SZCID v Minister for Immigration - [2005] FMCA 1119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCID & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 1119

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in consideration of relocation.

Migration Act 1958

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37

Applicant:

SZCID & ORS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2902 OF 2003

Judgment of:

Barnes FM

Hearing date:

22 July 2005

Delivered at:

Sydney

Delivered on:

22 July 2005

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2902 OF 2003

SZCID & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, her husband and two of her children are South African citizens who arrived in Australia in June 2002 and applied for protection visas. The application was refused and they sought review by the Tribunal. The Tribunal held a hearing at which the applicant wife gave evidence. Only the applicant wife (who I will refer to for convenience as the applicant) made specific claims under the Refugees Convention. I note that there is another adult child (the eldest son in the family) who was not included in this particular application and is not the subject of these proceedings.
The Tribunal summarised the applicant's claims, in particular that her family had been victimised, assaulted and persecuted in South Africa because of the family's political involvement with the ANC and, in particular, the involvement of her eldest son, she claimed that as ‘coloured’ South Africans the blacks did not accept their political involvement. She also claimed that they were discriminated against and persecuted. The applicant made a number of specific claims of mistreatment, including a claim that in January 2002 she was kidnapped and sexually assaulted by a group of black South Africans. She claimed that they asked after the whereabouts of her eldest child. She claimed that her family had been harassed by members of the black community who were jealous of the advantages ‘coloured’ people had during the apartheid era in South Africa. She claimed that she was denied a promotion at work because of her colour and the post-apartheid affirmative action policy that favoured black South Africans and that she and her family had tried to consider relocation in South Africa but faced the same problems. The applicant also contended “that the South African authorities are unwilling to protect us because of our race”. She claimed generally that ‘coloured’ people were subject to discrimination and persecution and made particular reference to the employment situation. She provided a number of documents to the Tribunal including a written submission from her then migration agent and documents relating to the situation in South Africa.
The Tribunal referred to independent information in relation to the situation in South Africa. It is apparent from the findings and reasons part of the Tribunal decision that country information was discussed with the applicant and her witness at the Tribunal hearing, and that she took issue with aspects of the Tribunal's understanding of the situation in South Africa. However the Tribunal found that, based on country information to which it referred, it did not accept that the country information cited was not an accurate description of the conditions that prevailed in South Africa.
The Tribunal then dealt with various aspects of the applicant's claims. It first considered her claim in relation to persecution of coloured people as coloured people. On the basis of country information it was not satisfied that the widespread criminal activity, which it accepted had occurred in South Africa, occurred for the essential or significant reason of a person's political opinion or ethnicity. It noted the applicant's own evidence in relation to the targeting and robbery of her husband was said to be because the offenders had seen the cell phone he carried. Based on the applicant's evidence the Tribunal did not accept that a significant and essential motivation for this attack was the husband's ethnicity or any other Convention ground. It also concluded that based on the country information it was not satisfied that the significant and essential reason for the widespread and indiscriminate criminality and consequential violence in South Africa was ‘being coloured’, such as to give rise to a well-founded fear of persecution for that reason on return.
The Tribunal addressed the applicant's claim that she was denied a promotion at work due to her being a coloured South African. However it had regard to the applicant's evidence about the situation of the family, including that she continued to work in the lesser paid job. It found no evidence that the denial of promotion in any way threatened her and her family's capacity to subsist. It was not satisfied that any harm arising from the failure to be promoted, or any future impediment to promotion, would constitute harm amounting to persecution for the purposes of the Refugees Convention.
It also considered the claim of the applicant's adviser that her fears arose, amongst other things, due to her membership of a particular social group. It considered the possibility that the applicant considered herself to be a member of a particular social group due to her gender. However based on the information before it the Tribunal did not consider that the applicant had previously suffered harm amounting to persecution due solely to her gender. Her claim to have been sexually assaulted was that she was assaulted by persons primarily interested in the whereabouts of her eldest child. She had claimed discrimination and a fear of sexual violence. Based on country information the Tribunal was not satisfied that harm suffered on the basis of the applicant's gender was sufficiently serious to amount to persecution for a Convention reason or that there was a real chance of harm such as sexual violence such that she would have a well-founded fear of persecution on this basis should she return to South Africa. Nor was it satisfied that racial slurs or insults, while distressing, were such as to amount to sufficiently serious harm to constitute persecution for the purposes of the Refugees Convention.
