SZCID v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1334

FEDERAL COURT OF AUSTRALIA

SZCID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1334

SZCID & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1450 OF 2005

EMMETT J
14 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1450 OF 2005

BETWEEN:

SZCID
FIRST APPLICANT

SZCIE
SECOND APPLICANT

SZCIF
THIRD APPLICANT

SZCIG
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

14 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application of 19 August 2005 be dismissed. 

2.        The first and second applicants pay the Minister’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1450 OF 2005

BETWEEN:

SZCID
FIRST APPLICANT

SZCIE
SECOND APPLICANT

SZCIF
THIRD APPLICANT

SZCIG
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:	14 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants are citizens of South Africa.  They consist of wife, her husband and their two sons. They arrived in Australia on 30 June 2002.  On 13 August 2002, they lodged applications for protection (class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 7 November 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant protection visas. On 6 December 2002, the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 11 November 2003, the Tribunal affirmed the decision not to grant protection visas. The applicants then applied to the Federal Magistrates Court of Australia on 30 December 2003 for Constitutional writ relief in respect of the Tribunal’s decision. On 22 July 2005, Barnes FM ordered that the application be dismissed with costs.

2. On 19 August 2005, the applicants applied to this Court for an extension of time to file and serve a notice of appeal.  An affidavit was filed by the first applicant in support of the application, saying that the first applicant was present at the Federal Magistrates Court when the orders were made on 22 July 2005, but was unrepresented and presented the case as best she could.  She stated that she did not receive a transcription of the oral reasons, given on 22 July 2005, until 17 August 2005.  She did not know that she was required to file a notice of appeal within 21 days from the day when the matter was heard.  The first applicant also says that she was not in a position to consider the errors made in the judgment properly until she received the transcription of the oral reasons.  If there was any prospect of success in an appeal, I would be persuaded to extend the time within which to file the notice of appeal.

3. When the matter first came before me on 7 September 2005, no draft notice of appeal had been filed.  I therefore stood the matter over for a week to allow the applicant to file a draft notice of appeal.  That was done on 12 September 2005.

4. The Tribunal’s reasons record that, at the hearing, the first applicant, and a witness called by her, claimed that the country information sources dealing with South Africa that were available to the Tribunal did not fully understand what is happening in South Africa, as the government sought to censor the media.  However, the Tribunal did not accept, from the evidence that it had, that the country information that it cited was not an accurate description of the conditions that prevail in South Africa for the purposes of making its decision.

5. The first applicant claimed that family members have been bashed and robbed by black South Africans who were jealous of the advantages coloured people had enjoyed during the apartheid era and who had decided to pay them back.  The first applicant claimed that black people do not like the political involvement of non-blacks, as they believe that coloured people were also involved in the past oppression of black people in South Africa.

6. The Tribunal understood the first applicant to be claiming to have a well-founded fear, arising from her membership of the African National Congress (‘ANC’).  She also claimed that coloured South Africans are now discriminated against and persecuted by the black majority.

7. The Tribunal observed that while differences in the treatment of various groups are apparent in South Africa, the country information did not satisfy the Tribunal that coloured people in South Africa would have a well-founded fear of being subjected to harm amounting to persecution solely for that reason.  The Tribunal referred to country information that suggested widespread criminal activity, but was not satisfied that the essential or significant reason for that activity was a person’s political opinion or ethnicity.

8. The Tribunal did not consider that the first applicant had previously suffered harm amounting to persecution due solely to the fact that she is a woman.  The Tribunal referred to claims that she had been assaulted by persons interested in the whereabouts of her eldest son.  On the basis of the country information considered, the Tribunal was not satisfied that the discrimination to which the first applicant might be subject by reason of her being a woman would be sufficiently serious to constitute persecution or that there would be a real chance of violence if she returned to South Africa.

9. The Tribunal did accept as plausible the claim that the first applicant endured racial slurs and insults because she was coloured.  While the Tribunal accepted that such matters would be distressing, the Tribunal was not satisfied that the harm was sufficiently serious to amount to persecution for purposes of the Convention.

10. The Tribunal recorded that the first applicant’s primary claims centred around having been politically active with the ANC in Durban.  She claimed to have attended monthly meetings of the ANC and to have put up posters and handed out leaflets.  The Tribunal considered that the country information available to it did not indicate that mere membership of the ANC, without more, would give rise to well-founded fear of harm amounting to persecution in Durban.

11. The Tribunal found that the first applicant’s involvement in the ANC was minor.  It was not satisfied, on the evidence, that the first applicant would have a well-founded fear of persecution, arising solely from her ANC profile, should she return to Durban.

12. The Tribunal accepted as plausible claims that the first applicant’s eldest son may have continued to be of interest to members of the opposing political groups in Kwazulu, Natal.  The Tribunal accepted as plausible that the first applicant and her family may have been targeted, as she claimed, by persons seeking to locate her eldest son.  The Tribunal therefore accepted that the first applicant and her family may have a prospective well-founded fear of being persecuted by political opponents of her eldest son in Durban for reasons of membership of a particular social group, being his family.

13. The Tribunal found, however, that the applicants could relocate to an urban area within South Africa and outside Durban, and by doing so would not have a well-founded fear of persecution for a Convention reason.  The Tribunal was satisfied that it would be reasonable in all the circumstances to expect the applicant and her family to do so.

14. The Tribunal referred to country information indicating that, although unemployment levels were high, the majority of the unemployed did not have the education and training to secure employment.  The Tribunal considered that the first applicant has had a comparatively good education and has marketable job skills.  The Tribunal was therefore satisfied that she could reasonably be expected to find commensurate employment in emerging industries in other parts of South Africa.

