SJRB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1286

F FEDERAL COURT OF AUSTRALIA

SJRB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1286

SJRB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 451 OF 2003

SELWAY J
7 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 451 OF 2003

BETWEEN:	SJRB APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	7 NOVEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant to pay the respondent’s costs to be taxed or agreed, save only for the costs of the notice of objection to competency.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 451 OF 2003

BETWEEN:	SJRB APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	7 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for prohibition, mandamus and certiorari, made pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 25 July 2002. It is accepted by the parties that the applicant can only succeed in this application if she can show that there was some jurisdictional error in the process, reasoning or decision of the Tribunal.

2. The applicant is an 84-year-old white female. She is a citizen of South Africa. She arrived in Australia on 17 October 2000. On 28 November 2000, she lodged an application for a protection visa. Under s 36(2) of the Migration Act1958 (Cth), the applicant can only obtain such a visa if the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) is satisfied that Australia has protection obligations to the applicant by reason of the applicant having a well-founded fear of being persecuted for a Convention reason. In this case the applicant says that she has a well-founded fear based upon her ethnicity or race. She says, firstly, that she was and is at particular risk from black people in South Africa who rob white people, and particularly elderly white people. She says that the police were and are unable to protect her.

3. Secondly, she says that if she returned to South Africa, she is at risk of being placed in a nursing home by reason of her age.  If she is in a nursing home, she says she is at high risk of persecution by the black staff because of her race.  Again, she says that the police and other authorities are unable to protect her.  The applicant’s claim was rejected by a delegate of the Minister on 2 January 2001.  The applicant sought a review of that decision by the Tribunal.

4. After hearing from the applicant and her advisers, the Tribunal delivered its decision on 20 August 2002.  The Tribunal described the test for persecution as follows:

   ‘Under s. 91R(1) of the Act, persecution must involve “serious harm” to the applicant (s. 91R(1)(b)), and systematic and discriminatory conduct (s. 91R(1)(c)).  The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s. 91R(2) of the Act.  The High Court has explained that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  However the motivation need not be one of enmity, malignity or antipathy towards the victim on the part of the persecutor. 

   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.  The phrase “for reason of” serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s. 91R(1)(a) of the Act.

   Fourth, the applicant’s fear of persecution for a Convention reason must be a “well-founded” fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  The person has a “well-founded” fear of persecution under the Convention if they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.’

5. It is not suggested before me that there is anything wrong with that description of the relevant test to be applied.  In this case, the Tribunal found that the lawlessness which the applicant feared was not by reason of race:

   ‘The Tribunal accepts that the applicant is fearful about returning to South Africa where there is a high crime rate.  The Tribunal notes that the applicant herself has not been physically harmed in the past but it accepts that a number of elderly white neighbours similar to the applicant have been robbed and at least one has been assaulted.  The Tribunal accepts that fear of such harm has in the past restricted the applicant’s freedom of movement and subsequent quality of life.  The applicant claims that she and her neighbours are targeted because of their race.’

6. The Tribunal proceeded:

   ‘The Tribunal had put the same question to the applicant at the hearing: that is, that the assailants were motivated by financial gain, presuming that the applicants and her neighbours were wealthy - certainly in comparison with the assailants who were squatters.  The applicant had agreed that this was a reasonable statement.  The Tribunal has no evidence before it to indicate that particular groups of white South Africans are targeted because of their race.  It is satisfied that if the applicant were to become a victim of robbery, burglary or assault (like her neighbours) at the hands of the local squatters, then it would be an opportunistic and criminal act and not Convention-related.’

7. As to the inability of government agencies to protect the applicant, the Tribunal noted:

   ‘The Tribunal notes that the police are “ill-equipped, overworked and under-trained”, but that “sweeping, mostly positive, changes” are happening.  Within a framework of Constitutional prohibition of racial discrimination, it is not plausible to find that police were deliberately denying services to “elderly white ladies” or any other group for reason of their race.  Given the pressure on police services, it may happen that outcomes are unsatisfactory in a number of cases.  However, the Tribunal is not satisfied that the State is unwilling or unable to protect the applicant to any differing degree to other citizens (certainly not to a worse degree) because of her race.’

8. The Tribunal proceeded:

   ‘The Tribunal does not find that the applicant will be excluded from State protection because of her race (or other Convention reason).  This does not mean that the applicant has not encountered, or will not encounter in the future, individuals - including those who represent various State authorities who fail in the duty required of them. 

   A specific fear voiced by the applicant was going to a nursing home and being abused by staff members because of her race.  This is all hypothetical: a fear about possible treatment in a place where she might perhaps go at some unspecified time in the future.  As discussed at hearing, this is an insubstantial ground on which to place a claim for asylum.  Even if this abuse had already been suffered by the applicant (which it has not) it would still not constitute harm for a Convention reason.  As the Tribunal said at hearing, it is not possible to base a refugee case on individual examples of harm, where the harm was not sanctioned by anybody and where state mechanisms exist to address that harm and ensure its discontinuance. 

   On the evidence before it, the Tribunal is not satisfied that the applicant has suffered harm amounting to persecution for a Convention reason.  The chance that such harm will befall her in the reasonably foreseeable future is remote.  The Tribunal is not satisfied that the South African government is unwilling or unable to offer State protection to the applicant as one of its citizens.  It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.  She is not a refugee.’

9. The grounds upon which judicial review has been sought are not altogether clear.  They would seem to comprise the following:  first, that there was a denial of procedural fairness in the process adopted by the Tribunal.  It is sufficient to say that argument is not made out.  Second, that the Tribunal was in error in reaching the factual conclusion it did.  As to that, it is sufficient to say that the ground alleged does not involve a jurisdictional error.  Third, that the Tribunal gave inadequate consideration to the applicant’s age and circumstance.  As to that, all one can say is that in relation to the claims by the appellant, the appellant’s age and circumstance was not, and is not, a relevant consideration to whether she should be granted a protection visa.

10. In this regard I note that there is no ground based upon any alleged failure of the Tribunal to consider whether ‘elderly white women’ form part of a social group or are a social group - contrast SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364. In this case, the claim that was made did not raise that issue. I do not mean to suggest that that group could be described as a particular social group in the context of South African society. In any event, the Tribunal was not obliged to consider it.

11. At the end of the day, the grounds are simply not made out.  What the applicant’s case came down to is that white people, and particularly elderly white people, are being attacked and robbed in South Africa because they are white and they are not being protected by the police or the courts.  Undoubtedly, there are problems with law and order in some parts of South Africa, but that does not mean that the problems of law and order are racially based rather than based upon wealth or opportunity. 

12. The reasoning of the Tribunal is obviously correct.  In any event, its conclusions and reasoning involve no jurisdictional error.  It is reinforced by the fact that the material suggesting that there is or could be a failure of State authorities to protect the applicant is simply inadequate for the purpose of establishing persecution for the purposes of the Convention.  Obviously one can only sympathise with the position that the applicant now finds herself in.  The Tribunal obviously did so, but that does not establish jurisdictional error, nor does it establish that she is a refugee.  The application is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             3 December 2003

Counsel for the Applicant:	MW Clisby
Solicitor for the Applicant:	MW Clisby
Counsel for the Respondent:	J Van Lingen
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 November 2003
Date of Judgment:	7 November 2003