FEDERAL COURT OF AUSTRALIA SZIUO v Minister for Immigration and Citizenship [2008] FCA 500 MIGRATION – where the Tribunal found the appellants' fears of persecution were not well-founded – whether by the Tribunal's use of the word "speculative" it identified the correct test to determine whether the appellants' fears were well-founded – whether the Tribunal made adequate findings on the question of State protection – appeal dismissed. Migration Act 1958 (Cth) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited Wu Shan Liang (1996) 185 CLR 259cited SZIUO, SZIUP AND SZIUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1380 OF 2007 LANDER J 21 APRIL 2008 ADELAIDE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1380 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIUO First Appellant SZIUP Second Appellant SZIUQ Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LANDER J DATE OF ORDER: 21 APRIL 2008 WHERE MADE: ADELAIDE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first and second appellants pay the first respondent's 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 NEW SOUTH WALES DISTRICT REGISTRY NSD 1380 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIUO First Appellant SZIUP Second Appellant SZIUQ Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LANDER J DATE: 21 APRIL 2008 PLACE: ADELAIDE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrates Court made on 26 June 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 March 2006 and handed down on 11 April 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the first respondent as he was then known) to refuse to grant Protection (Class XA) visas to the appellants. 2 The appellants are husband, wife and daughter. The appellant husband (the first appellant) was born on 1 March 1961 and is a citizen of South Africa. The appellant wife (the second appellant) was born on 10 May 1962 and is a citizen of South Africa. The appellant daughter (the third appellant) was born on 1 October 1989 and is also a citizen of South Africa. The first and second appellants have a son who was born on 14 October 1984 and, although he is a citizen of South Africa, he is an Australian Permanent Resident. The first appellant arrived in Australia on 15 October 1996. The second and third appellants both arrived in Australia on 12 September 1996. 3 The appellants lodged applications for protection visas on 7 November 1996 (the first protection visa applications). These applications were refused by the delegate on 15 May 1997. 4 On 20 October 2005 the appellants lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. All of the appellants made claims under the Refugees Convention. On 9 January 2006 a delegate of the first respondent refused the applications for protection visas. 5 On 31 January 2006 the appellants applied to the Tribunal for a review of those decisions. 6 The Tribunal found that the first protection visa applications lacked critical information relating to the reasons why the appellants claimed to be refugees. The Tribunal was satisfied that the application forms lodged in 1996 did not substantially comply with statutory requirements. The Tribunal accordingly found that the first protection visa applications were not valid and that the later application, lodged on 20 October 2005, was valid. It found therefore that the appellants were not barred from lodging the later application. Background 7 The first appellant claimed that he feared persecution based on his ethnicity and political opinion. The first appellant claimed that in 1994 he had become involved with the Minority Front (MF) in South Africa, a group which represented Indians in Parliament, and became interested in the party's election campaign. The first appellant claimed he attended a meeting of the African National Congress (ANC) when asked to do so by the MF. He stated that he spoke up at the meeting in support of South Africans of Indian descent. The first appellant claimed that "one black approached [him] and told [him] to leave for [his] own safety." The first appellant stated he began to work for the MF, including distributing pamphlets. The first appellant claimed that he was attacked one day while distributing pamphlets and, out of fear, relinquished his duties with the MF. 8 However, despite no longer being involved with the MF, the first appellant claimed that in December 1995 he was approached by a group of four black men, one of whom stated that he remembered him from the ANC political meeting. One also stated to him "that if [he] was to live, [he had] to pay for [his] life and [he] had to pay straight away." The first appellant handed over his wallet. He reported the incident to police. 9 The first appellant claimed that some time later a group of men attended the family home, threatened him and ordered him not to report them to the police again. The first appellant again was forced to give them money. He did not report this incident to the police as he knew he "was being watched and targeted." He claimed he was approached on further occasions and payment was demanded from him. 10 The first appellant claimed that in May 1996 his home was robbed and his son was held at gunpoint. Later he received anonymous phone calls. He reported both these incidents to the police but was told that they were unable to act as they were understaffed. Consequently, he said the second appellant left her job; they removed their children from school; and made arrangements to leave South Africa. 