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Cases

CITIZENSHIP AND MIGRATION - Refugees - Appeal from decision of primary judge affirming RRT decision not to grant protection visa - Jurisdictional error - Alleged failure by the RRT to exercise jurisdiction by misunderstanding and not addressing aspect of claim - Relevant social group - Social group properly described - No reviewable error - Persecution - Serious harm - Requirement that serious harm be systematic - RRT finding that harassment was opportunistic - RRT finding that the possibility of future harm was remote - Possibility of relocation - Persecution a question of fact and degree - Alleged failure by RRT to address and make findings with respect to the appellant's subsidiary claims - No difference between main and subsidiary claims - No obligation on RRT to draw the same conclusions as case officers - RRT conducts a new hearing - Migration Act 1958 (Cth) s 91R - Appeal dismissed.

SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2

SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 224 (20 August 2004)
Last Updated: 20 August 2004

FEDERAL COURT OF AUSTRALIA


SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 224



CITIZENSHIP AND MIGRATION - Refugees - Appeal from decision of primary judge affirming RRT decision not to grant protection visa - Jurisdictional error - Alleged failure by the RRT to exercise jurisdiction by misunderstanding and not addressing aspect of claim - Relevant social group - Social group properly described - No reviewable error - Persecution - Serious harm - Requirement that serious harm be systematic - RRT finding that harassment was opportunistic - RRT finding that the possibility of future harm was remote - Possibility of relocation - Persecution a question of fact and degree - Alleged failure by RRT to address and make findings with respect to the appellant's subsidiary claims - No difference between main and subsidiary claims - No obligation on RRT to draw the same conclusions as case officers - RRT conducts a new hearing - Migration Act 1958 (Cth) s 91R - Appeal dismissed.




Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389 distinguished
















SLGB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 65 OF 2004


SPENDER, TAMBERLIN AND BENNETT JJ
SYDNEY (HEARD IN ADELAIDE)
20 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 65 OF 2004


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


BETWEEN: SLGB
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: SPENDER, TAMBERLIN AND BENNETT JJ
DATE OF ORDER: 20 AUGUST 2004
WHERE MADE: SYDNEY (HEARD IN ADELAIDE)


THE COURT ORDERS THAT:

The appeal is dismissed with costs.






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 S 65 OF 2004


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


BETWEEN: SLGB
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: SPENDER, TAMBERLIN AND BENNETT JJ
DATE: 20 AUGUST 2004
PLACE: SYDNEY (HEARD IN ADELAIDE)


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from an order of Selway J made on 18 March 2004 that the appellant�s application be dismissed with costs.

2 The appellant is a citizen of South Africa and his claims were assessed against that country. The Refugee Review Tribunal ("the RRT") accepted that the appellant is a supporter of the African National Congress ("ANC"), the party of Nelson Mandela. It also accepted that the appellant participated in political activities, such as putting up party political posters prior to elections, and that on one of those occasions some of his friends were taunted by a gang of youths about their association with the ANC. These youths identified themselves as members of the Inkatha Freedom Party ("IFP"). It found that in a scuffle one of these members produced a knife which wounded a friend of the appellant. The assault was reported to the police, who took statements, but there was no satisfactory outcome to the appellant of this approach. The RRT considered that this did not necessarily indicate a failure of state protection.

3 The RRT also accepted that another youth identifying with the IFP punched the appellant, and that there were other incidents in which he was harassed or taunted without physical violence, due to his support of the ANC, and that the appellant�s mother was worried about the harassment directed towards her son. In its Reasons for Decision, the RRT referred to country information, which is information from sources other than the appellant, and accepted that there is a history of antagonism between the ANC and the IFP, and that incidents such as those that form part of the appellant�s claims had occurred to other members of the ANC. The RRT did not consider there was any evidence that those who harassed the appellant were acting in a manner sanctioned by the IFP political party, which was a legitimate political party with parliamentary representation. The RRT was not satisfied that state protection was not available to the appellant. It concluded that the police acted properly when their help was sought, even though they were unable to bring the assailants to justice. In the opinion of the RRT, the country information indicated that the police in the area where the appellant resided are conscious of the dangers of political violence, and have acted to diffuse it with some degree of success. The evidence indicated that leaders of the IFP have established rules of behaviour for their members, which demonstrated to the RRT that the youths abusing the appellant were either not members of the IFP, or were undisciplined members, acting outside party guidelines and abusing him opportunistically. The RRT concluded that the youths did not appear to be systematic political operatives, but rather unemployed youths with anti-social traits. The RRT referred to the fact that the appellant had not been harmed in the past, although a friend of his had suffered a knife wound, and it noted that the appellant had moved away from situations of physical conflict.

