Mire v Minister for Immigration & Multicultural Affairs

Mr Mire's contentions 33 Counsel for Mr Mire, Mr Gibson, identified two errors of law which he submitted had been made by the RRT. The first was that referred to in the "Grounds" set out in the amended application at paragraph 1(a)(iii). It was as follows: "(T)he Tribunal failed to correctly apply the test of effective protection by reason of its failure to consider whether the Applicant's destroyed travel document would be re-issued or renewed either prior to or after the expiry of his temporary residence permit so as to enable him in practice to exercise his right of re entry to South Africa." 34 The crux of this submission was that the RRT was obliged to examine and consider the issue whether Mr Mire was effectively able to exercise his right to return to South Africa. It was put that the RRT did not address "whether he could return to South Africa in the comfortable knowledge that he would be admitted there". 35 Mr Gibson said that the RRT's failure to address that issue resulted in it making an error of law within the meaning of s476(1)(e) of the Act by failing to properly consider the concept of "effective protection". He also referred to s430(1)(c) of the Act and contended that the RRT had failed to set out its findings on this issue, being a material question of fact. In so doing, Mr Gibson relied on the identification of a material question of fact by the Full Court in Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 697 (at [14] per Kiefel, North and Mansfield JJ) as: "… one which is:

*a matter capable of supporting in a significant way the claim of the applicant." 36 The second contention raised by Mr Gibson was that the RRT failed to make a finding on Mr Mire's allegation that state sponsored persecution of refugees occurred in South Africa and that there was a real chance that Mr Mire would suffer at the hands of persecutory police and military personnel should he return to South Africa. It was submitted that the RRT did not make it clear whether or not it accepted the material put to it by Mr Clutterbuck about state sponsored persecution. Mr Gibson conceded that the RRT was not obliged to give a line by line refutation of the material about state sponsored persecution but submitted that it must state whether it accepted or failed to accept the material. Mr Gibson submitted that the RRT didn't reject the material but "just seems not to have taken it into account". He said that it must be at least implicit in the RRT's reasoning that it rejected that material as being inconsistent with other material that it did act on. See Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at [61] per Black CJ, Sundberg, Katz and Hely JJ. 37 Mr Gibson submitted to the following effect: the RRT referred to police abuse against refugees in its decision but it concluded the discussion by saying that the material before it "does not indicate that the authorities generally fail to afford effective protection to Somali or other refugees". Mr Gibson submitted that the question of effective protection from the authorities arose in the context of persecution by civilians and not in the context of persecution by authorities. Consequently, it was put that there was no finding made by the RRT on a material question of fact before it, which amounted to an implicit rejection of material concerning state sponsored persecution without the RRT saying why it rejected that material. 38 Mr Gibson referred the Court to the following passage in the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (at [54] per Mathews, Tamberlin and Mansfield JJ): "In its laconic finding on the question, the Tribunal has set out its decision and its finding on the material questions of fact: s430(1)(a) and (c). It has referred to the material on which that finding was based: s430(1)(d). It is difficult to decide how in the circumstances, the legislation enabled that conclusion to be reached. The written submissions for the Minister sought to put Mr Sameh into the category of persons who have entered Jordan clandestinely, but that is not his current status. He will be returned to Jordan from Australia. Those submissions also appear to accept that Mr Sameh does not now have a valid passport. The Tribunal has made no findings about whether Mr Sameh still has either of the passports to which he referred in his evidence. It has not explained why it has rejected the views of the UNHCR that Mr Sameh would not now gain admission to Jordan without a valid passport, or at least one which previously was accepted by Jordan as a valid passport. In our judgment, the "one line" finding in the circumstances does not satisfy the requirements of s 430(1)(b) of the Act. To adopt the words used by McHugh J in Durairajasingham, the circumstances were such as to require the Tribunal to provide reasons for its decision by indicating that it has rejected evidence going to a material issue in the consideration of the claim for a protection visa. Such a judgment must be one of degree in all the circumstances. It must be made in the light of the issues relevant to determination of the claim, and the nature and substance of the material touching upon those issues. It will not require a "line-by-line" refutation of all the evidence, but here the Tribunal itself by its inquiries indicated the significance of the issue and of the material from the UNHCR touching upon that issue. But the object of such provisions as s430 is to enable the parties to understand why a particular decision has been made: see Pettit v Dunkley [1971] 1 NSWLR 376, Collins v Repatriation Commission (1980) 48 FLR 198 at 211-212; Dornan v Riordan (1990) 24 FCR 564 at 568; Davies v Australian Securities Commission (1995) 59 FCR 221; Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 (reversed on other grounds: (1994) 50 FCR 345)."

