NBIO v Minister for Immigration - [2005] FMCA 1478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBIO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1478

MIGRATION – Review of decision of Refugee Review Tribunal – Rhodesia/ Zimbabwe – post–apartheid South Africa – father member of Rhodesian Selous Scouts and South African Special Forces – member of particular social group as a son of a white supremacist in South Africa – procedural fairness – steps in reasoning process – no evidence – test for persecution – test for effective protection – exclusion of procedural fairness – merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 422B, 424A

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Gunaseelan v Minister for Immigration & Multicultural Affairs [1997] FCA 434
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106
Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Applicant:

NBIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2570 of 2004

Judgment of:

Mowbray FM

Hearing date:

1 November 2004

Heard in:

Sydney

Delivered at:

Canberra

Delivered on:

5 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr S Prince

Solicitors for the Applicant:

Nil

Counsel for the First Respondent:

Mr L Leerdam

Solicitors for the First Respondent:

Phillips Fox

Solicitors for the Second Respondent:

Phillips Fox

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application filed in the Federal Court of Australia and transferred to this Court be dismissed.
That the applicant pay the first respondent’s costs and disbursements fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

SYG 2570 of 2004

NBIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This matter relates to a decision of the Refugee Review Tribunal

made on 6 July 2004.
On 17 August 2004 the application was transferred from the Federal Court to this Court by order of Madgwick J. The applicant had applied to the Federal Court under s.39B of the Judiciary Act 1903- for review of a decision of the Tribunal affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the applicant a protection visa.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.

Background

On 8 February 2002 the applicant entered Australia on a short stay business visa. The applicant claims that he thought the visa was for five years.
On 16 March 2004 the applicant made an application for a protection (class XA) visa, but on 2 April 2004 a delegate of the Minister refused the application. The applicant appealed to the Tribunal for a review of the decision on 7 April 2004. A hearing was held on 25 May 2004 and on 6 July 2004, as I have said, the Tribunal affirmed the Minister’s decision not to grant a protection visa.

Claims before the Department and Tribunal

The applicant was born in Zimbabwe in 1968 and is a national of South Africa. He grew up on a farm in Zimbabwe. His parents divorced when he was ten years old and he lived with his mother but also attended a boarding school. In 1973 the applicant and his family were forced off their farm and in 1981 the family moved to South Africa.
His father was a member of the Selous Scouts, a special armed force of the Rhodesian Government prior to the change in government. The applicant claims he suffered discrimination as a result of his father’s political views being known. He claims he was asked to leave school because his father was a member of the Selous Scouts and because his cousin had been involved in the attempted military coup in the Seychelles. He also claims that as a result of his father’s membership of the organisation, he himself was constantly approached and asked to join the organisation.
The applicant’s main claims are adequately summarised in the Respondent’s submissions:
10. In his written statement, the applicant claimed his father was a well-known mercenary initially with the ‘Selous Scouts’ while the family lived in Rhodesia, and later as a member of the Special Forces in South Africa.
10.1 The applicant claims that he worked as an ‘attack diver’ in the South African Defence Force from 1987 to 1992.
10.2Upon leaving the defence force, the applicant was unwittingly recruited by a mercenary group known as Executive Outcomes (under the guise of accepting a job diving for diamonds in Angola through an acquaintance).
10.3The applicant claims he was accused of spying, threatened with death, beaten, and shot at by members of Executive Outcomes (EO).
10.4Upon learning the identity of the applicant’s father, the members of EO escorted the applicant out of Angola at gunpoint and threatened to kill him if he remained in South Africa or spoke to the authorities.
10.5Over several years the applicant claims he was warned to ‘keep his mouth shut’ and was, at one point in the late 90’s, sent a bullet in a coffin shaped container.
11. The applicant claimed that as a white male in post-apartheid South Africa, he was disadvantaged in the competition for employment. Further he claimed that:
11.1 He would suffer persecution as the son of a well known mercenary who had assisted in training members of the Inkatha Freedom Party who fought against the (now ruling) African National Congress.
11.2As a result of his preference to work in rural areas, he was at risk of racial violence prevalent against white farmers. (In keeping with this fear of persecution, he claimed to have moved 30-35 times from May 1999 – February 2002).
11.3 The South African government sanctioned racial slurs and prejudices by their failure to act, thus he could not access effective State protection.
11.4Affirmative action policies in the new South Africa placed him at a disadvantage in the employment market.

