FEDERAL COURT OF AUSTRALIA WZAOD v Minister for Immigration & Citizenship [2011] FCA 1044 Citation: WZAOD v Minister for Immigration & Citizenship [2011] FCA 1044 Appeal from: WZAOD v Minister for Immigration and Citizenship & Anor [2011] FMCA 327 Parties: WZAOD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: WAD 182 of 2011 Judge: GILMOUR J Date of judgment: 8 September 2011 Catchwords: MIGRATION – appeal from Federal Magistrate's decision dismissing an application for review of the Tribunal's decision to refuse to grant a protection visa – whether the Federal Magistrate erred in finding that the Tribunal did not make a reviewable error in misdirecting itself as to the relevant law, taking into account irrelevant considerations; and finding that South Africa could offer effective State protection. Legislation: Migration Act 1958 (Cth) Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant NABD of 2002 v Minister for Immigration and Citizenship (2005) 79 ALJR 1142 Minister for Immigration and Citizenship v SZONJ (2011) 278 ALR 608 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611 Date of hearing: 22 August 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 65 Counsel for the Appellant: Mr N Ekanayake Counsel for the Respondents: Mr A Gerrard Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 182 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WZOAD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 8 September 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 182 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WZOAD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE: 8 September 2011 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The appellant was born in Cameroon on 20 July 1977 and is 34 years old. In September 1999 he departed Cameroon for South Africa. He became a citizen of South Africa in 2006 and no longer holds Cameroon citizenship. He arrived in Australia on 9 August 2009 as the holder of a subclass 676 (Tourist) visa. He did not bring his wife or children with him. They continue to reside in the family home in Cape Town. 2 On 6 November 2009 the appellant applied for a Protection (Class XA) visa. The appellant claims he is a non-indigenous South African and because he is from Cameroon he has been and will be subject to xenophobic attacks. In particular, the appellant claims past persecution by local indigenous South Africans who he claims looted and destroyed his grocery shop on 22 May 2008. He also claims that his wife was threatened and beaten on 22 May 2008 because she is married to an immigrant. 3 A delegate of the first respondent refused the appellant's application on 28 May 2010. On 21 June 2010 the appellant sought review of the delegate's decision in the Refugee Review Tribunal (the Tribunal). The appellant attended a hearing on 11 August 2010. 4 On 19 November 2010 the Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the appellant. 5 On 16 December 2010 the appellant filed an application in the Federal Magistrates Court, seeking judicial review of the Tribunal's decision. The Federal Magistrate dismissed the application of the appellant on 13 May 2011. 6 On 27 May 2011 the appellant filed a notice of appeal in this Court, appealing the decision of the Federal Magistrate. 7 At the hearing before me I gave the appellant leave, there being no objection from the respondents, to amend his grounds of appeal in accordance with a Minute of Proposed Substituted Grounds of Appeal dated 8 August 2011. Tribunal decision 8 The Tribunal formed the view that the appellant's store was not destroyed as he claimed, noting that the appellant had not provided any independent proof of the existence of, or destruction of, his shop. The Tribunal's reasons are to an extent ambiguous on the question whether the appellant actually owned a shop. However, on balance I am prepared to proceed on the basis that the finding of the Tribunal was that he did own a grocery shop in Dunoon. 9 The Tribunal noted that the appellant's case can be distinguished from most victims of xenophobic violence as he is relatively wealthy, very entrepreneurial and does not live among the poor South Africans. He owns his own home in a more upmarket area of Cape Town and his home has some security features. 10 The Tribunal did not accept that any threats or violence due to the appellant being a Cameroonian have been encountered by the appellant's wife at their home. The Tribunal found it was implausible that the appellant would not return to his home to protect his wife and children if they were threatened with violence. The Tribunal also did not accept that the appellant's wife and children did not visit him at his 'hideout' between 22 May 2008 and 25 September 2008. Furthermore, in the light of the appellant's affluence, the Tribunal did not accept that it took the appellant four months to organise his departure from South Africa. The Tribunal did not accept that the appellant would estrange himself from his family and then leave them behind. 