SZIUO v Minister for Immigration
[2007] FMCA 973
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 973 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal did not fail to deal with integers of claim – incorrect finding of fact not jurisdictional error – Tribunal did not engage in speculation – applicant’s claim “speculative” – Tribunal applied correct test according to Refugees Convention – adequate state protection – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.91R |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZEJF v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 724 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZIUO & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1309 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 March 2007 |
| Date of Last Submission: | 9 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Dr. J. Azzi (by direct access) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. S. Sirtes |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application to this Court made on 8 May 2006 is dismissed.
The first and second named applicants pay the first respondent’s costs in the amount of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1309 of 2006
| SZIUO & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 8 May 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 March 2006, and handed down on 11 April 2006, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
Background
The applicants are husband, wife and daughter who are all nationals of South Africa and of Indian ethnicity. Their claims to protection are set out variously in the Court Book (“CB”). Their application for protection visas is reproduced at CB 1 to CB 66 and contains statements by the applicant husband at CB 29 to CB 33, the applicant wife at CB 48 to CB 50, and the statement of the applicant daughter at CB 65 to CB 66.
The applicants were refused protection visas by the Minister’s delegate (see CB 69 to CB 78 for the delegate’s decision record) because the delegate found that there was adequate state protection for the applicants in the circumstances that they had put forward (CB 76.7). In addition, the delegate had: “difficulties with the credibility of the applicants” (CB 76.8) because their claims to protection were put forward: “nine years after their arrival in Australia” and it was only then that: “they suddenly [came] up with their current claims. I am unable to accept such behaviour is consistent with that of persons who genuinely fears (sic) persecution in their home country” (CB 76.9).
Following the application for review the applicants were invited to appear before a hearing of the Tribunal and all three applicants gave evidence on 3 March 2006. The Tribunal’s account of what occurred at the hearing is reproduced in its decision record (reproduced at CB 120.4 to CB 123.5). The Tribunal also heard evidence from two other witnesses (CB 123.6 to CB 123.10).
In all, the applicants’ claims were said to arise from their Indian ethnicity and the experience of violent crimes against, relevantly, those of Indian ethnicity in South Africa. The applicants put forward a number of instances of incidents of harm suffered which they said were perpetrated by, variously, “black men.”
In the hearing before this Court, Ms. S. Sirtes appeared for the first respondent, and Dr. J. Azzi appeared for the applicants. Dr. Azzi sought leave to press an amended application filed a week before the scheduled hearing date.
I had some sympathy with the Minister’s position of not consenting to the amended application given the late notice from the applicants as to the change in their grounds. Orders had been made at the first Court date in this matter on 6 June 2006 for the conduct of this case, and I agree with Ms. Sirtes’ submission expressing concern at the applicants coming before the Court with grounds and arguments raised “at the last minute” and seeking to raise matters that had “never been raised.”
I accepted, however, that Dr. Azzi had only recently been approached by the applicants to act on their behalf (on a direct access basis) and further, felt that any prejudice to the Minister could be addressed by the opportunity for further written submissions following the hearing, an opportunity which was taken up by the respondent. The Court also, therefore, has before it further written submissions from the applicants.
The amended application puts forward, with particulars, the following grounds:
“(1) The Tribunal constructively failed to exercise jurisdiction when finding as ‘speculative’ the claim of applicants 2 and 3 to fear being raped in South Africa upon refoulement in circumstances where the tribunal was required to consider whether the applicants (sic) claim was genuine and well founded.”
“(2) The Tribunal's finding on effective state protection is vitiated by jurisdictional error in circumstances where the evidence accepted by the Tribunal was that police were powerless in preventing private persecution and/or sexual violence against women.”
“(3) The Tribunal committed jurisdictional error by not dealing with an integer of the applicant husband's claim and/or making a findings (sic) of fact that were not open to it.”
I should just note that in relation to ground one, as stated, I took the reference to “refoulement” to mean nothing more than “return” to South Africa. Refoulement of course, in the context of the Refugee's Convention, relates to the return of refugees to the country of claimed persecution. The applicants before the Court have not been determined (despite their claims) to be refugees.