4 In addition, the RRT member considered that the problem of antagonism between the IFP and the ANC was largely confined to the KwaZulu-Natal area, and that there was no reason why the appellant could not relocate to another place within South Africa, in many of which he would find himself in the political majority.

5 The RRT concluded that it was not satisfied that the appellant suffered harm of a type or gravity which could be called persecution, or that he would be denied state protection, and it considered that he could relocate to an area where he could live without a real chance of persecution.

6 In his judgment on the application for review of the RRT decision, the primary judge referred to eight errors claimed by the appellant before him, and concluded that there was no jurisdictional error within the meaning of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

7 On the hearing of the appeal, counsel appeared for the appellant. He relied on detailed written submissions, which included a reference to written submissions he had made to the primary judge. The submissions on appeal contained only four grounds of appeal, and counsel for the appellant was content to rely on his earlier written submissions before the primary judge in respect of the other grounds.

8 The first submission for the appellant is that the RRT misunderstood and did not deal with the appellant�s claim that he was persecuted because he was an ANC supporter and because he was coloured. The appellant claimed to be a member of "a particular social group" for the purpose of the Convention, namely, supporters of the ANC who are coloured persons. It is said that the failure to consider or understand this aspect of the claim constituted jurisdictional error on the part of the RRT.

9 The first difficulty with this submission is that the judge below specifically referred in paragraph [4] of his reasons to the appellant�s claim that he was at risk from coloured persons who supported the IFP or the National Party, rather than the ANC, and he also referred to the appellant�s assertion that the police would not protect him from any attacks by coloured persons because he was coloured. It cannot be said that this claim was misunderstood or ignored by his Honour. In the reasons of the RRT there are references to the statement of the appellant�s adviser and the appellant�s aunt to the effect that because he was a member of a minority group, namely coloured persons, he was unlikely to get support form the police or the state. Since these matters were expressly raised and referred to by the RRT, it cannot be said that the RRT member misunderstood, or failed to appreciate this submission.

10 A further answer to this submission is that no such claim was pressed by the appellant on the hearing. The RRT decision records that on the hearing before it, and in answer to a question from the RRT member, the appellant said that he attributed his harassment to his pro-ANC political views.

11 In the statement made by the appellant which followed his application claiming to be a refugee, the appellant asserts that he was targeted by his own racial group, coloured persons, as well as by the IFP members. The substance of his statement, on a fair reading is that he held his fears as a coloured person on account of his perceived political views. He expressly says that he feared his life was in danger not only because he was an ANC supporter but also because he was coloured. His statement asserts that there was writing on the door to his house, including the following statements:

"Your [sic] bushman, ANC lover." "You black coloured traitor"
(Emphasis added)

12 This language supports the RRT conclusion that although there was reference to the fact that the appellant was coloured, the hostility towards him, as reflected in the use of the words "ANC" and "traitor", was essentially not attributed to his race but rather to his political views. Qwhen read as a whole, the RRT reasons reflect and deal with the appellant�s contention that his colour was an element in his fear and harassment.

13 However, the RRT reasons record that:

"It was not race: he [the appellant] noted that two of the particular IFP gang who harass [sic] him are coloured youths like himself."

14 It is evident from the Reasons for Decision that the RRT appreciated that the appellant was coloured, and that it referred to his colour as an element in his harassment. The RRT concluded, from the answer given in clarification by the appellant, that colour was not the basis of his fear. This conclusion was open to the RRT on the material.

15 The present case is different from Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389. In that case, the majority (with Gleeson CJ dissenting) considered that there had been a misdescription by the RRT of the relevant social group. It was concerned with the criteria on which a proper description should be made. In the present case, there is no suggestion that the relevant social group is misdescribed.

16 On the material in the appeal book, and having regard to the reasons of the RRT, we consider that the approach taken by the RRT does not disclose any reviewable error in failing to consider the claim made by the appellant.

