EDS19 and Ors v Minister for Immigration and Anor
[2020] FCCA 3332
•8 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDS19 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3332 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – grant or refusal of visas – complementary protection – risk faced by general population of country. |
| Legislation: Migration Act 1958 (Cth), ss.26(2)(aa), 36(2B)(c), 91R, 477(1) Federal Circuit Court Rules 2001 (Cth), rr. 2.05(2), 44.12(1), 44.13(1) |
| Cases cited: ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 |
| First Applicant: | EDS19 |
| Second Applicant: | EDT19 |
| Third Applicant: | EDU19 |
| Fourth Applicant: | EDV19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 418 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 April 2020 |
| Date of Last Submission: | 23 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 8 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Kathryn-Magnolia Feeley |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 23 October, 2019 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $3737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 418 of 2019
| EDS19 |
First Applicant
| EDT19 |
Second Applicant
| EDU19 |
Third Applicant
| EDV19 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By their application filed on 23 October, 2019 the applicants seek judicial review of a decision of the second respondent made on 24 September, 2019 that affirmed a decision of a delegate of the first respondent to refuse them Protection (Class XA) (Subclass 866) visas.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
By an order of a registrar made on 11 December, 2019 the application was listed for a show cause hearing on 23 April, 2020. That order was made with the consent of all of the parties.
The first respondent contends that the application fails to raise an arguable case for the relief claimed and must be dismissed under r. 44.12 of the Federal Circuit Court Rules 2001 (Cth). The issue for determination is whether the application raises an arguable case for the relief claimed: FCCR 44.12(1). In so satisfying the Court, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: FCCR 44.13(1). If the Court is not so satisfied, it may dismiss the application: FCCR 44.12.
These reasons relate to that show cause hearing.
By the consent directions order of 11 December, 2019 the applicants were given the opportunity to file any amended application upon which they intended to rely, giving complete particulars of each ground of review by 19 February, 2020. There was also a direction permitting them to file and serve any affidavit evidence upon which they proposed to rely relevant to their grounds of review by the same date. No amended application and no further affidavit evidence has been filed by the applicants in accordance with the directions. That is despite them being represented by lawyers since at least 24 March, 2020. The applicants’ written submissions were due on 26 March, 2020. None were filed.
It was asserted from the bar, without any evidence to support the proposition, that an attempt to file a proposed amended application and written submissions was made shortly before the hearing before me on 20 April, 2020, but “the Court registry held it somewhere called pending” and so copies of those documents were only served upon the first respondent the day before the hearing. When I asked counsel for the applicant if he sought leave to rely upon the documents out of time he eventually sought that leave. When I pressed him for the basis upon which I would grant such leave, it was submitted, again without evidence, that “some issue had arisen with the IT in the Registry”. The issue could not be identified other than to say that the document was said to be “pending”. That is of no surprise, however, given that the Court does not operate a system of efiling in its general federal law jurisdictions, but rather a system of elodgment. Lodgement of documents can be undertaken electronically in accordance with the Court’s rules. Lodgement does not mean a document has been filed. Filing occurs when a Registrar has accepted the document for filing and stamped the document with the seal of the Court: FCCR 2.05(2).
The only application for leave to rely upon an amended application for review was that made at the hearing and prompted by me.
In BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 the Court said:
4. The applicant filed his written submissions on 26 May 2017 and also filed a document purporting to be an amended application. This “amended application” amended the two grounds in the original application and inserted four completely new grounds. No application in a case was filed and no explanation was given, by affidavit or otherwise, for the failure to comply with the Court’s orders.
5. The Minister filed his submissions on 29 May 2017. In those submissions, the Minister attempted to deal with the grounds raised for the first time in the applicant’s written submissions on the previous working day. He submitted that leave to amend the application should be refused. I agree.
6. There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7. The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
Here, the applicants have filed no application for leave to amend. There is no evidence that supports their application for leave to amend and in particular there is no evidence as to any explanation about why the time limit agreed upon by them with the first respondent was not observed. Further, there is no evidence as to an explanation for the delay between the current solicitors coming on the record for the applicants and provision of the proposed amended application and written submissions to the solicitors for the first respondent. There is no suggestion that the first respondent has delayed in compliance with the court’s directions and in particular, the direction for the delivery of a court book which permitted the applicants access to all of the material necessary to properly formulate any amendments to their application for review.
In support of the application for leave to amend, the applicant’s counsel pointed to a number of matters namely:
a)that the proposed amendment was sufficiently meritorious to justify a grant of leave; and
b)that there was no prejudice to the first respondent by the grant of leave to amend.
The first respondent opposed leave to amend. Four reasons were advanced for that opposition, namely:
a)the lateness in raising the ground of review now sought to be pursued, given the directions that had been made in December, 2019 for the orderly preparation of the matter for hearing;
b)the first respondent would be prejudiced by permitting the amendments because it would require a “complete reappraisal of case”, further written submissions from the first respondent and the incurring of further expenditure of public funds;
c)orderly case management is important and notwithstanding that the solicitors for the applicants came on the record on 24 March, 2020 – at a time before the applicants’ written submissions were due – no application to extend the time within which to comply with the direction for the delivery of written submissions was made until the hearing of the matter before me; and
d)there is insufficient merit in the proposed amendment to warrant a grant of leave.
