WZAOD v Minister for Immigration
[2011] FMCA 327
•13 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 327 |
| MIGRATION – Refugee Review Tribunal – protection visa – judicial review – applicant born in Cameroon – applicant became South African citizen – riots in South Africa – xenophobic violence – whether fear of persecution – whether real chance of future persecution – past persecution – whether irrelevant considerations personal to applicant – whether factual basis for Tribunal decision – whether Tribunal decision rational or logical. |
| EVIDENCE – Corroboration – corroboration in relation to alleged past persecution – whether corroboration required. |
| ADMINISTRATIVE LAW – Judicial review – whether decision rational or logical – whether inference reasonably open. |
| Migration Act 1958 (Cth), ss.65, 474(1), 476(2)(a) |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4 ApplicantNABDof 2002 NABD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 SBZF v Minister for Immigration and Citizenship [2008] FCA 1486 SZNDJ v Minister for Immigration and Citizenship [2010] FMCA 139 SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, VG 22 of 1997, 6 April 1998) WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 |
| J Gregory and J Gothard (Eds), Historical Encyclopaedia of Western Australia (Crawley: University of Western Australia Press, 2009) |
| Applicant: | WZAOD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 244 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 14 April 2011 |
| Date of Last Submission: | 14 April 2011 |
| Delivered at: | Perth |
| Delivered on: | 13 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Ekanayake (pro bono) |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 244 of 2010
| WZAOD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Factual and procedural background
The applicant was born in Cameroon on 20 July 1977.[1] A professional soccer player, he departed Cameroon for South Africa in September 1999.[2] In 2006 he became a citizen of South Africa.[3] The applicant no longer holds Cameroonian citizenship.[4]
[1] Case Book (“CB”) 1.
[2] CB 51.
[3] CB 137.
[4] CB 273.
The applicant spent slightly more than 10 months in New Zealand, from September 2008 to August 2009,[5] and then on 9 August 2009, arrived in Australia as the holder of a subclass 676 (Tourist) visa.[6] On 6 November 2009 the applicant applied under s.65 of the Migration Act1958 (Cth)[7] for a Protection (Class XA) visa.[8]
[5] CB 264.
[6] CB 50 and 62.
[7] “Migration Act”.
[8] CB 1-79.
The applicant claims he is a non-indigenous South African and because he is from Cameroon he has been, and will in the future be, subjected to xenophobic attacks if he lives in South Africa. The applicant claims past persecution by indigenous South Africans whom he claims looted and destroyed his grocery shop in Dunoon, a suburb of Cape Town, on 22 May 2008. The applicant also claims that his wife was threatened and beaten on 22 May 2008 because he is an immigrant to whom she is married.[9]
[9] CB 50-55.
The delegate refused the application on 28 May 2010.[10]
[10] “Delegate’s Decision”; CB 178-201.
On 21 June 2010 the applicant sought review of the Delegate’s Decision in the Refugee Review Tribunal.[11] On 19 November 2010 the Tribunal affirmed the Delegate’s Decision to refuse to grant a protection visa to the applicant.[12]
[11] “Tribunal”.
[12] “Tribunal Decision” CB 260-279.
Tribunal Decision
The Tribunal formed the view that the applicant’s store was not destroyed as he claimed, noting that the applicant had not provided any independent proof of the existence, or destruction, of his shop.[13]
[13] CB 274-275.
The Tribunal also noted that the applicant’s case can be distinguished from most victims of xenophobic violence as he:
a)is relatively wealthy;
b)is very entrepreneurial;
c)does not live among the poor local South Africans;
d)owns his own home in a more upmarket area of Cape Town;
e)has a home with some security features;
f)owns two cars;
g)earned enough money to support his family in Cameroon and his wife and children in Cape Town; and
h)is able to purchase or access his HIV prescriptions.[14]
[14] CB 275.
The Tribunal did not accept that:
a)any threats or violence due to the applicant being a Cameroonian have been encountered by the applicant’s wife at their home;
b)the applicant would not have his wife and children visit him at his Cape Town ‘hideout’ between 22 May 2008 and 25 September 2008;
c)in light of the applicant’s affluence, it took the applicant four months to organise his departure from South Africa; and
d)the applicant would estrange himself from his family for four months and then leave them behind in South Africa.[15]
[15] CB 275.
The Tribunal found it was implausible that the applicant would not return to his home to protect his wife and children if they were threatened with violence.[16]
[16] CB 275.
The Tribunal did not accept that xenophobic gangs were ever looking for the applicant at his home, noting that his home was in a relatively wealthy area, some distance from his grocery shop, and had security features. The Tribunal rejected the claim that his wife had told the applicant that his home had been broken into as there was an absence of independent documentary evidence from the police.[17] Furthermore, the Tribunal found there was no evidence that even if the burglary had occurred that it was connected to the alleged persecution. The Tribunal accepted that there was a high incidence of violence and crime in South Africa, but even if a burglary had been committed the Tribunal found it would have been because of the relative wealth of the applicant’s family and not because the applicant was from Cameroon.[18]
[17] CB 275.
[18] CB 276.
The Tribunal rejected further claims of violence directed against the applicant’s family and extended family as being implausible and lacking verification by way of independent documentary evidence.[19]
[19] CB 276.
The Tribunal attached “great weight” to the fact that the applicant resided in New Zealand for 10 months prior to his arrival in Australia and failed to make a refugee claim whilst there. The Tribunal noted that the applicant had previously made a claim for asylum whilst in South Africa (in relation to events in Cameroon), and did not accept that the applicant was unaware of the asylum process or its availability in New Zealand.[20] The Tribunal also noted the applicant’s evidence that the applicant wanted to come to Australia because it has a warmer climate, and concluded that he did not have a genuine fear for his well-being in South Africa, but rather “a desire to live in Australia”.[21]
[20] CB 51 and 276.