11 The second appellant claimed that Indians in South Africa were mistreated. The second appellant made claims about three particular incidents. First, in May 1996 she was robbed whilst at a bank. This incident was reported to the police. Secondly, a few weeks later, whilst driving a car, she was followed and the car following her attempted to drive her off the road. She was convinced at that stage that she was being targeted. Thirdly, the second appellant stated that her home was robbed in August 1996. The second appellant also stated that returning to South Africa would not be in the best interests of particularly herself and her young daughter because "[b]eing females it [was] extremely dangerous in view of the high incidence of kidnap and rape and in most incidents murder in South Africa." 12 The third appellant claimed that she feared she would be raped in South Africa because of her Indian origin. The Tribunal's Decision 13 The three appellants attended a hearing on 3 March 2006 and all gave oral evidence to the Tribunal. Two witnesses supporting the appellants also gave oral evidence. 14 The Tribunal expressed concerns about the veracity of the appellants' claims but elected to give them the benefit of the doubt. 15 Although the Tribunal accepted that the first appellant was a member of the MF, it did not accept that he had an organising role. The Tribunal found it difficult to accept that the appellants had been targeted due to the first appellant's political activities or at all, given the extent of his activities and the cessation of his participation in the MF after the alleged incidents. The Tribunal found the first appellant's evidence of several of the incidents to be confused and found that there was no evidence that the South African authorities had tolerated or condoned the alleged persecution. The Tribunal outlined that even if it did accept as plausible that the family were threatened, the police acted appropriately by taking the August 1996 incident seriously and doing whatever they could in relation to various other incidents. 16 The Tribunal said that if it it were to accept that there were further incidents of harm, looking at the evidence as a whole, it was satisfied that the incidents were essentially and significantly related to the generalised violence and civil disturbances that prevailed in South Africa. The Tribunal was not satisfied that the first appellant's involvement in MF or the Indian ethnicity of the family were the essential and significant reasons for any harm suffered. The Tribunal noted that persecution by private individuals or groups did not bring a person within the Convention unless the State either encouraged it or appeared to be powerless to prevent that private persecution. The Tribunal accepted as being plausible that the family had experienced incidents that would amount to serious harm, albeit by non-State agents but for which they received appropriate State assistance. The Tribunal then considered whether there was a real chance of Convention-related harm occurring to the appellants in the reasonable future. 17 The Tribunal addressed both the second and third appellants' claims to fear rape but found that the claims were speculative. Whilst accepting the second and third appellants were of Indian ethnicity and that the third appellant was a "beautiful young lady" as asserted in her protection visa application, and accepting independent country information that rape remained a serious problem, the Tribunal was satisfied the claims were "speculative". The Tribunal was not satisfied that, without more, there was a real chance that the second and third appellants would be raped. 18 The Tribunal noted that the first appellant had not continued his activities with MF and was satisfied that he would be able to continue his involvement in MF if he so chose. 19 The Tribunal considered independent country information and while it was clear that there were racial tensions involving the Indian community and discrimination, the Tribunal was satisfied that there was no systematic ill-treatment of Indians by "black" South Africans. 20 The Tribunal acknowledged that if the family were to return to South Africa they may experience difficulties in finding employment, accommodation and resettling generally. While the Tribunal said that it felt for the circumstances of the family, the Tribunal was not satisfied that any difficulties which may be faced by the family would constitute persecution as contemplated by the Convention. Application in the Federal Magistrates Court 21 On 8 May 2006 the appellants sought judicial review of the decision of the Tribunal by filing an application in the Federal Magistrates Court that raised three particularised grounds of review: 1. The Tribunal constructively failed to exercise jurisdiction when finding as "speculative" the claim of applicants 2 and 3 to fear being raped in South Africa in circumstances where the Tribunal was required to consider whether the applicants claim was genuine and well-founded. 