Neutral Citation: [2016] IEHC 276
THE HIGH COURT
JUDICIAL REVIEW
[2012 No. 483 J.R.]
BETWEEN
A. N.
APPLICANT
AND
REFUGEE APPEALS TRIBUNAL
THE MINISTER FOR JUSTICE AND EQUALITY
ATTORNEY GENERAL
IRELAND
RESPONDENTS
JUDGMENT of Ms. Justice Faherty delivered on the 27th day of May, 2016
1. This is a telescoped hearing in which the applicant seeks leave for judicial review and an order of certiorari quashing the decision of the first named respondent which affirmed the recommendation of the Refugee Appeals Commissioner not to declare him a refugee.
Extension of time
2. An extension of time was required for the purpose of bringing these proceedings which the court was satisfied to grant having regard to the applicant’s affidavit.
Background
3. The applicant is a South African national. He is a widower with thirteen years of formal education and two years National Service. He has an adopted daughter who was born in Pretoria but her current whereabouts are unknown to him. He named her adoptive mother but did not disclose if she was his deceased wife. The applicant’s father is deceased and his mother currently resides in South Africa.
4. The applicant entered the State on foot of temporary visitor permission on 27 January, 2012. This is evident from the ASY1 Form and from the affidavit sworn by Detective Inspector Philip Ryan of the GNIB in response to the present proceedings. The applicant’s passport showed that the temporary visitor permission was for 90 days and was “not renewable”. On 8th February, 2012, the applicant attended the GNIB and sought a Stamp 3 permission to remain in the State. This was granted and was valid until 7th May, 2012. According to Detective Ryan’s affidavit, this was granted in error as his permission to be in the State was not renewable. The applicant returned to the GNIB on 13th February, 2012 seeking a Stamp 4 permission to remain in the State as he was working in two jobs on that date. The Stamp 4 was refused on the basis that the applicant accepted he was working without the requisite work permit. Accordingly, his permission to remain in the State was amended to expire on 27th April, 2012. This permission was also marked “not renewable”. The application for asylum commenced on 13 February, 2012.
5. The ASY1 Form which details the applicant’s s. 8 interview states: “Applicant states he is seeking asylum because of discrimination. Applicant states because his skin is white [he] is ..unable to get a decent job on a sustainable income in South Africa. Applicant states because he is a white person he is a target in South Africa. Applicant states that when he reported to the police about an armed robbery at his business in 2006 nothing was done. Applicant states he wants to be able to live a normal life and to be able to help in supporting his mother. Applicant states it [would] be difficult for him to get a job commensurate with his.. qualification should he return to South Africa.”
6. In his Questionnaire, he set out the reason for leaving South Africa in the following terms: “To visit friend in Dublin Ireland-Looking for better prospects out of South Africa, because of affirmative action in South Africa. Unable to secure employment commensurate with qualifications and therefore my race will not allow me to survive either socially or economically, social and ethnic discrimination has impeded all my future prospects in South Africa.” He cited “race” and “political opinion” as the basis of his fear of persecution. He asserted that his fears were not reported to the authorities because of “racial antagonism by the ruling government”. He could not relocate to avoid the fear of persecution as “there is nowhere to hide in South Africa. My skin color gives me away …Persecution of race widespread throughout South Africa”. In answer to Q.29, he feared returning “because [he] would not be able to survive in social and racial issues. Resulting from affirmative action and racial discrimination.”
7. An interview took place on behalf of the Commissioner on 24th February, 2012. The Commissioner’s decision was made on 2nd March, 2012 recommending that the applicant should not be declared a refugee. As the applicant was found to be a national of “a safe country of origin” s.13(6)(e) of the Refugee Act, 1996, as amended applied which confined any appeal to the Tribunal to a papers-only appeal.
8. A Notice of Appeal was filed on 30th March, 2012. The Tribunal’s decision dated 17th April, 2012 rejected the appeal.
9. The Tribunal’s principal findings are set out elsewhere in the judgment.
Judicial review proceedings were commenced in July 2012.
10. A motion seeking the dismissal of the proceedings on the grounds of being ‘frivolous and/or vexatious and/or doomed to fail and/or as an abuse of process’ was brought by the respondents and part heard by Clark J. on 30th July, 2012 wherein she directed that the applicant file an amended Statement of Grounds. The amended motion and the amended Statement of Grounds were before the court on 22nd October, 2012 and the matter was adjourned to 5th November, 2012. On that date the motion seeking leave, the motion seeking dismissal and the motion seeking to amend were adjourned to 19th November, 2012 where upon all motions were adjourned to the list to fix a date for hearing. The applicant contends that at the hearing of 5th November, 2012 the respondents stated that the motion to dismiss had been heard and concluded. The respondents in their submissions deny that this is no longer a live issue. Given that the motions are of some vintage, the court does not propose to embark upon a consideration of whether the motions remain live issues in the proceedings.