11 The Tribunal did not accept that xenophobic gangs were ever looking for the appellant at his home, noting that his home was in a relatively wealthy area, some distance from his grocery shop, and had security features. The Tribunal rejected the appellant's claim that his wife had told him that his home had been broken into as there was an absence of independent documentary evidence from the police. Furthermore, there was no evidence that even if the burglary had occurred that it was connected to the alleged persecution. The Tribunal accepted that there was a high incidence of violence and crime in South Africa but even if a burglary had been committed it would have been because of the relative wealth of the appellant's family and not because the appellant was from Cameroon. 12 Further claims of violence directed against the appellant's family and extended family were rejected as being implausible and lacking verification via objective evidence. 13 The Tribunal attached great weight to the fact that the appellant resided in New Zealand for 10 months prior to his arrival in Australia and failed to make a refugee claim whilst there. The Tribunal noted that the appellant had previously made a claim for asylum whilst in South Africa and did not accept that the appellant was unaware of the asylum process or its availability in New Zealand. The Tribunal also noted the appellant's evidence that the appellant wanted to come to Australia because it had a warmer climate. 14 The Tribunal found that the delay in applying for protection at the earliest opportunity was one factor which affected the genuineness of his subjective fear of persecution. 15 The Tribunal noted that the country information indicated that violent crime in South Africa has no racial content but rather is motivated by money. 16 The appellant's claim that he was targeted as a known professional footballer was rejected as there was no evidence that he had ever suffered past harm due to him being a professional footballer. 17 Finally, the Tribunal noted that there was no evidence that the appellant would be denied effective State protection. Federal Magistrate's decision 18 The appellant raised substantially the same grounds of review before the Federal Magistrates Court as he does before this Court in his amended grounds. 19 The first ground of review raised before the Federal Magistrate was that the Tribunal took into account an irrelevant consideration (being the absence of independent proof of the existence of, or the destruction of, his shop) and failed to take into account a relevant consideration (being the oral and written evidence of the appellant). The Federal Magistrate found that the ground could not be sustained. The Federal Magistrate found that it was clear from the Tribunal Decision that the Tribunal had taken into account the appellant's oral and written evidence, both in relation to the alleged looting of the appellant's shop, and generally. 20 The Federal Magistrate also noted that although, in some circumstances, sole reliance on a lack of corroborative evidence can constitute jurisdictional error, this was not such a case. The Federal Magistrate found that the Tribunal had considered the appellant's evidence to be unreliable or implausible in significant aspects, and in such circumstances, the Tribunal was entitled to consider whether the evidence was corroborated and make findings based on a lack of corroboration. 21 The second ground of review considered by the Federal Magistrate was that the Tribunal had misdirected itself as to the relevant law by requiring that the appellant establish that he had suffered past persecution as an element of establishing a well-founded fear of future persecution. 22 The Federal Magistrate noted that authorities establish that it is lawful to consider past persecution of a protection visa applicant in determining whether there is a well-founded fear of persecution in the future. His Honour then went on to note a number of factors, relating to both past persecution and future persecution, had been taken into account by the Tribunal, before finding that the question of whether the appellant had a well-founded fear of persecution had been addressed by reference to all relevant considerations "including alleged past persecution and, quite independently, the possibility of future persecution". 23 The third ground of review considered by the Federal Magistrate was that the Tribunal took into account irrelevant considerations in finding that the appellant was in a different class to other African immigrants and that he was less likely to suffer xenophobic violence in the future. The irrelevant considerations were said to be the appellant's relative wealth, his entrepreneurial nature and the location of the appellant's residence. The Federal Magistrate found that the Tribunal did not commit jurisdictional error by taking these factors into account and his Honour noted that the factors were supported by country information and, indeed, the appellant's own evidence. 24 The fourth ground of review considered by the Federal Magistrate was that the Tribunal erred by finding that South Africa could offer the appellant effective state protection because it either made this finding without any factual basis to support it, or made a finding that no reasonable Tribunal could have made, based on the evidence before it. 25 The Federal Magistrate found that the country information before the Tribunal was sufficient to support a finding by the Tribunal that there is a police system in South Africa capable of protecting its citizens from xenophobic attack. The court noted that the choice of country information relied on by the Tribunal and the weight to be accorded to it is a matter for the Tribunal. 