SZCMD v Minister for Immigration
[2006] FMCA 109
•1 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCMD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 109 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming racial or ethnic persecution in South Africa – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 442B |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 SZBDF v Minister for Immigration [2005] FMCA 1493 SZCIJ v Minister for Immigration & Anor [2005] FMCA 1829 |
| Applicant: | SZCMD |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG98 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 1 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Patel |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
CORRECTED ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG98 of 2004
| SZCMD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (the RRT”) handed down on 23 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from South Africa and had made claims of persecution based upon his race or ethnicity. The relevant background facts are adequately set out in the Minister's written submissions by Mr Lloyd. I adopt as background paragraphs 2 through to paragraph 8(g) of those written submissions:
The applicant is a citizen of South Africa.
He arrived in Australia on 15 April 2003.[1]
[1] court book, page 60.1
He lodged an application for a protection visa on (or about) 27 May 2003.[2]
[2] court book, pages 1-26
The application was refused by a delegate on 25 August 2003.[3]
[3] court book, pages 27-37
The applicant lodged an application for review with the RRT on 18 September 2003.[4]
[4] court book, pages 38-42
The applicant attended a hearing before the RRT and gave evidence and made submissions on 11 November 2003.[5]
On 23 December 2003, the RRT affirmed the delegate’s decision. In essence, its reasons were as follows:
a)It accepted that the applicant had been overlooked for promotion by reason of the affirmative action policies of the government.[6] However, the RRT indicated that the country information it considered did not support the applicant’s claim that those not advantaged by such polices were subject to serious harm.[7]
b)The RRT did not accept that the applicant had suffered any harm as a result of being overlooked for promotion that constituted persecution.[8]
c)The RRT considered that the discrimination faced by various groups in South Africa did not constitute persecution.[9]
d)The RRT noted the applicant’s claim to have received hostile comments when he complained about not being promoted and to fear retribution. However, the RRT considered that if he returned to South Africa he would be able to access employment of a kind similar to that which he left and would not face retribution there.[10]
e)In relation to the applicant’s claims to have been attacked on numerous occasions, the RRT did not accept that this was by reason of his ethnicity.[11] Indeed, it did not accept that “being coloured” was a basis for violence in South Africa.[12]
f)In relation to the applicant’s claim to fear harm from non-state agents should he express his political opinion (critical of the ruling party), the RRT considered that the applicant would do, as he had done in the past, and choose to stay out of conflicts. It considered that this course would not be intolerable or in any way persecutory for him.[13]
g)In any event, the RRT rejected the applicant’s claim that the South African authorities withheld protection from him on the basis of his ethnicity. It considered that protection was available but that, in the past, the police had not had sufficient information to identify his assailants thus explaining their inaction.[14]
[5] court book, page 46
[6] court book, page 65.3
[7] court book, page 65.4
[8] court book, page 65.8
[9] court book, page 70.2
[10] court book, page 66.5
[11] court book, page 67.1
[12] court book, page 68.3
[13] court book, page 68.8
[14] court book, page 69.8
These proceedings commenced with a judicial review application filed on 14 January 2004. That application was defective in that it contained no grounds of review. However, that defect was remedied by the filing of what purported to be an affidavit on 13 July 2004. I received that document as if it were an amended application. It sets out the grounds of review relied upon by this applicant. Mr Patel, for the applicant, also prepared written submissions which were filed in court by leave today. The Minister also relies on written submissions filed on 24 January 2006 in my chambers. The evidence is comprised in a court book filed on 16 April 2004.
The applicant's first ground of review is that the RRT made a jurisdictional error in that in failed to determine his application in accordance with correct law and in accordance with its mandate inasmuch 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 Refugees Convention. Particulars provided draw attention to the manner in which the RRT dealt with the applicant's claims of discrimination in employment. The applicant had also claimed to be the victim of crime linked to his ethnicity.
Mr Lloyd deals with this ground in paragraphs 10 to 13 of his written submissions. Essentially, I agree with those submissions. In my view, the RRT’s exploration of the applicant's claims of persecution in this regard was unexceptional. The RRT considered the disadvantage that was faced by the applicant in his employment in South Africa and accepted a degree of discrimination in the form of positive preference afforded to black South Africans. The RRT was not, however, satisfied that that discrimination amounted to persecution for the purposes of the Refugees Convention and the Migration Act 1958 (Cth) (“the Migration Act”).
In my view, the conclusions reached by the RRT were open to it on the material before it and the analysis discloses no error of law. Further, the RRT found that the risk of harm from criminal elements in South Africa was not racially based in the sense of the applicant being targeted because of his ethnicity. Even if it was, effective State protection was available to the applicant and would not be denied because of his ethnicity. Again, I see no error in the approach taken by the RRT.