The applicant’s submissions
11. In the course of the oral hearing in the within proceedings, counsel for the applicant distilled the grounds of challenge as follows:
i. The applicant’s appeal, being a papers only appeal was not afforded the careful consideration which is required by law;
ii. The Tribunal Member erred in law in failing to consider that possible economic motives for the applicant’s travel to Ireland did not mean that a well founded fear of persecution for a Convention reason did not also exist;
iii. The Tribunal Member erred in fact in finding that the applicant was “an economic migrant and not a refugee” notwithstanding prima facie evidence that the applicant’s fear of persecution included fear by reason of race and/or perceived political opinion;
iv. Having acknowledged the applicant’s fears relating to race and/or perceived political opinion, the Tribunal Member erred in fact and in law in finding ss.63 and 64 of the UNHCR Handbook “not referable to [the] applicant” .
v. The Tribunal Member failed to consider the adequacy of state protection with reference to the particular facts and circumstances pertaining to the applicant and;
vi. The failure of the Tribunal Member to speculate upon the possibility of the applicant being exposed to persecution in the future on account of his race and/or perceived political opinion.
12. It is contended that the Tribunal Member failed to properly scrutinise the appeal in accordance with the principles set down in M.A.R.A. v. Minister for Justice [2014] IESC 71.
13. Furthermore, the Tribunal Member did not afford the applicant the careful enquiry necessitated by a papers only appeal. In this regard, counsel relies on S.K. & Anor. v. RAT & Ors. [2015] IEHC 176. In particular, it is contended that the Tribunal Member made her finding that the applicant was not a refugee on an erroneous recital of the applicant’s claim, there being no careful analysis of what the applicant had actually stated in his s.11 interview. Nor did the Tribunal Member have regard to the submissions made on appeal or to the country of origin information submitted in support of the appeal.
14. Contrary to the Tribunal Member’s assertion, the applicant did not admit to being an economic migrant. The Notice of Appeal clearly states that he left South Africa because of
“affirmative action and discrimination based on his race, the only employment opportunities available are low paid jobs which is not commensurate with his qualifications and expertise. The Applicant instructs that he was last employed as a driver and has in effect come up against, in effect, a “race ceiling in terms of employment prospects”.
In essence, it is argued that the Tribunal Member made a finding that the applicant was an economic migrant, a finding which the Commissioner did not make. It is submitted that the Tribunal Member adapted the incorrect approach in considering the relative balance between the motives of the applicant and his fear of persecution. In this regard, counsel relies on Gjyrevci v. Minister for Justice [2004] IEHC 343. Furthermore, the Tribunal Member gave no reason for the finding that the applicant was not targeted on grounds of race or political opinion. The applicant also submits that contrary to what the Tribunal Member found, in his s.11 interview the applicant grounded his “political opinion” claim for refugee status on the basis that his not being a member of the ANC and the effect that could have on “social conditions surrounding [his] work”.
The respondents’ submissions
15. Counsel for the respondents submits that the starting point for the present proceedings is that the applicant is a national of South Africa, a country designated as a safe country of origin under s.12(4) of the Refugee Act 1996, as amended and therefore s.11 A was applicable to his circumstances. Thus, the onus was on the applicant to displace that presumption.
16. Contrary to the arguments advanced by the applicant’s counsel, it is clear that the Tribunal Member carefully recorded the applicant’s claim as made in his s.8 interview, questionnaire and s.11 interview. In her summary of “the applicant’s claim”, the Tribunal Member forensically reprises the details which the applicant gave throughout the asylum process.
17. It is submitted that the chronology which surrounded the applicant’s entry into the asylum process was important. The applicant sought asylum only after he failed to secure a work visa from GNIB.
18. The Tribunal Member correctly concluded that the applicant was not persecuted on grounds of race or political opinion. It is noteworthy that in the course of his s.11 interview, the applicant himself acknowledged that he was targeted for financial gain and while he referred to the fact that it was “always whites they rob” he gave no indication that white people were being attacked because they were white - he acknowledged that the perpetrators of the crimes of which he complained “see this as easy money”.
19. It is submitted that the s.6 analysis was arrived at following a scrupulous examination of what the applicant had set out in his questionnaire and s.11 interview and appeal papers and having regard to the country of origin information. The Tribunal Member did not just conclude that the applicant was an economic migrant and shut the door on his application. She looked at his claim in detail to see if it fell within the Convention. Thus, she did not adopt the erroneous approach which was criticized by Finlay Geoghegan J. in Gjyrevci.
Additionally, she paid attention to the provisions of the UNHCR Handbook as to the distinction between an economic migrant and a refugee. Having done so, she concluded from the record of the applicant’s own viva voce evidence to the Commissioner and from the objective country of origin information before her that the applicant was not being targeted on grounds of race or political opinion. The careful exercise conducted by the Tribunal Member fell well within the extreme care requirement a papers only appeal necessitates. It is submitted that the exercise conducted by the Tribunal Member mirrored the exercise conducted by Russell J. of the Federal Court of Canada in the case of The Minister of Citizenship and Immigration v. Huntley [2012] 3 FCR 3.
