reports of the killing of a man with the same name as the first applicant’s were insufficient to establish that people had set out to kill the first applicant but had mistakenly killed someone else;
(f)the Tribunal accepted that a person who encountered the first applicant and recognised him could still find sufficient material available online to refresh their memory of what occurred during the Restaurant Incident and might still find others interested in revisiting what happened.It concluded that it was not a “remote or insubstantial or a far-fetched possibility” that once in South Africa the first applicant might be identified as the man involved in the Restaurant Incident;
(g)the Tribunal further concluded that the applicants were at risk of:
a.the ongoing availability of footage of each of them appearing online in the private and CCTV footage of the … Restaurant Incident, which will remain available for viewing online for the foreseeable future;
b.being identified by name in social media for each of their roles in the … Restaurant Incident;
c.being the subject of derogatory comments in social media, connected to the … Restaurant Incident; and
d.having to endure threats being made about them in social media
but was not satisfied that the presence of this online social media content was itself sufficient to amount to serious harm to the applicants;
(h)the Tribunal made no finding regarding written or telephone threats made to the applicants in South Africa following the Restaurant Incident as the applicants had very shortly after the Restaurant Incident disposed of their mobile phones and shut down their personal social media;
(i)the LinkedIn Messages were not accepted as a threat or indication of a real chance of serious harm to the applicants as they merely demonstrated that people were still interested in the Restaurant Incident and linked it to the first applicant;
(j)although the Tribunal accepted that violent crime was pervasive in South Africa, that South Africa had a high murder rate and that there was a risk of physical violence to the population in South Africa generally, it found that this behaviour was not usually directed at white people or a response to racial discrimination or gender violence;
(k)there was no evidence that the men at the outdoors meeting intended to cause the first applicant harm but, if they had, given that crime was rife in South Africa, the Tribunal would have had difficulty accepting that their plans would have related to his race or to the Restaurant Incident;
(l)although accepting that the Commando Group might have had some specialist knowledge about risk to the first applicant in the period following the Restaurant Incident, the Tribunal observed that was no evidence of what that risk was, how long it existed or how long the applicants should remain outside South Africa;
(m)there was no evidence to indicate who had parked outside the applicants’ home while they were in hiding following the Restaurant Incident or what the occupants of those cars intended to do, beyond some possibility that they were from the media;
(n)the Tribunal was not persuaded that because of the Restaurant Incident or because of their race, the applicants faced a risk of physical violence greater than the general risk to the population in South Africa;
(o)the Tribunal was not persuaded that any future online threats would be a genuine expression of intent or pose a risk of physical retribution because individuals were known to “declare spurious intentions online for the purpose of intimidation or to make a point” without that necessarily indicating a credible risk of physical harm;
(p)the Tribunal did not accept that first applicant’s assertion that “a white man must live in fear the whole time of offending a black person in any way as the consequences can literally be life threatening” was supported by the footage of the Restaurant Incident as, although the mother of the other child did respond, bystanders stood by and did nothing. The Tribunal said:
The footage shows a white man offending and/or frightening a black woman with no apparent fear of retribution whilst black men and women do nothing but watch.