26 The Federal Magistrate also found that there was country evidence before the Tribunal with relation to police protection, and that while the systems might be improved, it could not be said that the Tribunal made an illogical or irrational decision about effective state protection. Jurisdictional error 27 A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. 28 Further, an error by an administrative tribunal, such as the Refugee Review Tribunal, will only constituted jurisdictional error if the tribunal: (a) identifies a wrong issue; (b) asks the wrong question; (c) ignores relevant material; or (d) relies on irrelevant material, in such a way that the tribunal's exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351. Review Ground 1 29 The first proposed substituted ground of review of the appellant is that the Federal Magistrate erred in finding that the Tribunal did not make the reviewable error of misdirecting itself as to the relevant law, in requiring the appellant to establish past persecution as an element of determining whether the appellant has a well-grounded fear of future persecution. 30 The appellant places emphasis upon the Tribunal's reasons at [66] which state: However, due the applicant's relative wealth and the fact that he does not live among poor local South Africans, and the Tribunal has found his lack of past persecution, there is no real chance of future serious harm for reasons of him being Cameroonian. (Emphasis added). 31 The appellant submits that the Tribunal placed considerable emphasis on whether or not past persecution occurred and, having concluded that it had not, then based its finding that there was no real chance of future persecution on that conclusion. This, the appellant submits, was regarded by the Tribunal as the determining factor or "element" as it was put. 32 Indeed the Tribunal took into account its finding that the appellant had not suffered past persecution in determining that the appellant did not have a well-founded fear of future persecution. However, as found by the Federal Magistrate, this does not constitute jurisdictional error for two main reasons. 33 First, as noted by the Federal Magistrate, the authorities establish that it is appropriate to consider the absence or presence of past persecution in determining whether there is a well-founded fear of persecution: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Applicant NABD of 2002 v Minister for Immigration and Citizenship (2005) 79 ALJR 1142. 34 In Minister for Immigration and Ethnic Affairs v Guo, the High Court held at 575: In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 35 In Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, Gleeson CJ noted at [4]: In many, perhaps most cases, the primary basis for what is said to be a well-founded fear of persecution is an account of past persecution, usually given as the reason for leaving a country of nationality. 36 The appellant relies, in support of its submission in relation to this ground, upon Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [74] (per Gummow and Hayne JJ) as authority for the proposition that where no past harm or persecution has been established there remains the possibility of future harm. That is correct. S395/2002 and the cases which have followed it relate primarily to whether an applicant has modified, or is likely to modify, his or her behaviour in order to avoid persecution. In the present case, the appellant claims persecution on the ground that he is Cameroonian and, on his own evidence, recognisably so. Thus, there can be no issue of the applicant modifying his behaviour in order to avoid persecution, and S395/2002 can be of no assistance to the appellant in that respect. 37 The Tribunal was entitled to take into account its finding that the appellant had not suffered past persecution in determining that he did not have a well-founded fear of future persecution. It did not, however, proceed on the basis that proof of past persecution was a requirement before a finding could be made that he had a fear of future persecution. 38 Second, that there was no evidence of past persecution was but one of the factors considered by the Tribunal in determining that the appellant did not have a well-founded fear of future persecution. The Tribunal also took into account the following factors: (1) the country information considered by the Tribunal indicated that violent crime in South Africa is motivated by money, not race; (2) the appellant's wealth and the location of his residence separates him from high risk areas. This factor was directly related to evidence of xenophobic violence that has occurred in South Africa. It is also related in this appeal to the appellant's second ground; and (3) the failure of the appellant to apply for refugee status whilst in New Zealand and his delay of 3 months from the date of his arrival in applying for a protection visa in Australia. 39 The appellant submits that the following factors sourced from Country Information should have led the Tribunal to conclude that there were well-founded reasons for the appellant to fear future harm: 1. Xenophobic violence against African immigrants exists in South Africa. 2. The conditions in South Africa that led to the xenophobic violence in May 2008 remain extant and further such violence is a possibility. 3. Foreigners may be at risk from violence for, among other things, their visibility and accessibility. 