SZAFS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 112 (20 February 2004)

Last Updated: 20 February 2004

FEDERAL COURT OF AUSTRALIA

SZAFS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 112

SZAFS v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

N 1478 of 2003

LINDGREN J
20 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1478 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAFS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	20 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:


1. The appeal be dismissed.

2. The appellant pay the 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	N 1478 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	LINDGREN J
DATE:	20 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant appeals from an order of the Federal Magistrates Court of Australia (‘FMCA’) made on 11 September 2003 dismissing her application to that Court and ordering her to pay the costs of the respondent (‘the Minister’) assessed in a sum of $4,250.

2 The appellant’s application to the FMCA was made under s 39B of the Judiciary Act 1903 (Cth) and was for orders in the nature of certiorari, mandamus and prohibition in respect of a decision of the Refugee Review Tribunal (‘RRT’). The decision of the RRT was one affirming a decision of a delegate (‘the Delegate’) of the Minister refusing to grant the appellant a protection visa under the Migration Act 1958 (Cth) (‘the Act’).

BACKGROUND FACTS

3 The appellant is a Thai citizen who arrived in Australia on 29 January 2002. On 28 February 2002 she lodged with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) an application for a protection (Class XA) visa.

4 On 9 July 2002 the Delegate refused to grant a protection visa and on 9 August 2002 the appellant applied to the RRT for review of the Delegate’s decision.

5 On 2 December 2002 the RRT wrote to the appellant informing her that it had considered the material before it but was not able to make a decision in her favour on that information alone. The RRT invited the appellant to attend a hearing on Friday 17 January 2003. She did not appear and the RRT considered her application on the basis of the papers before it. These consisted of her application for the visa, a typewritten statement dated 28 February 2002 which had accompanied that application, the record of decision of the Delegate, and certain country information relevant to Thailand.

6 The appellant claimed in her application for the visa, to have been born on 12 February 1973 of Thai parents who were still living in Thailand. She claimed to have left Bangkok by air, on a Thai passport, on 28 January 2002, arriving in Australia, as noted earlier, on 29 January 2002. She entered Australia on a visitor’s visa.

7 The appellant’s reasons for claiming to be a refugee were stated in the five paragraphs of a typewritten statement dated 28 February 2002 which accompanied her application, and which were as follows:

‘In Thailand, to be a female means being looked down upon, inferior, and uneducated. Men can easily beat and ravage women. They can have more than one wife. No loyalty can be counted on in marriage. Under this kind of social perception, parents extremely expect to have as many as sons. In a family, daughters are always sent to work early but sons are to school. If a family don’t have any son, it will be derided and depreciated by society. I was born in a poor family. My parents want a son heart and soul. So they don’t like me from the day when I was born. In my memory, my parents always cursed me that I was useless and stupid. They even hated me more after they knew they could not have another baby. I was accused of bring disaster to the family. When I went to primary school, I had thought I could get away from the cold family. But in school, I was bullied by the boys and treated unfairly by teachers. Living in curse and insult, I had come to get the maturity beyond my age. I became silent and eccentric. Shutting myself from the society, I continuously drove my mind to figure out why I live in this world. It seems there is no place where I can get respect and justice.

However, in my young heart I had a hope that I can support myself when I grow up. Since my parents stopped affording my tuition fee. I left school after primary school. Although felt regretted about not going to school, I was excited at the thought of earning my own money. But the reality is much cruel than I expected. I tried all kinds of companies and factories. All of them refused me. Gradually I was getting more disappointed and hopeless. Especially my parents became angry with me because I couldn’t make money for them. In 1993, they found a job for me, a beautician in Nor Beauty Salon. When I heard of it from my parents, I felt like a bolt from the blue. The synonym for a beautician is a prostitute. I was only 20 years old.

How can they destroy my future like that? I would rather become a beggar than a prostitute. Of course, my refusal stirred my parent’s wrath. They stopped giving me food, tortured and imprisoned me. They even threatened me that they would kick me off. Without any choice I was forced to accept that job. Accordingly I met with the darkest period in my life.

The salon does beauty business, at the same time has an underground service. The girls working there usually provided sex service to the customers. As a new hand, I, firstly, had to do all the odd jobs like cleaning, washing, etc. Every day I was pushed by large volume of these kinds of jobs. Although exhausted, I still had to sell my body, which even tortured me greatly. Once I stepped into this job, I realized I lost my right of being a human being. The customers looked me as a tool. Other girls thought me as their enemy. And my boss used me as an animal. Living in nine year of double torture, I became numb to everything. I don’t care about my future and myself. I laughed but cried in the heart. For my pain, there is nobody that I could speak to and no place which I could hide in. At this time, accidentally I heard of that Australia accepts refugee and it is a beautiful and free country. The hope of living returned to me again. Through spending money and friends’ help, I finally successfully fled from the hell and came to the heaven.