Ground 1
The complaint inherent in the first ground arises from the following in the Tribunal’s decision record found at CB 126.6:
“The Tribunal has accepted as being plausible that the family has experienced incidents which amount to serious harm, albeit by non-state agents for which they have received appropriate state intervention. The most fundamental question for the Tribunal is whether there is a real chance of Convention-related harm occurring to the applicants in the reasonably future (sic). Both applicants 2 and 3 expressed fear of being raped in South Africa. Whilst independent country information indicates that rape remains a serious problem in South Africa (US Department of State Report, South Africa, Country Reports on Human Rights – 2004), the Tribunal is satisfied that the claim is speculative. In reaching this conclusion, the Tribunal has considered the fact that the applicants are of Indian ethnicity and that applicant 3 is a ‘beautiful young lady’, however, the Tribunal is not satisfied that those factors, without more, mean that there is a real chance that they would be raped. The Tribunal has also considered that, as claimed by the applicants that the photograph of applicant 3 had been taken by the intruders in August 1996. If this indeed happened, clearly it happened about nine years ago and applicant 3 has grown up and looks different to the way she did then, so on this basis without more, the Tribunal is not satisfied that she would be recognised and would be targeted for rape.”
The applicants’ first complaint is that by its use of the word “speculative” the Tribunal made no finding as to whether the fear of persecution was well-founded or “genuine.” There appear to be two, but connected, strands to Dr. Azzi’s complaint on behalf of the applicants.
The first is that the Tribunal’s use of the word “speculative” was used in the dictionary meaning of “conjecture or surmise” and, with reference to Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572 (“Guo”), “has no part to play in whether a fear is well-founded.” Dr. Azzi’s further submission was that the use of this term, as it appears in the extract from the Tribunal’s reasoning above, resulted in an ambiguity that, according to Stone J. in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (“SZCBT”), does not mean that it should be resolved in the Tribunal’s favour. (See below: this was with reference to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).)
The second strand of this complaint is that the Tribunal failed to give proper consideration to the claims of the applicant wife and the applicant daughter as to whether there would be a real chance that they would be raped if they were to return to South Africa. The argument appears to be, that the Tribunal accepted independent country information available to it that “rape remains a serious problem in South Africa” (CB 126.8), and that in these circumstances it is unclear as to the basis on which the Tribunal found the applicants’ claim to fear rape was “speculative.” Dr. Azzi submitted that the Tribunal’s error, as was prescribed by the majority of the High Court in Guo in finding the claim to be “speculative,” was made in circumstances where it could not be said that there was no evidence that indicates “a real ground for believing” that the two applicants were at risk of persecution such that the claim was “mere speculation.” This is again with reference to Guo at 572. It is also made with reference to SZEJF v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 724 (“SZEJF”) per Rares J, in particular at [46]–[53]. The argument, as I understood it, is that, having found that there was evidence that rape was a serious problem in South Africa and that by failing to consider whether the applicants’ claim to fear being raped was well-founded, in these circumstances, the Tribunal failed to conduct a review in accordance with the Migration Act 1958 (“the Act”).
Ms Sirtes submitted that the Tribunal’s use of the word “speculative” in its formulation of the real chance test and (in context of consideration of) the applicants’ well-founded fear was at least consistent with what the High Court said in Guo (at 572):
“A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purposes of Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
Specifically, on this issue Dr. Azzi submitted that this does not assist the first respondent because earlier in that case (at 572) the High Court stated:
“Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term.”
The parties also joined issue on how the Court should read the relevant part of the Tribunal’s decision record, extracted above (at [11]), in the context of considering whether the Tribunal had properly answered the question that it was required to address. Dr. Azzi’s submission was that where the Tribunal has used an “ambiguous term” (and in his submission the use of the word “speculative” was just such a term), then SZCBT is authority for the proposition that in those circumstances the Court’s resolution of any such ambiguity should not be resolved in the Tribunal’s favour. This issue of course arises in the context of what the High Court set out in Wu Shan Liang at 271-272. In particular, the Court said that the various propositions collected by the Full Court of the Federal Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 as to the “practical restraints on judicial review” were “well-settled” (at 271-272). In particular, the High Court quoted (at 272) with approval the following from Collector of Customs (at 287):
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
I agree with Ms. Sirtes’ submissions that, with respect, the decision of Stone J. in SZCBT does not stand for the proposition that the Tribunal’s decision ought to be construed beneficially to the applicant to the extent that the applicant seeks to make such an assertion. With respect, I did not see Her Honour as going to that extent. Her Honour said (at [26]):
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
Also with respect, I do not see this as being inconsistent with what the High Court said in Guo. In terms therefore of how the term “beneficial construction” should be applied in resolving any ambiguity in a Tribunal's reasons then, to the extent that it is implicit in his submissions, I do not agree with Dr. Azzi that SZCBT assists the applicants in the case before me on that issue.