Considerations
20. The court is conscious that the applicant’s appeal fell to be considered on a papers- only basis by the Tribunal. This came about because the Commissioner, having found against the applicant, applied the provisions of s.13(6) (e) of the Refugee Act, 1996, as amended, namely that “the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so designated by order under Section 12(4).”
21. It is well established jurisprudence that a papers-only appeal requires careful scrutiny. I have said as much in SK & Anor v. RAT.
Furthermore, an applicant who appeals a Commissioner’s recommendation is entitled, in the words of Charlton J. in M.A.R.A. v. Minister for Justice, to an examination of “such aspects of the decision of the refugee applications Commissioner as are appealed.” He goes on to state:
“For the purposes of the appeal, whatever information has been brought to the attention of the Refugee Applications Commissioner, or that has come to his or her notice during the investigation of the application for refugee status, should be furnished on the appeal. Subsection 16 makes it clear that, in deciding an appeal, regard is to be had to evidence, to representations, to documents, and to argument. Full disclosure of any reports, observations, or representations is required to be made to the appellant under subsection 8. …..
Such powers, which are as ample, or close to as ample, as those of a court demonstrate unequivocally the duty of the Refugee Appeals Tribunal to fully scrutinise an appeal. On appeal, therefore, the issue is not simply whether any error was made at first instance.
……
13. The duty of the tribunal on appeal, under subsection 16A, is either to affirm the recommendation that refugee status should be refused or the tribunal may make a positive recommendation where it is “satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.” Hence, on appeal, there is a complete opportunity to present on behalf of the applicant in aid of this enquiry as to refugee status any new facts or arguments; to reargue the points appealed; to call new evidence for or against the status of the applicant; and to plead the case afresh and in full.
……
14. It is clear from all of this that the form of appeal explicitly set out in the Act of 1996 is not merely a review as to whether any error had been previously made: rather, it is a full and thorough enquiry into the relevant documents and observations as previously furnished to the Refugee Applications Commissioner and the hearing of oral evidence and the reception of documentary evidence and submissions in respect of every point on which an appeal has been lodged. It is also apparent that the duty of the Refugee Appeals Tribunal is to make such rulings or finding of fact as are appropriate.”
22. In light of the challenges which are made to the decision, the issue for determination is whether the findings made by the Tribunal Member were made with regard to her statutory obligations, as articulated in M.A.R.A. and whether they accord with the principles of fairness, particularly in the context of a papers-only appeal.
23. Principally, counsel for the applicant submits that the determination that the applicant was an economic migrant was a “summary rejection” of the submissions made by the applicant in his Notice of Appeal and the country of origin information submitted by him which, it is argued, supported the applicant’s claim of persecution on grounds of race and political opinion.
24. Before considering the applicant’s arguments, it is of benefit to set out the approach advocated by the UNHCR when a decision-maker is confronted with a question as to whether a protection applicant is truly a refugee or an economic migrant.
25. The UNHCR Handbook distinguishes economic migrants from refugees in the following terms:
“62. A migrant is a person who, for reasons other than those contained in the definition, voluntarily leaves his country in order to take up residence elsewhere. He may be moved by the desire for change or adventure, or by family or other reasons of a personal nature. If he is moved exclusively by economic considerations, he is an economic migrant and not a refugee.
63. The distinction between an economic migrant and a refugee is, however, sometimes blurred in the same way as the distinction between economic and political measures in an applicant’s country of origin is not always clear. Behind economic measures affecting a person’s livelihood there may be racial, religious or political aims or intentions directed against a particular group. Where economic measures destroy the economic existence of a particular section of the population (e.g. withdrawal of trading rights from, or discriminatory or excessive taxation of, a specific ethnic or religious group), the victims may according to the circumstances become refugees on leaving the country.
64. Whether the same would apply to victims of general economic measures (i.e. those that are applied to the whole population without discrimination) would depend on the circumstances of the case. Objections to general economic measures are not by themselves good reasons for claiming refugee status. On the other hand, what appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves.”
26. It is useful also to set out how the Handbook addresses “discrimination”:
“54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.
55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.”
27. Counsel for the applicant submits that in the Notice of Appeal issue was taken with the Commissioner’s finding in rejecting the claim that the applicant had in fact procured employment for many years before leaving South Africa and that the robberies perpetrated on the applicant were motivated by financial gain. With respect to the employment aspect, the applicant put forward on appeal that the discrimination he suffered was the denial of employment opportunities commensurate with his qualifications and expertise and that this resulted from “affirmative action and discrimination based on race”. Counsel also makes the point that while he rejected the applicant’s claim, the Commissioner did not make a finding that the applicant was an economic migrant, unlike the Tribunal. With regard to the latter point, I do not believe that the case turns on the fact that the Tribunal Member made a finding that was not specifically made by the Commissioner; the question is whether the particular finding of fact was properly arrived at on the evidence before her. Counsel submits that with respect to the robberies, the case made on appeal was that the applicant’s skin colour was the stated reason for his being targeted and that “the fact that there may be a mixture of motives for the perpetrators of the persecution does not mean that a convention ground does not exist”.