Irrespective of the merits of the proposed amendment, in the circumstances of this case I dismiss the oral application for leave to amend. There is simply no explanation from the applicants as to why they did not act in accordance with or comply with the directions made by the court and to which they agreed. It is not right to say that the first respondent will suffer no prejudice if leave is granted. Costs have been thrown away because the case sought to be pursued by the applicants has not been articulated before now. The first respondent has prepared on the basis of the application as originally commenced by the applicants.
In the event that it should be thought that dismissal of the application to amend on that basis is erroneous, I have hereunder also considered the merits of the proposed amendment. The conclusion I have come to on that point is that the applicants’ proposed ground is so devoid of merit that leave to amend should be refused in any event.
I have written submissions from both parties. The first respondent’s written submissions were filed in accordance with the directions order. They do not address the matters raised in the applicants’ written submissions for the reasons I have already discussed.
To consider the merits of the proposed amendments, it is necessary to recount the background to the application now before the Court.
Background
The following recitation of the background facts is taken largely from the written submissions for the first respondent. The applicants did not contend that the detailed recitation of the background facts by the first respondent was inaccurate. In my assessment, having regard to the material in the court book and the second respondent’s reasons for decision, the recitation is entirely accurate.
The applicants are citizens of South Africa. They are a family consisting of a father (the first applicant), a mother (the second applicant), an adult son (the third applicant) and an adult daughter (the fourth applicant).
The first applicant came to Australia to visit friends from 26 December, 2010 to 21 January, 2011. He returned with the second applicant to visit friends between 12 April, 2014 and 30 April, 2014. On 15 August, 2014 all four applicants arrived in Australia on Visitor (Class FA) (Subclass 600) visas.
On 10 November, 2014 the applicants applied for protection visas. The first applicant was the primary visa applicant and the second, third and fourth applicants applied as members of his family unit. The first applicant advanced claims for protection, but the second, third and fourth applicants did not make any claims of their own.
On 29 February, 2016 the first applicant attended an interview with a delegate of the first respondent.
The applicant’s written and oral claims to the delegate focussed on his employment by a private security company which managed the security department of another company, which in these reasons I will call company A. He had been employed in that role for 11 years commencing in July, 2003. Specifically, the first applicant claimed that:
a)he investigated and exposed crime, corruption and crime syndicates operating in the pharmaceutical industry in South Africa. He testified against criminals within company A at company disciplinary hearings and at the Council for Conciliation, Mediation and Arbitration. Some of the people that he testified against were linked to drug gangs, most of them were dismissed from the company as a result and some were charged with criminal offences;
b)two company A employees were shot and killed in the last two years. He did not know the motive;
c)on 4 April, 2007 the first applicant received a threatening text message that stated “everything you care about will vanish in front of your own eyes”. Police investigated but were unable to identify the sender of the message;
d)in 2008, the first applicant’s motorcycle was sabotaged whilst it was parked at company A. He did not report it to the police and no suspects were observed. After that, he drove a marked company vehicle to and from work, despite requesting an unmarked car;
e)on 28 May, 2009 company A was held hostage by 11 armed assailants who sought ephedrine to manufacture methamphetamines;
f)in July, 2009 he testified against 11 company A staff who had been involved in violence during an industrial strike. They were each dismissed from the company on the basis of his testimony. They were not criminally prosecuted;
g)on 3 July, 2013 a telephone call between two company A employees was captured via audio surveillance. The call detailed a conspiracy to commit armed robbery, theft and to kill the applicant. The transcript was not provided to the police because the evidence was obtained by company A internally, without a warrant. He did not know where the two conspirators were or whether they were charged or prosecuted. He believed that if he returned, they would kill him;
h)he continued to work at company A after the plot to kill him came to light because the investigation into illicit activity was not finished, he had to tie up loose ends, he was passionate and loyal and could not just leave, he was earning a good salary and it took him a while to get his protection visa application sorted;
i)he had to alter his route to work, and his start and finish times. He was followed home twice; and
j)he could not rely on the police for protection because they failed him in the past. His company safeguarded his residence.
On 15 March, 2016 the delegate refused to grant the applicants the visa.
On 30 March, 2016, the applicants sought review of the delegate’s decision by the second respondent.
On 2 May, 2019 the second respondent invited the applicants to attend a hearing before it scheduled for 2 July, 2019. The second respondent also requested they provide a written submission and a signed declaration by 25 June, 2019.
On 9 May, 2019 the applicants responded to the hearing invitation and requested the second respondent take evidence from two witnesses (in addition to the applicants), the first of whom I will refer to as Mr A (an alleged expert witness) and the other to whom I will refer as Ms B (a clinical psychologist).
On 2 July, 2019, the applicants appeared at the hearing before the second respondent via telephone.
On 24 September, 2019 the second respondent affirmed the decision under review. The second respondent delivered written reasons for its decision.
In its decision record the second respondent recorded that the delegate was not satisfied that the first applicant’s protection claims could be considered under the refugee criteria. His claims essentially arose from his employment and not from his race, religion, nationality, political opinion or (after some consideration) membership of a particular social group. The delegate therefore considered the application against the complementary protection criteria only.
The second respondent recorded that the applicants’ statutory declarations raised additional claims that went to the refugee criteria that had not been raised before the delegate. These were that the applicants had a well-founded fear of persecution and would suffer serious harm if returned to South Africa on the basis of:
a)being white;
b)their conservative Christian values;
c)their ethnicity as members of the Afrikaner (Boer) community; and
d)their gender as a white male or a female facing legislative discrimination through affirmative action and employment equity legislation.