However, it may assist the applicants in relation to one element of Dr. Azzi’s submission. That is as to whether a “vital issue” was addressed in circumstances where there was no evidence that it had been.
Dr. Azzi referred to SZCBT where the suggestion from the Tribunal’s comments was that a relevant matter had been “overlooked.” It was such a failure in the case before Her Honour that led to her allowing the appeal in that case.
The issues therefore for this Court, relevantly, are whether the Tribunal understood the test that it was required to apply, and whether further, given the circumstances put forward by the applicants, it properly applied that test to the relevant circumstances.
Firstly, it cannot be said that the Tribunal did not understand the relevant test that it was required to apply. The Tribunal has set out that test generally under the heading of “Definition of Refugee” (at CB 114 to CB 116), in the usual paragraphs often found in Tribunal decisions. Importantly, on the specific issue under consideration (at CB 126.6) the Tribunal said:
“The most fundamental question for the Tribunal is whether there is a real chance of Convention-related harm occurring to the applicants in the reasonably (sic, omitted foreseeable) future.”
The issue remains, however, whether having understood the fundamental question, the Tribunal proceeded to answer that question without otherwise falling into jurisdictional error.
In relation to the Tribunal’s use of the word “speculative” and the importance ascribed to the use of this word by Dr. Azzi, it should be noted that the High Court’s consideration in Guo, referred to above, was not dealing with a situation where the Tribunal had made use of such a word, but its use and meaning by one of the judges of the Full Federal Court (the judgment which was the subject of the appeal before the High Court). The High Court said (at 572):
“In the present case, for example, Einfeld J thought that the ‘real chance’ test invited speculation and that the Tribunal had erred because it ‘has shunned speculation’ (34).”
The Court went on to consider what was meant by His Honour in relation to his use of the word “speculation.” The Court said (at 572):
“If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context (35) and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded.”
This immediately precedes that part of the High Court’s judgment relied on now by the Minister, and in particular, the submission that the Tribunal’s use of the word “speculative” reflected what the High Court said (at 572):
“A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
The part of the Tribunal’s decision record, and specifically, the part of its analysis in which the use of the word “speculative” complained of now is used, is preceded by the Tribunal’s consideration of specific instances of harm and incidents claimed by, in particular, the applicant husband and applicant wife. The Tribunal found, inter alia, that in relation to those incidents, it was satisfied “that the family received appropriate responses from the police” (CB 125.8). The Tribunal considered the issue of state protection and found, immediately preceding that part of its decision record complained of now (CB 126.7):
“The Tribunal has accepted as being plausible that the family has experienced incidents which would amount to serious harm, albeit by non-state agents for which they received appropriate state intervention.”
It was after having dealt with incidents of claimed past harm that the Tribunal reminded itself of the “most fundamental question” as to whether there was a real chance of Convention-related harm occurring in the “reasonably [foreseeable] future.” The Tribunal then looked at one relevant possibility arising out of the applicant wife’s and applicant daughter’s claim of a fear of being raped in South Africa. In answering this “fundamental” question in that context, the Tribunal acknowledged that independent country information indicated that rape remained a serious problem in South Africa.
Ms. Sirtes submitted that the word “speculative” was interchangeable and was used by the Tribunal as meaning “remote.” The submission was that the Tribunal is permitted to use synonyms in its decision and that when seen in this way, in context, the Tribunal applied the correct test. The explanation for this was that if the Tribunal were to “use boilerplate clauses throughout the entirety of its decision” it would fall into error and be criticised possibly for not giving proper consideration. Ms Sirtes submitted that there has been criticism not only of the Tribunal in this regard, but made reference also to a former Federal Magistrate for “cutting and pasting decisions” and that therefore there can be no criticism made of the Tribunal needing to use different language. I can only note in this regard what the High Court said in Guo at 572-573:
“Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”
I do not agree with Ms. Sirtes if what is meant by her submission is that the terms “speculative” and “remote” are interchangeable. The use of the term “speculative,” on its own, could give rise to some question as to what exactly the Tribunal meant, and to that extent I agree with that part of Dr. Azzi’s submission that challenges the efficacy of what the Tribunal has done.
But on a plain reading, rather than on any beneficial reading, when the word “speculative” is read in context of what surrounds it, I cannot see that the Tribunal fell into error, as submitted by the applicants. In my view, what precedes the use of this term reveals that the Tribunal was seized of the need to address the question of whether the fear of persecution was well-founded or not. I cannot see that in describing the applicants’ claims as “speculation,” as distinct from engaging in a process of speculation itself in answering that question, that the Tribunal fell into error. In this regard, I agree with Ms. Sirtes, that when read in context, the Tribunal, consistent with what the High Court said in Guo, was describing the applicants’ claims as “assumed” or literally as “speculation.”