[21] CB 276.
The Tribunal found that the delay in applying for protection in Australia at the earliest opportunity was a factor which affected the genuineness of the applicant’s alleged subjective fear of persecution.[22]
[22] CB 276-277.
The Tribunal found that the country information indicated that violent crime in South Africa has no racial content but rather is motivated by money. Therefore, the Tribunal found that the applicant had not, and would not, suffer from crime in South Africa for reasons of race or nationality.[23]
[23] CB 277.
The applicant also claimed that he was targeted as a member of a particular social group, as a known professional footballer. However, this claim was rejected as the Tribunal found there was:
a)no nexus between the applicant’s professional football career and the persecution feared; and
b)no evidence that he had ever suffered past harm due to him being a professional footballer.[24]
[24] CB 278.
Finally, the Tribunal noted that there was no evidence that the applicant would be denied effective State protection.[25]
[25] CB 278.
Tribunal Decision and jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[26] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[27]
[26] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[27] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Review ground 1
Review ground 1 is as follows:
a)the Tribunal took into account an irrelevant consideration, being that the applicant provided no “independent proof of the existence of, or of the destruction of, his shop”; and
b)the Tribunal failed to take into account a relevant consideration, being the oral and written evidence of the applicant.
Applicant’s submissions
The applicant submits that:
a)the first ground of review engages the Tribunal’s finding that the applicant’s store was not destroyed on 22 May 2008. The Tribunal Decision stated:
Having considered all of the evidence, the Tribunal has formed the view that the applicant’s store was not destroyed as claimed by the applicant because he has not provided any independent proof of the existence of, or the destruction of, his shop in Dunoon.[28] (applicant’s emphasis)
[28] CB 274-275.
b)on a number of occasions, in both his written and oral submissions to the Tribunal, he outlined that:
i)he owned a shop in Dunoon that sold general supplies to local South Africans;
ii)he employed two local South African girls to assist him in the shop;
iii)he competed with other local South Africans, but generally the shop did well; and
iv)
the shop was destroyed during xenophobic violence on
22 May 2008;[29]
[29] CB 52 and CB 274.
c)the Tribunal found that he did not provide the Tribunal with any corroborating evidence of the existence of the shop or its destruction;[30]
[30] CB 274-275.
d)the Tribunal committed a jurisdictional error by requiring him, as a matter of substance, to provide corroborating evidence before the Tribunal could accept his evidence;
e)from the judgment of the Full Court of the Federal Court in MZXSA v Minister for Immigration and Citizenship[31] (approving statements in Warnakulasuriya v Minister for Immigration and Multicultural Affairs),[32] it is implicit that a Tribunal’s sole reliance on lack of corroboration to reject an applicant’s evidence may be grounds for review for jurisdictional error;
[31] (2010) 117 ALD 441 at 459-460 per Keane CJ, Perram and Yates JJ; [2010] FCAFC 123 at paras.87-93 per Keane CJ, Perram and Yates JJ (“MZXSA”).
[32] Unreported, Federal Court of Australia, VG 22 of 1997, 6 April 1998 (“Warnakulasuriya”).
f)in both MZXSA and Warnakulasuriya, the Federal Court found that the Tribunal had not unreasonably required corroboration of the facts claimed by the applicants (in circumstances where the Tribunal was wrestling with factual claims that it considered to be vague and objectively implausible), and having reached that position, then required corroborating evidence before it could be satisfied that the events in fact occurred. For example:
i)in Warnakulasuriya, the applicant made vague claims of threats by opposing political parties against him and his supporters; and
ii)in MZXSA, the Tribunal found the applicant’s claims to be vague and consistent with him being a sympathiser, rather than a member, of the Turkish Communist Party;
g)in both MZXSA and Warnakulasuriya, the Tribunal assessed the respective applicants’ claims as being vague and objectively incredulous, and once the Tribunal had made those assessments, there was then no error in requiring corroborating evidence before the applicants’ evidence was accepted;
h)the present case involves a very different proposition because the Tribunal did not make any unfavourable assessment of the evidence before considering whether there was corroborating evidence, but accepted that:
The applicant has consistently made the claims about his shop being looted and destroyed on 22 May 2008 and his claims are generally consistent with the country information set out above regarding the xenophobic violence which was experienced in a number of locations in South Africa at that time.[33]
i)the Tribunal impermissibly required the applicant to provide corroborating evidence before it assessed the evidence of the applicant that was before the Tribunal; and
j)the Tribunal made:
i)a reviewable error by imposing a requirement of corroboration in circumstances where it should not have been a mandatory requirement; and
ii)a jurisdictional error by:
(A)taking into account an irrelevant consideration (the requirement for corroboration), or
(B)failing to properly take into account relevant material (the applicant’s evidence).
[33] CB 274.
First respondent’s submissions
The first respondent submits that:
a)MZXSA and Warnakulasuriya do not support an implication that sole reliance on lack of corroboration to reject an applicant’s evidence may constitute jurisdictional error;
b)in Warnakulasuriya, the Federal Court rejected a submission that the Tribunal erred in requiring an applicant to prove aspects of his case by a process of corroboration or supporting evidence, citing the following passage in the Judgment:
The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that "the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant's) fear of persecution on a convention ground was well founded.": see also Wu Shan Liang at 293 per Kirby J.