The second respondent found that the first applicant’s claims before the delegate related to his work at company A and were properly considered under the complementary protection criteria rather than under the refugee criteria.
The second respondent recorded the first applicant’s explanation that he did not raise the additional refugee claims because he did not want to be perceived as a white racist complaining about his treatment in his homeland; that Australia in 2014 was not aware of the racial tension in South Africa which had worsened since that time; and his migration agent at the time advised him not to make the matter about race.
The second applicant submitted that the affirmative action and employment equity legislation restricted her ability to freely access work to ensure her family’s basic means of survival. She could only secure gainful employment within approximately 8% of the available national workforce because of the “racial quota” system. She further submitted that men in South Africa targeted European women for sexual violence and rape as they were “easy prey”. Finally, the second applicant submitted that she suffered from post-traumatic stress disorder and experienced panic attacks due to past trauma experienced in South Africa.
The third applicant submitted to the second respondent that he received a death threat from an individual at a casino and the fourth applicant submitted that she was in an abusive relationship in South Africa.
The second respondent considered the applicants’ request to take evidence from Mr A and Ms B in detail, but did not consider it necessary to speak with either of them at the hearing. Mr A had already provided voluminous materials to the second respondent and Ms B had provided a clinical report which the second respondent found probative insofar as it dealt with the first applicant and second applicant’s mental health but which it considered was inconsistent with some of the first applicants’ claims. The second respondent preferred the first applicants’ evidence insofar as it differed from Ms B’s statement.
The second respondent recorded that it relied on recent country information. It confirmed that it accepted the materials submitted to it on USB and a letter dated 26 August, 2019 sent on behalf of the applicants. It found that the character references provided to it did not address the applicants’ protection claims and did not assist it.
In respect of the claim of “being white”, the second respondent recorded the first applicant’s claim to have witnessed a white father being shot dead in front of his son in a “hate attack” and his claim that his car was broken into, minor items stolen and that the perpetrators defecated in the back seat. The second respondent accepted that these two incidents occurred, but it was not satisfied that the first applicant’s race was the essential and significant reason for the harm. It was also not satisfied that serious harm was caused to the first applicant by the car incident.
The second respondent considered the first applicant’s claim to have suffered “racially humiliating treatment” and that whites were treated like “second class citizens”. It found that the country information before it stated that white South Africans were in a privileged position, were substantially wealthier than other racial groups, dominated in areas of business, media, politics, legal services and academia; and did not face any specific challenges in society in terms of access to employment, education, health or housing. Considering the country information in detail, the second respondent did not accept the claim that racial tensions in South Africa had worsened since 2014 or that “white genocide” occurred in South Africa.
The second respondent considered messages sent to the applicants from people in South Africa, including one message that stated “[t]hey are killing ALL white people in SA so they’re sentencing you to die basically if they deport you”. The second respondent found this message was an exaggeration and whilst it did not dispute the high crime and murder rate in South Africa, it did not accept that it was targeted at white people.
The second respondent considered the affirmative action and employment equity legislation and the affirmative action measures that existed in South Africa in detail. It recorded that it had read widely to better understand the issue. The second respondent observed that the affirmative action policies were intended to benefit a particular group of people, rather than seeking to directly disadvantage another group, although it may have been a side effect as the policies reduced the number of vacancies open to white South Africans. It considered whether this amounted to persecution under s.91R of the Act and the applicant’s claims in this regard. It accepted that the first applicant was discriminated against because he was white, but it was satisfied that it was low level discrimination as he did not lose his job, he continued to manage security obligations and it was short-lived. The second respondent found that the first applicant was not subjected to serious harm because of affirmative action legislation or policy at this time. It also did not accept the first applicant’s claim that the fact that he did not receive a promotion was an example of workplace tension due to race. But even if it was, the second respondent found that it did not affect his capacity to subsist.
The second respondent recorded that before they left South Africa, the first, second and third applicants were employed and the fourth applicant was studying. They were all employed in “in demand” occupations. Accordingly, the second respondent was satisfied that the applicants had the skills to find work in South Africa. It did not accept that they would be denied the capacity to earn a livelihood and did not accept that job-related policies and legislation created a real chance of serious harm.
The second respondent did not accept the applicants’ claims that they were persecuted in South Africa because they were white or that they would be persecuted for being white upon return.
In respect of the applicants’ claim to suffer harm based on their conservative Christian values, the second respondent cited country information that stated 86% of South Africans were Christians. It accepted that the second applicant was prevented from saying prayers before her shift at a hospital, but as the incident occurred in 2008, the second respondent gave it little weight. It also accepted that people had practised witchcraft and performed rituals against the applicant but found that he did not suffer serious harm because of that.
Given the applicants were generally free to attend church and practise their religion (apart from the above incident), Christianity was by far the majority religion in South Africa and freedom of religion was enshrined in South Africa’s constitution, the second respondent found that there was not a real chance they would face harm because of their religion upon return.
In respect of the claim arising from their membership of the Afrikaner (Boer) community, the second respondent cited country information to the effect that there was no difference in the Afrikaner (Boer) community’s access to wealth or their political representation compared to the rest of the white community. It found that the Afrikaner (Boer) community was a subset of the more general white community.
The second respondent considered the third applicant’s claim raised in his statement dated 10 June, 2019 that he had been mugged twice going home from school. The second respondent accepted that the incidents occurred but gave them little weight given they occurred 10 years ago and it found that they were primarily random acts of crime.