28. As this was a papers-only appeal, I consider it apt to recite in some detail the findings made by the decision-maker, particularly those with which issue was taken by counsel for the applicant in the course of the within proceedings.
On the employment issue, the Tribunal Member stated, inter alia,:
“The Applicant claimed there was no prospect of him ever being able to live a reasonably comfortable and safe lifestyle whereby he would have income and employment commensurate with his education and his perceived social status within South Africa, he indicated he believed there was no part of South Africa he could move to which would satisfy this requirement……. What he perceives as persecution appears to be the fact that his living standards are not what he would wish them to be and are the opposite of what he was born into. It must be borne in mind that this Applicant would have been born into a well to do family, his father he said was a pilot and therefore in general pilots were very highly paid professionals whose families enjoyed many privileges, including travel abroad when the majority of the population could not afford plane fares, and at a time when the white population had all the power and control and wealth and all that went with that situation.”
29. It is contended on behalf of the applicant that the record does not show that this is what the applicant stated at interview. The respondent contends that there is no basis to the applicant’s complaint about the manner in which the Tribunal Member referred to his childhood and the opportunities he then had as her observations in this regard were made in light of the answers the applicant gave during his interview. In response to Question 11 of the s.11 interview the applicant stated: “When I was young I lived in Namibia in 1970, we lived in the capital, my dad was a pilot and was away a lot, I stayed with my grandmother or in [boarding] school. In 1975 we moved to South Africa and I went to school in Johannesburg”. Looking at that answer in the context of the applicant’s present claim, of inter alia, having to work seven days a week and being unable to have “a sustainable life” in South Africa, while I find that the decision-maker’s summary of the applicant’s childhood somewhat speculative it remains the case that the basis for the above-quoted observation is found in the applicant’s answer at interview and accordingly I do not accept the argument that his answers were misrepresented.
30. The Tribunal Member described the situation in South Africa in the following terms:
“Things have clearly changed in recent history in South Africa and undoubtedly the black and mixed race population in S.A. are becoming more educated and are seeking to redress many of their historic grievances by demanding good positions of employment heretofore denied to them. There is now a government drawn from the majority of the population in power in South Africa, and it is regarded by the Authorities in this country as a functioning democracy that the population at large can seek redress should their basic human rights be interfered with and that there is State protection to its citizens. However, while this applicant considers himself to be persecuted and to face persecution if he were to be sent back to South Africa, it is crystal clear that this Applicant did not suffer persecution in any sense for such as applied to the claiming of Asylum. In order for a person to claim they left their own country due to a fear of persecution in their home country, they must not only have a subjective view of that fear of persecution, but there must also be objective evidence of that persecution. That is not the case here. The Applicant’s evidence was that he came here to Ireland to visit his friend and to look for work. However, while in the process of endeavouring to do that he was declined permission to work legally in this country and he then applied for Asylum. He did not say he fled his country of origin due to a fear for his life on the grounds of persecution for any Convention Ground. His evidence of being persecuted on the grounds of race does not stand up to scrutiny. He was reasonably well educated, but not highly educated as he did not have a third level education, yet he spent most of his life employed in a variety of jobs. The fact such work was poorly paid and necessitated him working 7 days a week is no indication of persecution directed at him on any Convention ground. He claimed he suffered persecution on the grounds of Political Opinion, claiming that the Authorities would know he did not vote for the ANC and therefore he would be deprived of employment. This did not happen.”
31. While counsel for the applicant takes issue with this finding and contends that the applicant’s motives for coming to Ireland were misinterpreted by the Tribunal Member, it is the case that when asked if it was fair to say that he came to Ireland with the initial intention of gaining employment rather than seeking asylum, he answered as follows: “Yes. … I had corresponded with [his friend]Tony in January 2010, he told me not to come then as it was freezing cold and he was due to have an operation. In October or November 2010 I made final arrangements to come and visit Tony with the prospect of seeking employment relating to my qualifications and experience. I saw no future for me in South Africa. Tony talked about the recession here but I wanted to remain positive. While staying with Tony I looked for work on the internet, and wow I was getting offered jobs on that same day. I realised I could have a better life here.” In light of the applicant’s answer at interview, I am not convinced by the argument that the decision-maker misinterpreted the applicant’s motives and I find that on the evidence before her, the conclusion reached was within the range of what was rational and reasonable.
32. The Tribunal did not however simply determine the claim on the basis of that answer. Nor could she have in light of the submissions made on appeal. As required, the decision-maker assessed the claim both from the applicant’s perspective of events and available country of origin information.