(i) State sponsored persecution 41 In accordance with Art 33 of the Refugees Convention, the RRT was required to determine whether, if Mr Mire was returned to South Africa, he would be threatened on account of his race and nationality. The RRT considered whether such action would be likely to occur at the hands of South African civilians and found in the negative on that issue. However, the RRT made no finding concerning whether such action would be likely to occur at the hands of South African authorities. There is a world of difference between the concept of such authorities failing to afford effective protection and those authorities themselves being the cause of the relevant threats and persecution. 42 The material in the Human Rights Watch referred to by the RRT included the following: "Documented treatment of asylum seekers and refugees by South African police include harassment, assault, theft, racist abuse, sexual harassment, arbitrary arrest, unwarranted invasion of privacy, even death in custody." 43 This material was not addressed by the RRT. It made no finding about it. Its findings about police protection were made in the context of police protecting refugees from civilians not police protecting refugees from police. As Merkel J said in Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 at [13], "the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make". 44 I agree with Mr Gibson that the RRT acted contrary to s430(1)(c) of the Act by failing to set out its findings on a material question of fact i.e. whether Mr Mire would suffer persecution at the hands of South African authorities if returned to South Africa. That question of fact was objectively material to the decision the RRT was required to make. 45 In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, von Doussa J (with whom Moore and Sackville JJ agreed) said (at 562) that: "The expression "effective protection" is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee." 46 Consideration of what constitutes "effective protection" in any given case requires the exercise of great care and caution by the RRT. It is all the more important, in cases which raise the issue of effective protection, for the RRT to deal with material and submissions made to it on that topic which point to a real possibility that the alleged effective protection is in fact illusionary. The protection must truly be effective. See Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 at 705 - 708 per Black CJ, Foster and Lehane JJ and Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 at 698 per Finkelstein J. 47 The particular question whether Mr Mire may be the subject of state sponsored persecution if returned to South Africa was inextricably interwoven with his claimed fear of persecution and falls within the acceptable bounds of s430(1)(c) of the Act as discussed in Sameh. 48 As was said in Singh at [47]: "If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material." 49 In my view, the "ultimate conclusion" reached by the RRT required a finding on the issue of whether Mr Mire was at risk of state sponsored persecution for a convention based reason if he returned to South Africa. See Singh at [55]. 50 Apart from the RRT's failure to comply with s430(1)(c) of the Act in the respect identified immediately above, in my view, in not properly addressing the question of "effective protection", the RRT also made an error of law within the meaning of s476(1)(e) of the Act in its approach to the determination of whether Mr Mire was entitled to a protection visa. The failure to comply with s430(1)(c) of the Act was a failure to observe procedures required by the Act to be observed in connection with the making of a decision and is a ground of review under s476(1)(a) of the Act. See Najarian at [13].

(ii) The travel documentation 51 The factual background set out earlier in these reasons deals fully with the manner in which the question of the travel documentation was dealt with by Mr Mire's representative and the RRT. This is a difficult question to determine. 52 In his detailed written submissions of 20 May 1999, Mr Clutterbuck continued to stress that Mr Mire's right to re-enter South Africa was "conditional upon South African authorities re-issuing the applicant with a new South African Travel Document as he has destroyed his former travel document". The inquiries undertaken by the RRT and the ensuing information from the Home Affairs Department did not squarely address this issue. Perhaps because it was taken for granted by the RRT that Mr Mire's possession of a photocopy of the document which clearly showed its correct number would not result in a problem concerning Mr Mire's re-entry into South Africa. Indeed, the very part of Mr Clutterbuck's submission quoted from above continues with the following words: "Although the applicant destroyed his previous South African travel document, he has not hidden its existence. In fact he has provided the Department (and the Tribunal) with a photocopy of that document." 53 There was nothing to stop Mr Clutterbuck seeking specific clarification of this issue with the Home Affairs Department himself or asking the RRT to make a specific further request. No great issue was made in the 20 May 1999 submissions about the destruction of the original document. The point about re-issuing the document, in my view, when the submission is read as a whole, was in the nature of a "throw away line" rather than a seriously or strongly contended point in Mr Mire's favour. The RRT had described to the Home Affairs Department what documents Mr Mire had which were relevant to his re-entry. If there was a problem about re-entry with those documents, it would be expected that the Home Affairs Department would have raised it. 54 I agree with Mr Gray that a thorough analysis of all the material before the RRT shows that ultimately, the lack of an original travel document was not a matter of great concern. If it was so, one would have expected Mr Clutterbuck to request that the RRT make a further inquiry or make one himself in the context of the RRT proceedings allowing Mr Mire to advance "whatever evidence or argument (he) wishes to advance in support of (his) contention(s)". See Abebe v Commonwealth (1999) 197 CLR 510, [1999] HCA 14 at [187] per Gummow and Hayne JJ.

(1997) 80 FCR 543

(1997) 143 ALR 695

(1998) 158 ALR 681

(1999) 197 CLR 510

(1980) 48 FLR 198

(1990) 24 FCR 564

(1995) 59 FCR 221

(1994) 50 FCR 345

[2000] FCA 578