The second respondent considered a link to a Facebook page provided to it and a video thereon concerning an incident in the South African parliament. The second respondent found that neither the Facebook page nor the video were evidence of discrimination or persecution of the Afrikaner community. The video merely showed a disagreement between two MPs.
The second respondent considered the applicant’s claim that recent legislation meant that, as whites, their land and assets could be confiscated without compensation and they would have no judicial recourse. The second respondent found that it was a vexed issue, but it affected people who owned farms and the applicants were not farmers or land owners before they left, nor did they give any evidence that they intended to become so upon return. The second respondent could not locate any reliable country information that suggested that the legislation under consideration affected people in urban areas. Accordingly, the second respondent rejected the claim that the applicants’ assets, including land, were at risk of confiscation without compensation.
The second respondent rejected the claim that there was hate speech and incitement to kill whites on the basis that whilst there was evidence of individuals calling for the killing of whites, it found that they were isolated incidents, that such statements were not tolerated by the country’s institutions and civil society (including mainstream politicians) and they were not acted upon. Furthermore, the second respondent considered country information in detail and was not satisfied that the murder of white farmers, who were generally Afrikaners, was necessarily racially- motivated. The second respondent did not accept the claim that there was an ever-increasing frequency of white people being killed in urban areas, in particular Afrikaners, as the statistics did not support it. Overall, the second respondent found that the applicants would not face a real chance of serious harm because of their Afrikaner ethnicity upon return.
The second respondent considered the second and fourth applicants’ claims to be members of the particular social group of white European women subjected to violence including rape and sexual violence. It did not accept that the materials supported the claim that black men were targeting white women. It considered that the sexual assault committed against the second applicant occurred as claimed, however it occurred over 20 years ago, there were no recent claims and the second respondent gave it little weight. Similarly, the second respondent gave little weight to the third applicant’s claims of incidents that occurred when he was at primary school as they happened so long ago and one incident did not constitute serious harm.
The second respondent accepted that there was a high incidence of rape in South Africa, consistent with the high crime rate, however it noted country information to the effect that “white people experience less crime than other racial groups” and “violence is experienced more by black South Africans”: It found the second applicant’s claim that “it’s only a matter of time before I or my daughter will be another statistic” was only speculative. It considered specific incidents of crime experienced by the second and fourth applicants in South Africa but it did not accept that they amounted to serious harm or that they were aimed at the applicants for a convention-reason. Overall, it did not accept that the female applicants met the criteria for protection on the basis of being members of the particular social groups of women, or of white women.
The second respondent considered the second applicant’s claim of workplace harassment in detail, including the incident with her ex-colleague Mavis and her post-traumatic stress disorder, but was not satisfied that it constituted serious harm, nor that it created a risk of future serious harm should she return.
Having considered their claims against the refugee criteria individually and cumulatively, the second respondent found that none of the applicants would face a real chance of serious harm should they return to South Africa.
Further, the second respondent found that none of the claims made by the applicants against the refugee criteria satisfied the complementary protection criteria either.
In respect of the first applicant’s claim concerning his employment at company A, the second respondent accepted that the various incidents from 2005 to 2011 occurred including the 2009 and 2011 strikes, the 2008 motorcycle sabotage, the 2007 threatening phone calls and the 2009 robbery, but gave them little weight given the amount of time that had elapsed.
In respect of the murder of two company A employees, the second respondent recorded that the first applicant had told the delegate at interview that he did not know the motive of the killings, whereas to the second respondent he claimed that one of them was killed because she was going to provide evidence in a pharmaceutical gang-related incident and one was shot outside his house when he was on his way to work. The second respondent was not satisfied that these later claims were true on the materials before it and did not accept that the killings were related to their work at company A.
The second respondent considered in detail the first applicant’s central claim about two company A employees who conspired to kill him. The second respondent considered the transcript of an audio recording between the two men that was relied upon by the applicant and found that:
a)the conversation between the two men covered a range of topics and people, some of whom were spoken about for longer than the applicant, and the first applicant was only mentioned in passing;
b)the men did not call each other to talk about the first applicant;
c)they did not plan the first applicant’s murder in the sense of them working out a date or time, or who should do it;
d)there was no agreement between them that the first applicant should be killed; and
e)the sense of the conversation was of them chatting rather than planning.
The second respondent rejected the claim that the call “detailed a conspiracy to commit armed robbery, theft and to assassinate the applicant.” It found that it was “drawing a long bow” to conclude that an assassination attempt had been planned based on the statement “I’d fancy getting that guy on his own” and that he could be “hit” outside the rugby. The second respondent accepted that the men were “serious, well-organised criminals” involved in stealing from company A, however, it did not accept that it followed that they would also be prepared to kill. Furthermore, the second respondent found that the fact the first applicant’s bosses only told him about the recording three to four weeks after it happened meant that the bosses did not consider it to be a genuine threat of an assassination.
The second respondent recorded that the first applicant continued to work at company A after being made aware of the audio recording, that the death threats were not taken to the police and that the second applicant was not told about the recording until April, 2014. It recorded the first applicant’s explanations for not taking the death threat to the police, which included his lack of faith that the South African police and justice system could have assisted and reporting it could have meant that the “hit” was carried out sooner. The first applicant also claimed that when he had left South Africa, the men were still being internally investigated but had since confessed to planning a major armed robbery and the “hit” and been dismissed from company A. Despite this, they did not face criminal charges. The second respondent did not find it credible that that the police would not be informed (and criminal charges not laid) had the two men confessed to planning a robbery and to kill the first applicant. The second respondent did not accept that the two men “confessed” to planning the “hit”, as it did not accept that a “hit” was ever planned. The second respondent was not satisfied that the audio recording proved that the men had plotted to kill the first applicant.