33. In the context of the applicant’s claim of discriminatory practices which impeded his employment prospects the Tribunal Member stated:
“The clear Country of Origin information available is that white South Africans still hold the majority of top management and professional positions, positions which require a considerably higher level of education than this Applicant would appear to have. The Applicant is in this country and he sees a country with a considerably higher standard of living, where there is no comparison with the salary scale in South Africa and feels he would like to live here and enjoy many more years working and living a much higher standard of living than he was used to in South Africa.”
34. Counsel for the applicant contends that nowhere in his s.11 interview does the applicant express such sentiments. I am satisfied however that the decision-maker has not distorted what the applicant said at interview. His answer to Q.6 clearly conveyed the impression that the employment offers he was getting in Ireland would give him a better standard of living than he could achieve in his country of origin. Moreover, I am satisfied that a basis for the finding is also found in the applicant’s answers to Qs. 17 and 27 of the s.11 interview.
35. The Tribunal Member addressed country of origin information concerning employment in South Africa which attached to the s.13 report, stating:
The clear Country of Origin information available is that white South Africans still hold the majority of top management and professional positions, positions which require a considerably higher level of education than this Applicant would appear to have…..
Further there is COI attached to the Section 13 Report, Migration Review Tribunal Australia. MRT Research response, dated 30 September 2009, inter alia, indicates that South Africa is a country with extreme differences in income and wealth. It also states that while South Africa is one of the African continent’s biggest economies there is widespread poverty and a high crime rate associated with high unemployment. MRT research shows ‘The official unemployment rate for South African white people is in fact 4.6% compared to 27.9% for black people...’ further on in this document it states: ‘Some unemployed white South Africans blame the government for their fate because it is attempting to redress the past by doing away with preferential treatment for Afrikaners’.”
36. It is submitted on behalf of the applicant that in relying on this information, the Tribunal Member failed to engage with the substance of the applicant’s particular complaint, namely that because of his race and colour, his access to certain types of employment was denied. It is claimed that the Tribunal Member did not adhere to the principles set out in the legislation as to how an appeal is to be conducted, as recognised by the Supreme Court in M.A.R.A.
37. I find no merit in this argument. I note that in the course of the s.11 interview it was specifically put to the applicant that country of origin information showed that while unemployment was quite high in South Africa, it was significantly lower for white South Africans and that black people represented only a minority in terms of top management positions. While the applicant maintained that white people at “grassroots” were excluded from positions, his own work record belied this, as can be demonstrated by the consistency with which he was employed in South Africa. Furthermore, the applicant’s responses to Question 26 of the s.11 interview, namely that “a manager or supervisor’s position is going to go to a black person, the senior positions will be with whites, and shareholders but at grassroots I will be excluded…” was at odds with his own work record which showed that he had been engaged in supervisor and management positions. Furthermore, there was no objective evidence that the applicant had been refused employment because of his colour or race. The Tribunal Member looked at objective country of origin information on unemployment statistics in South Africa. The information which attached to the s.13 report and which contained the unemployment statistics quoted in the decision also went on to state: “Some unemployed white South Africans blame the government for their fate because it is attempting to redress the past by doing away with preferential treatment for Afrikaners”.
38. The US Department of State Country Report on Human Rights for 2008-South Africa sets out details of South Africa’s affirmative action programme and noted that it applied to employers with “‘50 or more employees’ and requires such employers to ensure that ‘blacks’, ‘coloureds’ and ‘Asians’ are ‘represented adequately at all levels of the workforce’. Despite this policy and despite such groups collectively representing more than 90 percent of the population, ‘blacks’ represent only “22.2 percent of top management positions and approximately 36.5 percent of professional positions””. That information also stated “[a]lthough white unemployment is only about 5% and not comparable with the hardship and poverty faced by the country's black population, there is a strong perception held by young Afrikaners that they're hard done by because of government's policy to redress past imbalances”. I am satisfied from the manner in which the decision is phrased that the Tribunal Member clearly had regard to this information. It weighed in favour of her conclusion that the applicant was not denied access to employment because of his colour, particularly given that his work record demonstrated as much. To my mind, the exercise the Tribunal Member carried out was in the context of addressing the claim for refugee status on the “race” ground. Therefore, I do not accept the argument that the decision-maker effectively closed her mind to this issue.
39. Complaint is also levelled against the finding which rejected the applicant’s claim that as the authorities would know, since he was not a member of the ANC, that he did not vote for the ANC “it could have an effect” on his employment prospects in the sense of adverse “social conditions” in the workplace. In the s.11 interview the applicant gave the following example: “I was born in South Africa but all the blacks ask me why I don’t return to [where] I came from.” Counsel for the applicant says that the Tribunal Member misrepresented the applicant’s contention by redefining his complaint as being that he was denied access to employment because of his not being a member of the ANC, when the applicant’s claim was something different. Whether or which the Tribunal Member did misrepresent the applicant’s actual assertion in this regard (and I am inclined to the view that it is somewhat misrepresented), I agree with the respondent’s submission that the applicant’s claim at its height cannot be regarded as cogent evidence of persecution on the political opinion ground and accordingly there is no basis to interfere with the Tribunal’s assessment on this issue.