Tribunal consideration

The Tribunal first considered the issue of whether the applicant had a well-founded fear of persecution due to his association with his father who was recognised as a former member of the Selous Scouts and a trainer of members of the Inkatha Party. Its critical findings at page 166 of the Court Book were:
The applicant claims that he will be targeted because he is the son of a man who was identified as an active soldier and supporter of the white regime in the former Rhodesia and in apartheid South Africa who subsequently helped train armed members of the Inkatha Freedom Party in South Africa – people who were fighting against the ANC which subsequently formed the government. The Tribunal does not accept that the applicant will be targeted for this reason. The applicant, on his own admission, has had very little to do with his father during his lifetime. The applicant was sent away from Rhodesia to boarding school in South Africa when he was 13. He did not live with his father from that time onwards and eventually lost contact with him. He does not know his father’s present whereabouts.
...
Given the passage of time since the applicant’s father was active in South Africa, and his lack of profile and the substantial changes which have occurred in South Africa since that time, there is not a real chance that the applicant will be targeted because of his father. There is simply insufficient evidence for the Tribunal to be satisfied that the applicant is of interest for reason of his membership of the particular social group constituted by his father’s family.
In relation to the applicant’s claims to fear persecution on the basis of being a white South African in post-apartheid South Africa where affirmative action programs are run and where there is violence towards whites, the Tribunal found at pages 167 and 168 of the Court Book:
The applicant has amassed an amount of data which indicates that white farmers are victims of a disproportionate amount of violence in South Africa and that (in the applicant’s view) the authorities are unable or unwilling to do anything about this. The applicant states that he is a visible target, that he is a rural worker, that he has been personally threatened by black South Africans making racial slurs against him, and implies that he too will end up as one of the white farm murder statistics. He claims that this will be for reason of his race, or for reason of his membership of a PSG constituted basically by white males (with some variations as to the details).
…
On the basis of all the evidence before it, the Tribunal has formed the view that the South African authorities clearly do not condone farm murders, do not instigate or encourage them, and are formulating strategies to ameliorate the situation. These farm murders (with multi-racial victims) must be seen as random acts of violence which the authorities are willing to tackle. The applicant himself is not a white farmer – and therefore cannot appropriate for himself the statistics relevant to that group; rather, he is a rural worker, and the statistics applying to this group indicate that both black and white farm workers are victims, hence removing “race” as a sole or dominant reason.
At pages 168 and 169 of the Court Book the Tribunal found:
His contention that there is an affirmative action program is correct and this may disadvantage him in terms of employment opportunities. However, affirmative action programs established to right past wrongs and assist a disadvantaged group are not persecutory. The applicant may have been disingenuous in claiming to be unskilled and hence doubly uncompetitive in the job market. The Tribunal notes that he was trained as an “attack diver” in the army – this indicates a high degree of professionalism in diving, an unusual skill. Even thought the applicant feels himself to be disadvantaged, there is some reason why a number of black Africans would not share his view … In short, the harm the applicant claims he has suffered or may suffer is not significant economic hardship or denial of capacity to earn a livelihood so as the threaten the persons’ capacity to subsist – that is, not “serious harm” of the type described in s.91R(2).
Further:
The applicant’s claim is broadly that he will face serious harm, probably death, for reason of his race at the hands of members of the majority black population in South Africa. He further claims that the authorities perhaps condone or even encourage such racial attacks; in any case, they are unable or unwilling to offer effective State protection to white persons such as himself. The Tribunal must reject this claim.
…
However, on the evidence of external observers, including international human rights agencies, the South African government respects the human rights of its citizens. It is willing and able to protect its citizens although protection in this instance does not mean a guarantee of safety.