The second respondent found that there was no explanation for why the first applicant had delayed deciding to leave South Africa after he learnt of the audio recording in August, 2013. He and the second applicant did not come to Australia for a holiday until April, 2014 and decided to move here at that time. The second respondent found that the applicants’ holiday in Australia in April, 2014 triggered the applicants desire to leave South Africa, not the audio recording as claimed. The second respondent recorded that it was particularly troubled by the first applicant remaining in his job at company A for eight or so months after he learnt of the recording. It found that if he had believed that there had been a credible death threat against him, he would have taken immediate action to get away. The second respondent rejected the contention that the applicants’ only option was to move to Australia. It found that they could have changed city or employer or moved to a different country.
The second respondent considered two incidents where the first applicant had encountered one of the two men involved in the audio recording (once at breakfast with his family, and once at a petrol station). Both incidents occurred 10 to 12 months after the recording. It accepted that these incidents happened but was not persuaded that they were sinister.
Overall, the second respondent found that in relation to his work for company A and the people who were involved in stealing from company A, there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, the applicant would face a real risk of significant harm.
The second respondent gave little weight to the incidents of crime to which the applicants referred in their submissions and evidence as the second respondent considered that they were examples of generalised violence and the high-crime rate in South Africa, no significant harm was suffered by the applicants or any of them and they did not lead to conclusion that there was a real risk of significant harm in the future.
The second respondent found that the second applicant’s mental health and “psychological vulnerability” was not of itself grounds for granting complementary protection.
It concluded that the claims made about the fourth applicant’s former abusive partner did not provide substantial grounds to believe that she would face significant harm from him if she returned, nor was there a risk of harm to the third applicant based on his claims about the incident in 2009 defending his sister and the man at the casino.
Finally, the second respondent found that any pain or suffering from separating the third applicant from his wife and daughter who live in Australia would be a consequence of him being removed from Australia, not returned to South Africa, and would not warrant the grant of protection.
The second respondent was not satisfied that any of the applicants was a person in respect of whom Australia had protection obligations. It affirmed the decision under review.
Proposed new ground of review
As I set out at the commencement of these reasons, the applicants seek leave to rely upon an amended application for review. The amended application for review now promoted by the applicants contains the following ground:
The Tribunal failed to act on correct principle correctly applied in that it failed to make adequate findings to engage s36(2B)(c) of the Migration Act 1958 (Cth) in respect of the high rate of criminal violence in South Africa.
In argument before me the applicants’ counsel identified the applicants’ complaint with the second respondent’s decision. It was argued that:
a)a claim that was common to each member of the family was that they were exposed to a risk of harm because of the “high crime rate” in South Africa;
b)that there was a “high crime rate” in South Africa was accepted by the second respondent;
c)the claim was “put through the second applicant” and the second respondent considered that claim as it related to the “Refugees Convention” criteria and specifically, the second applicant’s claim to be a member of a particular social group, namely women, or white women, in South Africa;
d)whilst the second respondent accepted the proposition that there were serious risks of harm arising from the high crime rate in South Africa, it rejected that claim on the basis that the second applicant’s membership of the identified social group was the reason why she might be exposed to such harm;
e)further, the second respondent asserted that the risk of harm from the high crime rate or high rate of violence in South Africa was something faced by the population of the country generally, and thus exempt from consideration by the operation of s.36(2B)(c) of the Act;
f)however, the second respondent erred in its application of s.36(2B)(c) of the Migration Act 1958 (Cth).
The applicant argued that correct interpretation of s.36(2B)(c) of the Act was set out in BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 at [32]-[41]. The applicants argue that before s.36(2B)(c) can be engaged, the second respondent must make certain “positive findings of fact sufficient to engage the exception, whether or not a review applicant advances any evidence to the Tribunal on the matter”. To understand the argument, it is necessary to set out the legislation.
Section 36(2)(aa) of the Act provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(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.
Subsection 36(2B) of the Act is in the following terms:
(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.
In DEA18 v Minister for Home Affairs [2019] FCCA 2550 the Court accurately, in my respectful view, summarised those paragraphs from BCX16 to which the applicants have drawn my attention:
54. In explaining how s.36(2B)(c) of the Act should be construed and applied, the following is of note in relation to her Honour’s findings in BCX16:
a) read in the context of s.36(2B)(a), a risk being faced by a non-citizen personally as described in s.36(2B)(c) may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk a person is exposed to because of their residence in a specific area of the country is a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk: BCX16 at [37];
b) it is erroneous to construe s.36(2B)(c) on the basis that a person would not be exposed to a risk personally if the risk was one that other persons in the same area of a country were exposed to the same degree: BCX16 at [38];
c) where the risk faced by a person is the same as is faced by the general population of the whole of the country, the personal circumstance of residency in any one particular area of the exposure to risk is not because of the particular residency: BCX16 at [39];
d) section 36(2B)(c) is a composite phrase founded upon an assumption that a risk faced by the population of the country generally is a risk that is not faced personally by any one of its citizens: BCX16 at [39]; and
e) what is required is an assessment of whether an individual faced a real risk of significant harm in light of their status as a resident of a particular area or city. It is that risk (in the particular city) that must be the subject matter of consideration under s.36(2B)(c) against the population generally: BCX16 at [40].