I am persuaded to the respondent’s view because on any plain reading, what follows the word “speculative” is the explanation (“reaching this conclusion”), and importantly, this explanation makes reference to the “real chance that they would be raped.” In the context of the fear of being raped in South Africa, the applicant wife put forward nothing more (“without more”) than she was a woman of Indian ethnicity. The Tribunal’s analysis was that, notwithstanding that there was evidence that rape remained a serious problem in South Africa, it could not be satisfied in relation to her simply being a woman of Indian ethnicity, “without more,” could mean that there was a “real chance” that she “would be raped.” The Tribunal had already set out the importance of considering a real chance of Convention-related harm in the context of the expressed fear of being raped, and found in relation to the applicant wife, that it could not be satisfied that being only of Indian ethnicity “without more” could mean that there was a real chance that she would be raped. That is, that there would be a real chance of Convention-related harm for that reason, should she return to South Africa.
Further, in relation to the applicant daughter, the Tribunal had regard to her own description of herself in her statement as a “beautiful young lady” (this was clearly a reference to the claims as set out in her statement at CB 65.4: “being of Indian origin and a beautiful young lady I would be the target for rape”). Again therefore in relation to the applicant daughter, the Tribunal could not be satisfied that there was a real chance of Convention-related harm, simply based on her Indian ethnicity and being a “beautiful young lady,” even in the context of rape remaining a serious problem in South Africa. Specifically, in relation to the applicant daughter, the Tribunal also considered the only other relevant claim in this context put before it and that was that the claim that the applicant daughter’s photograph had been taken by intruders to their home in August 1996. The Tribunal found that even if this incident had occurred it had occurred nine years ago and that again, “without more,” it could not be satisfied that she would be recognised and would be targeted for rape.
When read plainly in this way, I could not see that the Tribunal’s analysis which led to this relevant conclusion was so lacking in a rational basis in the sense that there was no evidence to support the conclusion reached. The Tribunal explained and described the claim as “speculation” in circumstances that were, with respect, different to those before his Honour in SZEJF, and to the way in which Dr Azzi seeks to rely on in that case. Plainly, in that case, what the Court found as being “the deficiency in the reasoning process” (at [47]) and “the tribunal’s illogicality” (at [50]), was that the Tribunal, in its analysis, plainly ignored circumstances which were before it which directly contradicted not only the conclusions reached, but relevant findings along the way to making the ultimate conclusion.
In that case, the applicant feared harm by a group of tribal and religious leaders (the Jirga), in particular, arising out of his activities in establishing his own “NGO” (non-governmental organisation) group in Pakistan. The Court found deficiencies in the reasoning process of the Tribunal in that case on the basis that the Tribunal made findings that it was “‘somewhat implausible that the Jirga members might even have been aware of’ the existence of the appellant’s group” (at [43]), in light of a newspaper article that was before it that described both the applicant and his group by name and which expressly made reference to the Jirga having made the connection and having become aware of the applicant’s group. Further, (at [47]) a second newspaper article, also before the Tribunal, made reference to the fact that the Jirga was actively engaged in persecuting the appellant and his family. The Tribunal made no finding about the genuineness or otherwise of these newspaper articles ([43], [47]). Even further, the Tribunal said that there was no evidence before it that the Jirga had located or threatened the applicant’s family or that they had any influence outside the local area relative to the applicant (at [50]), yet the newspaper articles plainly stated otherwise, critically exposing the Tribunal’s finding that there was “no evidence.”
I cannot see that such a situation arises in the matter before me as it can be said to relate to the use of the word “speculative,” or indeed, otherwise. I cannot see that the Tribunal erred in the way as found by His Honour in SZEJF. Implicit in its findings is that, based only on what the applicants had put forward and, in the absence of anything else (“without more”), that there was not a real chance that they would be raped. The Tribunal was entitled to reach this conclusion on what was before it. Plainly, in SZEJF, the Tribunal was found to have made findings that defied logic in light of plain evidence that asserted the contrary. That is not the situation in the case before me. There is nothing in the case before me to show, for example, bearing in mind what occurred in SZEJF, that in terms of the fear of being raped in South Africa, the applicants were specifically targeted, or that there was evidence of such specific targeting in the same way as there existed such evidence in SZEJF. Nor can I see in this case the existence of such evidence being denied by the Tribunal, as it was in SZEJF, despite this evidence being before it.
