SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 11 (18 February 2005)

Last Updated: 21 February 2005

FEDERAL COURT OF AUSTRALIA

SHKB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 11

Migration Act 1958 (Cth)


Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454; (2003) 195 ALR 24; [2003] HCA 2
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

















SHKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUE ZELINKA MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL


SAD 100 of 2004



COOPER, MARSHALL & MANSFIELD JJ
18 FEBRUARY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 100 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SHKB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGES:	COOPER, MARSHALL & MANSFIELD JJ
DATE OF ORDER:	18 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay to the first respondent costs of the appeal.








Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 100 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SHKB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT SUE ZELINKA, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGES:	COOPER, MARSHALL & MANSFIELD JJ
DATE:	18 FEBRUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

MARSHALL & MANSFIELD JJ

INTRODUCTION

1 This is an appeal from a judgment of a judge of the Court given on 5 May 2004. His Honour dismissed an application for orders of prohibition, certiorari, mandamus and/or injunctions against the respondent in relation to an order of the Refugee Review Tribunal (the Tribunal) made on 28 June 2002. The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) soon after his arrival in Australia.

2 The appellant is a citizen of South Africa and is of ‘coloured’ race. He is a supporter of the African National Congress (ANC). He came to Australia in November 1999, but returned to South Africa in June 2000. He then returned to Australia in July 2000 and applied for a protection visa under the Act on 18 December 2000. Section 36(2) of the Act required the Tribunal to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention) before he was eligible to be granted a protection visa: s 65(1) of the Act. In general terms, Australia would have such protection obligations to him if the Tribunal were satisfied that the appellant was a ‘refugee’ as defined in Art 1A(2) of the Convention, namely a person who:

‘... owing to a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

3 The Tribunal accepted that the appellant was a truthful and reliable witness. Its findings generally reflect his claims.

THE TRIBUNAL’S FINDINGS

4 In April 1994 the appellant moved to a farm near Durban. He worked in Durban and returned to the farm each evening. The area of the farm is part of the traditional land of the Zulus, who overwhelmingly supported the Inkatha Freedom Party (IFP). The appellant experienced ‘some problems’ with the Zulus from the time he moved to the area, apparently due to resentment of non-Zulus taking over Zulu lands (and, the appellant claimed, due to animosity of IFP members towards supporters of the African National Congress (ANC)). However, he suffered no significant problems until late 1999.

5 In October 1999, on returning home from work, he suspected that there was an intruder in his farmhouse. He called the police. They searched the building and found the intruder, apparently armed. The intruder was shot dead by the police. The appellant was then threatened with retribution from one of the deceased’s family or friends and so, in November 1999, he came to Australia. He returned to South Africa in the middle of 2000 when his mother told him that she thought it was safe for him to do so. He stayed with his parents in Durban. However, within a short period of time, he received a further telephone threat of death so he left Durban and went into hiding, and then to Johannesburg. The threat was that they ‘would get him [the appellant] anywhere’. Whilst in Johannesburg he received no threats and suffered no harm. Nevertheless, he soon returned to Australia. He feared death or serious injury from those seeking retribution for a death which was unfairly being attributed to him, namely the death of the intruder. He did not report the threatening phone call to the police.

6 The Tribunal concluded:

‘The Tribunal accepts that the applicant received a threatening phone call from one of the deceased’s family members or friends when he was staying with his parents in Durban after an absence of some eight months. The specific reference to the deceased intruder strongly indicates that the caller was interested in retribution, rather than seeking to harm the applicant for a more general reason, or a reason grounded in the Convention.

The applicant did not report this phone call to the authorities and there is no way of knowing what assistance, if any, he may have received if he did.

In short, the applicant fears harm which is not Convention-related. There is no evidence that the State would not be willing or able to protect him to the extent that it protects any of its citizens from crime. Given the crime statistics in South Africa, this may fall short of an optimal level – but there is no evidence that one particular group is particularly disadvantaged for a Convention reason. The Tribunal notes that in South Africa, "The Constitution and Bill of Rights prohibit discrimination on the basis of race, ethnic or social origin, or culture. The Government continued efforts to reorganize and redesign the educational, housing, and health care systems to benefit all racial and ethnic groups in society more equally" (US Department of State 2002, Country Reports on Human Rights Practices in 2001, section 5).

Additionally, as the harm the applicant fears is confined to his home district, he has the option of relocation. He has, in any case, severed ties with the farm on which he used to live until October 1999. He has not lived there since that date and had signed over his own interest in the property to his father. He has agreed that it is reasonable for him to relocate given his employability and the freedom of movement available within South Africa.’

Consequently, the Tribunal was not satisfied that the appellant has a well-founded fear of persecution for a Convention reason if he were to return to South Africa.

THE DECISION AT FIRST INSTANCE

7 At first instance, it was necessary for the appellant to establish jurisdictional error on the part of the Tribunal before he could establish an entitlement to the relief claimed: Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454; (2003) 195 ALR 24; [2003] HCA 2.

8 The learned judge at first instance found that the Tribunal had committed jurisdictional error in its consideration of the appellant’s claims to have a well-founded fear of persecution by reason of what his Honour described as ‘invasion of his farm’. The error was in the Tribunal proceeding upon the view that there was a necessary antithesis between violent retribution and political action. The Tribunal took the view, as appears above, that the appellant’s fears flowing from him being attributed with responsibility for the death of the intruder, were simply fears of an act of revenge or retribution unrelated to his political beliefs or his ethnicity. The Tribunal failed to determine whether those seeking retribution against the appellant were doing so as an aspect of a political or racial campaign to seize farm lands near Durban or by reason of the appellant’s political beliefs or ethnicity.