2. The Tribunal's finding on effective state protection is vitiated by jurisdictional error in circumstances where the evidence accepted by the Tribunal was that the police were powerless in preventing private persecution and/or sexual violence against women. 3. The Tribunal committed jurisdictional error by not dealing with an integer of the applicant husband's claim and/or making findings of fact that were not open to it. 22 In addressing ground 1, the Federal Magistrate stated that the appellant's first complaint was that by the use of the word "speculative", the Tribunal made no finding as to whether the fear of persecution was well-founded or genuine. The Tribunal's use of the word "speculative", on a plain reading and in its context, did not reveal error on the Tribunal's part. The words preceding the use of this term revealed that the Tribunal was seized of the need to address the question of whether the fear of persecution was well-founded or not. His Honour decided that describing the appellant's claims as "speculative" was distinct from engaging in a process of speculation itself in answering that question and, for this reason, there was no jurisdictional error. The use of the word "speculative" to describe the claims did not reveal that the Tribunal employed a lesser or different test. Nor did it reveal any analytical or logical flaw in its reasoning process. It took into account all relevant evidence and claims before it and, based on this, found that it could not reach the level of satisfaction that the appellants had a well-founded fear of persecution as contemplated by the Convention. 23 In relation to the appellants' second ground relating to effective State protection, his Honour found that there was nothing in the evidence before the Tribunal to suggest that the police were powerless to prevent harm to the appellants in all the circumstances relevant to them or that the Tribunal ignored such evidence. 24 The appellants' third ground was that the Tribunal failed to deal with an integer of the first appellant's claim or, in the alternative, made a finding which was not open to it. The first appellant was attacked and robbed by a group of "black men". However, the Tribunal towards the end of its reasons referred to "a black man" instead of "a group". The appellants also argued that this error also affected the Tribunal's subsequent finding that it had doubts about the veracity of the appellants' claims. The Federal Magistrate found that the Tribunal had made a factual error in regard to inexplicably translating a group of men into the singular and in its finding that the appellant was distributing pamphlets as part of a group on that occasion. Whilst these errors could not be simply explained away as "inelegant presentations", the issue was whether these mistakes could amount to jurisdictional error. In Abebe v Commonwealth (1999) 197 CLR 510, the Tribunal made a wrong finding of fact on its own. His Honour found that in this case the Tribunal's mistaken finding did not lead to a failure in the exercise of its jurisdiction, relying on Abebe v Commonwealth (1999) 197 CLR 510. Ultimately, the Tribunal accepted that the appellant had been assaulted and robbed, and whether the appellant was on his own or a part of a group, or whether the assailant was one or part of a group, did not affect what the Tribunal accepted, which was that the appellant had been assaulted and robbed whilst distributing pamphlets on behalf of the MF. Furthermore, the Tribunal accepted that the appellant had reported the incident to police. His Honour also refused to accept that the errors were part of the Tribunal's adverse credibility findings in relation to the appellants in total. No jurisdictional error was found. Appeal to this Court 25 The appellants' notice of appeal raised three grounds of appeal with particulars. However, the appellant has expressly abandoned ground 3. The remaining two grounds are: 1. His Honour committed an error of law in dismissing the appeal from the decision of the Second Respondent in circumstances where his Honour construed the reasons for the Second Respondent beneficially, notwithstanding the use by the Tribunal of an inappropriate and ambiguous term. Particulars (a) The Second Respondent found that the appellants' claim of fear of rape was "speculative" notwithstanding that evidence was accepted by it that indicated that "rape remains a serious problem in South Africa". (b) The "speculative" finding made by the Tribunal was vital to the appellants' claim of fear of persecution by reason of rape. (c) [The Federal Magistrate] agreed that the term "speculative" on its own could give rise to ambiguities. 