17 The second submission for the appellant is that the RRT reasons misapplied the definitions of "persecution" and "serious harm". The Reasons for Decision of the RRT correctly set out the requirements of the element of persecution, having regard to the requirements of s 91R(1) and (2) of the Migration Act 1958 (Cth) ("the Act").

18 The RRT notes that for persecution to exist there must be serious harm involved to the person and conduct which can be described as "systematic". There is no reason to suppose that having correctly set out the legal principles concerning persecution, the RRT, when it came to address the claims of the appellant, did not direct attention to these factors. The RRT found that the incidents referred to were opportunistic in character, and that they were carried out by unemployed youths with an anti-social bias that was activated ad hoc, on the spur of the moment. Therefore, the RRT took the view that the harm could not be said to be "systematic", as required by s 91R. Nor did the RRT consider that the incidents asserted amounted to harm of such a serious character as would amount to persecution.

19 Counsel for the appellant also submitted that the RRT and the primary judge looked only to past conduct in assessing the harm, and did not address future anticipated harm. This submission is incorrect. The RRT found that any future danger was remote. The primary judge at paragraphs [16] and [17] of his reasons, addressed the correct question as to anticipated persecution in the future.

20 The question whether conduct amounts to persecution is a question of fact and degree which falls within the jurisdiction of the RRT. It does not come within the jurisdiction of this Court, except in circumstances where there has been a reviewable error in the formulation and application of the principles. There was no such error in this case.

21 We note that there were alleged to be death threats. The appellant states that he ignored all of them. It is important to bear in mind in relation to these threats that the RRT rejected the appellant�s submissions on lack of protection, and concluded that the appellant could avail himself of state protection, and also that he could relocate. These are findings of fact. On the question of relocation it should be noted that in his initial statement, the appellant stated that he feared persecution because:

"... fellow coloureds have made rude remarks because we are supporters of the ANC and not Inkatha Freedom Party.

Because ... I was a member of the ANC which is black dominated and because I was a coloured who lived in an area that is coloured dominated and [the] majority of them are I.F.P. supporters." (Emphasis added)

22 This points to the essentially localised nature of his fear.

23 Next, counsel for the appellant submits that the primary judge should have concluded that the RRT made a jurisdictional error because it failed to address and make necessary findings in respect of all subsidiary claims submitted by the appellant. The primary judge formed the view that this was simply a reiteration of the first submission referred to above. We agree. The appellant seeks to draw a distinction between the first and seventh grounds. He submits that the focus of the first ground is on the main obligation of the RRT to deal with the claim and address the claim on the basis put to it. This other ground is directed at the duty and obligation of the RRT to deal with each and every subsidiary claim raised in support of the main claim of well-founded fear. It is said that the failure to deal with the claim on the basis on which the claim is put would result in constructive failure to exercise jurisdiction. It is also said that failure to address one or more of multiple subsidiary issues raised in support of the main issue would not necessarily result in a similar failure to exercise jurisdiction but could result in such a failure if the issues were not dealt with or are of critical importance to the determination of the main issue.

24 In our view this submission is internally inconsistent and lacks any force. If a "subsidiary" issue is so important to the determination of the main claim, then there has been a failure to deal with a claim. The primary judge was correct in forming the opinion that there was no difference between this supposed alternative ground and the first submission. This is evident on the face of the two submissions.

25 The final submission developed by counsel for the appellant is that it appears the RRT and the Case Officer who made the earlier decision under review by the RRT, had regard to the same country information. He submits that for this reason they should both have come to the same conclusion as to persecution given that there was no issue of credibility, unless they interpreted the information differently.

26 There is no substance in this submission. There is no obligation on the RRT to draw the same conclusions from country information as that drawn by the Case Officer. The submission ignores the fact that the hearing by the RRT is a complete rehearing and involves additional evidence and material which was not before the Case Officer. It is made in a different evidentiary context and at a later point in time. This submission is rejected.

27 We note that counsel did not orally address the other grounds raised in the Notice of Appeal on the hearing before us. We have considered those grounds and we are not persuaded that any error has been demonstrated in his Honour�s reasoning or in the reasoning of the RRT with respect to any of the grounds raised on behalf of the appellant.

28 Accordingly, the order of the Court is that this appeal is dismissed with costs.






I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin and Bennett.



Associate:

Dated: 20 August 2004



Counsel for the Appellant: J M Patel



Counsel for the Respondent: M Roder



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 6 August 2004



Date of Judgment: 20 August 2004
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