NBIO v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 9 The essential findings of the Tribunal were set out by his Honour below: see NBIO v Minister for Immigration & Anor[2005] FMCA 1478 at [9] to [12]: 'The Tribunal first considered the issue of whether the [appellant] had a well-founded fear of persecution due to his association with his father who was recognised as a former member of the Selous Scouts and a trainer of members of the Inkatha Party. Its critical findings at page 166 of the Court Book were: "The [appellant] claims that he will be targeted because he is the son of a man who was identified as an active soldier and supporter of the white regime in the former Rhodesia and in apartheid South Africa who subsequently helped train armed members of the Inkatha Freedom Party in South Africa - people who were fighting against the [African National Congress] which subsequently formed the government. The Tribunal does not accept that the [appellant] will be targeted for this reason. The [appellant], on his own admission, has had very little to do with his father during his lifetime. The [appellant] was sent away from Rhodesia to boarding school in South Africa when he was 13. He did not live with his father from that time onwards and eventually lost contact with him. He does not know his father's present whereabouts. ... Given the passage of time since the [appellant's] father was active in South Africa, and his lack of profile and the substantial changes which have occurred in South Africa since that time, there is not a real chance that the [appellant] will be targeted because of his father. There is simply insufficient evidence for the Tribunal to be satisfied that the [appellant] is of interest for reason of his membership of the particular social group constituted by his father's family." In relation to the [appellant's] claims to fear persecution on the basis of being a white South African in post-apartheid South Africa where affirmative action programs are run and where there is violence towards whites, the Tribunal found at pages 167 and 168 of the Court Book: "The [appellant] has amassed an amount of data which indicates that white farmers are victims of a disproportionate amount of violence in South Africa and that (in the applicant's view) the authorities are unable or unwilling to do anything about this. The [appellant] states that he is a visible target, that he is a rural worker, that he has been personally threatened by black South Africans making racial slurs against him, and implies that he too will end up as one of the white farm murder statistics. He claims that this will be for reason of his race, or for reason of his membership of a PSG constituted basically by white males (with some variations as to the details). ... On the basis of all the evidence before it, the Tribunal has formed the view that the South African authorities clearly do not condone farm murders, do not instigate or encourage them, and are formulating strategies to ameliorate the situation. These farm murders (with multi-racial victims) must be seen as random acts of violence which the authorities are willing to tackle. The [appellant] himself is not a white farmer - and therefore cannot appropriate for himself the statistics relevant to that group; rather, he is a rural worker, and the statistics applying to this group indicate that both black and white farm workers are victims, hence removing "race" as a sole or dominant reason." At pages 168 and 169 of the Court Book the Tribunal found: "His contention that there is an affirmative action program is correct and this may disadvantage him in terms of employment opportunities. However, affirmative action programs established to right past wrongs and assist a disadvantaged group are not persecutory. The [appellant] may have been disingenuous in claiming to be unskilled and hence doubly uncompetitive in the job market. The Tribunal notes that he was trained as an "attack diver" in the army - this indicates a high degree of professionalism in diving, an unusual skill. Even thought [sic] the [appellant] feels himself to be disadvantaged, there is some reason why a number of black Africans would not share his view … In short, the harm the [appellant] claims he has suffered or may suffer is not significant economic hardship or denial of capacity to earn a livelihood so as the threaten the persons' capacity to subsist - that is, not "serious harm" of the type described in s.91R(2)." Further: "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. ... 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 not mean a guarantee of safety."'