This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some “facts” may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence [is] corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.[34] (emphasis added)
[34] Warnakulasuriya at page 7 per Finkelstein J.
c)the Warnakulasuriya approach was endorsed by the Full Court of the Federal Court in MZXSA where the Full Court:
i)rejected a submission that the Tribunal had imposed an unreasonably high standard of satisfaction by insisting on corroboration and failing to take into account the protection visa applicant’s written and oral evidence as primary evidence; and
ii)found that a consideration of the transcript as a whole and the decision record demonstrated that the Tribunal did not proceed on the basis that, as a matter of legal standard, the applicant’s evidence was required to be corroborated;[35]
[35] MZXSA ALD at 459-460 per Keane CJ, Perram and Yates JJ; FCAFC at paras.90-92 per Keane CJ, Perram and Yates JJ.
d)the Tribunal was presented with a claim by the applicant that his shop had been destroyed by looters on 22 May 2008 as a result of xenophobic violence, and that the Tribunal noted that the applicant had consistently made this claim, and the claim was generally consistent with the country information.[36] However, the Tribunal went on to state:
[36] CB 274.
Equally however the applicant’s account could easily have been created after the fact based on the news reports widely circulated at the time. Having considered all of the evidence, the Tribunal has formed the view that the applicant’s store was not destroyed as claimed by the applicant because he has not provided any independent proof of the existence of, or of the destruction of, his shop in Dunoon. For example he says that he reported these events to the police in central Cape Town and that he received a docket; however he no longer has the docket.[37]
[37] CB 274-275.
e)in relation to the issue of whether the applicant’s store was in fact looted, the Tribunal weighed up all of the evidence before it, including that the applicant’s evidence had been consistent and was generally consistent with country information but, in the final analysis, decided that the absence of corroborative evidence in circumstances where the applicant had claimed to report the matter to the police but misplaced any evidence of this, was determinative;
f)the applicant’s assertion that “the Tribunal did not make any unfavourable assessment of the evidence” is at odds with the Tribunal’s statement that:
Further the applicant’s claim for protection centres on the fact that he is from Cameroon, a fact which he claims is obvious to indigenous South Africans. Against this claim the Tribunal has difficulty accepting that although the applicant says he got close enough to his shop to see that it was being looted on 22 May 2008 and to see who was looting it, he says that he was not recognised by any of the looters. The applicant submitted to the Tribunal that the looters did not recognise him because he was not in the car he usually drove to the shop. Equally however one would expect that the sight of a new car in the area may have sparked interest from at least one of the more than 50 locals in the street.[38]
[38] CB 275.
g)the views expressed in Minister for Immigration and Multicultural Affairs v Eshetu[39] are apposite here:
It was accepted by the respondent that in accordance with the decision of this Court in Minister for Aboriginal Affairs v Peko-Wallsend the weight to be accorded to a relevant consideration by an administrative decision-maker is generally a question for the decision-maker and not the Court. Although absence of corroboration did loom large in the Tribunal’s decision, it was not the only basis upon which the Tribunal proceeded. However, even if it were, the weight to be accorded to that factor was a matter for the Tribunal and not for the Federal Court.[40] (emphasis added)
h)the Tribunal’s:
i)approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake; and
ii)findings in relation to the credibility of the applicant were a fact-finding task within its jurisdiction,
and that any grievance as to the Tribunal’s conclusion in this regard, or as to the weight attributed to any piece of oral evidence, is a grievance as to the merits of the Tribunal Decision.
[39] (1999) 197 CLR 611; [1999] HCA 21 (“Eshetu”).
[40] Eshetu CLR at 669 per Callinan J; HCA at para.184 per Callinan J.
Consideration – review ground 1
It is convenient to deal first with the applicant’s assertion that the Tribunal failed to take into account the oral and written evidence of the applicant. This cannot be sustained. The Tribunal sets out at great length in the Tribunal Decision the relevant evidence that was before it, including the written evidence of the applicant in his Protection Visa Application[41] and the documentary and sworn oral evidence of the applicant at the Tribunal Hearing.[42] That evidence is then relevantly summarised in various paragraphs of the Tribunal Decision under headings relating to:
a)country of reference;
b)summary of claims and findings;
c)applicant’s claims – past persecution; and
d)consideration of applicant’s claims.
[41] CB 263-265.
[42] CB 265-271.
The consideration of applicant’s claims is then considered under four separate sub-headings of:
a)past harm;
b)future harm;
c)particular social group – professional footballer; and
d)State protection.[43]
[43] CB 273-279.
The Tribunal also considered evidence (which the applicant says in review ground 3 constitutes irrelevant considerations) concerning the applicant’s wealth, entrepreneurial nature and the location of his residence.[44] In relation to the issue of the existence of, or destruction of, the applicant’s shop the Tribunal expressly says that it had considered “all of the evidence”.[45] The Tribunal noted the claims made by the applicant, which it described as “consistently made”,[46] concerning the looting and destruction of the shop on 22 May 2008. Moreover, the Tribunal expressly considered the applicant’s claims with respect to what happened in the aftermath of the looting on the next morning when the applicant says that he:
a)drove a car “close enough to his shop to see that it was being looted … [and] “to see who was looting it”;[47] and
b)was not recognised by looters because he said that he normally drove a different car to his shop.[48]
[44] CB 275.
[45] CB 274.
[46] CB 274.
[47] CB 275.
[48] CB 275.