The Tribunal concluded that the applicants had not made out their claim, as white people, of being at risk of harm perpetrated by black people but rather that the risk of violence was universal in South Africa and was in fact elevated by being black;
(q)the Tribunal accepted that the school employee's interest in photographing the third applicant might have been related to the Restaurant Incident but concluded that the taking of photographs that were not known to have been published, or shown to anyone beyond the employee’s immediate family over the weekend in which it they were on the employee’s telephone, did not support a finding that the employee intended to cause or facilitate physical harm to the third applicant then or in the future. The Tribunal found that there was no obvious reason why the third applicant could not return to school in South Africa;
(r)the Tribunal did not accept that as a result of the social media response to the Restaurant Incident the first and the second applicants would be unable to find work if they returned to South Africa because, while there might have been an impact on business prospects and employability, this was not wholly negative as some people supported the applicants’ position and the second applicant had been supported by her then-employer. The Tribunal concluded that while there might be narrower employment options, that did not amount to a real chance of serious harm to the applicants or inability to maintain a subsistence level income, and a contention that they did would be “far-fetched and fanciful”;
(s)the Tribunal did not accept that affirmative action employment policies in South Africa amounted to persecution of white people;
(t)the Tribunal was unpersuaded that the applicants’ evidence of corruption in the South African Police Service was significant because it only demonstrated that there were “problematic individuals”, which was an issue in every police force, and proved that there were effective measures to deal with problematic behaviour;
(u)the Tribunal found that the applicants were not refugees as defined by s.5H of the Act as they did not face a risk of serious harm for a reason prescribed by the Act but instead faced the same risk of physical violence faced by the population generally. The Tribunal considered that social media and economic risks alleged by the applicants did not rise to the level of serious harm and, in any event, were not for the essential reason of the applicants’ race or social group;
(v)in summary, the Tribunal:
(i)was satisfied that the applicants had a subjective fear of persecution which met the requirement of s.5J(1) of the Act by reason of the first applicant’s belief that he was at risk of serious harm due to online threats and people attending his address following the Restaurant Incident and the second applicant’s belief that the family would be recognised and vilified if they returned to South Africa;
(ii)was not satisfied that the applicants were at risk of serious harm beyond that which affected the population generally or that s.5J(4) of the Act was met. The ongoing social media coverage and publication of the applicants’ location was not a threat to their life or liberty, did not comprise significant physical harassment or ill-treatment and any economic harm would not threaten their capacity to subsist or impact the third applicant accessing education;
(iii)found that although the applicants’ race was repeatedly mentioned in reporting and on social media, the substantial portion of the criticism of the first applicant was because of the sex of the people involved or because of his behaviour in the Restaurant Incident, which the Tribunal suggested could be characterised as “unacceptable physical aggression ... [or] ‘violence’ towards women and children”;
(iv)understood that race was still deeply ingrained in South Africa and stated that while “anger by black people towards individual white people for individual conduct can manifest in the language of broader race relations [i]t does not necessarily follow that the essential and significant reason for the feelings of anger, or the consequent effect of the anger, is race”;
(v)found that the essential and significant reason for the international media’s interest in the first applicant’s role in the Restaurant Incident was his behaviour during the altercation;
(vi)was not satisfied that any real chance of harm to the applicants due to their social media profiles reached the level required to meet the requirements of s.5J(4)(a) of the Act would arise for the essential and significant reason of race;
(vii)concluded that the essential and significant reason for the unwanted attention to the applicants’ profiles was that there had been a dispute between parents about the behaviour of their children involving a physical escalation of the dispute by both individuals, the significance of which was compounded by a recording of the altercation being available online followed by polarised online discussions;
(viii)found that the first applicant’s behaviour in the Restaurant Incident was not for the essential and significant reason of race;
(ix)concluded that the recording and publication of the first applicant’s behaviour was an act, rather than an innate or immutable characteristic of the applicant, and therefore he was not a member of a particular social group;
(x)considered whether the first applicant’s family could claim to be members of a particular social group, namely a social group comprising family members of persons who have been involved in social media denigration, but concluded that they did not because the persecution the first applicant feared was not one based on race, religion, nationality, membership of a particular social group or political opinion but because of a wrong perceived to have been committed by him; and
(xi)found that because the first applicant was determined not to fear persecution for a refugee reason, the second and third applicants could not rely on their relationship to him for refugee nexus reasons;
(w)the Tribunal also considered whether the applicants could satisfy the complementary protection criteria in s.36(2)(aa) of the Act and stated that it:
(i)accepted that there were substantial grounds to believe that if the applicants returned to South Africa they were at an increased risk of violence amounting to significant harm;
(ii)considered that although protection was available from the South Africa Police Service, it was not sufficient to remove the real risk of significant harm to the applicants; and
(iii)found that that risk they relied on was faced by the population generally and that, as white people, their risk of suffering significant harm might have been slightly lower than the average.
THE PROCEEDING IN THIS COURT
In their amended application the applicants alleged:
GROUND 1
1.The second respondent failed to consider the applicants’ claims that (Court Book ‘CB’ 271 -272):
1.1 .any "small misstep" by them in their home country in the future would "re-ignite animosity" against them; and
1.2. the extreme high crime rate in South Africa would further expose them to risk such that the risk of execution of threats against them is real.
GROUND 2
2.The second respondent asked itself the wrong question under section 5(J)(4)(a) of the Migration Act 1958 (Cth) (Act) in relation to whether race was a significant or essential reason for the alleged persecution.