Further, in ADH17 v Minister for Immigration and Border Protection [2020] FCA 53, the Federal Court surveyed the relevant authorities bearing upon s.36(2B)(c) of the Act when dismissing an appeal from the judgment of the Federal Circuit Court. In that case, O’Bryan J said:
38. Section 36(2B)(c) has been considered in a number of decisions of this Court, including particularly SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (SZSPT), BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 (BBK15) and BCX16.
39. In SZSPT, Rares J rejected an argument that the complementary protection criterion was satisfied in circumstances where the appellant might face punishment including imprisonment for leaving Sri Lanka illegally in contravention of Sri Lanka’s criminal law. His Honour concluded that the exception in s 36(2B)(c) was engaged because the relevant criminal law applied to the population of Sri Lanka generally. His Honour said (at [11]):
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
40. In BBK15, Buchanan J stated (at [30]) that “s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense”, referring to SZSPT at [11]. His Honour concluded (at [31]) that the Tribunal had correctly applied s 36(2B)(c) having found that the appellant would not face a particular, personal risk of harm in the Sadda area, if returned to Pakistan, and that any risk of harm he would face was one which arose from sectarian or generalised violence in Pakistan. His Honour further observed that (at [32]):
I also reject the Appellant’s contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to “the population of the country generally” is a reference to the commonly understood concept of the general population – i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.
41. In BCX16, the appellant relied on his place of residency in Kabul as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Afghanistan generally. Charlesworth J concluded (at [37]):
Read in the context of s 36(2B)(a), the concept in s 36(2B)(c) of a risk being faced by a non-citizen personally in my view may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk to which a person is exposed because of the circumstance that he or she resides in a specific area of the country is, in my view, a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk. In such cases, s 36(2B)(a) operates so that in cases where it would be reasonable for such a person to relocate to an area of the country where there would not be a real risk that he or she would suffer significant harm, then the risk in fact faced by the person must be taken not to be a real risk.
42. The above cases illustrate that the proper construction and application of s 36(2B)(c) in various circumstances may not be straightforward. The exception juxtaposes the concept of a risk faced by the population of a country generally with a risk faced by the non-citizen personally. Each of SZSPT and BBK15 support the conclusion that the phrase “faced by the population of the country generally” does not mean that the risk must be faced by everyone in the country. The question of when a risk is “general” and not “personal” for the purposes of s 36(2B)(c) may be difficult to determine, particularly if the risk is geographically located, as in BCX16. While BCX16 concerned a risk in the capital city of a country (Kabul), questions might arise whether a risk is personal and not general for the purposes of s 36(2B)(c) if it exists in a wider geographic area, for example the northern half of a country compared with the southern half.
Here, the applicants argue that there was no adequate assessment by the second respondent “to explain the evidence on which it relied to support the finding under s 36(2B)(c), let alone to explain why the situation in the applicants’ home region was equivalent to that in other regions of South Africa”. The applicant submits that on the limited evidence mentioned in the second respondent’s reasons, it is apparent that criminal violence was not equivalent throughout the country and that “any geographic consideration would be analogous to the fact that residency within a city, where all within that city (cf country) face the same risk, is not sufficient to engage s 36(2B)(c): BCX16 at [38]”.
However, the applicant’s arguments cannot be accepted. The applicants’ case was always that they could not return to South Africa because of the prevalence of generalised violence throughout the country. At no point did the applicants suggest that the generalised criminal violence (so described in their submissions to the delegate) was not equivalent throughout the country. Despite the submissions of the applicants to the contrary, there is nothing in the reasons of the second respondent to suggest that the generalised violence about which the applicants complained and about which the second respondent determined there was a risk, was not equivalent throughout the country.
The claim that the applicants would be exposed to a risk of generalised violence was not “put through the second applicant” as they now submit. The claim was made generally on behalf of all applicants. The second and fourth applicants advanced a separate claim that by reason of their membership of a particular social group (white women in South Africa, or women in South Africa) the refugee protection provisions of the Migration Act were engaged because of the risk of generalised violence to them by reason of their membership of those social groups. The second respondent considered that claim as it related to the “Refugees Convention” criteria and specifically, the second applicant’s claim to be a member of a particular social group, namely women, or white women, in South Africa.
The applicants put before the second respondent a significant volume of material that dealt with violence in South Africa. The second respondent describes this material at [45] and [48] – [52] and summarised its effect. The second respondent properly apprehended that the applicants claimed that they were at risk of serious harm or death if they returned to South Africa. It recounted some of that evidence at [77] – [90]. Then, at [90] in connection with considering a particular message received by the first applicant from a friend in South Africa, the second respondent said (my emphasis):
90. The Tribunal is satisfied that the statement “they are killing ALL white people in SA” is an exaggeration. More than three months after the date of that message it is clear that there have not been attempts to kill all white people in South Africa. The Tribunal does not dispute the high crime rate, which includes a high murder rate, in South Africa. However it does not accept that these are targeted at white people as it is black South Africans who bear the brunt of the violent crimes.