It is clear from the Tribunal Decision that the applicant’s oral and written evidence, both generally and in relation to the alleged looting of the shop, was taken into account, and the Court so finds. Subject to the grounds of review which follow, what was to be made of that evidence was a matter solely for the Tribunal, and not for this Court to review as if it were a merits rather than judicial review. The function of this Court is to conduct judicial review of the Tribunal Decision, not to assess the merits of the claim.[49] In the circumstances, the assertion that the Tribunal failed to take into account a relevant consideration, being the oral and written evidence of the applicant, is not made out, and that part of review ground 1 fails.
[49] WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 at para.14 per North J.
The Court now deals with the assertion that the Tribunal took into account an irrelevant consideration, namely, a lack of corroboration in relation to the looting of the shop. Sole reliance on a lack of corroboration to reject an applicant’s evidence may constitute jurisdictional error in certain circumstances, however, there is no error if the Tribunal decides that certain evidence will not be accepted by it unless it is corroborated, and particularly so where evidence has been found to be implausible or unreliable, or where the witness lacks credibility.[50]
[50] Warnakulasuriya at page 7 per Finkelstein J.
In this case the Tribunal says, and there is no reason to doubt, that it has considered “all of the evidence”.[51] The Tribunal, having considered all of the evidence, has formed the view that the applicant’s store was not destroyed as claimed because he had not provided any independent proof of the existence of, or of the destruction of, the shop. The Tribunal specifically notes and explains evidence to which it had regard, including:
a)the applicant’s evidence about his driving visit to the shop on the morning after the looting; and
b)the applicant’s status as a “relatively wealthy” and “very entrepreneurial” person who “does not live among the poor local South Africans”, but in his own home, with security and two cars, in an upmarket area of Cape Town.[52]
Further, the Tribunal had regard to the applicant’s failure to produce the police docket report of the alleged looting and destruction of his shop.[53]
[51] CB 274.
[52] CB 275.
[53] CB 274-275.
The Tribunal obviously considered the applicant’s account of events to be implausible in relation to the existence of, or destruction of, his shop. It noted that it had “difficulty accepting”[54] that whilst the applicant allegedly:
a)got close to the shop;
b)saw it was being looted; and
c)saw who was looting it,
but that he was not recognised by any of the looters. This was particularly difficult for the Tribunal to accept given that the applicant had previously claimed that the fact that he was from Cameroon was a matter obvious to indigenous South Africans.[55] The Tribunal also clearly had difficulty with the applicant’s account that he was not recognised because he was not in the car which he usually drove to the shop.[56] The Tribunal observed that:
Equally however one would expect that the sight of a new car in the area may have sparked interest from at least one of the more than 50 locals in the streets.[57]
The Tribunal clearly had doubts about the applicant’s account, noting that it could easily have been created after the fact based on news reports widely circulated at the time.[58] Even though it was not expressly said, this shows that the Tribunal had some doubt as to the applicant’s credit.
[54] CB 275.
[55] CB 275.
[56] CB 275.
[57] CB 275.
[58] CB 274.
The Tribunal Decision demonstrates that it considered the applicant’s evidence to be, in significant aspects, implausible or unreliable, and that it had some doubts as to the applicant’s credit. The Tribunal was therefore entitled to consider whether the applicant’s evidence was corroborated or not, and to make findings based upon a lack of corroboration. In relation to the lack of corroboration the Tribunal only mentioned, by way of example, the failure to produce the police docket report.[59]
[59] CB 274-275.
The Tribunal did not therefore, by considering the lack of corroboration of the existence and destruction of the applicant’s shop, take into account an irrelevant consideration. Rather, in the context of the Tribunal’s findings concerning the applicant’s evidence, it was relevant to consider the lack of corroboration in relation to the existence of, or of the destruction of, the applicant’s shop. In the circumstances, the applicant’s assertion is not made out, and this part of review ground 1 fails.
Review ground 1 has therefore failed.
Review ground 2
Review ground 2 is that the Tribunal misdirected itself, as to the relevant law, by requiring the applicant to establish that he had suffered past persecution as an element of establishing a well-founded fear of being persecuted in the future.
Applicant’s submissions
The applicant submits that:
a)it appears from the Tribunal Decision that the Tribunal considered past persecution to be an element the applicant was required to establish for him to succeed in showing he had a well-founded fear of future persecution, and therefore, the Tribunal misdirected itself as to the applicable law;
b)the Tribunal outlined each of the applicant’s claims of past persecution and dismissed each of them, concluding that he had suffered no past persecution;[60] and then concluded that:
[60] CB 275-276.
However, due to the applicant’s relative wealth and the fact that he does not live among poor local South Africans, and the Tribunal has found his lack of past persecution, there is no real chance of future serious harm for reasons of him being a Cameroonian.[61]
c)it is apparent that the Tribunal placed considerable emphasis on whether or not past persecution occurred and, having determined that it did not, the Tribunal based its conclusion (that of no future persecution) on that finding;
d)given the length of discussion by the Tribunal about past harm, and the fact the Tribunal specifically identifies past harm as an element of future harm, the Tribunal relied on a lack of past harm as determinative of the likelihood of future harm;
e)by requiring that past persecution be established as an element of future persecution, the Tribunal made a reviewable error;[62]
f)if the Tribunal had not misdirected itself in this way, it would (and should) have considered the likelihood of future harm while quarantining past harm from its deliberation, particularly as the Tribunal otherwise found that:
i)xenophobic violence against African immigrants exists in South Africa;[63] and
ii)the conditions in South Africa that led to the xenophobic violence in May 2008 remain extant and further such violence is a possibility;[64] and
iii)the applicant fears that he may be attacked or killed by indigenous South Africans.[65]
[61] CB 277 (see also CB 275).