15. The Tribunal referred to the fact that country information indicated that discrimination against women in the workplace was prohibited under law, although, in practice, women experienced economic discrimination in areas such as wages, extension of credit and access to land.  However, the Tribunal was not satisfied that the first applicant would be denied employment due to her ethnicity or her sex, such that her capacity to subsist was threatened.

16. The Tribunal did not accept that the reported discrimination was sufficient, such that it was unreasonable to expect the applicant to relocate.  The Tribunal was satisfied that, if the first applicant were to relocate to an urban area within South Africa, it could be reasonably expected that she would find employment commensurate with her skills.

17. The Tribunal also referred to the first applicant’s claims that her children would not receive a proper education in South Africa.  However, the Tribunal was satisfied that the children would receive a proper education.  The first applicant claimed she could not afford tertiary education at university in South Africa, but the Tribunal was not satisfied that an inability to pay for tertiary education involved harm that was sufficiently serious such that it would be unreasonable to expect the applicant and her family to relocate.

18. The Tribunal also referred to the first applicant’s claim that her children felt anxious in South Africa due to the ongoing violence.  The Tribunal, however, was not satisfied that the first applicant’s family would have a well-founded fear of persecution if they were to relocate safely.  The Tribunal was satisfied that the claimed anxiety would diminish, if not cease, if the family relocated within South Africa.

19. Finally, the Tribunal dealt with the first applicant’s claim that the South African authorities were unwilling to protect her and her family because of their race.  The Tribunal accepted that country information indicated a high level of criminality and consequent violence in South Africa.  However, none of the information satisfied the Tribunal that the South African state withheld protection from citizens of South Africa because of their race or that such citizens had a well-founded fear of persecution for a Convention reason.

20. While the Tribunal accepted that discrimination of various groups existed in South Africa, the Tribunal was not satisfied that, even on a cumulative basis, the applicants are owed protection obligations in Australia should they relocate from Durban on their return to South Africa.  For those reasons, the Tribunal was not persuaded that a protection visa should be granted. 

21. In her reasons for dismissing the application to the Federal Magistrates Court, Barnes FM observed that:

    ‘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…’

    Her Honour also observed that the Tribunal found that:

    ‘the applicant could reasonably relocate within South Africa to avoid persecution and that it was apparent from the Tribunal's reasons that the issue of relocation was discussed with the applicant at the Tribunal hearing.’

22. Barnes FM analysed the reasons of the Tribunal.  Her Honour observed that no written submissions had been filed by the applicants, despite a direction to that effect, and observed that the applicants took issue with the written submissions filed on behalf of the Minister.  Generally, her Honour considered that the submissions made to the Federal Magistrates Court were directed to review on the merits and not towards identifying some jurisdictional error on the part of the Tribunal that would warrant interference by a court.  In the application to the Federal Magistrates Court, no grounds of review were disclosed.  Barnes FM carefully considered the reasons and was not persuaded that any ground of review existed.

23. In the draft notice of appeal to this Court, a number of grounds are stated as follows:

    ‘1.The Federal Magistrate erred in failing to find that the Refugee Review Tribunal (‘the Tribunal’) made a jurisdictional error in that it failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well-founded fear” for the purposes of article 1A(2) of the 1951 Convention Relating to the Status of Refugees.

    2.His Honour erred in failing to make a finding that the Tribunal had made a jurisdictional error in failing to make specific findings in respect of each of the claims raised by the applicant and in failing to deal each [sic] of the claims in its appropriate context and its individual as well as collective and cumulative implications on the claim for protection.

    3.His Honour erred in failing to find that the Tribunal committed a jurisdictional error in that the applicant was denied procedural fairness and natural justice.

    4.His Honour erred in failing to find that the Tribunal made a jurisdictional error in that it misdirected itself on the issue of relocation and that it erred in concluding that the applicant was not entitled to protection if she could relocate to another part of the country to avoid persecution.

    5.His Honour erred in failing to find that the Tribunal asked the wrong questions of law and took into account irrelevant considerations and failed to take into account the relevant considerations and failed to determine the application in accordance with its mandate.

    6.His Honour erred in failing to find that the Tribunal erred in failing to consider whether there was some chance that the applicant might encounter persecution in the reasonable foreseeable future feared by the applicant although it is unlikely but could not be ruled out as not remote.’

24. Particulars were given of grounds, but particulars in each case were equally general and were not in any way directed to the specific reasons of Barnes FM nor to any specific complaints about the reasons of the Tribunal.  I am not persuaded that the notice of appeal discloses any arguable ground upon which the appeal from the Federal Magistrates Court could be upheld.  In the circumstances, there does not appear to me to be any utility in extending the time to appeal. 

25. I have examined the reasons of the Tribunal and of the Federal Magistrates Court in some detail and for the reasons I have just expressed an appeal would fail.  However, I have suggested to the first applicant that it may be appropriate for her to apply to the Minister for consideration on compassionate or other grounds.  The first applicant mentioned that there was other evidence that might have been available to be adduced before the Tribunal.  If there is such evidence, that might be a basis upon which the Minister might be in a position to consider a more favourable decision.  Those matters, however, are not matters for the Court but are matters for the applicant to take up with the Minister.

26. In all of the circumstances I do not consider that an appeal could succeed.  Therefore, the application for an extension of time is refused.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             21 September 2005

Applicant SZCID appeared in person and on behalf of the other applicants
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 September 2005
Date of Judgment:	14 September 2005