The Tribunal’s plain reasoning in the case before me now is that on the expressed fear of being raped in South Africa, while the Tribunal accepted independent country information before it which indicated that rape remained a serious problem, there was nothing “more” before it, either in the express claims of the applicant wife and applicant daughter, or in their circumstances, which could lead the Tribunal to conclude that there was a real chance that they would be raped. That is, that there was Convention-related harm which could occur to the applicants in the reasonably foreseeable future should they return to South Africa. On what was before it, this finding was open to the Tribunal to make.
While the Tribunal may indeed have been on “safer ground” had it not used the word “speculative,” nonetheless a plain reading of its decision record shows that it understood the test that it was required to apply. The use of the word “speculative” to describe the claims does not reveal that the Tribunal employed a lesser or different test. Nor does it reveal any analytical or logical flaw in its reasoning process. In all, I cannot see that this complaint can succeed. It took into account all the relevant evidence and claims before it, and based on this, found ultimately that it could not reach the level of satisfaction that the applicants had a well-founded fear of persecution as contemplated by the Convention. This ground does not succeed.
Ground 2
The applicants’ second ground takes issue with the Tribunal’s finding relating to effective state protection. In submissions before the Court, Dr. Azzi referred to the Tribunal’s analysis, (beginning at CB 124.9), that dealt with the protection available to the applicants in relation to the circumstances put forward by the applicant husband. However, the particulars in the amended application appear to relate to the issue of state protection in relation to the applicant wife and the applicant daughter. In fact, the ground of effective state protection is expressed as it relates to police protection and the claimed powerlessness of the police in preventing sexual violence against women.
By way of general observation, in circumstances where the harm feared is by agents of persecution, that is by third parties who are not state persons, the relevant state is not required to guarantee the safety of its citizens from such harm: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26]). As Kirby J said at [117], the Refugees “Convention does not require or imply the elimination [by the State] of all risks of harm” rather, “it posits a reasonable level of protection, not a perfect one.” For the purposes of consideration below of this ground I also note: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1at [31], where Gleeson CJ said:
“Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.”
Two sets of harm were claimed, by the applicant husband and applicant wife on the one part, and by the applicant wife and daughter on the other. Dr. Azzi made reference to Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 (“Applicant A & Anor”) and in particular, the extract quoted by the Tribunal itself in its decision record, reproduced at CB 125.10 to CB 126.3. Dr. Azzi’s submission was that the Tribunal, while directing its mind to the following extract:
“Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is, or appears to be, powerless to prevent that private persecution.”
did not consider whether the South African authorities were “powerless” to prevent the private persecution claimed by the applicants.
In relation to the applicant husband, he claimed that as a result of his political activities with a political group (the Minority Front (“MF”)) in South Africa, he was targeted by opponents. The Tribunal found that it was difficult to accept that he and his family were targeted as a result of his activities or “indeed, that they were targeted at all” (CB 124.8). The Tribunal accepted that some incidents had occurred, that is, that he had been approached and robbed in 1994, and that in relation to this incident, the matter had been reported to the police, and that the applicant husband had agreed that “the police took the appropriate action” (CB 124.5). It was in relation to other claimed incidents that the Tribunal found that he was not so targeted, and that further, his evidence “was confused” (CB 124.9). Initially the Tribunal found that the applicant husband’s confusion raised “further doubts” about the veracity of his claims in this regard. It then made what, on its face, appears to be a clear finding that it was not satisfied that there were “further incidents” to which these claims related.
Having made a finding absent doubt, however, it is not clear why the Tribunal then went on to consider the alternative. That is, to consider the situation in case it was wrong about this conclusion. Whatever the reason, it was not wrong, however, for the Tribunal to have done so. In any event, the Tribunal found that there was nothing to suggest that the harm suffered was by state agents or (relevant to the ground of complaint) that the South African authorities “tolerated or condoned any such harm.” The Tribunal found (CB 125.2) that in relation to one specific incident, that “the police reacted appropriately, took the incident very seriously (August 1996),” and in relation to other incidents, the police did whatever they could. Ultimately, the Tribunal found that:
“Even if the Tribunal were to accept that there were further incidents of harm, looking at the evidence as a whole, the Tribunal is satisfied that these incidents were essentially and significantly related to the generalised violence and civil disturbances that prevailed in South Africa. In essence, looking at the evidence as a whole, the Tribunal is not satisfied that the applicant’s involvement in the MF or the family’s Indian ethnicity were the essential and significant reasons for any harm they had suffered.” (CB 125.5).