[62] Citing Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (“S395/2002”), where the Tribunal specifically found there had been no past persecution, and generally see, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4.
[63] CB 271-273, 277.
[64] CB 277.
[65] CB 278.
First respondent’s submissions
The first respondent submits that:
a)the Tribunal was entitled to have regard to the absence of past persecution;
b)the Tribunal considered the absence of past persecution in conjunction with all other relevant considerations;
c)in:
i)ApplicantNABDof 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[66] it was noted that:
[66] (2005) 79 ALJR 1142; [2005] HCA 29 (“NABD”).
In many, perhaps most cases, the primary basis for what is said to be a well-founded fear of future persecution is an account of past persecution, usually given as the reason for leaving a country of nationality.[67]
[67] NABD ALJR at 1143 per Gleeson CJ; HCA at para.4 per Gleeson CJ.
ii)SZNDJ v Minister for Immigration and Citizenship[68] the Court held:
[68] [2010] FMCA 139 (“SZNDJ”).
Insofar as it is contended that the Tribunal had to analyse the future harm the applicant may face, in circumstances where the Tribunal did not accept the credibility of any of the applicant's claims about past harm which he claimed gave rise to a well-founded fear of persecution, it was not necessary for it to go on to analyse in any more detail than it did the possibility of future harm.[69]
[69] SZNDJ at para.29 per Barnes FM.
iii)SBZF v Minister for Immigration and Citizenship[70] the Federal Court held:
[70] [2008] FCA 1486 (“SBZF”).
It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo 191 CLR 559.
However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.[71]
[71] SBZF at paras.50-52 per Lander J.
d)the applicant relies upon S395/2002 as authority for the proposition that where no past harm or persecution has been established there remains the possibility of future harm. The first respondent contends that the Tribunal did properly consider whether the applicant was at risk of future harm. However, it is important to observe that S395/2002 and the cases which have followed it relate primarily to whether an applicant has modified or is likely to modify their behaviour in order to avoid persecution. S395/2002 in particular, focussed on whether the applicants would modify perceived homosexual behaviour. It has been particularly applicable in cases where an applicant might be perceived to modify their political opinion or religious observance. In the present case, the applicant claims persecution on the grounds that he is Cameroonian and, on his own evidence, recognisably so, and therefore there can be no issue of the applicant modifying his behaviour in order to avoid persecution.
e)the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo[72] is more on point. The majority in Guo held:
[72] (1997) 191 CLR 559 (“Guo”).
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[73]
f)in any event, in the present case it is not correct to say that the Tribunal based its conclusion on future harm on an earlier conclusion that the applicant had suffered no past harm. It was one of the factors the Tribunal took into account, but the Tribunal also considered:
i)the fact that widespread attacks on foreigners had subsided in South Africa;
ii)that the applicant’s relative wealth and place of residence separated him from risk areas; and
iii)that the country information indicated that violent crime in South Africa is motivated by money rather than race;[74] and
g)the authorities are clear that the Tribunal’s rejection of past persecution was a relevant factor in considering whether the applicant had a well-founded fear of persecution in the future. However, it is equally clear that the Tribunal turned its mind to all of the other relevant circumstances in considering whether the applicant was at risk.
[73] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[74] CB 277.
Consideration – Review Ground 2
The authorities establish that it is lawful, and not a jurisdictional error, for the Tribunal to consider an applicant’s account of past persecution in determining whether there is a well-founded fear of future persecution.[75] Practically, past persecution is often relevant to the issue of whether or not there will be future persecution.
[75] NABD ALJR at 1143 per Gleeson CJ; HCA at para.4 per Gleeson CJ; SBZF at paras.50-52 per Lander J; Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
In this case, the Tribunal placed considerable emphasis on the question of whether or not past persecution had occurred. The Tribunal determined that past persecution had not occurred.
By reason of the applicant’s wealth, entrepreneurialism and the location and security features of his home, the Tribunal did not accept that:
a)threats of violence had been made to the applicant’s wife due to the applicant being a Cameroonian; or
b)that xenophobic local gangs were ever looking for the applicant at his home.[76]
[76] CB 275.
The Tribunal in fact found it “implausible” that the applicant would not return to his home if threats had been made against his wife and children subsequent to 22 May 2008 and before he left South Africa.[77] The Tribunal also had “difficulty … accepting” that the applicant did not leave South Africa for four months after the alleged violence and looting of his shop, and that he left his wife and children behind, particularly in circumstances where the Tribunal found that he had the means to leave shortly after the 22 May 2008 riots if his fear for his life was genuine.[78] Finally, the Tribunal found that there was no evidence of past persecution by reason of the applicant being a member of a particular social group, namely that of a professional footballer, and thus the Tribunal did not accept that the applicant faced a real risk of persecution by reason of his being a professional footballer in South Africa.[79]
[77] CB 275.
[78] CB 275.
[79] CB 278.
The Tribunal did not however merely look backwards. It determined that the applicant did not have a well-founded fear of future persecution in South Africa based on a number other matters which did not rely on evidence of past persecution. They included:
a)the fact that crime in South Africa is, according to certain country information, motivated by money rather than race, and is therefore not persecution for a Convention reason if it occurs;[80]
b)the fact that the applicant’s wealth and the location of his residence, in addition to indicating a lack of past persecution, precluded a finding that there was a real chance of future serious harm by reason of the applicant being a Cameroonian;[81]
c)the failure of the applicant to make a refugee claim in New Zealand, where he had gone immediately after leaving South Africa;[82] and
d)the applicant’s failure to apply for a protection visa until he had been in Australia for three months.[83]
[80] CB 277.