2. His Honour also erred in upholding the Second Respondent's decision in circumstances where the Second Respondent committed jurisdictional error in making findings about effective state protection. Particulars (a) The Tribunal referred to an incident experienced by the appellants in which the police "acted appropriately" and took the matter "very seriously (of August 1996)" and that the police "couldn't have done much any way". (b) However, the Tribunal failed to make a finding about whether or not the authorities are powerless to prevent such incidents from occurring in the future. (c) Again, [the Federal Magistrate] expressed "sympathy" with the appellants' submissions and noted that the Tribunal's findings could have been "expressed in a clearer fashion". 26 The Tribunal's reasons must be read fairly and in their context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271, 291. The Tribunal's use of the word "speculative" was not intended, on a fair reading of the Tribunal's decision, to erect a test for a claim for a well-founded fear of persecution other than that contained in the Refugees Convention. The Tribunal said that the fundamental question for it "is whether there is a real chance of Convention-related harm occurring to the applicants in the reasonably (sic) future." It then addressed the second and third appellants' fear of being raped in South Africa. It is clear that the Tribunal posed for itself the appropriate test, notwithstanding that the Tribunal answered it by saying that the claim was speculative. That is made even clearer by what the Tribunal said after making that finding. It said, "... the Tribunal is not satisfied that those factors, without more, mean that there is a real chance that they would be raped." 27 Both before and after the use of the word "speculative" the Tribunal identified for itself the correct test for a well-founded fear of persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429. I agree with the Federal Magistrate that the Tribunal's reasons, considered as a whole, show that the Tribunal posed for itself the correct test. 28 The second ground of appeal, even if successful, would not mean that the Tribunal had committed jurisdictional error. The question of State protection did not arise in this case because the Tribunal found that the appellants' fear of persecution was not well-founded. That being the case, the question of State protection did not arise. 29 Even if it did, however, in my opinion, the ground has not been made out. Whilst the Tribunal found that rape remained a serious problem in South Africa, the Tribunal raised with the appellants the proposition that they would be able to receive protection from the authorities if they were to return to South Africa. 30 In the end result, it is not entirely clear whether the Tribunal made a decision of that kind but, in my opinion, they were not bound to do so having regard to the conclusion that the appellants' fear of persecution was not well-founded. Insofar as the Tribunal considered the question of State protection, no error has been demonstrated. 31 That disposes of the two grounds. 32 Other matters were referred to in the appellants' written and oral submissions. In those submissions, the appellants contended that the Tribunal should have found that the second and third appellants' claims of fear of rape were well-founded. The Tribunal found that rape was a serious problem in South Africa. However, the ultimate finding as to whether or not the second and third appellants' fears were well-founded was a matter for the Tribunal. This Court is not entitled to embark upon a merits review: Wu Shan Liang 185 CLR 259 at 272. 33 In the appellants' written submissions, the appellants suggested that the Tribunal failed to assess the second and third appellants as members of a particular social group in considering their claims of fear of rape. The Tribunal did assess their claims on the footing that they were females and beautiful young Indian women. No other particular social group was propounded by the appellants. In that regard, the Tribunal assessed their claims appropriately. In any event, the Tribunal found that their claims of fear of rape were not well-founded. 34 During the hearing, the appellants' counsel contended that the Tribunal had fallen into error by saying that it was "no systematic ill-treatment of Indians by 'black' South Africans". It was put to counsel that the appellants' notice of appeal did not make such a claim. Nor did the appellants' application to the Federal Magistrates Court make such a claim. The Court adjourned for a short time to enable the appellants' counsel to consider whether to apply to amend the notice of appeal to include a further ground. On resumption, the appellants' counsel said no such application would be made. Presumably, in doing so, the appellants had regard to s 91R of the Migration Act 1958 (Cth). 35 In any event, for the reasons given, the appeal must be dismissed. The first and second appellants should pay the first respondent's costs of the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 21 April 2008 Counsel for the Appellants: Dr J Azzi Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 7 March 2008 Date of Judgment: 21 April 2008