In relation to the applicant wife, the Tribunal accepted as plausible two incidents which she claimed had occurred. But also found that these:
“Incidents were essentially and significantly related to the generalised violence and civil disturbances that prevailed in South Africa.” (CB 125.7).
Dr. Azzi submitted in a similar way as submitted in relation to ground one, that the Tribunal’s reasons were not set out so as to make clear what the Tribunal’s analysis really was, and that it did not make findings in accordance with “its inviolable obligation under the Convention and the Act.” Reading the Tribunal’s decision record, I have some sympathy with Dr Azzi’s complaint. In my view, the Tribunal’s setting out of its consideration of the applicant husband’s and applicant wife’s fear of persecution as it was said to arise out of claimed incidents which they said had occurred to them, and its analysis on the adequacy or otherwise of state protection, and whether the claimed instances of harm amounted to the essential and significant reasons for persecution for the purposes of s.91R of the Act, could have been expressed in a clearer fashion.
Nonetheless, also in my view, it does not take a reading beyond that set out in the relevant authorities (Wu Shan Liang, Guo, SZCBT) to see that the Tribunal, irrespective of any other relevant findings, found that in relation to both the applicant husband and applicant wife, who had made specific claims of incidents in which they said they had been targeted by “black people,” found that the incidents were “essentially and significantly related to generalised violence that prevailed in South Africa” and that in relation to the applicant husband, was not satisfied that his involvement in the MF, or the family’s Indian ethnicity, was the essential and significant reason for any harm that had been suffered. In relation to the applicant wife it found similarly.
Plainly, s.91R of the Act provides that Article 1A(2) of the Refugees Convention does not apply in relation to persecution unless the essential and significant reason claimed involves serious harm to the person. Whatever the Tribunal has found in relation to the adequacy of state protection, the harm claimed by the applicant husband and the applicant wife as it arose out of the incidents they claimed to have occurred to them in South Africa was found by the Tribunal, in applying s.91R, not to amount to persecution for the purposes of Article 1A(2) of the Refugees Convention. On what was before it, and I accept submissions made by Ms Sirtes in relation to relevant country information available to the Tribunal about the general unrest which followed the end of the apartheid era in South Africa (see generally the documentation in the Supplementary Court Book) (“SCB”), this was a finding that was open to the Tribunal on the material before it.
In relation to the applicant wife and applicant daughter, and the fear of harm as it was said to arise from their being women of Indian ethnicity, and subject to being raped by “blacks” in South Africa, Dr. Azzi submitted that, with reference to Applicant A & Anor, the Tribunal nonetheless failed to consider whether the South African authorities were “powerless” to prevent that type of private persecution being visited upon these applicants. The second ground, as stated, claims that the Tribunal accepted evidence that the police were powerless in preventing in effect, rape against women in South Africa. This obviously needs to be read in the context of the applicants’ claims as women of Indian ethnicity.
I can only agree with Ms. Sirtes that with reference to the independent country information available to the Tribunal, which is reproduced in the Supplementary Court Book (“SCB”), I cannot see that there was evidence before the Tribunal that the authorities, that is, the police and judiciary, were powerless in these circumstances. In particular, that part of the evidence before the Tribunal dealing with women and rape in South Africa is that as set out at SCB 35.3 to SCB 37.1. The evidence is certainly clear that rape in South Africa “remained a very serious problem” (SCB 35.7). This is clearly the reference picked up by the Tribunal in its decision record at CB 126.6. But I cannot see that there is anything in this evidence to support the assertion made in ground two that the police are powerless to prevent rape against women of Indian ethnicity.
The evidence makes no specific mention of this. Further, it would appear that the evidence refers to the high rates of domestic violence, including physical and sexual assault, the relatively low rates of reporting of rape, and in particular that “[r]ape, sexual assault, and sexual harassment of black African female farm workers by farm owners, managers, and by other farm workers were common” (SCB 35.8).
A plain reading of the Tribunal’s decision record reveals that the adequacy of protection provided by the police generally was raised by the Tribunal with the applicants at the hearing conducted on 3 March 2006. In relation to the claims of instances of harm by the applicant husband, the Tribunal raised with the applicant (CB 122.4) the issue of state protection and put to the applicant that the independent information available to it indicated the “the applicant would be able to receive protection from the authorities if they returned to South Africa.” In relation to the applicant wife, the Tribunal put to her that the “Convention definition does not encompass generalised violence and or internal civil unrest” (CB 123.2). In relation specifically to the applicant wife and the applicant daughter and the fears of being raped, the relevant issue is addressed above in relation to ground one.