[81] CB 277.
[82] CB 276.
[83] CB 276.
The Tribunal not only inferred from a finding of a lack of past persecution that the applicant did not have a well-founded fear of future persecution, but also separately examined the issue of future harm, under a heading to that effect, and found that the applicant did not have a well-founded fear of persecution in the future. The Tribunal did therefore address the question of a well-founded fear of being persecuted in the future by reference to all relevant considerations, including alleged past persecution and, quite independently, the possibility of future persecution.
Review ground 2 is therefore not made out because the Tribunal did not misdirect itself as to the relevant law in determining whether the applicant had a well founded fear of future persecution. Review ground 2 must therefore fail.
Review Ground 3
Review ground 3 is that in finding that the applicant was in a different class to other African immigrants in South Africa the Tribunal took into account irrelevant considerations being:
a)the applicant’s relative wealth;
b)the applicant’s entrepreneurial nature; and
c)the location of the applicant’s residence,[84]
in determining that the applicant was less likely to suffer xenophobic violence in the future.
[84] CB 275 and 277.
Applicant’s submissions
The applicant submits that:
a)the Tribunal’s taking into account irrelevant factors in relation to this ground is highlighted by the Tribunal Decision statement that:
However, due to the applicant’s relative wealth and the fact that he does not live among poor local South Africans, and the Tribunal has found his lack of past persecution, there is no real chance of future serious harm for reasons of him being Cameroonian.[85]
b)the above factors could not be considered relevant, and that that is consistent with the Tribunal Decision where it stated:
In addition to poor labourers, also at risk may be those foreigners seen as being wealthy at the expense of local shopkeepers … Again, their victimhood is due to their visibility and accessibility to South Africa’s poor.[86]
c)in the Tribunal Decision, considerations of wealth and residence do not support a finding of a decreased chance of xenophobic harm; and
d)given the lack of evidence and, perhaps, even evidence to the contrary, there was no explanation as to how the Tribunal concluded that the applicant had no real chance of future serious harm. The only logical conclusion is that the Tribunal took into account irrelevant considerations of wealth, personality and residence.
[85] CB 277 (see also CB 275).
[86] CB 273.
First respondent’s submissions
The first respondent submits that:
a)the impugned paragraphs are where the Tribunal stated:
Also, what sets the applicant in this case apart from most victims of xenophobic violence is that he is relatively wealthy, obviously very entrepreneurial and does not live among the poor local South Africans. He owns his own home in what he describes as an area of Cape Town that is a bit upmarket and where the people have money, namely Brentwood Park. His home has some security features. He also owns two cars. He earned enough money to support his family in the Cameroon as well as his wife and children in Cape Town. He was able to purchase or access all of his HIV prescriptions without any difficulty in South Africa. He was by his own account well off in South Africa. He is a former professional soccer player who then trained as a cook. He said that he would not live near his shop because it was too unsafe for him there, however he was happy to have a shop there and to provide a much needed service to the locals for a profit. The combination of these factors make the applicant much less likely to be a victim of xenophobic violence.[87]
[87] CB 275.
…
It is clear that the widespread attacks on foreigners have subsided somewhat in South Africa. Although the possibility of a similar outbreak of violence in future cannot be discounted, given that the circumstances which led to the episode to a large extent remain. However, due to the applicant's relative wealth and the fact that he does not live among poor local South Africans, and the Tribunal has found his lack of past persecution, there is no real chance of future serious harm for reasons of him being a Cameroonian.[88]
[88] CB 277.
b)it is not difficult to perceive why factors such as an applicant’s relative wealth and place of residence would be regarded as relevant, particularly as it was the applicant who:
i)provided evidence that he lived in an area which was upmarket and safer; and
ii)distinguished his place of residence on the basis of it being a place where people have money;
c)the Tribunal was required to consider the individual circumstances of the appellant in light of the available information;[89]
d)the Tribunal did not distinguish the applicant in a vacuum, but by having regard to the country information which identified that:
Ethnic Africans are the foreigners who face the most violence. This is more likely a result of their poor economic circumstances than any racial bias against other Africans. They compete for low paid labour jobs with poor South Africans, making them the prime targets. They are also the easiest to access as they live amongst the perpetrators of the violence, the local poor.[90]
e)the country information therefore establishes that poor immigrants who live in the same areas as poor local South Africans and compete with them for low paid jobs are more at risk, and it follows, that an applicant’s relative wealth, place of residence and occupation are relevant factors, and the Tribunal did not err in finding that these factors “set the applicant in this case apart from most victims of xenophobic violence”;[91] and
f)the applicant has only partially set out the Tribunal’s reference to country information, and it is the sentence omitted by the applicant that is critical in placing the Tribunal’s finding in context:
In addition to poor labourers, also at risk may be those foreigners seen as being wealthy at the expense of local South Africans. 'Wealth' is relative though with many victims of attacks being poor shopkeepers or street vendors who are only marginally better off than their attackers (this is sourced from the IOM report and the United States Department of State report). Again, their victimhood is due to their visibility and accessibility to South Africa’s poor.[92] (emphasis added).
[89] NABD ALJR at 1144 per Gleeson CJ; HCA at para.10 per Gleeson CJ.
[90] CB 273.
[91] CB 275.
[92] CB 273.
The particular country information supports the Tribunal’s finding.
