The 91R Ground
33 The appellant submitted that his Honour erred in failing to find that the Tribunal failed to consider whether the regime of positive discrimination by the South African Government constituted persecution for the purposes of s 91R in denying to the appellant opportunity for employment.
34 His Honour's finding in this regard was in the following terms (at [47]):
'In my view the [appellant] is cavilling with the reasoning process of the Tribunal and with its fact finding. The Tribunal adequately if briefly considered the [appellant's] personal circumstances and the denigration and affirmative action program issues. It did not misconstrue the concept of persecution under the Convention and s.91R. Unhappily for the [appellant] it found that the type of harm that the [appellant] claimed to be suffering did not constitute persecution. It was reasonably open to the Tribunal on the evidence before it to make such a finding.'
35 The appellant submitted that the Tribunal's finding that -
'… there may be a number of South Africans who would be wary about a white male of an age indicating that he had been raised during the apartheid era, and who may denigrate him simply on the basis of his colour. This, unfortunately, is part of the "swings and roundabouts" of public discourse that occur with major social upheavals, such as occurred in South Africa a decade ago'
does nothing to answer whether the Tribunal had considered if it constituted persecution for the purposes of s 91R of the Act. His Honour did not address that failure by the Tribunal and the appellant submitted that his Honour fell into error by not finding that the Tribunal had fallen into error in this regard.
36 I do not agree. The appellant's submissions on this point, both before his Honour below and in this Court, stripped of hyperbole are, in essence, a veiled attempt at merits review. I agree with his Honour that the Tribunal adequately, if briefly, considered the appellant's personal circumstances and the denigration and affirmative action program issues. It did not misconstrue the concept of persecution under s 91R of the Act.
37 The appellant further submitted that the Tribunal also erred by asking itself the wrong question to determine whether the South African Government provided sufficient protection to the appellant. The Tribunal, in this regard, failed to apply or understand the appropriate test to determine whether a State (South Africa) was able or willing to provide effective protection to those who feared persecution: Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152 of 2003 (2004) 222 CLR 1.
38 The focus of the Tribunal's enquiry, it was submitted, was as to whether the South African Government either encouraged, condoned farm murders or whether the South African Government was willing to tackle the problem of farm violence against whites.
39 The appellant submitted that it matters not whether there are good intentions on the part of a government to prevent Convention persecution, the question is whether a State is able to provide protection from such persecution. There was clear evidence before the Tribunal that the South African Government had not been able to provide effective protection against the farm violence towards white people. There is no evidence cited by the Tribunal to the contrary, indeed, there is no finding by the Tribunal that the South African Government is able to provide protection against such persecution. His Honour rejected similar submissions below by finding (at [74]):
'I am not satisfied that the Tribunal misunderstood the test for effective protection. Rather in my view it is the [appellant] who has fallen into this error. Really the [appellant] wants the Court to construe the Tribunal's reasons for decision "minutely and finely with an eye keenly attuned to the perception of error". This the Court cannot do.'
40 The appellant submitted that his Honour's finding does not answer the question of whether the Tribunal did, in fact, consider whether the South African Government was able to provide effective protection to the appellant, acknowledging that the standard is the provision of a 'reasonably effective police force and a reasonably impartial system of justice': Respondent S152 of 2003 at [28].
41 In my view, his Honour fairly addressed the Tribunal's treatment of the issue of State protection and there is no error in this aspect of his judgment. In any event, the Tribunal found that:
'The [appellant's] claim is broadly that he will face serious harm, probably death, for reason of his race at the hands of members of the majority black population in South Africa. He further claims that the authorities perhaps condone or even encourage such racial attacks; in any case, they are unable or unwilling to offer effective State protection to white persons such as himself. The Tribunal must reject this claim. There is no evidence before it that the South African authorities condone racial violence; in fact, by their words and actions, they are showing themselves committed to building a multiracial society. There are a number of problems there, as is almost always the case with a country that has suffered long-term civil war. There is a crime rate (including the murder of farmers and farm workers) which is unacceptably high and is linked to poverty.
However, on the evidence of external observers, including international human rights agencies, the South African government respects the human rights of its citizens. It is willing and able to protect its citizens although protection in this instance does mean a guarantee of safety. The fact that authorities, including the police and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not of itself establish refugee status. As the High Court noted in MIMIA v Respondent S152 of 2003 [2004] HCA 18, only "reasonable measures to protect the lives and safety of its citizens would be required. "Reasonable measures" include "an appropriate criminal law" and a "reasonably effective and impartial police force and justice system."
The evidence cited above at pp. 18-20, taken from the US Department of State and the South African Government's official website, indicate that the government is aware that there are still shortcomings in the police force but that it is endeavouring to fix these. There is a commitment to increasing police numbers, to improving their training, and to deploying them in more effective ways. There is no evidence that the police force discriminates against whites on the basis of their race; indeed, according to the US Department of State report at p.18, "the majority of police resources remained focused on former white areas and business districts". On the evidence before it, the Tribunal has formed the view that the South African government is taking "reasonable measures" including "an appropriate criminal law" and a "reasonably effective and impartial police force and justice system" in order to protect the lives and safety of its citizens.'