The second ground of review relied upon is that the RRT made a jurisdictional error and failed to determine his application in accordance with law and in accordance with its mandate inasmuch as it failed to apply the correct subjective and objective test of his fear to determine whether his fear was well-founded to satisfy the requirements of Article 1A(2) of the Convention. The particulars are that the RRT accepted that the applicant had a genuine fear of persecution and the RRT also accepted the applicant's claims about having suffered discrimination in employment and of having received death threats and having been intimidated on account of his political views and beliefs.
The applicant asserts that the RRT thus accepted that the subjective test of fear was satisfied but found that his fear was nonetheless not well‑founded simply because he could avoid it by being discreet in holding and expressing his political views and beliefs. The applicant asserts that the RRT further erred in not considering what was the real chance that he would encounter the same sort of persecution if he were to return to South Africa. It is apparent from that claim and Mr Patel's oral submissions on it that the applicant is asserting the kinds of errors identified by the High Court in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. The relevant passage in the RRT’s decision appears on page 68 of the court book. The presiding member said:
I accept the applicant is unhappy with the claim of discrimination of coloured South Africans. I accept he is sincere and genuine in his claim. However, I do not accept the applicant has such strong views that restricting the times he expresses his views to times when he would not be overheard, would constitute persecution for this applicant. At hearing he claimed to “stay out of such arguments” and that he “did not know much about” the issues. I have no reason to doubt he would continue to do so should he return to South Africa. Accordingly, by expressing his views discreetly he would avoid any likelihood of harm. Based on his oral claim to “stay out of such arguments” by choice, I am not satisfied this course would make his life “intolerable” or would be in any way persecutory for him.
Mr Lloyd deals with this ground of review in paragraphs 14 and 15 of his written submissions. I once again agree with those submissions. The RRT did not fall into the error identified in Appellant S395 of requiring the applicant to modify his behaviour should he return to South Africa. The RRT merely recognised the way in which the applicant had chosen to conduct himself and considered the consequences of that. There was, moreover, no failure to consider the reason for the applicant's choice of discretion. The RRT accepted that the applicant feared retribution. In essence he had succumbed to pressure to observe a form of political correctness.
The RRT adopted the proper course of considering whether the consequence amounted to persecution and concluded that it did not. In my view that conclusion was open to the RRT on the material before it. I see no error of law in the RRT’s treatment of that issue. I also accept Mr Lloyd's submission that even if there had been an error of law the harm which the applicant feared was harm from non-state agents and the RRT found that even if he risked harm from these non-state agents in the future, it would not constitute persecution under the Convention because effective state protection was available.
The third ground of review is that the RRT made a jurisdictional error in failing to show the applicant or refer him to country information which the RRT relied on in drawing its adverse conclusion in respect of his claim and he was denied procedural fairness and natural justice inasmuch as he was not given a fair opportunity to comment and a fair opportunity to respond to the country information the RRT sought to rely on in reaching its adverse conclusion. The particulars identify the relevant country information. This issue can be dealt with shortly.
In SZCIJ v Minister for Immigration & Anor [2005] FMCA 1829 at paragraphs 12 to 15, I accepted and followed the authority of the Federal Court decision in SZBDF v Minister for Immigration [2005] FMCA 1493. The conclusion I drew then, and which I maintain, is that the general law fair hearing rule is excluded by s.442B of the Migration Act, which applies in this case, and that s.424A covers the field in relation to the disclosure obligations of the RRT at all stages of the review process. It follows that there is no issue of a breach of the general law fair hearing rule. There was no breach of s.424A in this case.
The final ground of review is that the RRT made a jurisdictional error in that it misinterpreted, misconstrued and misapplied the country information in reaching its adverse conclusion in respect of the applicant's claim and in rejecting his claim that he did not have a well‑founded fear of persecution. This is really an argument about the reasoning and fact-finding process followed by the RRT. I agree with and adopt for the purposes of this judgment paragraph 19 of Mr Lloyd's written submissions:
… the RRT’s use of the country information was not to establish factual propositions but to note that it did not support the claims made by the applicant: court book, pages 68.2, 69.8. This is not a case where the RRT drew a positive inference from the material. Rather, it drew an inference from an absence of evidence supporting the applicant. No error is disclosed.
The RRT is entitled to draw inferences from the absence in country information of support for asserted claims of persecution.
I find that none of the asserted grounds of review has been established and that the RRT decision is free from jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,500 on a party and party basis. The applicant sought a lower assessment. I have no difficulty in accepting that costs of not less than $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I take into account the amount of preparatory work done on behalf of the Minister and a reasonable need for the Minister to be represented by counsel at today's hearing. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 February 2006
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