The Tribunal then turned to the applicant's primary claims, which centred on her and her family having been politically active with the ANC in a particular city in South Africa which the Tribunal referred to as City X. On the basis of country information it found that mere membership of the ANC did not, without more, give rise to a well-founded fear of harm amounting to persecution in that part of the country. It found that the applicant's claimed involvement was minor (she claimed to have personally attended monthly meetings and to have put up posters and handed out leaflets). It was not satisfied on the evidence before it that the applicant would have a well-founded fear of persecution solely arising from her own ANC profile. The applicant also claimed that she and her family may have a prospective well-founded fear of persecution in the area that they came from because of her eldest son's political profile and involvement with the ANC. The Tribunal noted, but did not draw any adverse conclusions from a minor inconsistency in the applicant's evidence as to the timing of events. It was satisfied on the basis of her evidence that her eldest child did have a political profile in South Africa greater than her own. It accepted as plausible in relation to her claim of kidnapping and sexual assault, that her eldest child may be of continued interest to members of opposing political groups in the area in South Africa from which she came, that the applicant and her family may have been targeted as claimed by persons seeking to locate her eldest child and that she and her family may have a prospective well-founded fear of being persecuted by political opponents of the eldest child in what it described as city X for reasons of their membership of a particular social group, being the family.
However, the Tribunal went on to find that the applicant could reasonably relocate within South Africa to avoid persecution. It is apparent from the Tribunal reasons for decision that the issue of relocation was discussed with the applicant at the Tribunal hearing. The Tribunal reasons are the only record of what occurred at that hearing before the Court. The Tribunal stated that at the hearing it emerged that the applicant had moved three times within the city in which she normally resided and once to another city (city Y) for six months. The Tribunal accepted that she may have been tracked down as claimed within her home city but noted that she did not claim to have returned from city Y due to being persecuted there or to otherwise have been targeted for harm by her persecutors within city Y. Rather she claimed she returned because her family City Y could not continue to support her.
The Tribunal observed that it had to assess whether the applicant and/or her family members had a well-founded fear of persecution in South Africa as a whole. While her persecutors were in city X and ANC violence was prevalent in that area country information did not indicate that ‘protagonists in this violence were sought outside [the region]’. It found that the applicant and her family could relocate to an urban area within South Africa outside of their home city and by so doing would not have a well-founded fear of persecution for a Convention reason. It had regard to factors that it had put to the applicant for comment, such as the fact that she was comparatively well-educated, that in the light of her education and ability in English she should more readily be able to find employment and that she had retained the same job for many years in South Africa. It noted her claims in relation to those matters, but considered that country information indicated that although unemployment levels were high there were newly emerging industries and that the applicant had comparatively good education and apparently marketable job skills. The Tribunal was satisfied she could reasonably be expected to find commensurate employment in the emerging industries on the basis of the country information.
The Tribunal found that the country information did not indicate that the implementation of affirmative action policies for black South Africans gave rise to a well-founded fear of persecution for those groups not advantaged by same, and that such discrimination as there was did not suggest that those not subject to the benefit of such policies were subject to harm amounting to persecution for that reason in South Africa. It had regard to country information in relation to the laws on discrimination and the existence of some discrimination in practice. However it was not satisfied that the applicant would be denied employment due to her ethnicity or gender such that her capacity to subsist was threatened. Nor was it satisfied that it was unreasonable to expect her to relocate within South Africa in spite of the reported discrimination (it not being sufficiently serious) and it being reasonably expected she would find employment commensurate with her skills.
The Tribunal considered other impediments to relocation raised by the applicant, such as her claims in relation to whether her children would receive a proper education in South Africa and that they were less anxious having left South Africa. However it was satisfied on the basis of country information that the children would receive a proper education in South Africa and that any inability to pay for their tertiary education was not sufficiently serious harm such that it would be unreasonable to expect the applicant and her family to relocate. It noted that the family anxiety was due to ongoing violence and harassment in city X. It was not satisfied that the applicant and her family would have a well-founded fear of persecution for a Convention or any other reason if the family was to relocate. It had regard to the fact that the applicant had stayed in city Y for approximately six months and her claims that her family could not continue to support her. It found that the applicant and her family were apparently capable of movement within South Africa, had managed to arrange the financial means to travel to Australia, and that while they may have been assisted by family, the applicant had shown a capacity to relocate which satisfied the Tribunal that it was reasonable to expect her to do so. On the basis of all of these factors the Tribunal concluded that the applicant could reasonably relocate within South Africa to avoid persecution.
It also considered the applicant's claim that the South African authorities were unwilling to protect them because of their race. It had regard to country information in relation to criminality and violence in South Africa, but found none of the information before it satisfied it that the State withheld protection from South African citizens for reasons such as their race such that those citizens had a well-founded fear of persecution for a Convention reason. It did not consider the claim that the authorities were corrupt and inefficient assisted the applicant's case.