40. In the course of his s.11 interview, the applicant had described that he had received food parcels from his workplace because he could not live otherwise. The applicant asserts that in transposing this information into the s.6 analysis, the Tribunal Member misrepresented the applicant’s statement by stating that the applicant had said that the receipt of food parcels “was an indignity he should not be subjected to”. What the applicant stated in interview was: “In South Africa I have to work 7 days a week to survive, people at my work were giving me food to take home so I could live, it is not right”. I perceive no extraordinary departure in the Tribunal Member’s summary of his answer from what the applicant sought to convey in the response he gave at interview.
41. The Tribunal Member went on to consider the applicant’s account of having been robbed and his interaction with the police in the following terms:
“The Applicant indicated that the police were not helpful to him when he was robbed and that they did not carry out an investigation and claimed the police were in fact complicit with the criminals, and yet he did not seek to raise his complaint with a higher authority at any stage. When asked by the Interviewer if he had contacted the Independent Complaints Directorate about the Police’s inaction he replied ‘never’. The Applicant persisted in claiming that it was always white people who were robbed, and that the objective of their activities was to keep white people nervous all the time. The Applicant claims he cannot relocate within South Africa because he is white. There was COI provided attached to the Grounds of Appeal (Digital Journal Whites in South Africa increasing targets of hate- crimes Posted Jan 14, 2009 by Adriane Stuijt) which this Tribunal has read with the greatest of care but does not regard as particularly referable to the situation outlined by this Applicant.”
42. The Tribunal Member also stated:
“According to the US Department of State, white farmers in South Africa have been killed by “black assailants”, however the Country Reports on Human Rights Practices for 2008 - South Africa states that “studies showed perpetrators were generally common criminals motivated by financial gain” rather than for racial or political reasons. This Tribunal has read the information documents available on South Africa and is of the view that this applicant did live and work in a part of South Africa which has one of the highest crime rates of any country. However, it appears he held many jobs as a vehicle driver and other forms of employment and there should be no reason why he could not seek a job in the area of Cape Town which has a large white population and where many businesses are owned by white people. The applicant is an economic migrant on his own admission.”
43. Counsel contends that the Tribunal Member failed to have regard to the applicant’s answer at the s.11 interview when it was put to him that the criminals who robbed him were targeting him for financial gain and not because he was white. The applicant’s response was in the following terms:
“Yes, but it is always whites they rob. Some blacks robbed a garage beside me, not only did they rob him but they ran up the street after him and shot him. I had a friend who got out of his office when he was being robbed but they chased him to the car park and shot him. They see this as easy money. They want to keep you nervous all the time. Car jackings and such things are a problem. There are 50 million blacks to 5 million whites. You might ask if I moved somewhere else but as a white I will always stand out. Here I am among people of my own colour.”
44. Thus, it is alleged that the Tribunal Member failed to address the mixed motives of those who targeted the applicant. It is also contended that country of origin information supported the applicant’s claim and this was quoted in the Notice of Appeal where, inter alia, reference was made to the Digital Journal’s reference to two political parties having expressed “deep concern over the growing hate-speech and the growing incidence of racism-related violence with which ‘whites’ - mostly Afrikaans-speakers - are attacked in violence-driven incidents”
45. It is contended that the Tribunal Member dismissed the Digital Journal information as not relevant, yet failed to state why this was so. It is submitted that if this information was to be rejected, then the reasons should have been given by the Tribunal Member for the rejection. In this regard counsel relies on the decision of Barr J. in S.J.L. (Lin) v. RAT [2014] IEHC 608. The respondents assert that the thrust of the information from the Digital Journal relied on by the applicant was that white South Africans were being attacked in violence-driven incidents by a “gang” who spoke with “foreign African accents”. The attacks to which the article referred to were believed by the police to have been carried out by the same gang. The police believed that the gang were not South African as their tribal language indicated that they came from another African region. The Digital Journal went on to state:
“The police have obtained considerable proof that there are organised farm-attack gangs which even include on-duty police officers, who are targeting only white families: last year, the entire eight-member criminals-investigations team at the Magalies police station was arrested and charged with carrying out a large number of armed attacks targeting Afrikaner farms as well as terrorising foreign African families into returning to their home countries in so-called ‘xenophobic’ attacks... police…said that… three men [arrested] ‘formed part of a national farm-attack gang which travels all over the country to attack farms’.”
46. It is submitted on behalf of the respondents that it was entirely a matter for the Tribunal Member to weigh the country of origin information and given the nature of the information, the Tribunal Member did not err in finding that it was not relevant to the applicant’s circumstances.
47. I find that the Tribunal Member could have been more discursive when she found the Digital Journal information not particularly referable to the situation outlined by the applicant. It would have been preferable if the decision-maker had been more expansive in her reasoning. However, I am not satisfied that a failure to do so vitiates the decision.