9 His Honour also found jurisdictional error in the Tribunal’s consideration of the issue of relocation. Contrary to the Tribunal’s assertion that the appellant agreed that it was reasonable for him to relocate elsewhere within South Africa, there was no such oral acknowledgement by the appellant. Indeed, his evidence was that he feared for his safety because of the threat that wherever he went in South Africa they would track him down and kill him. The failure of the Tribunal to understand the nature of the claim, demonstrated by it proceeding on an erroneous understanding as to the nature of his claim, led the Tribunal to the conclusion that the appellant could safely relocate within South Africa. Its failure properly to understand, and therefore properly to address, his claim that he had a well-founded fear of persecution wherever he was in South Africa, amounted to jurisdictional error.

10 The respondent, at first instance, urged the Court to determine, in any event, that as a matter of fact relocation within South Africa was reasonably open to the appellant, even if the Tribunal had misunderstood the claims. His Honour declined to so conclude, and so to take the further step of determining that it would be futile to remit the matter to the Tribunal for rehearing by reason of that jurisdictional error. The learned judge did not regard the case as one where the finding as to relocation was ‘so clear and obvious that to remit the matter back to the Tribunal would simply be to delay the inevitable’. His Honour declined to exercise the discretion available to him (notwithstanding the finding of jurisdictional error) not to make the orders sought.

11 As to the issue of state protection, the appellant failed because the Tribunal was not satisfied that the South African authorities were unwilling or unable to protect him. The learned judge at first instance concluded that its consideration of the matter did not involve jurisdictional error on its part. That finding was, his Honour explained, sufficient by itself to support the ultimate conclusion reached by the Tribunal that it was not satisfied that Australia owed protection obligations to the appellant.

12 There were two elements of the Tribunal’s consideration of that issue which his Honour considered. First, that the state protection offered by the South African authorities was not selective or otherwise discriminatory. The second was as to the quality of that protection.

13 In Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, the majority judgment (Gleeson CJ, Hayne and Heydon JJ) concluded that the state is required to provide a ‘reasonably effective police force and a reasonably impartial system of justice’ at [28], and indicated that ‘reasonably effective’ is to be determined by ‘international standards’. It was unnecessary in that decision to determine what those international standards are, but their Honours pointed out that the Tribunal could not be satisfied that such standards had not been met in the absence of evidence to that effect.

14 The learned judge at first instance, having considered the submissions, concluded first that the decision of the Tribunal that state protection was not selective or otherwise discriminatory was a finding available to it, and was made without jurisdictional error. His Honour then addressed whether the state protection was so inadequate that it fell below international standards. The only evidence before the Tribunal was a US Department of State report entitled ‘South Africa – Country Reports on Human Rights Practices in 2001’, 4 March 2002 (the US State Report). The Tribunal referred to that report in its reasons in the passage quoted above. His Honour said:

‘The Tribunal commented that "There is no evidence that the State would not be willing or able to protect [the appellant] to the extent that it protects any of its citizens from crime". The Tribunal noted that this protection may fall short of an optimal level.
...
That report identifies a number of human rights abuses committed by police and others in South Africa. It would support the Tribunal’s conclusion that State protection in South Australia [sic, Africa] is not optimal. However, it is not required to be. The report does not contain evidence that the protection offered by the South African government to its citizens is so inadequate that it falls below international standards. What it does suggest is that where significant problems do exist they are localised and that they are being or have been addressed.

In the absence of any evidence before the Tribunal that the protection available from the South African police and authorities was below international standards or even that it was so inadequate that a person could not be blamed for not relying on them for protection then the Tribunal was correct to conclude that it was not satisfied that South Africa lacks the capacity and willingness to provide reasonably effective protection to its citizens including the applicant.’

Hence his Honour concluded that there was no error in the Tribunal’s analysis of whether the South African state had the capacity and willingness to protect the appellant. That finding, his Honour said, was sufficient to support the ultimate conclusion reached by the Tribunal that it was not satisfied that Australia owed protection obligations to the appellant.

15 His Honour then said:

‘Even if the applicant’s case had otherwise been entirely accepted, the finding by the Tribunal in relation to the State protection argument would have the effect that the application for a protection visa was properly refused. The ultimate decision reached by the Tribunal is not invalid or ineffective. In any event the orders sought by the applicant are discretionary. There is no utility in making any orders to set aside the Tribunal’s decision or to return the matter to it and the orders sought must be rejected in the proper exercise of the discretion.’

GROUNDS OF APPEAL

16 There were two grounds of appeal. The appellant first contended that the learned judge at first instance had erred in not concluding that the Tribunal had committed jurisdictional error in reaching the conclusion that South Africa was willing and able to protect the appellant. The second was that the learned judge at first instance erred in determining that there was no utility in making any orders setting aside the Tribunal’s decision by applying the wrong test in law.

17 In addition, by notice of contention, the respondent sought to uphold the decision under appeal on the ground that the finding of the Tribunal that the basis for the appellant’s fear was retribution and was not for a Convention reason was not infected with jurisdictional error, contrary to the conclusion of the learned judge at first instance.

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] HCA 21; (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] HCA 33; (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] HCA 30; (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).

32 The appeal will be dismissed with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall & Mansfield.

Associate:


Dated: 17 February 2005

Counsel for the Appellant:	M Clisby
Solicitor for the Appellant:	Mark Clisby
Counsel for the First Respondent:	K Tredrea
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second & Third Respondents:	Counsel for the Second & Third Respondents did not appear
Date of Hearing:	2 November 2004
Date of Judgment:	18 February 2005