While the Tribunal accepted that discrimination of various groups existed in South Africa, it was not satisfied that, even on a cumulative basis, the applicant was owed protection obligations in Australia as she could relocate from city X on return.
In conclusion, the Tribunal did not accept that the applicant had a well-founded fear of persecution for any Convention reason in South Africa as a whole. It observed that no specific Convention claims were made by or on behalf of the applicant's husband or the children included in the application. The fate of their application therefore depended on the outcome of the applicant wife's application. As she did not succeed, it followed that her husband and two named children included in the application did not succeed.
The applicant, her husband and two children sought review of the Tribunal decision by application filed in this Court on 30 December 2003. The application claimed generally that relief was sought and the matter should be remitted. An accompanying affidavit sought judicial review and claimed simply that the decision was:
Infected, because of the jurisdictional error, such as error of law in applicable law of refugee, particularly Convention ground, persecution, well-founded fear and relocation.
No written submissions have been filed by the applicant. At the commencement of the hearing the applicant took issue with the fact that the respondent's written submissions were not received until one day prior to the hearing. The order that was made in the consent orders at the directions hearing of 20 February 2004 was for the applicant to file and serve an outline of submissions on or before five working days prior to the hearing (no written submissions were filed by the applicant) and for the respondent to file and serve an outline of submissions on or before two working days prior to the hearing. The solicitor for the respondent told the Court that service of the respondent’s submissions was attempted on the appropriate date but that as she had moved without notifying the respondent’s solicitors or the Court, service was not effected until the day before the hearing. The applicant was not able to point to any disadvantage, nor am I satisfied that any disadvantage has been occasioned by the fact that the respondent's submissions were received by her one day, rather than two days, prior to the hearing.
She took issue generally with the respondent's outline of submissions. It emerged from what she said to the court that she took issue with the findings of the Tribunal. However, as I explained to the applicant, merits review is not available in this Court. This is not a rehearing. It is not for the Court to determine whether the applicant is a refugee. While the applicant raised a number of humanitarian grounds about the family's situation in Australia and their wish to remain here, such factors are not matters that the Court is able to take into account in determining whether the Tribunal made a jurisdictional error.
The applicant raised a concern about the reason the family left South Africa. She claimed that it was because her son was part of an organisation. I take this to be a reference to her claims about her son's involvement in the ANC. The Tribunal considered and indeed accepted such claims. It also accepted that the applicant and her family may have a prospective well-founded fear of being persecuted by political opponents of her eldest child in the city from which they came for reasons of membership of a particular social group being the family. However the critical factors in the Tribunal findings were its finding that it would be reasonable for the applicant to relocate within South Africa to avoid persecution and its rejection of the applicant's claims that the authorities in South Africa were unwilling to protect them because of their race. No error is established in the manner in which the Tribunal dealt with the applicant’s claims about why the family left South Africa.
No jurisdictional error has been established in relation to the Tribunal decision or procedures. In particular, the Tribunal properly considered whether it would be reasonable for the applicant to relocate within South Africa. It is not disputed that in the Tribunal hearing it put to the applicant the material which supported this conclusion, that it gave her an opportunity to comment and that it took into account the obstacles to relocation that she raised. As Chief Justice Black observed in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality, even though real protection could be found within those borders.
In this case the Tribunal was satisfied that if the applicant and her family moved away from their former city they would not be at the prospective risk of harm that they feared in that city. The Tribunal dealt with the critical issue of whether it was reasonable to expect the applicant on return to South Africa to live in another part of the country. In accordance with what was stated in Randhawa by Chief Justice Black (with whom Whitlam J agreed) at 442 and 443, it correctly went on to ask not merely whether the applicant could relocate to another area of South Africa but whether she could reasonably be expected to do so. The practical realities facing a person such as the applicant who claimed to be a refugee were carefully considered by the Tribunal. (See NAIZ v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 per Branson J with whom North J agreed). In particular the Tribunal considered the issues raised by the applicant as obstacles to relocation as well as all the evidence before it in relation to factors such as her past history of movement, the reasons which she gave, what had occurred to her when she moved, her education and English level, her history of employment, her stable work record, claims and information in relation to discrimination and also the availability of employment in newly emerging industries where there was a shortage of skilled workers. It also had regard to the applicant’s claims in relation to discrimination and affirmative action and her claims in relation to the possible denial of employment on the basis of her gender as well as her ethnicity. It considered her claims about education of her children and the anxiety of the family either in her previous home town or elsewhere in South Africa, and the harassment that they had experienced in their previous home town as well as her claims about an absence of family assistance should she relocate within South Africa. It also took into account the family’s ability to travel to Australia and relocate in finding that it was reasonable for the applicant to relocate within South Africa.