Particulars
2.1.The second respondent considered whether race was the essential and significant reason for the first applicant's conduct rather than what were the essential and significant reasons for alleged persecution (CB 567-569 and 586-587, [91 ]-[97], [100], [203], [205]-[207]); and
2.2.The second respondent applied a false dichotomy between the motivations of people who criticised the first applicant's conduct on the basis of it being violent towards women and children and those whose criticisms were racially motivated (CB 586 [199]-(200]).
GROUND 3
3.The second respondent failed to consider whether the applicants faced a real risk of significant harm because of the threats made online and on social media against them under section 36(2)(aa) of the Act.
Particulars
3.1.The second respondent found that threats made online and on social media against the applicants did not constitute serious harm (CB 571, (112]).
3.2.The second respondent did not consider whether online and on social media against the applicants constituted significant harm (CB 589-592, [218]-(232]).
Ground 1
Applicants’ submissions
The applicants argued that the Tribunal had ignored the claim they made in their 5 October 2022 written submission quoted earlier in these reasons:
1.The family is very much aware that it will only take a very small incident to re-ignite the animosity against this family if they return to South Africa.
2.They will have to literally stay in hiding as the [Restaurant Incident] will attract immediate media attention if any small misstep from any of the family members comes to light.
They referred to it as the Re-ignition Claim.
The applicants argued that although the Tribunal referred in its reasons to the October 2022 submissions, it ignored or misunderstood the Re-ignition Claim which could be inferred from a number of matters, including:
(a)instead of discussing the Re-ignition Claim, the Tribunal had instead cited another claim made in the October 2022 submission that:
Their presence may even cause racial tension to explode or at the very least escalate to the point where the government will have to act to calm the black masses;
(b)although accepting that the first applicant could still be identified and that in the immediate aftermath of the Restaurant Incident some people who made threats might have carried them out in “hot headed attempts to seek retribution”, the Tribunal did not consider what would happen if the controversy was re-ignited because of something the applicants did, or were perceived to have done; and
(c)the Tribunal stated that it was not satisfied that:
… attitudes to the primary applicant [were] still so heated in South Africa as to pose a risk of physical retribution …
which, the applicants contended, reflected a failure to consider what would happen if the controversy were to be “re-ignited”.
It was submitted that as the Tribunal’s task was to consider what might happen if the applicants were to return to South Africa, in circumstances where it accepted that there had been a chance of serious harm around the time of the Restaurant Incident, it was obliged to deal with the proposition represented by the Reignition Claim, namely that if tensions were to escalate, the risk of “hot-headed retribution” might return. The applicants submitted that the Tribunal concluded that tensions had eased over time such that they were not at risk of physical retribution without expressly addressing their submission that the situation could be reignited by a small misstep of theirs that became public knowledge.
Discussion
The applicants’ claim that were they to return to South Africa any “small misstep” by them would “re-ignite the animosity” towards them, was based on an assumption that in the period following such a return they would face a real risk of race-based harm arising out of the Restaurant Incident. Unless the Tribunal concluded that there would be such a risk, it did not need to consider whether “re-ignition “ of animosities might occur.
The Tribunal was not persuaded that there was a real risk to the applicants of race-based persecution in South Africa. After having regard to evidence to the effect that details of the Restaurant Incident were still available on the internet and were being accessed, the Tribunal considered whether such a risk might present itself but, for reasons summarised earlier, concluded that it would not. Its conclusion was encapsulated in the following passages of its decision record:
The Tribunal finds that there is a real chance of ongoing social media coverage of the applicants for the foreseeable future, but that such coverage does not give rise to a real chance of physical violence towards the applicants. The Tribunal finds that there is not a real chance of violence to the applicants in the future, beyond that which affects the population of South Africa generally and not the applicants (or white people) in particular. Whilst the Tribunal considers that there is some economic risk to the applicants in the future, the Tribunal finds that it does not rise to the level of serious harm
and it was:
… not satisfied that any real chance of harm to the applicants from their continued online social media profiles would arise for the essential and significant reason of race: s 5J(4)(a). It is for the essential and significant reason of a dispute between parents over the behaviour of their children, the physical escalation of the dispute by [the other child’s mother’s] language and by the primary applicant's language, body language and actions, and compounded by the misfortune that the entire incident was captured on camera and had a polarising effect on the online community.
In those circumstances, the Re-ignition Claim was not material to the Tribunal’s decision and so it was not required to make any particular reference to it. The fact that it was cited in the summary of claims, however, serves to indicate that it had not been overlooked.
No jurisdictional error is demonstrated by the matters raised by the first ground of the application.
