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[2006] FCA 1003
Federal Court of Australia
2006-08-04
Ryan J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from orders of a Federal Magistrate made on 1 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 23 December 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of South Africa. Before the Tribunal the appellant claimed to fear persecution based upon his race or ethnicity. He claimed that he had been discriminated against as a "coloured individual" who voiced his opinion against the ruling party of South Africa. He claimed he had been overlooked for promotion and attacked on numerous occasions and had not received protection from the South African authorities. The appellant attended a Tribunal hearing. 3 The Tribunal did not accept the appellant's claims. It did not accept that "being coloured" was a basis for violence in South Africa or that the appellant had suffered harm as a result of being overlooked for a promotion. The Tribunal also considered that protection was available to the appellant but that in the past the police had not sufficient information to identify the appellant's assailants which explained their failure to act on his complaints. 4 Before the Federal Magistrate the appellant claimed that the Tribunal had failed to determine his application in accordance with the applicable law because it had misconstrued and misapplied the definitions and concepts of "persecution" and "well-founded fear" for the purposes of Article 1A(2) of the Refugees Convention. The appellant referred to the manner in which the Tribunal had dealt with his claims of discrimination in employment. He also claimed that the Tribunal had failed to apply the correct subjective and objective tests to determine whether his fear was well-founded - referring to his claims of having received death threats and having been intimidated on account of his political views. He contended, as well, that the Tribunal had failed to show him or refer him to country information on which it had relied on in drawing its adverse conclusion in respect of his claim and had denied him procedural fairness or natural justice by failing to give him a fair opportunity to comment on, and respond to, that information. Finally, it was said, the Tribunal had misinterpreted, misconstrued and misapplied the country information in reaching its adverse conclusion rejecting his assertion of a well-founded fear of persecution. 5 The learned Federal Magistrate found that it was open to the Tribunal on the material before it to reach the conclusions which it did. In his view, the discrimination in employment suffered by the appellant did not amount to persecution for the purposes of the Refugees Convention and the Tribunal had adopted a proper course in considering the appellant's claims. His Honour concluded that none of the claims raised by the appellant had been established and the Tribunal's decision was free from jurisdictional error. 6 By notice of appeal filed on 8 February 2006 the appellant repeated the claims which he had made before the Federal Magistrate that the Tribunal had misconstrued and misapplied the definitions and concepts of "persecution" and "well-founded fear" for the purpose of Art 1A(2) of the Refugees Convention; and had failed correctly to apply the subjective and objective test of a well-founded fear of persecution. Further, he contended, the Tribunal had failed to furnish him with country information which it had used in assessing whether his claimed fear was well founded and had misunderstood, misinterpreted and misapplied the country information in drawing incorrect or inappropriate inferences.
The Appellant's Submissions 7 Because of work commitments in Western Australia, the appellant was unable to appear in person when the appeal was listed for hearing in Sydney on 5 May 2006. However, he had furnished the Court and the respondent Minister with detailed written submissions in support of his appeal. I have already summarised the three grounds set out in the notice of appeal. 8 The appellant contended in particular in relation to the first of his grounds of appeal that the Tribunal had erred by asking itself two wrong questions in ascertaining whether he had a well-founded fear of persecution. The first such question was whether the appellant could avoid the persecution in South Africa which he claimed to fear by expressing discreetly his views as a coloured i.e. non-black South African. 9 In his written submissions on this aspect, the appellant contended that the Tribunal had posed the wrong question for itself by asking, "Could the applicant avoid harm by expressing his views discreetly?" According to the appellant, the Tribunal should have asked, "Was the harm discriminatory?" and, if so, had the applicant "become the subject of the harm because he was a coloured South African?" 10 The second particular of the appellant's first ground of appeal was directed to whether the Tribunal had applied a wrong test for determining whether the discrimination in employment, which it accepted had been visited on the appellant, would constitute "serious economic harm". Disposition of the Appeal (i) Did the Tribunal err by requiring the appellant to confine himself to "discreet" expression of his political views? 11 The Tribunal's treatment of this part of the appellant's claim is to be found in this passage from its reasons: '……He had claimed the reasons for the attacks 'differ' but they have arisen because he 'voices [his] opinion against the ruling party, or simply because [he does not] … follow the group, but wants to voice [his] individual beliefs and opinions.' When asked he claimed that he might be speaking with friends and if a black person overhears criticisms of the current regime an argument may ensure. The applicant claimed that if he did not desist from this argument violence may ensue. He claimed that on one occasion he was with a group of friends and an argument broke out with some black South Africans and one of his friends was killed. I accept the applicant was present when his friend was killed and acknowledge the applicant found this very distressing. I accept the applicant is unhappy with the claimed discrimination of coloured South Africans. I accept he is sincere and genuine in this claim. However, I do not accept the applicant has such strong views that restricting the times he expresses his views to times when he would not be overheard, would constitute persecution for this applicant. At hearing he claimed to 'stay out of such arguments' and that he 'did not know much about' the issues. I have no reason to doubt he would continue to do so should he return to South Africa. Accordingly, by expressing his views discreetly he would avoid any likelihood of harm. Based on his oral claim to 'stay out of such arguments' by choice, I am not satisfied this course would make his life 'intolerable' or would be in any way persecutory for him.' 12 The harm which the appellant claimed to fear in this context was violence at the hands of black South Africans if they were to overhear him expressing views critical of the existing government or the "current regime" in that country. Underlying the passage from its reasons which I have quoted at [11] above is, I consider, an acceptance by the Tribunal that such violence, if it occurred, would be directed at the appellant because, as a member of the coloured minority, he had expressed views critical of a government or regime which commanded the support of most of the black African majority. The unstated corollary is that anti-government sentiments expressed by one of their own race would not provoke hostility to the level of violence from members of the black African majority. 