Consideration

The sixteen grounds set out in the application (paragraphs 9 to 23, including two paragraphs numbered 16) were brought together as three grounds of review in the applicant’s written submissions.
The first was based on the Tribunal’s rejection of the applicant’s claim of persecution due to his membership of a particular social group as the son of his father who was a member of the Sealous Scouts. The applicant claimed the Tribunal did not put to him its findings on the passage of time since the father was active in South Africa, the father’s lack of political profile and the change in circumstances in South Africa since his father was active. He further claimed that the Tribunal had no evidence to make such findings which were also inconsistent with other findings it made.
The second ground of review was that the Tribunal misconstrued the applicant’s claims as to social groups to which he belonged and further did not consider whether the denial of capacity to earn a livelihood by reason of affirmative action programs amounted to persecution for the purposes of s.91R of the Migration Act 1958.
The third ground of review was essentially that the Tribunal failed to exercise its jurisdiction properly in determining whether the applicant had a well-founded fear of persecution on the basis that ‘Executive Outcomes’ threatened to kill him and the State would not be able to protect him.
At the hearing counsel for the applicant, Mr Prince, directed his submissions principally to two grounds of review which correspond more or less to grounds one and two of the applicant’s written submissions.
I will deal with each issue separately.

Ground one

The applicant asserts that the Tribunal failed to accord him procedural fairness because it did not put to him its concerns with his father’s profile and failed to provide any supporting evidence when it rejected his claims that he feared persecution on the basis of membership of a particular social group, namely
son of a man who was known to be a member of the Selous Scouts and the South African Special Forces who assisted the training of the Inkatha Freedom Party members who battled against the ANC.
Further its findings were contradictory.
Mr Prince said that it was made very clear in the applicant’s evidence and submissions to the Tribunal that he was making a claim on the ground that he was imputed to have association with his father. The applicant pointed out that the Tribunal rejected the applicant’s claim as:
·there was a long passage of time since the father was active in South Africa
·the father lacked political profile
·there were changes which had occurred in South Africa since that time which meant that the applicant would no longer be targeted as the son of his father.
These findings were set out by the Tribunal at page 166 of the Court Book. The applicant argued that these matters were not put to him as required by the principles of procedural fairness. Indeed the applicant stated that the tenor of the questioning by the Tribunal to the applicant was such that it could be assumed that the profile of the applicant’s father was not in issue. The tape of the Tribunal hearing was tendered in evidence in support, but a transcript was not provided.
Mr Prince argued that the Tribunal did not alert the applicant to the doubts that it had about his father nor to its conclusion that he did not have a high profile. The applicant therefore was not given a chance to comment on this issue which turned out to be pivotal to the Tribunal’s decision.
As Mr Prince pointed out, the Tribunal made no adverse finding as to the applicant’s credibility. It accepted that the applicant’s father had been a member of the Sealous Scouts in Rhodesia and then of the Special Forces in South Africa. While the Tribunal apparently, in the applicant’s submission, miscategorised the applicant’s father as a “known mercenary”, the Tribunal questioned the applicant about his father in the terms of him being a “mercenary” and the applicant clearly did not deny this characterisation at the Tribunal hearing.
The applicant further said that the Tribunal made findings of fact for which there was no evidence and which were not raised with the applicant for comment. The applicant needed to be put on notice about issues on which he would be required to give evidence.
The respondent argued that the applicant was seeking to challenge the findings of the Tribunal. Mr Leerdam for the respondent said that the Tribunal did not have an obligation to set out its findings on every piece of evidence. The Tribunal accepted that the family could form a particular social group. It was simply considering whether or not there was a well founded fear of persecution as a result of the matters that were put before it. It did not have to put to the applicant its reasoning process.
In support Mr Leerdam cited the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing.
Mr Leerdam said that the Tribunal was therefore required to review the applicant’s case based on the information he put before it, but also to extend its enquiry further. It was not to rely on the applicant’s statement of the facts, but was able to draw inferences from the facts.
As the Full Court of the Federal Court said in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592:
Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case.
…
… a decision-maker is not obliged to expose his or her mental processes, or provisional views to comment before making the decision in question.
In other words the Tribunal was under no obligation to disclose its thought processes and give the applicant an opportunity to comment on them. From its own record, the Tribunal questioned the applicant about his father, about where the father was now and how much contact the applicant had had with his father.
The Full Court said in Alphaone that the Tribunal must give the applicant an opportunity to comment on the critical issues on which the case turns and on any adverse conclusions that the Tribunal draws on information before it which is based on a different interpretation of that material from that which would obviously be open on that material.
At page 153 of the Court Book the Tribunal set out the applicant’s claims during the hearing. The Tribunal said:
The applicant stated that he believed that he was a refugee because he feared persecution as a member of a particular social group – that constituted by his father’s family; or alternatively, constituted by white males of the apartheid era. As a member of one or both particular social groups, he could not access effective State protection.
The Tribunal asked the applicant questions about his father and used the word “mercenary” in relation to him, something which the applicant does not appear to have corrected at the hearing. For example the Tribunal when outlining the applicant’s claims said
he was worried because he was the son of a known mercenary who, among other pursuits, had assisted in training some Inkatha Freedom Party members who battled against the African National Congress members (and the ANC was now firmly in government).
…
… He did not feel that he could access effective State protection in his situation, especially given his position as the son of a man known to be a mercenary – and one who had helped in the training of anti-government IFP fighters.

