consideration
18 It is convenient to first deal with the second of the two grounds of appeal.
19 In my judgment, the ground is misconceived. The learned trial judge addressed the question of utility at two points. The first was in relation to the determination of the Tribunal concerning relocation. Having found jurisdictional error on the part of the Tribunal in the way in which it addressed that issue, his Honour then addressed a contention put on behalf of the respondent. It was that there was no point in sending the matter back to the Tribunal for rehearing on the issue, because the conclusion as a matter of fact that relocation within South Africa was reasonably open to the appellant was an inevitable one. His Honour rejected that contention for the reasons referred to above. That was a decision made in favour of the appellant, rather than against him. There is no reason for the appellant to complain of it.
20 The second point at which his Honour addressed the issue of utility was in the final two sentences of the passage quoted in [15] above. Those words must be read in context. In our view, all his Honour is there saying in the final two sentences of that passage is that because the decision of the Tribunal was not impaired by relevant jurisdictional error, it was not invalid or ineffective. The findings of jurisdictional error in relation to the relocation issue, and in relation to the alleged failure to address the possible case based upon revenge for a Convention reason, were only steps towards its ultimate conclusion. There were three reasons for the Tribunal's conclusion. To have demonstrated jurisdictional error in respect of two of them, when the third reason was both independent of them and (as his Honour found) not attenuated by jurisdictional error, meant that there was no utility in setting aside the Tribunal's decision as it was sustainable on the third reason alone. On the appellant's own case, the conduct which he feared was not from state authorities but was from third parties. Inevitably, therefore, it was an essential element to him establishing an entitlement to relief in respect of that third reason that he had a well-founded fear of persecution notwithstanding the preparedness or otherwise and the capacity or otherwise of the South African authorities to provide him with protection. It was at that point, that is the third reason, that the application inevitably failed. In my view, the final remarks of his Honour are simply directed to saying that, because the relief was discretionary in any event it would not be granted where he had found there was an independent ground for the decision without jurisdictional error.
21 The first ground of appeal was curtly expressed, and cryptically argued. The appellant did not contend that the learned judge at first instance had misunderstood and had misapplied the decision of the High Court in Respondents S152. The error of the Tribunal which (it was argued) his Honour had failed to recognise was a failure on the Tribunal's part to take into account relevant considerations as to the nature and extent of the protection afforded the appellant by the South African authorities, which 'would have had the effect of making a material difference to its decision, and but for that failure the end result "might not" have been the same, which was for the Tribunal, and the Tribunal alone, to decide'.
22 To justify his unwillingness to avail himself of the protection of the South African authorities against the harm he feared from non-state agents, the appellant claimed (and so the Tribunal had to be satisfied) that the South African authorities were or may be complicit in the violence which he feared. He claimed that he feared non-state violence because the South African authorities would not protect him as they condoned or tolerated such violence against people such as himself. The learned judge at first instance correctly identified the appellant's case of being that he could not invoke the assistance of the authorities in South Africa because of his ethnicity. The appellant reported an occasion when he sought police help to remove intruders from his farm, and then having been told by a police officer that 'the land belongs to the black South Africans, not the coloureds'. The Tribunal clearly rejected that claim. It was entitled to do so on the material before it, including in part the US State Report referred to. In addition to the section of that document quoted by the Tribunal, the document generally indicates that the South African police service was not selective on ethnicity grounds in providing its support, and further indicates that the South African government had taken, and continued to take, positive steps to control sectarian or racial violence, to bring the perpetrators of crime to justice and, through the independent complaints directorate, to prevent police abuse of power.
23 In the passage set out in [14] above, the learned judge at first instance dealt with the question whether the failure of the state to provide its citizens with protection was discriminatory and, in particular, discriminatory for a Convention reason. The Tribunal found that it was not. His Honour concluded that finding was not reached through any jurisdictional error on its part. For the reasons given, we are also of the view that its finding on that matter was not reached through jurisdictional error.
24 However, on appeal, it was also argued (albeit in a cryptic manner) that the Tribunal had failed to address the adequacy of the protection the South African authorities could afford the appellant. The argument was based upon particular features of the quality of the State protection on South Africa referred to in the US State Report, but not referred to in the Tribunal's reasons. It is perhaps a charitable interpretation of the argument to move from the particular to the general proposition just noted. On balance, we think that was the argument.