13 Understood in this way, the Tribunal's reasons disclose that it correctly understood that the fear which the appellant was asserting was of persecution by reason of race or membership of a particular social group, rather than of political opinion. The Tribunal then went on to find that the appellant was unlikely to attract persecutory attention for either of the reasons which it imputed to his presumptive persecutors. That was because the victims of the persecution which the appellant claimed to fear were coloured South Africans who were heard to voice anti-government opinions or to become involved in arguments about government policies. The Tribunal found as a fact that the appellant was unlikely to be the target of such persecution because he generally kept his anti-government opinions to himself and "stayed out" of arguments which those opinions might provoke. 14 The finding to which I have just referred was made in the course of determining how the appellant was likely to live in the event of his return to South Africa. That was a step on the way to assessing the chance of persecution on the assumption that the appellant would live in the way predicted by the Tribunal. It was not based on a finding that fear of persecution would influence the appellant to live discreetly in South Africa and that without such a fear the appellant would express his anti-government views so freely as to attract persecutory attention. It follows that the Tribunal in this case did not commit the error identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 where Gummow and Hayne JJ observed, at 501; 'Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision‑maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well‑founded fear of persecution. It has asked the wrong question.' 15 In the present case the Tribunal did no more than find as a fact that the appellant would continue to express his anti-government views discreetly. It did not venture to express how it "expected" him to live if he were returned to South Africa. 16 Accordingly, I have been unable to detect any error in the learned Federal Magistrate's treatment of this issue when he said, at [8]-[9] of the reasons below; '… The RRT did not fall into the error identified in Appellant S395 of requiring the applicant to modify his behaviour should he return to South Africa. The RRT merely recognised the way in which the applicant had chosen to conduct himself and considered the consequences of that. There was, moreover, no failure to consider the reason for the applicant's choice of discretion. The RRT accepted that the applicant feared retribution. In essence he had succumbed to pressure to observe a form of political correctness. The RRT adopted the proper course of considering whether the consequence amounted to persecution and concluded that it did not. In my view that conclusion was open to the RRT on the material before it. …' (ii) Did the Tribunal misdirect itself as to when discrimination in employment amounts to serious economic harm? 17 Miss Henderson of Counsel for the Minister referred in this context to the requirement in s 91R(1)(b) of the Migration Act 1958 (Cth) ("the Act") that"persecution involvesserious harmto the person" and to the illustration of that concept in s 91R(2)(d) which provides: '(2) Without limiting what is serious harm for the purposes of 1(b), the following are instances of serious harmfor the purposes of that paragraph
(d) significant economic hardship that threatens the person's capacity to subsist;'
18 It is true, as Ms Henderson contended, that whether injury in employment can amount to "serious harm" in an economic sense turns on issues of fact and degree. However, as is made clear by the prefatory words, "Without limiting what is serious harm for the purposes of paragraph 1(b) …", the instances of "serious harm" in s 91R are illustrative only and not intended as an exhaustive definition of that concept. As I put to Counsel for the Minister in the course of the hearing of the appeal, exposure to severe discrimination in the form of removal from a lucrative position as a senior corporate executive or high-ranking public official could amount to serious harm even though the victim's "capacity to subsist" would not thereby be threatened. 19 I do not consider that the learned Federal Magistrate misdirected himself by requiring that the injury in employment of which the appellant complained be of a kind which threatened his capacity to subsist. Rather, his Honour noted that the injury consisted of being overlooked for promotion. The finding of the Tribunal was that the injury did not consist of being "made redundant" so the appellant had retained his employment at its existing level. As well, the Tribunal considered that the appellant's comparatively high level of education and his several years of experience of working in an office would give him a competitive advantage in a labour market in which there were high levels of illiteracy. In these circumstances, the finding was made, at least by implication, that the appellant, if he were to return to South Africa, would be able to obtain, within a reasonable time, clerical or administrative employment at a level comparable with that which he had occupied when he had left South Africa in April 2003. Nor was the Tribunal satisfied that, having obtained such comparable employment, the appellant would be precluded indefinitely from promotion or advancement in the career which he was equipped to pursue. In the light of those findings, the Tribunal's additional conclusion that "there was no evidence upon which I would be satisfied the applicant's capacity to subsist was in any way threatened" was unnecessary and certainly not critical in its refusal of a protection visa. The findings, which I have earlier imputed to the Tribunal, of a continued ability in the appellant to obtain clerical or administrative employment at, at least, his 2003 level, entails that there was no threat to his capacity to subsist in the future. For these reasons, the learned Federal Magistrate was correct in concluding, at [4] and [5] of the reasons below, that the Tribunal's exploration of the appellant's claim to fear persecution involving serious economic harm was unexceptionable and its analysis of the material relevant to that claim disclosed no error of law. Conclusion 20 For the reasons explained above, each of the appellant's substantive attacks on the reasoning of the Tribunal and his Honour's declining to hold that its reasoning had been infected by error of law has failed. It will be apparent from my examination of those substantive attacks that the findings which the Tribunal made in reaching each of the relevant conclusions did not depend principally on "country information" of which the appellant was not apprised. Rather, the Tribunal's findings were based essentially on information about himself which the appellant gave for the purpose of his application. In any event, to the extent that the Tribunal did have recourse to "country information", that was excluded from the application of s 424A of the Act by s 424A(3)(a). Accordingly, the appellant has also failed to make out his attack on the procedures adopted by the Tribunal in reaching its decision of 27 November 2003. Nor am I persuaded that the Tribunal drew from any part of the "country information" on which it relevantly relied, any inference that was impermissible or not reasonably open. It follows that the appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate: Dated: 4th August 2006. The Appellant did not appear
SZCMD
Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 216 CLR 473