The applicant provided the Tribunal with an article about helicopter warfare in Rhodesia between 1962 and 1982. The applicant’s father was mentioned by name as a member of the Selous Scouts in that article. The applicant also provided a document about the Truth and Reconciliation Commission about how IFP fighters perpetrated “gross violations of human rights”. The documents dealt with the Selous Scouts and their activities up until 1994 but not afterwards.
Further the Tribunal noted:
The applicant, on his own admission, has had very little to do with his father during his lifetime. The applicant was sent away from Rhodesia to boarding school in South Africa when he was 13. He did not live with his father from that time onwards and eventually lost contact with him. He does not know his father’s present whereabouts. …
… The applicant indicated that his father was no longer in South Africa, but when he left was uncertain.
Ultimately the Tribunal’s decision turned on the lack of evidence that the applicant would be persecuted because of his father’s activities. This conclusion and the findings with which the applicant takes issue were reasonably open to the Tribunal on the facts and on the evidence to which it referred. I can find no inconsistency as alleged by the applicant. Moreover the Tribunal was not required to put to the applicant the matters identified at paragraph 20 above. It was not obliged to expose each step of its reasoning process to the applicant (see Alphaone). I reject ground one.

Ground two

The applicant’s second ground of review was that the Tribunal did not consider whether the applicant’s inability to earn a livelihood by reason of affirmative action policies in South Africa amounted to persecution for the purposes of s.91R of the Act. In oral submissions he raised two issues: firstly whether the Tribunal failed to properly apply the test for persecution, and secondly whether the Tribunal failed to accord procedural fairness to the applicant in not informing him of information about effective protection that it had that was unfavourable to his case.