4. The appellant has a genuine fear of persecution from indigenous South Africans. 40 The appellant submits that in relation to his particular social group, the Tribunal only considered this in light of a specific claim for persecution as a result of being a member of that particular social group. He then submits that what the Tribunal failed to do is to consider his membership of that group (which it accepted as a particular social group) in the broader context of whether he has a real chance of future serious harm, the basis for this consideration being that he, by his membership of the group, is readily identifiable; he was well known in the Cape Town area as he was a former professional footballer. 41 This, he submits, made him a person with "visibility" and thereby increased his chance of being the victim of xenophobic violence. I will deal with these submissions under ground 2, which as I say, is related. 42 Accordingly the Tribunal considered a range of relevant factors in determining that the appellant did not have a well-founded fear of persecution. It was entirely appropriate for the Tribunal to consider the likelihood of future persecution by reference, as in part of its overall consideration, as to whether there was evidence of any past persecution. I do not accept the appellant's submission that the Tribunal ought to have considered, in isolation from the question of past harm, whether or not the appellant had a well-founded fear of persecution due to other factors. The relevant factors, whilst they may be considered discretely, will ultimately be considered by the Tribunal as a whole. Such was the case here. The relative weight to be accorded to the lack of past persecution is a matter for the Tribunal. Review Ground 2 43 The second proposed ground of appeal is that the Federal Magistrate erred in finding that the Tribunal did not make a reviewable error, in taking into account the allegedly irrelevant considerations of the appellant's relative wealth and the location of his residence, in finding that the appellant was in a different class to other immigrants to South Africa, and was therefore less likely to suffer future persecution. 44 The particular finding of the Tribunal is at [66]: However, due the applicant's relative wealth and the fact that he does not live among poor local South Africans, and the Tribunal has found his lack of past persecution, there is no real chance of future serious harm for reasons of him being Cameroonian. (Emphasis added) 45 The appellant submits that these are not relevant factors because as the Tribunal itself stated: In addition to poor labourers, also at risk may be those foreigners seen as being wealthy at the expense of local South Africans… Again, their victimhood is due to their visibility and accessibility to South Africa's poor. 46 However, factors such as an appellant's relative wealth and place of residence were relevant. The appellant himself provided evidence that he lived in an area which was upmarket and safer. Indeed, it was the appellant who distinguished his place of residence on the basis of being where people have money. The Tribunal was required to consider the individual circumstances of the appellant in light of the available information: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs per Gleeson CJ at 1144. 47 It is not the case that the Tribunal distinguished the appellant in the way it did in a vacuum. In setting out the country information, the Tribunal identified at [39]: Ethnic Africans are the foreigners who face the most violence. This is more likely a result of their poor economic circumstances than any racial bias against other Africans. They compete for low paid labour jobs with poor South Africans, making them the prime targets. They are also the easiest to access as they live amongst the perpetrators of the violence, the local poor. 48 The country information was to the effect that poor immigrants who live in the same areas as poor local South Africans and compete with them for low paid jobs are most at risk. It follows, therefore, that the appellant's relative wealth and place of residence were relevant factors and the Tribunal did not err in finding that these factors "set the [appellant] in this case apart from most victims of xenophobic violence". 49 Moreover the appellant only partially set out the Tribunal's reference to country information at [28]. A significant sentence was omitted by the appellant which is vital in context: In addition to poor labourers, also at risk may be those foreigners seen as being wealthy at the expense of local South Africans. 'Wealth' is relative though with many victims of attacks being poor shopkeepers or street vendors who are only marginally better off than their attackers (this is sourced from the IOM report and the United States Department of State report). Again, their victimhood is due to their visibility and accessibility to South Africa's poor. (Emphasis added) 50 The Federal Magistrate was, in my view, correct in finding that the relative wealth of the appellant and the location of his residence are relevant to whether he has a well-founded fear of persecution. The Federal Magistrate came to this view after considering the country information and the appellant's own evidence. Further, the Federal Magistrate correctly noted that any determination made by the Tribunal, taking into account these considerations, goes to the merits of the case and is not reviewable. So much also is the position in this Court. Review Ground 3 51 The third proposed ground of review is that the Federal Magistrate erred in finding that the Tribunal did not make a reviewable error in finding that South Africa could offer the appellant effective state protection. The appellant contends that the Tribunal made an error of law by: (a) failing to apply the correct test; and (b) making a finding that no reasonable tribunal could have made. Did the Tribunal fail to apply the correct test? 52 This aspect of this ground of review was not raised before the Federal Magistrate. 