25 The learned judge at first instance recognised the need for the Tribunal to have addressed the issue. The majority judgment in Respondents S152 at [26] - [28] said:
'The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.
… It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
… Having rejected the claim that the State were parties to the persecution] [t]he only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards. It is not necessary in this case to consider what those standards might require or how that would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards.'
His Honour at first instance considered that the Tribunal had addressed the adequacy of state protection. It did not do so in terms. The passage in its reasons where it turned generally to the nature of state protection is included in [6] above. That passage, and the reasons following it, indicate that the Tribunal was considering whether the state authorities tolerated or condoned non-state violence against the racial group to which the applicant belonged. That was the contention put forward by the appellant to the Tribunal on this aspect. The Tribunal did not consider in terms whether the protection which it offered the appellant (and the community generally) amounted to the provision of 'a reasonably effective police force'. It is not surprising that the Tribunal did not expressly address that issue in those terms. Its decision was given before the High Court decision in Respondent S152. It was not an issue at the forefront of the appellant's claims. Nevertheless, in the light of Respondent S152, it is an issue which the Tribunal was required to address.
26 If the Tribunal failed to address that issue, it was not for the Court to form its own conclusion of fact on the material before the Tribunal on that issue. The Court's role is to determine and enforce the law which controls the exercise of power by the Tribunal: see Attorney-General (New South Wales) v Quin (1990) 170 CLR 1, per Brennan J at 35-36. The limited role of the Court in reviewing Tribunal decisions under the Act, having regard to ss 475A and 476, and the 'entrenched minimum provision of judicial review' (Plaintiff S157 at 513, [103]), is to determine only whether the Tribunal has committed jurisdictional error in its processes.
27 However, the Tribunal's findings (as the learned judge at first instance found) involve some assessment of the quality of state protection, as appears in the third paragraph of the passage quoted in [6] above and as described by the learned judge at first instance in the passage quoted at [14] above. The Tribunal's reasons, moreover, recognise that, based upon the US State Report, the quality of state protection was not optimal. The submission that it failed to take into account particular pieces of information in the US State Report on the topic simply because they are not referred to in terms cannot be upheld. The Tribunal clearly has had regard to that document. It is not required expressly to record and comment upon each particular piece of information which appears in it, nor each particular piece of information which the appellant now identifies as 'relevant'. For the purposes of discerning jurisdictional error, the measure of relevancy is the prescription of the legislation: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. There must be a failure to have regard to relevant considerations in a way which affects the exercise of jurisdiction: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351.
28 The conclusion of the learned judge at first instance reveals a careful analysis of the material before the Tribunal, and an appreciation of its contents. We consider his Honour's analysis did not involve error on his part in reaching the conclusion he did. Indeed, it is hardly surprising to conclude that there was no evidence of the failure of the South African authorities to provide a reasonably effective police and justice system measured against international standards, as the appellant did not seek to adduce evidence on that issue before the Tribunal. The point may also be made that, on the evidence, the appellant did not seek the protection of the South African authorities in the face of the threat to his safety. On the occasion he sought the assistance of the police when he suspected an intruder at his farm, the police responded in his protection. The irony is that the effectiveness of that protection, in the circumstances, led to the further problems of which the appellant complained.
29 In our judgment, it has not been shown that, on the material before the Tribunal, it failed to address a matter which the appellant put in issue or any integer of the appellant's claim. Nor has it been shown that the learned judge at first instance erred in his consideration of the material which was before the Tribunal as to whether South Africa provides to its citizens the level of state protection required by international standards. The conclusion of his Honour that it had not been shown that the level of state protection did not comply with that of international standards reached by his Honour, because there was no evidence to that effect, was reached without error.
30 Accordingly, the appeal should be dismissed. There is no need in the circumstances to address the cross-contention of the respondents.
31 Since the appeal was heard, Cooper J has become unable to continue as a member of the Full Court for the purposes of the appeal. With the consent of the parties, we have proceeded to determine this appeal as provided for by s 14(3) of the Federal Court of Australia Act 1976 (Cth).