Persecution

The applicant contended that in considering the question of persecution the Tribunal failed to have regard to the applicant’s personal circumstances and the effect that affirmative action policies could have.
The applicant asserted that he put to the Tribunal constantly that this was not the case of a “poor white man in rural white South Africa [who] was claiming to be fearful of being the subject of racist attacks”. His claim was combined with his claim that his father was associated with the apartheid regime in South Africa. Yet the Tribunal dealt with his claim solely on the basis that he was a generic white South African in rural South Africa.
The Tribunal found that the applicant did not have a well-founded fear of persecution on the basis of race or as a member of a social group as a white rural worker in South Africa. The Tribunal said at 168 of the Court Book:
These farm murders (with multi-racial victims) must be seen as random acts of violence which the authorities are willing to tackle. The applicant himself is not a white farmer – and therefore cannot appropriate for himself the statistics relevant to that group; rather, he is a rural worker, and the statistics applying to this group indicate that both black and white farm workers are victims, hence removing “race” as a sole or dominant reason.
In the applicant’s submission the Tribunal misconstrued the test. Mr Prince for the applicant suggested that denigration could amount to persecution. The Tribunal failed to consider both this and the negative discrimination suffered by the applicant with the introduction of affirmative action programs. The Tribunal failed to determine whether the positive discrimination policy constituted persecution for the purposes of the Refugee Convention.
Mr Prince said in oral submissions that the Tribunal was required to evaluate the nature of the affirmative action program, the impacts on the applicant and whether the consequences would be substantially prejudicial. The applicant had put to the Tribunal that while he was in South Africa he could not find work. Mr Prince said that the Tribunal ought to have analysed the nature of the job market and discovered whether white South Africans were getting manual jobs and whether this was as a result of the affirmative action program let alone whether it was persecution.
The applicant’s primary submission in essence is that the matter which ought to have been considered by the Tribunal was not considered, that is the Tribunal did not have regard to the applicant’s skills, the impact of affirmative action programs on unskilled white South Africans or the nature of the South African economy. The Tribunal did not fairly address the claim and did not follow through its reasoning so as to make findings which can be sustained as outlined by French J in Gunaseelan v Minister for Immigration & Multicultural Affairs [1997] FCA 434.
Justice French set out a process by which the Tribunal should determine whether positive discrimination would constitute persecution for the purposes of the Convention:
In my opinion the establishment of a State policy of positive discrimination in favour of a particular ethnic group will not necessarily amount to persecution of other groups not the beneficiaries of that policy. The resolution of that question may depend, in each case, upon the nature and extent of the adverse or detrimental impact of the policy upon the non-advantaged groups.
…
Even if positive discrimination is not able to be brought within the benevolent ambit of affirmative action, it does not follow that its negative impacts on groups or individuals within groups will constitute persecution for the purposes of the Convention. Whether it does or does not in a particular case will depend upon an evaluation of its nature and operation, its impacts on the applicant who applies for refugee status and, as an element of the consideration of the existence of a well founded fear, its impact upon the group, if there be a group, adversely affected by the policy.
The Tribunal in its reasons for decision expressly adverted to the passages in Chan relating to the concept of persecution and the discussion of economic discrimination in Hathaway, The Law of Refugee Status (Butterworths Canada Ltd., 1991). It concluded that the government of the country where there exists reasonable employment opportunities must not deny individuals or groups the right to work for Convention reasons. Other considerations would arise where there is less than actual denial of such a right.
The Tribunal at page 169 of the Court Book said:
The Tribunal acknowledges that there may be a number of South Africans who would be wary about a white male of an age indicating that he had been raised during the apartheid era, and who may denigrate him simply on the basis of his colour. This, unfortunately, is part of “the swings and roundabouts” of public discourse that occur with major social upheavals, such as occurred in South Africa a decade ago. The Tribunal acknowledges that many white South Africans have chosen not to be part of the new South Africa and left. Others have stayed, willingly or unwillingly, although some may feel that there is no place for them there. The applicant feels that there is no place for him. However, the South African government has tried to be inclusive.
Earlier the Tribunal said at page 168 of the Court Book:
On the evidence, the Tribunal is of the view that there are many personal reasons [some set out in the previous paragraph in the decision] why the applicant has been unable to settle in one place in South Africa. … The Tribunal acknowledges that the applicant may face external (not personal) difficulties in South Africa. His contention that there is an affirmative action program is correct and this may disadvantage him in terms of employment opportunities. However, affirmative action programs established to right past wrongs and assist a disadvantaged group are not persecutory. The applicant may have been disingenuous in claiming to be unskilled and hence doubly uncompetitive in the job market. The Tribunal notes that he was trained as an “attack diver” in the army – this indicates a high degree of professionalism in diving, an unusual skill.
Further:
Even though the applicant feels himself to be disadvantaged, there is some reason why a number of black Africans would not share his view: “The distribution of income and wealth remained highly skewed along racial lines and between urban and rural citizens. Approximately 60 percent of the black African population and approximately 3 percent of the white population lived below the poverty line. Official unemployment remained high at approximately 30 percent. The country suffered from a significant shortage of skilled workers, and many black African citizens were poorly educated, ill housed, and unemployed” (US DoS 2004, op.cit., Overview). In short, the harm the applicant claims he has suffered or may suffer is not significant economic hardship or denial of capacity to earn a livelihood so as [to] threaten the persons’ capacity to subsist – that is, not “serious harm” of the type described in s.91R(2).
In my view the applicant is cavilling with the reasoning process of the Tribunal and with its fact finding. The Tribunal adequately if briefly considered the applicant’s personal circumstances and the denigration and affirmative action program issues. It did not misconstrue the concept of persecution under the Convention and s.91R. Unhappily for the applicant it found that the type of harm that the applicant claimed to be suffering did not constitute persecution. It was reasonably open to the Tribunal on the evidence before it to make such a finding.
This element of ground two must also be rejected.

