NARO v Minister for Immigration - [2005] FMCA 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARO v MINISTER FOR IMMIGRATION

[2005] FMCA 55

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to refer to or make findings on relevant considerations – whether Tribunal failed to raise with applicant critical issues and/or relevant material.

Migration Act 1958
Migration Legislation Amendment (Procedural Fairness) Act 2002

Craig v State of South Australia (1995) 184 CLR 163 at 179
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Osman v United Kingdom (1998) 29 EHRR 245
SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545
Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773
VRAW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1133
Applicants A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 727
SBFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 822
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Kioa v West (1985) 159 CLR 550
Naidu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 184
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Kanda v Government of Malaya (1962) AC 332
Bridge v Baldwin (1964) AC 40
De Verteuil v Knaggs [1918] AC 557
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 CLR 502
S558 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VHAP of 2002 v MIMIA [2004] FCAFC 82

Applicant:

NARO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SY G1730 of 2003

Delivered on:

1 February 2005

Delivered at:

Sydney

Hearing date:

22 July 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr C. Colborne

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1730 of 2003

NARO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 July 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, who is a citizen of Peru, arrived in Australia on

25 September 1999. On 27 September 2000 she lodged an application for a protection visa which was refused. On 6 November 2000 she sought review by the Tribunal. The Tribunal affirmed the decision not to grant her a protection visa. The applicant asked the then Minister to exercise his discretion under s.417 of the Migration Act 1958. On

29 April 2003 she was notified of the Minister’s decision not to consider exercising his discretion. She then filed an application in the Federal Court on 11 June 2003 which was transferred to this Court. An amended application was filed on 15 September 2003 and a further amended application was filed in Court.
The background to these proceedings is that the applicant claimed that she feared domestic violence at the hands of her husband and that the Peruvian authorities were either powerless or unwilling to protect her against that harm. The Tribunal accepted that the applicant had been the victim of domestic violence but found that it was not for a Convention reason.
The Tribunal went on to deal with the adequacy of protection in Peru as follows:
“The Tribunal notes the country information cited above on domestic violence in Peru. The Tribunal notes in particular that not infreq uently women in Peru fail to report domestic violence as they are not confident of an outcome and that domestic violence cases in the courts take considerable time to be resolved. However, the Tribunal also notes that Peru does have in place legislation to deal with domestic violence and that while this legislation has been subject to criticism by groups such as Human Rights Watch it has also been amended in response to these criticisms. The Tribunal further notes that the Ministry of Women’s Advancement and Human Development (PROMUDEH) has established centers for women who are victims of domestic violence and also runs education programs for the police. The Tribunal also notes that police stations have specialized domestic violence divisions.
The Tribunal considers that on balance the country information indicates that there does exist on the part of the authorities of Peru both a willingness and an ability to provide adequate protection for women who are subjected to domestic violence.
The Tribunal then had regard to the applicant’s situation and her evidence in the Tribunal hearing that when she had reported her husband’s attacks on her to the police the police did take action. They would come to the home and the husband, realising this, would leave. On one occasion the husband was arrested in response to the applicant’s complaints. On another occasion the police went to his parents’ home to detain him. When the applicant’s husband was harassing her at her workplace the police also took her complaint seriously and ordered that the husband was to be arrested if he attempted to enter her workplace. On the basis of this material the Tribunal found that the applicant was provided with adequate protection. The Tribunal also had regard to the applicant’s complaint that the police were at times slow to arrive at her house and that on the occasion her husband was arrested he was released shortly thereafter. However it noted that adequate protection does not require a guarantee of protection and found in light of the overall performance of the police in response to the applicant’s requests for help, that the slowness of the police to arrive at the scene and the release of her husband shortly after arrest did not amount to inadequate state protection. Accordingly the Tribunal found, both on the basis of the country information in relation to domestic violence in Peru and the applicant’s own evidence before the Tribunal, that effective state protection was available to the applicant. Hence the applicant did not have a well-founded fear of persecution for a Convention reason on her return to Peru.
In the further amended application the applicant contended that the Tribunal erred in failing to refer to or make findings on relevant considerations and failing to raise with the applicant the critical issue on which her application depended and to disclose the material on which it based its decision.

Ground 1 – relevant considerations

The first ground was expressed as follows:
The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by failing to refer to or make any findings on the following relevant considerations –
(1)    The international standards of protection Peru was required to provide for women against domestic violence;
(2)    Whether the standard of protection provided by Peru met those international standards;
(3)    Whether the level of protection the applicant received in Peru met those international standards; and
(4)    Whether the applicant reported her husband’s harassment on many occasions and the police said they were going to investigate and never did and whether she was told to come back immediately after a bashing when there was proof.
The essence of the first part of the applicant’s argument in relation to this ground is that the Tribunal erred in finding that there was effective state protection in Peru without first making findings as to the standard of protection required by international standards and as to whether the standard of protection provided by Peru and received by the applicant in Peru met those international standards. It was contended that whether the past level of protection from domestic violence received by the applicant in Peru was adequate could only be assessed by the Tribunal after it had determined what level of protection was required under international standards and that the Tribunal had committed a jurisdictional error by asking itself the wrong question (see Craig v State of South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey and McHugh JJ).
In particular it was argued that the Tribunal failed to consider what constitutes adequate state protection in a manner consistent with the decision of the High Court in MIMA v Respondents S152/2003 [2004] HCA 18. In Respondents S152/2003 the High Court considered a situation where the feared conduct was that of private individuals.