Decision of the Court below 10 The appellant's application was heard by Mowbray FM on 1 November 2004 and on that occasion both parties were legally represented. On 5 December 2005, his Honour delivered judgment. 11 After providing the summary to which I have referred in [9] of these reasons, his Honour identified (at [13] - [17]) the three grounds of review which the appellant's counsel had distilled from some 16 grounds which were set out in the appellant's application: 'The sixteen grounds set out in the application (paragraphs 9 to 23, including two paragraphs numbered 16) were brought together as three grounds of review in the [appellant's] written submissions. The first was based on the Tribunal's rejection of the [appellant's] claim of persecution due to his membership of a particular social group as the son of his father who was a member of the Selous Scouts. The [appellant] claimed the Tribunal did not put to him its findings on the passage of time since the father was active in South Africa, the father's lack of political profile and the change in circumstances in South Africa since his father was active. He further claimed that the Tribunal had no evidence to make such findings which were also inconsistent with other findings it made. The second ground of review was that the Tribunal misconstrued the [appellant's] claims as to social groups to which he belonged and further did not consider whether the denial of capacity to earn a livelihood by reason of affirmative action programs amounted to persecution for the purposes of s.91R of the Migration Act 1958. The third ground of review was essentially that the Tribunal failed to exercise its jurisdiction properly in determining whether the [appellant] had a well-founded fear of persecution on the basis that "Executive Outcomes" threatened to kill him and the State would not be able to protect him. At the hearing counsel for the [appellant], Mr Prince, directed his submissions principally to two grounds of review which correspond more or less to grounds one and two of the [appellant's] written submissions.' 12 His Honour considered each of ground in turn. 13 As to the first ground, his Honour held that the Tribunal's ultimate conclusion in respect of the appellant's claims regarding his father turned on the lack of evidence that the appellant would be persecuted because of his father's activities. Contrary to the appellant's submission, the Tribunal was not obliged to put to him the matters particularised in this ground of appeal. Nor did his Honour accept that there was an inconsistency in the Tribunal's finding, as the appellant alleged: at [35]. 14 As to the second ground, his Honour held that: (i) In relation to the alleged persecution error raised by this ground, the appellant was attempting to seek a merits review and that the Tribunal's treatment of the appellant's claims in question was adequate (albeit brief). His Honour found that the Tribunal did not misconstrue s 91R of the Migration Act 1958 (Cth) ('the Act') as alleged and that, whilst the appellant might be unhappy about the conclusion of the Tribunal, the finding of the Tribunal was reasonably open on the evidence before it: At [47]. (ii) In relation to the effective state protection error alleged by this ground, the Tribunal was not required to put the independent country information in question, to the appellant, as it fell within the ambit of the s 424A(3)(a) exception to s 424A(1) of the Act: At [51]. His Honour rejected the appellant's submission that there was a procedural fairness requirement above and beyond the scope of s 424A(1) by reason of the operation of s 422B of the Act: At [52] to [62]. Further, his Honour was not satisfied that the Tribunal had misconstrued the effective State protection test and considered that the appellant was advocating that the Court read the Tribunal's decision with an eye keenly attuned to the perception of error: At [74] - [75]. 15 His Honour then turned to the third ground, which he found to be, in reality, an invitation to review the merits of the Tribunal's decision: See [76] - [78].

Appeal to this Court 16 By a Notice of Appeal filed on 29 December 2005, the appellant raises seven grounds of appeal, namely that his Honour erred by: (i) Failing to find non-compliance with s 424A of the Act on the part of the Tribunal by reason of its failure to put to the appellant the following information and explain to the appellant how the information would be relevant to the review: (a) The father lacked political profile. (b) There was a long passage of time since the father was active in South Africa. (c) Information about the appellant's training and attack diving skills. (ii) Finding that the Tribunal was under no obligation to disclose its thought processes and allow the appellant an opportunity to comment on them in circumstances where the thought processes related directly to information within s 424A of the Act. (iii) Finding (at [35]) that the Tribunal was not obliged to put to the appellant: (a) The appellant's father lacked political profile. (b) There was a long passage of time since the father was active in South Africa. (iv) Failing to find an error in the manner in which the Tribunal assessed the appellant's particular social group/s - a poor, poorly educated, white South African male of an age identified with the apartheid era whose profile was intertwined with his father's as a South African special forces member and former Rhodesian Selous Scouts member. (v) Failing to find an error of the Tribunal constituted by a misconstruction of the meaning of 'persecution' in the application of s 91R of the Act. (vi) Finding that there was no error in the manner in which the Tribunal considered effective state protection. (vii) Failing to find that the Tribunal's decision was illogical, not based on probative material and involved error of law.

The Submissions and Reasoning 17 The appellant's written submissions categorised these various grounds under four heads:

1. The 424A Ground - grounds 1 to 3.
2. The Particular Social Group (PSG) Ground - ground 4.
3. The 91R Ground - grounds 5 and 6.
4. The Irrationality Ground - ground 7. The Minister's written submissions substantially reflected this categorisation albeit that they did not adopt the grouping of grounds 5 and 6 set out above. It is convenient to deal with the grounds of appeal as categorised in the appellant's written submissions.