As required by Randhawa and NAIZ the Tribunal considered the practical realities in determining whether it was satisfied that the applicant could reasonably be expected to relocate in a practical sense.
It has not been established that the Tribunal misconceived the elements of the test for determining whether the applicant was a person in respect of whom Australia owed protection obligations or that it did not ask itself the right questions before determining that it was not satisfied that she was such a person. Further, by reference to independent country information, the Tribunal made a distinct and unequivocal finding that the applicant could avail herself of effective state protection in South Africa, rejecting her claim that the South African authorities were unwilling to protect them because of their race. No error has been established in the manner in which the Tribunal made this or other findings. Matters of fact are matters for the Tribunal and the merits review that the applicant seeks is not available in this Court.
I repeat, for the benefit of the applicant, that the humanitarian issues that she raised about her family's situation in Australia are not matters that can be taken into account by the Court in determining whether the Tribunal has fallen into jurisdictional error. As no jurisdictional error has been established the application must be dismissed.
I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the respondent seeks that she meets the costs of these proceedings. The applicant indicates that she is in financial difficulties, that her husband is not in permanent employment and that she is in receipt of a modest salary. Nonetheless these factors are not such as to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although they may be matters taken into account by the respondent in determining how and when to seek to recover any costs ordered. In light of the nature of this and other similar matters and in the absence of any involvement of counsel, I consider that while costs should be fixed by the Court, an appropriate amount is the sum of $3,750.

I certify that the preceding twenty-five (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 August 2005