Now I live in peace and freshness. I feel like being a human being again. Having the confidence with my future in Australia, I request Australian government give me a chance to survive.’

THE PROCEEDING BEFORE THE RRT

8 In her form of application to the RRT, the appellant stated, ‘I cannot go back to Thailand. Because my job cannot be kept ...’.

9 The RRT described the appellant’s claim as one of ‘persecution for reason of membership of a particular social group, females in Thailand’. It noted that on 22 March 2002, the Delegate had written to the appellant referring to country information suggesting that she was free to relocate in Thailand, that there were shelters across Thailand for women fearing violence, and that assistance was provided to such women by the Thai Department of Public Welfare. In the letter, the Delegate informed the appellant that this information was adverse to her claims and might result in her application being refused. He invited the appellant to comment in writing on that information but she did not do so.

10 The RRT also referred to US State Department Reports in relation to the position of the women in Thailand.

11 Under the heading ‘Findings and Reasons’, the RRT recounted the appellant’s claims. The Member referred to her complaint that ‘[her] job cannot be kept’ and said he thought this meant that she could not get her old job back. He said:

‘If my interpretation is correct, this contradicts her earlier claim that her job was "torture" for her.’

12 Importantly, the Member stated:

‘In sum, her claims are vague, internally inconsistent in the above instance and in several cases inconsistent with the independent country information.’

13 The Member then went on to say that, even if he accepted the appellant’s claims, he did not accept that she was a member of a particular social group for the purposes of the Convention, namely, ‘women in Thailand’. He stated:

‘A particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. The group must be identifiable as a social unit. Moreover, the characteristic or element which unites the group cannot be a common fear of persecution. In other words, the group must not be defined by the persecution: Applicant A & Anor v MIEA & Anor [1997] HCA 4; (1997) 142 ALR 331 per Dawson J at 341, McHugh J at 358-9, Gummow J at 376. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of the particular social group: Applicant A per Dawson J at 340.’

14 The RRT concluded that ‘women in Thailand’ did not constitute a cognisable group within Thai society in the sense described in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225. Accordingly, the harm the appellant claimed to have suffered at her parents’ hands was not for a Convention reason.

THE PROCEEDING BEFORE THE FMCA

15 Before the FMCA the appellant was represented by Mr C Jayawardena, solicitor.

16 Mr Jayawardena had apparently received instructions rather late. He provided written submissions to the learned Federal Magistrate. One submission which Mr Jayawardena made was that the RRT had ‘wrongfully limited the social group to which the [appellant] belonged to women in Thailand, when he believed it could be construed as poor women in Thailand or possibly prostitutes in Thailand.

17 In this respect, the learned Federal Magistrate stated (at [12]) as follows:

‘I have little doubt that a case could be made that prostitutes in Thailand are a particular social group but in order to do that evidence will be required. The applicant will have to show that prostitutes in Thailand either suffered persecution within the definition found in s 91R [of the Act] or did not receive effective state protection so that if the persecution which they suffered was not otherwise Convention related it became Convention related by virtue of that state failure.’

18 The learned Federal Magistrate recorded that Mr Jayawardena had attempted to persuade him that, on the papers, ‘prostitutes in Thailand’ were shown to constitute a particular social group, but the Federal Magistrate responded to Mr Jayawardena’s submission as follows (at [13]–[16]):

‘Mr Jayawardena sought to persuade me that this was [the] case but as I explained to him, his advocacy on this matter was better suited to the Tribunal than to this court. It is only at the Tribunal that the evidence which is required can be produced. There is little point in producing it to a court whose only power is to review errors of the Tribunal where the Tribunal has moved beyond its jurisdiction. Mr Jayawardena sought to show me phrases within the country information contained in the court book from which I could deduce this evidence and argued that the Tribunal had completely ignored it.

... I am not satisfied that the Tribunal went so far as to ignore relevant material. The Tribunal has indicated that it read and considered the country information ... and having assessed all that information came to the view that the applicant was not the subject of persecution because of the availability of NGO and government agencies which continued to provide shelter, rehabilitation and re-integration programs for children and women involved in the sex industry.

Having heard Mr Jayawardena, the Tribunal may have come to a different conclusion but the Tribunal didn’t have that advantage. There was available evidence from which it could reach the decision that it did and, therefore, it did not fall into jurisdictional error by making the finding that the applicant did not have a well-founded fear of persecution by reason of her membership of the particular social group, women in Thailand, or any other Convention ground now or in the reasonably foreseeable future in Thailand.’

19 In relation to the expression ‘my job cannot be kept’, the learned Federal Magistrate observed that the construction suggested by Mr Jayawardena may reflect what the appellant intended, but if the RRT’s construction was wrong, its error was one of fact and one which was within jurisdiction.