At [146] of its reasons, the second respondent noted that the horrific attacks and killings of white farmers in South Africa has been well documented and the fact of them occurring was not in dispute. The applicants did not claim to be white farmers when they left South Africa and there was no suggestion in their evidence that they themselves had been subjected to such attacks. At [154] the second respondent noted the second applicant’s claim that there was hate speech and incitement to kill whites during rallies, in towns and in rural areas, and it was just not isolated to farms. The second respondent considered this claim against other information available to it and concluded:
157. The Tribunal finds that whereas there is evidence of individuals calling for the killing of whites, these are isolated incidents and such statements are not tolerated. There was no evidence to suggest the statements were acted upon. The Tribunal accepts that hate speech against white people in South Africa occurs but it is not tolerated by the country’s institutions or civil society, including mainstream politicians.
Significantly, for present purposes, the second respondent then continued:
159. Aligned to this debate and beyond dispute are the high levels of extreme violence that occur in South Africa, including the murders of white farmers. Returning to the IRBC report again:
Sources indicate that crime is a serious problem in South Africa (Cl\IN 23 Aug. 2018; Vice- Chancellor 4 Sept. 2018; CBS with AFP 23 Aug. 2018). According to Campbell, “[t]here are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody” (Campbell 30 Aug. 2018). The AfriForum representative stated that “[t]here are, unfortunately, very few places in South Africa where it is safe for any person of any race or gender” (AfriForum 7 Sept. 2018).
160. The Tribunal notes in particular that the AfriForum representative - AfriForum is an organisation that advocates for Afrikaners - stated that there are unfortunately few places in South Africa where it is safe for any person of any race or gender. That indicates that the violence that occurs cannot necessarily be attributed to one of the refugee criterion. Back to the IRBC report:
According to the Guardian, “[t]here is fierce debate over the reason for the increase in attacks on farms in recent years. Some suggest it is in line with a general increase in violent crime. Others say it is a consequence of growing tensions between communities” (The Guardian 26 June 2018). According to sources, there are claims that white farmers are being targeted and killed (Campbell 30 Aug. 2018; Al Jazeera 30 Aug. 2018). The Guardian cites a former police officer and researcher at the Pretoria-based Institute for Security Studies (ISS) as stating that “[s]ome say [farm] attackers are motivated purely by racial hatred but it is very difficult to quantify” (The Guardian 26 June 2018).
According to a Columbia Broadcasting System (CBS) article with Agence France-Presse (AFP), a CBS reporter is cited as stating that:
there has been a well-funded campaign by white right-wing South Africans to promote the idea that white farmers are being deliberately killed at higher rates than people of other skin colors, and that this constitutes a ‘white genocide.’ There is no such thing in South Africa. (CBS with AFP 23 Aug. 2018)
According to the Vice-Chancellor, “[s]tatistics show that violent crimes against white farmers is lower today than 15 years ago. If there was genocidal intention against white South Africans, these statistics would be the opposite” (Vice-Chancellor 4 Sept. 2018). Sources indicate, however, that police statistics on farm murders are not recorded “by race” (Afrika Check 8 May 2017; BBC 3 Nov. 2017). The BBC explains that given the lack of current data on the number of farmers in South Africa and “what proportion of people on South Africa’s farms is white,” it is “impossible to say whether white farmers are more at risk than black farmers - or more at risk than the population at large” (BBC 3 Nov. 2017). According to the 2016 Community Survey of Statistics South Africa, 143,361 agricultural households out of 2,329,043 agricultural households have a white household head (South Africa 2016, 83). The BBC notes, however, that there is no data on the number of people in these households or “how many of the households are racially mixed’; this then makes it difficult to assess the likelihood a white South African farmer is to be killed (BBC 3 Nov. 2017).
Sources indicate that rural communities are more vulnerable to crime (CBS with AFP 23 Aug. 2018; Vice-Chancellor 4 Sept. 2018; Agri SA 2018,5), because of the remoteness of properties (CBS with AFP 23 Aug. 2018; Agri SA 2018, 5) with “little protection” (CBS with AFP 23 Aug. 2018). According to Al Jazeera, however, there is “no evidence to suggest that farmers as a group suffer more attacks than any other demographic in the country” (Al Jazeera 30 Aug. 2018). The Guardian indicates that “[t]he isolation of farms and the limited protection provided by police are... factors often cited to explain the level of violence in [farm] attacks” (The Guardian 26 June 2018)
The second respondent concluded this aspect of its consideration at [162] by saying that it acknowledged the evidence that rural communities were more vulnerable to crime because of their remoteness but this was not directly relevant to the applicants who were not farmers and did not live in a remote area.
At [164] the second respondent considered the applicants contention that as well as the killing of whites in rural areas there is an ever increasing frequency of white people being killed in urban areas, in particular Afrikaners (Boers). In doing so the second respondent said:
The Tribunal returns again to the IRCB report which quotes two sources, one being AfriForum:
[t]here are no areas in South Africa that are dangerous for white South Africans per se; there are areas in South Africa that are dangerous for everybody” (Campbell 30 Aug. 2018). The AfriForum representative stated that “[t]here are, unfortunately, very few places in South Africa where it is safe for any person of any race or gender.
The second respondent proceeded to analyse the material before concerning crime and murder rates in South Africa. At [169] it concluded:
169. This then links high rates of murder with poverty. Areas with high rates of poverty are generally those with majority black populations. The Tribunal does not accept the applicant’s claim that there is an ever increasing frequency of white people being killed in urban areas, in particular Afrikaners, as the statistics do not support it.