48. The substantive content of the Digital Journal largely reports on what can only be described as horrific attacks carried out by non South African gangs on Afrikaners families, often with very little of value stolen. The report documents that “some black policemen” had been reported for failing to respond to emergency calls. It also reports on what are described as “organised farm attacks which even include on-duty police officers” “targeting only white families.” In the context of these attacks the report documented that the police had taken action by arresting three men who “formed part of a national farm-attack gang which travels all over the country to attack farms”. On behalf of the applicant, it is submitted that the Tribunal Member erred not only procedurally but also substantively in not accepting that the Digital Journal’ reference to the gangs getting “very little financial reward” from the attacks on Afrikaners as an indicator that the attacks were persecutory in nature. It is thus submitted that this was corroborative of the applicant’s contention that the numerous robberies perpetrated against him since 1984 were racially motivated and that it was “all the white and light skinned people [who] were robbed on [his] street.”
49. Having regard to the information which was before her, I find that it was neither irrational nor unreasonable for the Tribunal Member to conclude that “‘studies showed perpetrators were generally common criminals motivated by financial gain’ rather than for racial or political reasons”.
50. With regard to the applicant’s account of having been the target of crime on account of his colour, the Tribunal Member noted that while the applicant complained that he and others had previously been robbed and that the police did not investigate the matter, he had not complained in this regard to the Independent Complaints Directorate. She also noted that in South Africa there was “now a Government drawn from the majority of the population in power” and that it was regarded by the Irish State as a “functioning democracy where the population at large can seek redress should their basic human rights be interfered with and that there is State protection available to its citizens”. I am satisfied that this constitutes a finding on the issue of State protection in the context of the decision-maker’s assessment of the claim for international protection. Counsel for the applicant makes the point that the applicant had clearly set out in his appeal submissions that he “had no confidence in the South African authorities as the South African police are unable to offer any or any effective protection to its citizens as the police force are corrupt” and are in league with “local criminals and will not properly investigate crimes committed by blacks on whites..”
51. Counsel points to an extract from a 2010 Freedom House report (referred to in the appeal submissions) which states:
“The South Africa Police Service (SAPS) is under the civilian control of the Department of Safety and Security. Despite constitutional prohibitions, there have been reports of torture and the use of excessive force by SAPS members during arrest, interrogation and detention... While the ICD [Independent Complaints Directorate] maintains that an increase in reported violations indicates public trust in the institution, researchers claim that many case files are incomplete or closed without clear outcomes. Police remain badly underpaid, and although SAPS corruption is a significant problem, it is rarely reported. Following the closure of the ICD's Anti-Corruption Unit in 2002, formal complaints of police corruption averaged just 125 per year through 2006.”
52. However, it remains the case that while the applicant had grievances about the inaction of the police, he did not access the structures within South Africa set up to address complaints against police inaction or corruption, a factor noted by the Tribunal Member. I am satisfied that the decision-maker was entitled to take account of this in assessing the applicant’s claim and that she properly had regard to the fact that South Africa was a functioning democracy under which the applicant could have made complaint to the Independent Complaints Directorate.
In making the finding that the applicant was an economic migrant and not a refugee, the Tribunal Member, inter alia, quoted what the applicant had stated in the s.11 interview “..I have broadened my mind now, I want peace and quiet. I have another 20 years of work in me, I want to build something for myself.”
She then stated:
“This aspiration of the Applicant’s is, of course, admirable, understandable and laudable, but it does not confer on a person the entitlement to enter a country and remain and work there because they had become completely disenchanted with their country of birth, and because there were now major disadvantages to being part of a minority group who once held total power. However, while it is appreciated that life for white South Africans bears no resemblance to the privileged lives they once enjoyed, this Tribunal is satisfied the applicant was not targeted for persecution by the black population on either the Convention Grounds of Race or Political Opinion.”
Ultimately, the question is whether in finding that the applicant was an economic migrant and not a refugee, the Tribunal Member fell into error in the manner outlined in Gjyrevci v. Minister for Justice [2004] IEHC 343.
53. In Gjyrevci, Finlay Geoghegan J. stated:
“In relation to the third ground it was submitted that the conclusion reached of the applicant that “he is more of an economic migrant than a refugee” indicates that the second named respondent engaged in a consideration of the relative balance between economic motives of the applicant and his alleged fear of persecution in seeking to come to this Country. Further that such a consideration is an error of law in considering whether a person is entitled to a declaration of refugee status.
Reliance was placed on Hathaway: “The Law of Refugee Status” which at p.118 identifies a potential class of persons “who have a genuine fear of persecution, but who may also wish to improve their economic position…”. Hathaway states of such persons
“They need to leave their own country because their basic human rights are genuinely at risk, but they choose to seek protection in a country of economic opportunity.. . . the fact of this auxiliary motivation is quite irrelevant to the issue of refugee status.”