53 The appellant referred to the following passage from Minister for Immigration and Citizenship v SZONJ (2011) 278 ALR 608 at [31] (applying statements of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1): Gleeson CJ observed that, if there is a non-state persecutor of a person or a group of people [for a Convention reason], then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from the inability of the state to do anything about it ([29]). (Emphasis in original) 54 The appellant submits that the Tribunal's finding that the appellant fears attack from indigenous South Africans; coupled with its findings that there has been such violence in South Africa which was racially motivated; and the real possibility of it occurring again, suggest that the appellant's fear of persecution by non-state actors was for a convention reason – that is, his ethnicity (or perhaps particular social group) as an ethnic African not indigenous to South Africa. 55 It follows then, that if the state was unable to provide effective protection to the appellant that would go to establishing he had a well-founded fear for a Convention reason. 56 The appellant focussed on the Tribunal's finding at [74] that there is no evidence that the police enforcement of laws is being applied in a discriminatory way with respect to complaints made by victims of xenophobic violence. The appellant then submits that the question the Tribunal should have asked is whether the state can provide protection at all, not whether the protection is provided in a discriminatory way. Its failure, he submits, to ask this question exposes that the Tribunal applied the wrong test. 57 The Tribunal considered the non-discriminatory nature of enforcement of laws with respect to xenophobic attacks as one aspect of its assessment of whether there is effective state protection. This was a relevant consideration. No state is able to offer any citizen complete protection and how a state responds to crime when it does occur will significantly affect the protection provided to its citizens generally. 58 In this case, the finding of the Tribunal that the appellant would be offered effective state protection and that laws are applied in a non-discriminatory way, was made in the context of country information which, whilst acknowledging the high rate of violent crime in South Africa, also noted: (1) civilian authorities generally maintained effective control of the security forces; (2) the government generally respected the human rights of its citizens; (3) whilst there had been a wave of xenophobic attacks in 2008, in 2009 those attacks, whilst still a problem, did not occur on the scale of the previous year; and (4) there were reports of arrests and criminal persecutions in relation to the xenophobic attacks of May 2008. 59 The ability of South Africa through its police force and justice system to render effective protection to its citizens was thus considered by the Tribunal. It did not apply the wrong test. The illogicality contention 60 In the alternative, the appellant also contends that the Tribunal's conclusion in relation to effective state protection was not one that any rational or logical tribunal could have arrived at. 61 Illogicality or irrationality in the reasoning of a tribunal may constitute a basis for judicial review: SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611. 62 In SZMDS, Crennan and Bell JJ observed at [135]: a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 63 The appellant in his submissions points to some statements of the Tribunal to the effect that some of the country information shows that at times, police and elected officials have either been involved in attacks against foreigners, or have displayed a discriminatory attitude towards foreigners. The appellant then relies on Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 in saying that it was not open to the Tribunal to find that the level of state protection offered by South Africa was sufficient. 64 The Tribunal considered a range of factors in arriving at its conclusion that South Africa provides an adequate level of state protection, including those referred above. The weight to be given to each individual factor is a matter for the Tribunal and on the evidence before it, it was open to the Tribunal to conclude that there is a reasonably effective and impartial police force in South Africa that provides effective state protection to its citizens. There is therefore no illogicality or irrationality in the Tribunal's decision. Conclusion 65 The appellant has failed to demonstrate any error by the Federal Magistrate. There being no jurisdictional error in the Tribunal's decision, the appeal will be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 8 September 2011