NAFF v Minister for Immigration and Multicultural &

[2003] FCA 301

FEDERAL COURT OF AUSTRALIA

NAFF v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCA 301

NAFF v MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

N 1300            of 2002

LINDGREN J
28 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1300 OF 2002

BETWEEN:	NAFF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	28 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the respondent’s costs.

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 1300 OF 2002

BETWEEN:	NAFF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	28 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a citizen of the Republic of Korea, last arrived in Australia on 1 January 1999.  (Previously she had arrived in Australia on 29 September 1998 and departed on 18 November 1998.)  On 30 August 2002 the applicant lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”). On 10 September 2002 a delegate of the respondent (respectively, “the Delegate” and “the Minister”) refused to grant the visa and on 12 September 2002 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision. The Tribunal affirmed the Delegate’s decision on 25 November 2002. On 6 December 2002 the applicant filed an application in this Court seeking review of the Tribunal’s decision.

2. The applicant complained of physical violence by her stepbrother and other forms of oppressive conduct by him and her stepmother.  The applicant claimed that she had been repeatedly threatened by her stepbrother, particularly when he was drunk; that she had been hit in the face by him, that he had threatened to burn down their home; that he had regularly withdrawn money from her bank account to pay her stepmother for having reared her; and that he had cast her out of the family home.  The Tribunal appears to have accepted these claims.  The Tribunal also accepted that her stepbrother had arranged a large loan in the applicant’s name without her consent, causing the money to be paid to her stepmother.  Because the applicant stopped the repayments, she fears what her stepbrother will do to her if she returns to Korea (she said she feared he would go so far as to kill her but the Tribunal thought this was an “exaggeration”).

3. The Tribunal noted that:

   “... the harm feared by the applicant in the future would arise because of a personal and private situation, the acts of her stepmother and stepbrother appear to be fraudulent or criminal, or perhaps both.  However there is no evidence before me, and the applicant did not claim, that the harm she might face in the future would arise directly because of a Convention reason.”

   Thus, the Tribunal appears to have accepted that the applicant would face mistreatment by her stepbrother of the kinds described if she were to return to Korea, but concluded that this would not constitute persecution on any of the Convention grounds.

4. The applicant told the Tribunal that she had not discussed the violence she had experienced with anyone, nor reported it to the police in Korea, because she found this prospect “shameful”.  She indicated that while she understood that women’s services and other agencies were available in Korea to assist women subjected to domestic violence, she was concerned that if she were to access such assistance, her situation would be made public.  In particular, the applicant said she feared that her stepbrother would be able to locate her if she returned to Korea.  The applicant told the Tribunal she believed no-one would be able to guarantee her safety there.  Apparently the Tribunal also accepted this evidence insofar as it was evidence of the applicant’s beliefs and fears.

5. The Tribunal characterised the applicant’s claims as claims of “domestic violence”, and correctly proceeded to consider them in the light of the High Court decision in Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574. While the Tribunal found the applicant to be “truthful and convincing in her evidence to the Tribunal”, and accepted “that the physical and mental mistreatment of the applicant by her stepbrother was of a serious nature”, the Tribunal concluded that there was no singling out of any particular social group, of which the applicant was a member, by the authorities in the Republic of Korea. In addition, upon consideration of independent country information, the Tribunal concluded that protection was not withheld from the applicant in a selective and discriminatory manner.

6. In my opinion, the Tribunal reached these conclusions after a proper consideration, in accordance with law, of the factual material before it, and applied the correct test in deciding that the applicant did not fall within the Convention definition of a “refugee”. 

7. For the above reasons the application should be dismissed with costs.

8. It is rare that I have suggested the Minister may wish to consider exercising his discretion under s 417 of the Act in favour of an applicant, and it is with some hesitation that I do so here, but the Minister may wish to have the facts of the present case drawn to his attention. A material factor, in addition to the Tribunal’s substantial acceptance of the applicant’s claims but conclusion against her on the basis of the Convent ion definition, is that the Villawood Immigration Detention Centre records (contained in the Court Book of “Relevant Documents”) refer to self-harming acts and apparent attempted suicide by the applicant. I do no more, of course, than suggest that the circumstances be referred to the Minister for his consideration.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 April 2003

The Applicant appeared in person.
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 March 2003
Date of Judgment:	28 March 2003