Ultimately however, the applicants’ complaints as encapsulated by ground two do not succeed. There is nothing in the evidence that was before the Tribunal to suggest that there was evidence that the police were powerless to prevent harm to the applicants in all the circumstances relevant to them, and that the Tribunal ignored such evidence. This ground also does not succeed.
Ground 3
The applicants’ third ground is that the Tribunal did not deal with an integer of the applicant husband’s claim or, in the alternative, made a finding which was not open to it. The applicants’ complaint in this regard is that in his claims the applicant husband stated that, amongst other things, soon after beginning work for the MF, was distributing pamphlets and was approached by a group of “black men,” and that he was subsequently punched and robbed (see the applicant husband’s statement at CB 31, in particular items 22 and 23). The Tribunal appears to have accurately reported on this when it set out his claims in its decision record at CB 117.8):
“He soon began to work for the MF. He distributed pamphlets to the Indian community in Isipingo. One day, he was approached by a group of ‘black’ men who punched and robbed him. A friend took him to the doctor and to the police station.”
It should be noted that the applicant husband also made a number of other similar claims to have been variously assaulted by “black” men. The applicants’ complaint is that while he had made claims that he had been approached while distributing pamphlets by a group of “black men” and assaulted and robbed, by the time the Tribunal came to its analysis, the Tribunal only noted that he had been assaulted by a “‘black’ man” (CB 124.5):
“They were approached by a ‘black’ man’ who assaulted and robbed him.”
The applicants’ complaint then, as submitted by Dr. Azzi, has two elements. The first element of the complaint is that the Tribunal did not deal with an integer of the applicant husband’s claim. That is, that he was attacked and robbed by a group of black men, as opposed to one black man, and that it made a finding of fact that he had been approached by a black man, as opposed to a group of black men, which was not open to it to make on what was before it.
The second element of the complaint is that this error also affected the Tribunal’s subsequent finding that it had doubts about the veracity of the “applicant’s” claims (CB 124.8). Further, that this was linked to concerns “about the veracity of [all] of the applicants’ claims” (CB 124.2). Dr. Azzi submitted that “applicants” at that part of its decision record clearly made reference to the claims of all three applicants rather than in the singular the applicant husband.
In my view, it is clear that, when read in context, the Tribunal did make a mistake of fact. The applicant husband’s claims plainly were that soon after joining the MF he was given pamphlets to distribute, and as he was doing this, he was approached by a group of black men and one of them grabbed a pamphlet from his hand. He was punched and robbed of his watch and wallet. A friend subsequently arrived after a few minutes and took him to a doctor for treatment, and to the police station to make a report of the incident.
In setting out the applicant’s claims the Tribunal (CB 117.8) appears to have accurately noted that soon after he began work for the MF, he distributed pamphlets to the Indian community when he was approached by a group of black men who punched and robbed him, and that a friend took him to the doctor and to the police station. This appears consistent with what is set out in the applicant’s claims at paragraphs 21to 25 of his statement at CB 31.
By the time it came to its analysis however, two errors have appeared in the Tribunal’s analysis. The first is that instead of being approached by a group of black men, he was approached by a black man while out distributing pamphlets. Secondly, that he was distributing pamphlets as part of a group on that occasion. The Tribunal makes references to “they” in that “they were distributing pamphlets and they were approached by a black man.” Ms. Sirtes conceded that “it is not elegantly articulated,” but that does not mean that there is “an error.” Ms. Sirtes sought to explain the use of the plural “they” on the basis that the applicant was part of a group and that the emphasis that the Tribunal placed on the phrase “black man” was on “black” which is both in italics and quotation marks and does not include “man” in this presentation.
In my view, the Tribunal has made an error. Implicit in its finding is that the applicant was distributing pamphlets as part of a group on that occasion. That is plainly not the case. Secondly, the Tribunal inexplicably translated a group of black men into the singular. These mistakes cannot be simply explained away as “inelegant presentation.”
The issue, however, is whether these mistakes amount to jurisdictional error. I note from Abebe v Commonwealth (1999) 197 CLR 510 (at [137]) that there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact on its own. The issue is whether such errors can and do amount to jurisdictional error, that is, a failure to properly exercise its powers and to properly conduct the review as it is required to do.