Effective protection

The applicant raised two areas in relation to effective protection where he submitted the Tribunal fell into jurisdictional error:
·the Tribunal breached the rules of procedural fairness by relying on information which was not put to the applicant for comment
· the Tribunal misunderstood the test for effective protection.
Mr Prince said that the Tribunal referred to “international human rights agencies” in making its decision, but failed to outline any information in its decision or at the Tribunal hearing from such agencies. The only sources the Tribunal mentioned outside the sources provided by the applicant were the US Department of State “Country Report on Human Rights Practices for 2003” and the South African Government website. However, as the respondent noted the US Department of State report drew on reports from human rights agencies and NGOs.
Section 424A did not apply to this information because of the exclusion in subsection (3) which provides:
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
…
Therefore there was no obligation under the Act for the Tribunal to provide the applicant with this information. The information as to whether the South African Government was able to provide protection was not about the applicant or another person. Further some of the information was gathered from the sources that the applicant provided to the Tribunal, so the applicant had an opportunity to comment on it. However, Mr Prince argued that the obligation to provide such information was a matter of procedural fairness at common law and outside the scope of the Act.
Section 422B limited the scope of procedural fairness in relation to migration cases. It provides:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Mr Prince drew my attention to the decision by French J sitting on appeal from this Court in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106.
Mr Prince reasoned that if information was not included in the obligation under s.424A(1) because it was excluded by s.424A(3) then it would not be a matter dealt with by Division 4. It therefore would not be caught by s.422B. Consequently procedural fairness must be accorded in relation to the information. In this case this would require that the applicant be shown the documents.
The respondent said that ss.422B and 424A simply do not arise in this case because of the particular facts. The Tribunal had an extensive dialogue with the applicant about his claims. The Tribunal wrote to the applicant after the hearing and raised issues concerning the Tribunal acquiring the passport of the applicant and about farm killings. It put to the applicant the information on which the Tribunal was going to rely. The applicant then responded with the information to which the Tribunal refers in the reasons.
Further the respondent argued that the findings made by the Tribunal were based to a large extent on the information provided by the applicant who presented information to the Tribunal on at least three occasions.
The respondent nevertheless conceded that there may be an obligation to provide procedural fairness at common law in certain circumstances. But in relation to country information it is clear that s.424A read with s.422B covered “any omission in that respect”.
Justice French said at [49] and [50] in WAJR:
In my opinion s 424A of the Act does not apply to this case [where the documents were provided by the applicant and the Tribunal had doubts about their genuineness]. The formation of a view about the evidence by the Tribunal is not ‘information’ of the kind contemplated in that section. Were it otherwise, it could be argued that the section would require the Tribunal to advise an applicant of its adverse conclusions generally in advance of its decision for the purpose of inviting comment upon them.
If it be correct that s 424A does not cover this case there are two issues to be considered. The first is whether the failure to invite comment on the Tribunal’s conclusions in respect of the letters would amount to a failure of procedural fairness absent s 422B. The second is whether s 422B so confines the application of procedural fairness that it is not available to support the complaint made by this appellant.
…
At [57] to [59] his Honour went onto say:
The question that follows is whether s 422B precludes the application of procedural fairness in this context. Section 422B provides that Division 4 of Part 7 is ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. The ‘natural justice hearing rule’ is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal. Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case.