The 424A Ground 18 At the outset, I should indicate that I am at a loss to understand how the Tribunal's failure to put to the appellant information about the appellant's training and attack diving skills (particular 3 to the first ground of appeal) involves non-compliance with s 424A. Whilst the Tribunal makes some comment about the appellant's diving skills - that they indicate a high degree of professionalism in diving - it was totally out of the context in which the Tribunal concluded that there is not a real chance that the appellant will be targeted because of his father. Apart from anything else, this is information which the appellant provided himself. 19 The Tribunal's conclusion that '… there is not a real chance that the [appellant] will be targeted because of his father', was predicated on three express premises:

1. The passage of time since the appellant's father was active in South Africa.
2. The father's lack of profile.
3. The substantial changes which have occurred in South Africa since that activity. 20 The appellant submitted that these three matters were clearly a part of the reason for the decision to affirm the decision under review. I agree. It was submitted that they were clearly about specific persons, namely the appellant and his father, and not just about a class of persons. I agree so far as the first and second are concerned, but not the third. It was further submitted that s 424A(1)(a) was not complied with in that the information was not put to the appellant in writing in accordance with the Act and that s 424A(1)(b) was not complied with in that the Tribunal did not ensure, as far as reasonably practicable, that the appellant understood why the information was relevant to the review. 21 In order to properly assess this submission, it is necessary to appreciate the context in which the Tribunal's conclusion was reached by looking at what appears immediately before and immediately after the conclusionary sentence. Immediately before, the Tribunal had observed: 'There is no indication that [the appellant's] father was actually named at the Truth and Reconciliation Commission. The supporting evidence submitted by the [appellant] only refers to a class of people like his father who could be said to constitute a "third force". The same document also indicates that this "third force" was a contributor to the "spiral of violence in the country between 1990 and 1994". The [appellant] indicated that his father was no longer in South Africa, but when he left was uncertain. The Tribunal would think it unlikely that a man involved with training rebels in the IFP [Inkatha Freedom Party] would stay in South Africa much beyond the first democratic elections (in 1994) which were overwhelmingly won by the ANC [African National Congress].' And immediately after: 'There is simply insufficient evidence for the Tribunal to be satisfied that the [appellant] is of interest for reason of his membership of the particular social group constituted by his father's family.' 22 The Minister submitted that the first and second premises identified at [19] were thought processes of the Tribunal, not information. I agree. Section 424A(1)(a) of the Act did not require them to be put to the appellant even if the Tribunal considered them to be, as is likely, part of the reason for affirming the decision under review. In any event, these were thought processes based on information which the appellant himself had given for the purposes of his application to the Tribunal. So much is clear from the paragraph, quoted in [21] supra, of the Tribunal's reasons immediately preceding the conclusionary sentence. Moreover, there can be no doubt the appellant re-submitted to the Tribunal the information he had submitted to the Department when he wrote in Section D of his Tribunal application: 'Please see statement I provided to DIMIA.': See VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10] - [12] per Merkel J. 23 The third premise, which relates to the changes which had occurred in South Africa since the first democratic elections in 1994, is also a conclusionary thought process, but even if it is information, which I do not think it is, it is country information which is not specific to the appellant and falls within the exclusion that is s 424A(3)(a). 24 In my view, none of the errors alleged in grounds 1 to 3 inclusive of the appellant's Notice of Appeal can be sustained.

The PSG Ground 25 It is alleged by the appellant in ground 4 of the Notice of Appeal that the Tribunal erred by failing to consider the appellant's claims against the particular social group of 'poor, poorly educated white South African male[s] of an age identified with the apartheidera whose profile [were] intertwined with [their] father's as a South African special forces member and former Rhodesian Selous Scouts member'. The Minister submitted that the particular social group, as articulated in that fashion, is simply a medley of all the appellant's various claims combined to form a single (extremely disjunctive) group. 26 The appellant submitted that the Tribunal bifurcated his claims into two separate and distinct particular social groups, namely:

1. As members of his father's family, his father being a former member of the Selous Scouts of Rhodesia and, more recently, a mercenary.
2. As a white male of the apartheid era. 27 I do not think this is right. His claims as to membership of particular social groups were always put on bifurcated or alternative bases; in the first instance, that he was the member of the family of a man (his father) who was a former member of the Selous Scouts of Rhodesia and more recently a mercenary; in the second, as a poor, poorly educated, rural white South African: See grounds 9 and 10 of the appellant's application in the court below. 28 The appellant further submitted that the second or alternative description of the particular social group, in [26] supra, misconceived the nature of the appellant's claims. The correct alternative particular social group ought to have been formulated as follows: 'Poor, poorly educated white South Africa male of an age identified with the apartheid era whose profile was intertwined with his father's as a South African special forces member (the Third Force) and former Rhodesian Selous Scouts member.' 29 Again, I do not think this is right. First, it is an attempt to fortify the submission that it was the Tribunal that bifurcated the appellant's claims as to membership of particular social groups, when, as I have said, I think the appellant's claims in this regard had always been put on alternative bases. Second, the alternative basis articulated in [28] supra, never found expression until the appellant filed his Notice of Appeal in this Court. Its lack of provenance in the claims made to the Tribunal, as agitated in the court below, suggests that it is a medley of fantasy on the part of the draftsman of the Notice of Appeal. 30 The Minister submitted that, whilst it is true that the Tribunal has an obligation to address particular social groups raised upon the evidence (NABE v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCAFC263 at [58]) there is a difference between a tribunal having to address a group squarely raised on the evidence, and being under an obligation to merge all of the appellant's claimed groups into one hybrid group, even where the appellant has not done so, or alluded to the same and where the groups have no correlation. That, it was submitted, is not required pursuant to NABE and the Tribunal did not err in the manner alleged. 31 I would be prepared to accept that an alternative basis of describing the appellant's claim of membership of a particular social group is that of a 'poor, poorly educated white South African male of an age identified with the apartheid era', but I think that this is the basis upon which the claim was considered by the Tribunal, even if the Tribunal described the alternative basis in a truncated way. So much is to be inferred from what the Tribunal reported of the appellant's interview immediately following its statement of the alternative claims (see [26] above) to membership of particular social groups and, in the case of the second, in its truncated form: 'The [appellant] discussed his life in South Africa in recent years. He said he was unable to get a job - or more precisely, if he got a job, it was governed by the new principles of affirmative action. He was disadvantaged, as a white person, in the competition for jobs. If he got a job, the [appellant] was expected to train black staff to eventually take over the work. He noted the huge exodus of white workers from South Africa in the years since the end of apartheid. He noted that he was not particularly well educated: he had finished secondary school, but no further. He was not at home in an urban situation: he loved the bush. Hence his employment opportunities were in places like game parks or on farms, and in all those situations he would have to compete (at a disadvantage) against black contenders for the same position. He noted that the whites who had the advantage were those who were highly skilled or had a particular expertise (and he belonged to neither category). The Tribunal put it to him that the Western Cape area had a higher proportion of white-owned farms and other agricultural businesses and asked him why he had not explored opportunities in that area. He said that the Western Cape was predominantly Afrikaans, who were a closed group, and would not employ those like him of English background. This dominance extended to the small towns in the region: outsiders such as himself would not be able to make their way. Even in Cape Town, the region's biggest city, he said that one needed to be born there and have networks there in order to survive.' 32 Moreover, the two other references which the Tribunal made to this second particular social group in its decision reflect the broad way in which it described the particular social group. In my view, there was no error of the kind alleged in ground 4 of the appellant's Notice of Appeal.

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.'

The Irrationality Ground 42 This ground took issue with the Tribunal's finding that, had Executive Outcomes wished to kill the appellant, they would have already done so and that Executive Outcomes had been disbanded. 43 The appellant submitted, both before his Honour below and in this Court, that such an approach revealed jurisdictional error in that the Tribunal had not properly considered the appellant's claims that he had a well-founded fear of persecution and had reached its decision in an irrational way. 44 His Honour rejected this ground expressing the view that it had not been articulated in the application and that it was merely a challenge to the merits of the Tribunal's fact finding. 45 The Minister submitted that want of logic in the reasons of the Tribunal is not an available ground of review: See VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] per Kiefel, Marshall and Downes JJ. 46 The Minister further submitted that even if that position were not so, it is necessary for an appellant to identify a particular principle or ground of review rather than to allege or rely upon illogicality in an attempt to demonstrate jurisdictional error, which the appellant has not done: See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 at [5] and [9]. 47 I agree with the Minister's submissions and I also agree with his Honour's observation that the appellant's concerns in this regard are really with the merits of the Tribunal's fact finding. In the circumstances, this ground of appeal cannot be sustained.

Conclusion 48 The appeal must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 4 October 2006 Counsel for the Appellant: Mr S Prince with Mr B Adam