Consideration – review ground 3
It might be argued that it is self-evident that a relatively wealthy non-indigenous South African entrepreneur living in a more upmarket suburb is less likely to face a risk of future harm than a non-indigenous South African who is a poor labourer living with poor indigenous South Africans. The country information makes it clear that the risk of serious future harm, at least on one view of it, is for those non-indigenous South Africans who are slightly wealthier than the poor indigenous South Africans with whom they live, and amongst whom they work. It is the richest of the poor, rather than the richer, who are most at risk. The Tribunal’s choice of country information to be relied upon, and the weight that country information is to be given, are matters within the jurisdiction of the Tribunal.[93] Further, in the Court’s view, the applicant’s own evidence as to his residential location supports the view that it is the visibility and accessibility of the richest of the poor non-indigenous South Africans which results in them being at risk. It is for that reason that the applicant does not live in or near his shop and that he does not work in the shop for most of the time, but rather employs two indigenous South African “girls” to do so.[94]
[93] SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291 at para.33 per Siopis J (“SZOHK”).
[94] CB 267.
In the Court’s view, having regard to:
a)the country information; and
b)the applicant’s own evidence,
the factors of wealth, entrepreneurialism and the location of the applicant’s residence, are all factors which may impact upon whether or not an applicant has a well-founded fear of persecution in the future. As such, the determination of that issue, based upon those factors, was a matter of merit assessment for the Tribunal. In this case, the Tribunal did not commit a jurisdictional error by taking the abovementioned factors into account. It follows that review ground 3 is not made out, and must fail.
Review Ground 4
Review ground 4 is that in finding that South Africa could offer the applicant effective State protection the Tribunal either erred by:
a)making this finding without any factual basis to support the finding; or
b)making a finding that no reasonable Tribunal could have made based on the available evidence.
Conclusion has no factual basis
Applicant’s submissions
In relation to this contention the applicant:
a)accepts that to succeed on the contention, there must be no evidence at all upon which the finding could have been based;[95]
[95] VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at 306 per Heerey J; [2006] FCA 851 at para.17 per Heerey J, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ (“Australian Broadcasting Tribunal”).
b)says the Tribunal Decision refers to State and police action in South Africa in relation to xenophobic violence, however those findings do not support the Tribunal’s conclusion outlined above. For example, the Tribunal stated:
“A later report for the International Organisation of Migration (IOM) reported that South Africa has a long history of the xenophobia which leads to institutional and social discrimination and mistreatment of migrants… The discriminatory attitude to foreigners is found ‘among citizens, police, and the elected leaders’.”[96] (applicant’s emphasis)
[96] CB 272.
c)says that the Tribunal Decision also states:
“While the majority of violence was conducted by small mobs, local ward politicians have been implicated in orchestrating attacks to gain political influence with the residents.”[97] (applicant’s emphasis)
[97] CB 272, referring to the national violence in May 2008.
d)accepts that the Tribunal Decision says that:
i)“South African law and official government policy is more sympathetic towards migrants” but goes on in the same paragraph to say, “However, NGOs still criticise the government for its ‘inadequate’ protection of foreigners.”[98]
ii)“The Tribunal accepts, based on country information (such as the security risk assessment published by the Economist Intelligence Unit in October 2008 and the US Department of State’s report on human rights practices in South Africa for 2009), that the government has increased its efforts to improve the country’s security environment and, notwithstanding a shortage of resources, the police force is attempting to address the issue (including a major reform of the South Africa Police Service).” [99] (applicant’s emphasis)
iii)that South Africa can offer the applicant effective State protection;[100]
e)says that “effective state protection” was referred to in Minister for Immigration and Multicultural Affairs v Respondents S152/2003,[101] but no conclusion was reached on what would constitute effective State protection. However, it was noted that the respondents (in that case) would have needed to show that “the Ukraine did not provide its citizens with the level of State protection required by international standards”, which would include the provision of “a reasonably effective and impartial police force and justice system”;[102]
f)says that there is a difference between the South African government showing “more sympathy” for immigrants and having “increased its efforts to improve” on the one hand, and providing effective State protection on the other. The former infers an acknowledgement that the previous situation provided ineffective protection and that there is a move towards the latter. Nowhere in the Tribunal Decision, nor in the country information, is there any evidence to suggest that in the current situation in South Africa, the State can provide the applicant with effective State protection from xenophobic violence; and
g)submits that the Tribunal made a jurisdictional error, by making a finding that was not based on any evidence open to it.
[98] CB 272.
[99] CB 278.
[100] CB 278.
[101] (2004) 222 CLR 1 at 12-13 per Gleeson CJ, Hayne and Heydon JJ; [2004] HCA 18 at para.28 per Gleeson CJ, Hayne and Heydon JJ (“S152/2003”).
[102] S152/2003 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
First respondent’s submissions
The first respondent submits that:
a)the applicant has conceded that he must establish that there was no evidence at all to base a finding that the applicant would be entitled to receive effective State protection;
b)the starting point is the well-known statement of Mason CJ in Australian Broadcasting Tribunal:
So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[103]
[103] Australian Broadcasting Tribunal at 356 per Mason CJ.
c)the choice of the country information which is relied upon by the Tribunal, and the weight accorded to it, is a matter for the Tribunal;[104]
[104] SZOHK at para.33 per Siopis J.
d)it was clearly open to the Tribunal to reach the view that it did, for as the Tribunal noted:
As set out above, the Tribunal notes that there is no Independent Country Information available to the Tribunal which indicates that the applicant would not be offered police protection. There is nothing to indicate that enforcement of laws against criminal behaviour are not being applied generally, or are discriminatory either in intent or impact against someone who may suffer an attack from indigenous South Africans.[105]
e)the above finding was made in the context of country information which, whilst acknowledging the high rate of violent crime in South Africa, also noted that:
i)civilian authorities generally maintained effective control of the security forces;[106]
ii)the government generally respected the human rights of its citizens;[107]
iii)whilst there had been a wave of xenophobic attacks in 2008, in 2009 those attacks, whilst still a problem, did not occur on the scale of the previous year;[108] and
iv)there were reports of arrests and criminal prosecutions in relation to the xenophobic attacks of May 2008.[109]
[105] CB 278.