…
Section 422B contains words of limitation which indicate that it is not intended to confine the requirements of procedural fairness in respect of Tribunal hearings by limiting their application to the matters dealt with in the provisions of Division 4 in the way that they are dealt with there.
In my opinion Mr Prince’s reasoning would defeat the purpose of s.424A(3). It strikes me as odd that a matter that would otherwise be within s.424A but which was excluded by s.424A(3), should have the rules of natural justice reinstated to it because s.422B did not apply to it. In my view WAJR does not provide authority for Mr Prince’s proposition.
The exception in s.424A(3)(a) applies to the information that Mr Prince submitted should have been put to the applicant, that is the country information referred to in paragraph 50 (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280. There was thus no breach of s.424A. There was also no procedural fairness obligation at common law because of s.422.
The applicant argued that there was a further jurisdictional error in the way the Tribunal approached the question of effective protection. He submitted that, based on the evidence that the Tribunal had before it, there may be a willingness on the part of the South African Government to protect its citizens, but certainly not a level of effectiveness. The Tribunal disregarded the difference.
Mr Prince pointed out that the Tribunal said that the South African Government was aware of shortcomings in the police force and was endeavouring to improve the situation. It asked whether the South African Government was condoning the farm killings and whether it was unwilling to assist. In this the Tribunal asked itself the wrong question. It looked at whether the Government was willing to protect its citizens in respect of farm killings and whether it condoned such attacks, not whether the Government was effectively able to provide protection.
Mr Prince said:
It’s no part of the applicant's solution that any government has to provide complete protection for its citizens and there's no doubt that violent crimes occur in all societies, and even those with the most effective police forces in the world. There is a raft of material that was before the Tribunal which indicated to it that there is a very serious problem in farm murders in South Africa and it seemed to accept that there was a serious problem in farm murders in South Africa.

Further:
The external observers could only, in this case and given the material that’s been set out by the Tribunal, relate to the US State Department report. There is no way in which that report could possibly be read as providing support for the proposition that the South African government is able to protect its citizens. It may certainly be support for the proposition that the South African government is willing to protect its citizens. When the Tribunal does get to some sort of specificity about the material it relies on for these findings, it refers to the US Department of State and the South African government’s official website and it acknowledges that those reports indicate that the government is aware that there are still short comings in the police force.
In my submission, your Honour, that would be a euphemistic summary of what is said by the US State Department and the South African - most particularly the State Department’s material. There is a commitment to increasing police numbers and improving their training and deploying them in more effective ways. Again, that is looking at willingness. … according the US State Department, the majority of police resources remain focussed on formal white areas and business districts and that does not amount to a finding, in my submission, that the police resources, which are so focussed are effective.
He submitted:
… the primary submission was that there was no finding, or no proper finding that the South African Government was able to protect its citizens. The closes one gets to that in my submission is the second sentence of the last paragraph of page 169.
But then, that is such a vague and general finding … the finding that the Government is aware that there are shortcomings in the police force but it is endeavouring to fix those problems in my submission belies the fact of what the Tribunal is really looking at, was whether or not the South African Government either was condoning the farm killings or whether it was unwilling to assist.

In Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 Gleeson CJ, Hayne and Heydon JJ said at [16]:
The Full Court went on:
“Counsel for the [Minister] submitted that the Tribunal did make a finding that the State had the ability to protect its citizens ... However, examination of the Tribunal’s reasons indicates it only went so far as considering whether the [first respondent] sought and failed to obtain protection from the Ukrainian authorities. There was no specific consideration of the State’s ability, in a practical sense, to provide protection. It is not an answer, in our opinion, simply to assert that the harm suffered by the first [respondent] ‘must be seen as individual and random incidents of harm and not persecution’.”
At [17] to [18]:
… It appears … that what the Full Court had in mind was that the first respondent had suffered harm in the past (in the manner and on the occasions described above), and that there was no assurance that the same would not happen to him again in the future. The suggested error of the Tribunal, said by the Full Court to be jurisdictional error, lay in failing “to consider the right question, namely, whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm”. Since the Tribunal had found that the three attacks on the first respondent were random and unco-ordinated, that the attackers were different, and that each group was unknown to the others, the “pervasive pattern of harm” must be the hostility, in certain elements of the community, towards “sectarian” religious practice and proselytising, and the propensity of some of those elements to express their hostility in a violent manner. The Full Court said that the practical ability, or lack of ability, to provide protection was relevant in determining whether the first respondent’s fear was well-founded. It did not advert expressly to whether it was also relevant to determining whether that which the first respondent feared was persecution, or to whether the first respondent’s unwillingness to avail himself in Australia of the protection of the Ukrainian authorities was “owing to” such fear.
At [26]:
No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
And at [28]:
If the Full Court contemplated that the tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent’s safety to the extent that he need have no fear of further harm, then it was in error.
The Tribunal had regard to this authority in its reasons. It found:
On the evidence of external observers, including international human rights agencies, the South African government respects the human rights of its citizens. It is willing and able to protect its citizens although protection in this instance does mean a guarantee of safety.
As the High Court has made clear, there is no requirement that all citizens will be guaranteed protection at all times and in all circumstances. Further as Selway J said in SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 at paragraph 32, referring to Respondents S152 of 2003:
In my view their Honours have concluded that the relevant State is required to provide a ‘reasonably effective police force and a reasonably impartial system of justice’ (at [28]). ‘Reasonably effective’ in this context is to be determined by ‘international standards’. Their Honours have not specified what those international standards are, but have made it clear that the Tribunal could not be satisfied that those standards had not been met unless there was evidence to that effect. (Emphasis added).
I am not satisfied that the Tribunal misunderstood the test for effective protection. Rather in my view it is the applicant who has fallen into this error. Really the applicant wants the Court to construe the Tribunal’s reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’. This the Court can not do.
This ground should also be rejected.

Ground three

The third ground of review was
The finding that had Executive Outcomes wished to kill him they would have already done so is not a proper exercise of the jurisdiction in determining whether the applicant had a well founded fear of persecution on this ground.
The applicant relied on his written submissions. However, in his oral submissions Mr Prince noted:
There are a number of factual findings on that head which in my submission were in error, but those can’t be relevant to this application so I won’t deal with them. But ultimately the essence of the Tribunal’s finding was that if they were going to kill him they would have killed him by now. In my submission that’s not a very sound basis for determining whether or not there’s a reasonable, legitimate fear of persecution. It’s somewhat circular and in my submission it involved an incorrect approach to dealing with that question.
This ground is not articulated at all in the application before the Court. However, the Tribunal rejected the applicant’s claims that he would be targeted by persons from Executive Outcomes. In my view it is incorrect to characterise the essence of the Tribunal’s findings in the way Mr Prince has. In any event, as Mr Prince obliquely admitted, the applicant’s concerns were really with the merits of the Tribunal’s fact finding. That is not something with which I can interfere.
This ground must be rejected.

Conclusion

I have rejected all the grounds raised by the applicant.
In my view the findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
The application must be dismissed.

I certify that the preceding eighty-three paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 5 December 2005