He cites as authority for this approach the decision of the Canadian Immigration Appeal Board in Guillermo Lautaro Diaz Fuentes [1974] 9 IAC 323 in which it is stated:
“A superficial examination of the appellant’s testimony both at the special inquiry and at the appeal hearing might suggest that the appellant is seeking material security above all, and that he might be what is called.., an “economic migrant”…. But we must not consider this testimony out of context; on the contrary, what we must find out is whether behind apparent personal and economic motives there exists a fear of persecution…. The distinctions between an economic migrant and a refugee is not always easy to establish, but what is important to keep in mind is that if a person is a refugee, the fact that he also is or may be an economic migrant does not deprive him of his status as a refugee.”
I accept that there are substantial grounds for asserting that the above is the correct legal approach in this jurisdiction. Further that it may preclude a person who is considered to have a well founded fear of persecution for a Convention reason from being refused refugee status by reason of also having economic motives in coming to this Country and in that sense any consideration of the relative balance of economic motives and fear of persecution of the person claiming refugee status is precluded and constitutes an error of law.”
54. I accept that the approach set out in Gjyrevci is the yardstick upon which the court must review the Tribunal decision in the present case. Thus, even if it is the case that the applicant had economic motives for coming to the State, that motivation falls away if he meets the criteria set out in the Convention. However, having reviewed the decision in the present case, I am satisfied that the Tribunal Member properly applied her mind to the question of whether the applicant should be declared a refugee. She concluded from the record of the applicant’s own viva voce evidence to the s.11 interviewer and from the objective country of origin information before her that the applicant was not being targeted on grounds of race or political opinion. For the reasons I have set out earlier, I am satisfied that the decision-maker’s conclusion on the race ground, which was, effectively, that the applicant’s claim of persecution either from the perspective of discrimination in employment or having been robbed, was not objectively well-founded, cannot be impugned. Furthermore, for the reason previously set out I find no basis to impugn the Tribunal’s finding that the applicant’s claim to fear persecution on the political opinion ground had no basis.
55. In the course of the hearing the court was referred by counsel for the respondents to the decision of the Canadian Federal Court in The Minister of Citizenship and Immigration v. Huntley [2012] 3 FCR 3. This was a decision given on foot of an application by judicial review by the Canadian Minister of Citizenship and Immigration of the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada. In Huntley, Russell J. analysed the evidence of a South African protection applicant and he ultimately concluded that the attacks complained of in that case by the protection applicant “were meant to rob him of his property and money” and that the protection applicant’s race “was simply an indicum of relative wealth, and this did not render the attacks racist”. Furthermore, it was found that the evidence in that case “pointed to a lack of subjective fear” by the protection applicant as the protection applicant “was unequivocal in stating that his reasons for coming to Canada were economic and had nothing to do with a fear of race-based violence”. It was furthermore found that the “failure to report the attacks to the police confirmed [the protection applicant’s] lack of subjective fear.”
56. Following the remittal by Russell J. of the matter back to the Board, the Board ultimately refused Mr. Huntley’s application for asylum. In a subsequent judicial review taken by Mr. Huntley of that decision, the said application was refused by the Canadian Federal Court. In that case, Huntley v. Canada (Citizenship & Immigration) [2014] FC 573, Kane J. was satisfied that the
“Board addressed the key question: whether the applicant through his testimony and considering all the documentary evidence established that he has a prospective well-founded fear of persecution by reason of his race, nationality or political opinion if he were to return to South Africa and reasonably concluded that he did not.”
She was also satisfied that the issue of state protection (as similarly raised by the applicant here at para. 19 of the amended Statement of Grounds) was reasonably dealt with by the Board. Kane J. found that Mr. Huntley did not provide sufficient evidence that state protection was inadequate. Furthermore, she found that the applicant expressed only his subjective belief that state protection would not be provided to him and his subjective reluctance to avail himself of such protection.
As regards the present case, the applicant in his questionnaire (Question 25 a) stated that he did not report his fears to the authorities and he cited the reason as “racial antagonism by ruling government”. However, in his s.11 interview he stated that he had gone to the police but that “nothing happened”. He went on to state simply that “the police work with the criminals”. As I have already said, he confirmed that he never went to a higher authority in respect of his complaints. In those circumstances, it cannot be said that there is a “complete breakdown of the state apparatus” or “clear and convincing evidence of the state’s inability to provide protection” for the applicant. Furthermore, the country of origin information before the Tribunal Member clearly indicated police action in relation to violent attacks and confirmed the existence of a police complaints avenue in South Africa.
While I am inclined to agree with counsel for the applicant that the Canadian decisions cited by the respondents were largely factual and thus of little assistance to this court in the context of the applicable legal principles to be applied, I nevertheless find that the test set out by Kane J. above was adhered to by the Tribunal Member in the present case and I find that her conclusions were reasonable.
57. In all the circumstances of the present case, I am satisfied that the Tribunal Member’s decision has not been vitiated by any error of law or breach of fair procedures as to require the intervention of this Court.
58. Accordingly, the relief sought in the Notice of Motion is denied.