170. The Tribunal accepts the second applicant’s point that white people are often assumed to be Afrikaners. It can be argued that either white people and Afrikaners are considered to be one and the same, or Afrikaners are a subset of white people in South Africa. The Tribunal has already found that the applicants would not face a real chance of serious harm if they were to return to South Africa because they are white and it also finds that the applicants would not face a real chance of serious harm because of their Afrikaner ethnicity, if they were to return to South Africa
The consideration of these matters was undertaken when the second respondent was considering the applicants’ claims for refugee protection and the ultimate conclusions reached as a result of its consideration of that evidence and material need to be seen in that light. Nonetheless, the underlying theme of the applicants’ case in terms of violence is that South Africa was a generally dangerous place with high rates of serious crime that was evident throughout the country.
Continuing that theme, at [90] and in the context of considering the second and fourth applicants’ claims that members of the particular social group of white European women are subjected to violence including rape and sexual violence, the second respondent said (my emphasis):
190. Regardless, the Tribunal accepts that there is a high incidence of rape in South Africa, consistent with the high crime rate, which is a feature of South African society. The Tribunal notes the observations in the IRBC report (quoted above) that “white people experience less crime than other racial groups” and “violence is experienced more by black South Africans”. It also notes the observations made with regard to violence in South Africa from a representative of AfriForum, that there are unfortunately few places in South Africa where it is safe for any person of any race or gender…
The second respondent then moved on to consider what the second respondent considered were assertions by the second applicant that could give raise to a claim that white women were targeted for general crimes. The second respondent considered the matters raised by the second applicant and rejected most of them as examples of serious harm or demonstrating a relevant risk. However, as to the second applicant’s fear of being the victim of a carjacking, the second respondent found:
198. In 2017/18, a total of 16,325 cars were hijacked in South Africa. This was a slight decrease from the 2016/17 figure of 16,7173. According to one report more than half the carjackings occur “in Gauteng, the country’s smallest but most populous province. At the centre is Johannesburg. Johannesburg is in the north of South Africa and Port Elizabeth is in the south. It is apparent from this article that carjacking is not a crime targeted only at whites or at white women. The article writes about black taxi drivers who are particularly at risk driving at night. The Tribunal finds that the crime of carjacking and associated crimes are indicative of the high crime rate in South Africa and not targeted at any of the applicants for reason of their race, ethnicity or membership of a particular social group.
At [200] the second respondent recorded:
200. The second applicant also wrote of being a victim of a smash and grab incident outside the hospital, and as a result even today she drives with her handbag under her seat. The Tribunal accepts that this occurred. Again this is another example of generalised crime in South Africa.
In the context of the applicants’ claims for complementary protection, the second respondent dealt with the question of generalised violence in South Africa in [323] – [329] of its reasons. It recorded, accurately in my view, the case put to it by the applicants, namely that general violence and a high crime rate are present across South Africa. It was not suggested to be a risk faced by the applicants by reason of where it was that they resided before coming to Australia. The second respondent considered the particular incidents relied upon by the applicants and concluded:
328. The Tribunal gives little weight to these incidents in the context of a protection claim as they are examples of the generalised violence that occurs in South Africa, and there was no significant harm suffered.
329. The Tribunal does not accept that these incidents indicate that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Africa, there is a real risk that they will suffer significant harm.
Then, at [335] and in the context of the claims made by the second respondent concerning her mental health, the second respondent said:
335. The Tribunal accepts that the second applicant is genuinely fearful of returning to South Africa. It finds that this is a result of the high level of crime and violence in South Africa, which is a real risk faced by the population of South Africa generally and is not faced the applicant personally. Her psychological vulnerability is not of itself grounds for granting complementary protection. There needs to be intention on the part of another to cause significant harm which is exhaustively defined in s.36(2A). It sets out 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 finding made by the second respondent was clearly open to it on the material put before it by the applicants and was consistent with the case they sought to make that South Africa was generally dangerous. It was not put by the applicants that the risk of harm they faced from generalised criminal violence arose specifically in their home area, but rather that it was present across South Africa. Nor did any of the material before the second respondent suggest that the risk of generalised criminal violence was confined or heightened in the applicants’ home area. The second respondent’s finding was sufficient to engage s.36(2B)(c) of the Act.
In my view, the proposed amended ground of review has no merit and for that reason, in addition to basis I have already identified for refusing leave to amend, leave to amend ought to be refused.
The application for review as filed contains no grounds of review at all. On that basis alone should be dismissed and I dismiss it on that basis.
Although the application was filed within the time limited for that purpose by s.477(1) of the Migration Act, the applicants seek an extension of time within which to commence the proceedings. An extension is unnecessary. Although the application for review does not contain any grounds of review, it does however, raise two grounds in support of the application for an extension of time:
The decision of the AAT is affected by jurisdictional error.
Sought legal advice
To the extent that the statements contained in the application directed towards an extension of time should be seen as statements of grounds of review, it is clear that the second statement “sought legal advice” cannot be a ground of review.
The first statement is nothing more than an assertion of error, is not particularised whatsoever, has no content and should be dismissed on that basis: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
The second respondent’s decision was exceptionally detailed, it comprehensively addressed the applicants’ claims and evidence, it applied recent and reliable country information and it made findings that were open to it on the evidence before it. As the first respondent submits, the second respondent also complied with its procedural fairness obligations under Part 7, Division 4 of the Act. The applicants have not identified any jurisdictional error in the second respondent’s decision, and no error is otherwise apparent.
Conclusion
The application for judicial review does not raise an arguable case for the relief claimed and must be dismissed under r 44.12 of the Federal Circuit Court Rules 2002 with costs.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 December, 2020
Associate:
Date: 8 December, 2020
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