[106] CB 193.
[107] CB 193.
[108] CB 195.
[109] CB 194.
Consideration – review ground 4 – conclusion has no factual basis
The Tribunal observed that:
Based on the country information available, the Tribunal was satisfied that there is a reasonably effective and impartial police force and justice system in place in South Africa which offers the applicant effective State protection.[110]
[110] CB 278.
There is sufficient country information to indicate that South Africa has a system of police protection available to protect its citizens from xenophobic attacks in the future. It is too great a leap to argue that merely because the system of protection available in South Africa is described as one which is improving, and one in which increased sympathy is shown by the government for immigrants, that an inference can be drawn that the existing system of State protection is ineffective. Any government in a stable representative democracy might announce that its policy is now more sympathetic towards immigrants, and that it has instructed its police forces to improve the protection afforded to immigrants, without the inference being drawn that there was not previously effective State protection in place. Even representative democracies as stable as Australia sometimes suffer the ignominy of xenophobic attacks upon immigrants in which there is damage to persons and property.[111]
[111] Examples include the 2005 Cronulla riots: see “2005 Cronulla Riots” en.wikipedia.org/wiki/2005_Cronulla_riots and “Sydney’s racial tension spreads”: Morning Herald, 11 December 2005). In Kalgoorlie in 1934 “[i]n the wake of the Great Depression, Croatians were targeted in violent riots against Italians and Slavs in Kalgoorlie and some of them moved out of that area”: J Gregory and J Gothard (Eds), Historical Encyclopaedia of Western Australia (Crawley: University of Western Australia Press, 2009) page 255.
As the Court has already observed the Tribunal’s choice of country information to be relied upon, and the weight accorded to it, is a matter for the Tribunal.[112]
[112] See para.44 above and SZOHK at para.33 per Siopis J.
On the country information referred to by the Tribunal it was reasonably open for the Tribunal to conclude that South Africa had in place a system of State protection which could be offered to, or available to, the applicant. There is, therefore, no error of law in the Tribunal Decision on the issue of State protection, and, consequently, no place for that aspect of the Tribunal Decision to be judicially reviewed.
It follows that that part of review ground 4 which asserts that the Tribunal Decision with respect to effective State protection was a conclusion without a factual basis, must fail.
Conclusion at which no rational or logical person could have arrived
Applicant’s submissions
The applicant submits that the Tribunal’s conclusion in relation to effective State protection was not one that any rational or logical person could have arrived at.
In this regard, the applicant submits that:
a)the High Court in Minister for Immigration and Citizenship v SZMDS[113] found that:
Whilst the first respondent accepted that not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, it was contended that if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the Act) then this is a jurisdictional fact and a jurisdictional error is established. This submission should be accepted.[114]
and went on to say that:
…‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.[115]
b)even if this Court determines there was some evidence to support the Tribunal’s conclusion (which is not accepted), the evidence was not sufficient for any rational or logical tribunal, in this Tribunal’s position, to make the findings it did.
[113] (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”).
[114] SZMDS CLR at 643-644 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ.
[115] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
First respondent’s submissions
The first respondent submits that:
a)in SZMDS the Court observed that:
… a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[116]
b)the High Court's decision in SZMDS establishes that illogicality or irrationality in the reasoning of a Tribunal may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases; and
c)there is a reasonably effective and impartial police force and justice system in place in South Africa, that there was no evidence which suggested the applicant would not be offered police protection or that the enforcement of laws against criminal behaviour were not being applied generally, and those findings were clearly open to the Tribunal. Those conclusions were founded in the country information and were neither illogical nor irrational.
Consideration – review ground 4 – conclusion at which no rational or logical person could have arrived
[116] SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ.
At the point at which the Tribunal came to make its decision with respect to whether or not there was effective State protection it had before it information which indicated that South Africa enforced laws in respect of criminal behaviour, and that such laws were not themselves discriminatory in intent or impact against a person who might be attacked by an indigenous South African. This was supported by the fact that there were reports of arrest and criminal prosecutions in relation to the xenophobic attacks of May 2008. Further, the country information indicated that the government generally in respect of the human rights of its citizens had maintained effective control of the security forces. Finally, as the Tribunal noted, there was no information available to the Tribunal which indicated that the applicant would not be offered police protection by the State. Whilst these systems were ones which might be improved, as South Africa appears to be endeavouring to do, and which might be subject to local vagaries, it cannot be said that the Tribunal, at the point of making its decision, made an illogical or irrational decision about effective State protection, based on the country information which was available to it.
Its reasoning therefore discloses no jurisdictional error in respect of this aspect of review ground 4.
It therefore follows that review ground 4 has also failed.
Conclusion
For the reasons set out above the Tribunal Decision is not attended by jurisdictional error. The Tribunal Decision is therefore a privative clause decision and not susceptible to judicial review.[117] The application must therefore be dismissed. There will be an order accordingly.
[117] Migration Act, s.474(1) and 476(2)(a).
The Court will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 13 May 2011