THE PRESENT APPEAL

20 On the appeal, the appellant was represented by Mr R Nair of counsel.

21 With leave, the appellant filed an amended notice of appeal on the hearing. The amended notice of appeal purported to state one ground of which particulars were given in six sub-paragraphs, as follows:

‘The respondent cannot be said to have considered the appellant’s application for a protection visa and/or to be not satisfied that the appellant did not satisfy the prescribed criteria for grant of the visa, pursuant to section 65 of the Migration Act 1958.

Particulars

(i) The appellant claimed that she feared persecution because of her membership of a particular social group being women in Thailand sold, without their consent, into prostitution by their parents.

(ii) The Tribunal was and/or should have been aware that such a particular social group existed.

(iii) The Tribunal failed to consider the appellant’s claim of fear of persecution by reason of membership of the particular group claimed. The Tribunal considered instead the particular social group as comprising women in Thailand.

(iv) The Tribunal’s other findings, such as they were, were infected by the Tribunal’s error with regard to the particular social group claimed.

(v) His Honour in the Court below ... erred in not finding that the Tribunal fell into jurisdictional error in not considering the particular social group claimed.

(vi) His Honour in the Court below erred in not finding that the Tribunal’s other findings, such as they were, were infected by the Tribunal’s error with regard to the particular social group claimed.’

22 The learned Federal Magistrate correctly dealt with the submission in relation to the expression ‘my job cannot be kept’. Mr Jayawardena offered an alternative construction of that expression. Like the learned Federal Magistrate, I would have looked for a meaning different from that suggested by the RRT, but the RRT’s decision did not turn on its construction of the expression. Indeed, the Member stated of his construction of it, ‘If my interpretation is correct ...’ (see [11] above). If the RRT erred in the present respect, its error was one within jurisdiction, not a jurisdictional error.

23 Before me, Mr Nair relied on the decision of the High Court in Applicant S395/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 71; (2003) 203 ALR 112. In my opinion, that case is distinguishable because it was clear, in that case, that two homosexual asylum seekers claimed to fear persecution as members of a particular social group of which homosexuality was the central unifying feature, and the debate was one as to the more precise definition of the group. The present appellant’s claims were, by contrast, vague. Observing that the appellant made some complaints about the position of women in Thailand, the Member tested her claims against that ‘particular social group’. It is understandable that he did so: the claim was not one of fear of persecution for any of the other reasons identified in the Convention "definition" of "refugee", namely, race, nationality, religion or political opinion. No doubt, it would have been possible for the RRT here to have formulated numerous alternative hypothetical social groups of which the appellant might, arguably, by reference to her vague claims, be said to be a member. Examples are:

‘young women in Thailand’,
‘female prostitutes in Thailand’,
‘young female prostitutes in Thailand’,
‘females who have been sold by their parents into prostitution in Thailand’,
‘female prostitutes in Thailand who have no practicable way of extracting themselves from the life of a prostitute’, and
‘female prostitutes in Thailand who have no practicable way of extracting themselves from the life of a prostitute and who have attempted to do so’.

No doubt, this list could be extended. The RRT does not commit a jurisdictional error just because it does not test vague claims made by an asylum seeker against the criterion of every definable social group which may be suggested to have some relevance to the claims made.

24 I accept the submissions of counsel for the Minister that, whatever formulation of particular social group might be considered, the present appeal fails for the following reasons:

1. The RRT described the appellant’s claims as ‘vague, ... and in several cases inconsistent with the individual country information’ (the ellipsis refers to my omission of the words ‘internally inconsistent in the above instance’ – a reference to the ‘my job cannot be kept’ statement). This statement followed an observation by the RRT that the appellant’s claim was that she had worked in the beauty salon as a prostitute for nine years, and its noting that according to country information, ‘there are government crisis centres to care for abused women and ... NGOs provide a range of shelters and other services for them’. The RRT’s meaning is plain: it simply did not believe the appellant when she said she had suffered ‘torture’ for nine years by reason of being forced to work as a prostitute, without any means of escape. The making of such an assessment was a function assigned to the RRT, and it is not shown to have committed any jurisdictional error in the process of making it.
2. The appellant did not claim to be a member of any particular social group suggested by her. It was at least open to the RRT to conclude that the only particular social group claim being made, if any was being made, was that of women in Thailand, rather than the different particular social groups suggested before the FMCA and on the present appeal. The RRT is not required to address a claim not made: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. The appellant did not claim to fear persecution because of her membership of the particular social group ‘women in Thailand sold, without their consent, into prostitution by their parents’ as suggested in the amended notice of appeal and in Mr Nair’s submissions.

CONCLUSION

25 For the above reasons the appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 20 February 2004

Counsel for the Appellant:	Mr Radha Nair
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 February 2004
Date of Judgment:	20 February 2004