First, what must be noted is that the Tribunal did not reject the applicant’s claim to have been assaulted and robbed while distributing pamphlets on behalf of the MF. In fact, quite the contrary. The Tribunal accepted that the applicant distributed pamphlets on behalf of the MF. In addition to having accepted that the applicant husband had become interested in politics, the Tribunal accepted that he attended meetings of the MF, became interested in its election campaign, and that he had been asked to canvass support amongst Indians and attend meetings of the ANC. Further, it accepted that he had in fact done so with his wife and friends and that he had asked about the rights of Indians and was displeased with the response. All of this the Tribunal accepted as being the activities in which he had been involved. The Tribunal also accepted, whether it was one black man or a group, or whether he was a part of a group himself in distributing the pamphlets, that he had been assaulted and robbed, that the incident was reported to the police and that the police took appropriate action. This latter conclusion was based on what the Tribunal reported the applicant himself told the Tribunal, in addition to telling the Tribunal that the police were of Indian ethnicity. The applicant has not provided a transcript of the hearing with the Tribunal to the Court. Therefore the Tribunal’s account of what occurred remains unchallenged before this Court.
Dr. Azzi submits that the Tribunal failed to deal with an integer of the applicant’s claims in that it found that he had been assaulted by one black man instead of a group of black men. I cannot see that the Tribunal’s mistaken finding led it to a failure in the exercise of its jurisdiction. Ultimately, the Tribunal accepted that the applicant had been assaulted and robbed, whether the applicant was on his own or part of a group on that day, or whether the assailant was one, or whether it was a group, does not affect what the Tribunal accepted, which was the assault and robbery while he was out distributing pamphlets on behalf of the MF. Further, the Tribunal accepted that the applicant had reported the incident to the police. I cannot see that the wrong findings of fact can be said to be a failure to deal with an integer of the applicant’s claims. The integer of his claim in this regard was that he was distributing pamphlets on behalf of the MF and was assaulted and robbed. That is what the Tribunal considered and accepted.
Nor do I accept Dr. Azzi’s submission that these wrong findings of fact were part of the Tribunal’s adverse credibility finding in relation to the applicant husband and the three applicants in total. A plain reading of the Tribunal’s decision record reveals that it had some difficulty in accepting that the applicant husband had a high political profile. For example, it noted that (at CB 124.6):
“On his own evidence he did not have an organising or ‘management role’ in the MF.”
The Tribunal put to the applicant husband at the hearing that he did not have a high profile in the MF. The Tribunal found that his profile was “low” and, although it accepted that he had some profile, albeit a low one, based on the extent of his activities within that context, it found it difficult to accept that he and his family were subsequently targeted as a result of these activities. This was plainly in the context of having accepted that he had been handing out pamphlets and that he had been assaulted and robbed on that occasion.
The Tribunal plainly separated out that incident, and the context within which it occurred, from other “alleged incidents,” in respect of which it found the applicant husband’s evidence was confused. It was in this sense that the Tribunal said this raised “further doubts about the veracity of his claims.” The further doubts arose out of the confused evidence.
Dr. Azzi submitted that the word “further” and “furthermore” used by the Tribunal provided some link between the lack of the doubts about the veracity of the claims, as subsequently put in the confused way by the applicant, and the Tribunal’s failure to understand that he had been attacked by a group of black men rather than one. I do not accept this submission.
The first set of doubts were plainly, not that the (“black men”) incident had not occurred, or that there was any relevance as to whether it was a group of black men or one black man, but that the applicant had a high political profile. It is to that aspect of the Tribunal’s findings that it said it had “further” doubts.
Nor can it be said that somehow this linked back to the Tribunal’s initial statement that it had concerns about the veracity of “the applicants’ claims.” Plainly, as I have already set out, it had some concerns about the veracity of some of the applicant husband’s claims. That can also be seen in relation to the claims made by the applicant wife. At CB 125.5 the Tribunal set out that it had some doubts about the claims made by the applicant wife. Subsequently it gave her the benefit of the doubt and accepted her claims about two incidents during which she said she was targeted, as being plausible. It considered her claims on that basis. That does not detract however, from the Tribunal’s initial statement that it had concerns about the veracity of the applicants’ claims. In all therefore, this ground also does not succeed.
I cannot see jurisdictional error in the Tribunal’s decision on the grounds put forward by Dr. Azzi on their behalf. The application is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Amy Douglas-Baker
Date: 26 June 2007
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