Ground 2
First particular
The first element of the second ground of the application is a contention that by considering whether race was the essential and significant reason for the first applicant's conduct the Tribunal misdirected itself. The fact of mere consideration is insufficient to support a finding of jurisdictional error; what is required is that an issue the Tribunal was obliged to exclude from its considerations formed a material foundation of its reasoning and decision-making. That was not this case.
The question that the Tribunal correctly asked itself at para.195 of its decision record was whether the applicants' race was:
… the essential and significant reason for the alleged persecution, either alone or in conjunction with the public response to the specific events that the applicants say occurred.
In the course of the following 10 paragraphs the Tribunal discussed the skin colours of the two antagonists in the Restaurant Incident, the continuing legacy of long-term racial discrimination in South Africa and said:
It is perhaps unsurprising in that environment that anger by black people towards individual white people for individual conduct can manifest in the language of broader race relations. It does not necessarily follow that the essential and significant reason for the feelings of anger, or the consequent effect of the anger, is race.
The Tribunal found that, in this case:
… a substantial proportion of the criticism of the applicant's behaviour on the video [was] not racial or racist in nature.
It was only after reaching that conclusion that the Tribunal went on to discuss the first applicant’s motivation for his conduct during the Restaurant Incident and it did so out of abundant caution. I accept the Minister’s submission that the Tribunal’s purpose in raising the first applicant’s motivation:
… was to foreclose the possibility that even though the persecutors were allegedly persecuting the applicants because of the primary applicant’s violent behaviour and not because of his race, it [might have been] that race was somehow still an essential and significant reason for the alleged persecution because the primary applicant’s violent behaviour in the beginning was due to racial tensions.
I find that reference to what had motivated the first applicant to act as he did during the Restaurant Incident did not lead the Tribunal into error.
Second particular
By the second particular of the second ground of the application, the applicants contended that the Tribunal had, when considering what motivated people to threaten them following the Restaurant Incident, created a false dichotomy between those individuals’ attitudes to the first applicant’s treatment of women and children and their attitudes to his race. The applicants argued that being motivated by the former did not prevent an individual from also being motivated by the latter. In that connection, the applicants submitted that many online comments reproduced in the Court Book involving threats of violence, including against the third applicant who was six years old at the time, were motivated by race and that even the issue of domestic violence was cast as a racial issue.
This argument fails to come to grips with the Tribunal’s critical finding at para.135 of its decision record that it was:
… not satisfied that any future online threats would be genuine expressions of intent, or that attitudes to the primary applicant are still so heated in South Africa as to pose a risk of physical retribution.
Amongst other things, that conclusion underpinned the Tribunal’s subsequent statement that it was not convinced that unidentified people had set out to kill the first applicant and had, instead, accidentally killed someone else with the same name. The Tribunal went on to say later in its reasons that it was not persuaded that the applicants faced a real chance of serious harm, beyond that which affected the population of South Africa generally.
In substance, the Tribunal found that the applicants’ fear of future harm was not well founded. For that reason the second particular of this ground of the application does not disclose material error on the Tribunal’s part.
Ground 3
The third ground of the application alleged that although the Tribunal considered whether threats made online and on social media against the applicants constituted serious harm for the purposes of ss.5J(4)(b) and 36(2)(a) of the Act, it did not consider whether they also or alternatively constituted significant harm for the purposes of s.36(2)(aa) of the Act. It will be recalled that s.36(2A) of the Act provides that a person will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
The applicants submitted that the Tribunal had not considered whether online threats might constitute degrading treatment. Section 5 of the Act relevantly defines “degrading treatment or punishment” as:
… an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable ...
Although it appears that the Tribunal indeed did not specifically consider that particular issue, the applicants, who were represented before the Tribunal, had not contended to it that they were entitled to protection for that reason.
In Plaintiff M1 of 2021 v Minister for Home Affairs (2022) 96 ALJR 497 the majority of the High Court stated at 508-509 [25], [27]:
It is … well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
…
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, over looked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. (references omitted)
Whether a claimant is represented by professional advisers, and whether those advisers articulated a case which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513-514 [30]-[31].
Given that the applicants were represented before the Tribunal, I conclude that the claims they made were the only ones they wished to make. It was not the Tribunal’s role to prompt or elicit from the applicants an elaboration of their claims which, with the benefit of representation, they did not make themselves: cf. Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58]. I find that the Tribunal did not err by not considering a claim that the applicants did not make.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 2 November 2023
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