A Ukrainian national claimed to fear harm from fellow citizens in the Ukraine because he was a Jehovah’s Witness. The applicant’s complaint was that the government of the Ukraine actively encouraged persecution of Jehovah’s Witnesses. He had not asserted that the authorities were unable or merely unwilling to provide protection but rather that they were unwilling in the sense that they positively encouraged certain forms of unlawful violence (at [14]). The Tribunal had found that there was no evidence that the Ukrainian authorities encouraged persecution of Jehovah’s Witnesses. The Full Court of the Federal Court found however that the Tribunal had erred in failing to address the question of whether the Ukrainian government was able, in a practical sense, to provide protection particularly in light of the past pervasive pattern of harm. This issue was said to be relevant in determining whether the applicant’s fear was well founded.
The High Court found that the Tribunal did not fall into jurisdictional error in reaching its decision. Gleeson CJ, Hayne and Heydon JJ pointed out (at [23]) that where the harm feared is not inflicted by the state, the attitude of the state (in the sense of encouragement, condonation or toleration of harm) may be relevant under Article 1A(2) of the Refugees Convention (as amended by the Refugees Protocol) in a number of ways:
“[It] is relevant to a decision whether the fear of harm is well-founded; it is consistent with the possibility that there is persecution; it is consistent with the person being outside the country of nationality because of a well-founded fear of persecution; and it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the State’s encouragement, condonation or tolerance of the persecution.”
In this context their Honours asked:
“What kind of inability to protect a person such as the first respondent from harm of the kind he had suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country’s protection?” (at [25])
It was in response to that question that their Honours stated that: “No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence” but that in the context of the past harm inflicted on the applicant by others, the Ukrainian state was obliged “to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system” (at [26]). An ‘alternative formulation’ of the question whether reasonable measures have been taken ‘may be whether the state police and authorities meet international standards’: Applicant A99 of 2003 v MIMA [2004] FCA 773 at [38] Mansfield J. Such ‘international standards’ were not specified in Respondents S152/2003 beyond the reference to standards such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245. However the High Court also stated that the Tribunal could not be satisfied that those standards had not been met unless there was evidence before it to that effect (Respondents S152/2003 at [28]; also see SHKB v MIMIA [2004] FCA 545 at [32]-[33] per Selway J and Applicant A99 of 2003 v MIMIA at [38]-[44]). The applicant in Respondents S152/2003 had not sought the protection of the state. The Tribunal had rejected the claim that the applicant was unwilling to seek the protection of the Ukrainian authorities because they were the instigators of the attacks on him. Glesson CJ, Hayne and Heydon JJ stated that the only other basis on which the applicant’s unwillingness to seek the protection of the Ukrainian government could be justified would be that Ukraine did not provide its citizens with the level of state protection required by international standards. There was no evidence before the Tribunal “to support a conclusion that Ukraine did not provide its citizens with the level required by international standards” (at [28]). Thus the applicant in Respondents S152 was not a victim of persecution and, in particular, could not justify his unwillingness to seek the protection of his country of nationality (at [29]).
However the inquiry arises in this manner only where the reason for the harm feared by the putative refugee is for a Convention reason. (See Applicant A99 of 2003 at [38] and SHKB at [31]). It is notable that in Respondents S152/ 2003 and also in SHKB and Applicant A99 of 2003 (which were relied on by the applicant) the critical issue in relation to state protection was not whether the harm complained of was for a Convention reason. In Respondents S152/2003 the complaint was of harm inflicted for reasons of religion. In SHKB Selway J found that the Tribunal erred in distinguishing between persecution for Convention reasons and persecution for reasons of retribution in circumstances where the applicant claimed that persecution by non-state actors was for a Convention reason. In Applicant A99of 2003 the Convention reason was supplied by the applicant’s political opinion in opposition to Maoists in Nepal. Mansfield J considered the steps that the majority judgment in Respondents S152/2003 indicated were required where an applicant claimed to have a well-founded fear of harm and to be unwilling to return to or seek the protection of his or her country of nationality because it was unable to protect him or her. As His Honour indicated (at [38]) the first step, assuming the applicant had a subjective fear of serious harm and that any such harm would be inflicted for a Convention reason, is to determine whether there is a real chance that the applicant will suffer serious harm at the hands of the non-state entity. In other words, the first step would not arise unless there was a subjective fear of harm for a Convention reason. Then the “second step … is to determine whether the country of nationality has taken reasonable measures to protect the lives and safety of its citizens” (at [28]) in considering whether:
“the existence of the appropriate level of state protection leads to the conclusion, as the majority judgment in S152/2003 shown, that there is not a justifiable unwillingness to seek the protection of the country of nationality. If the unwillingness is not justifiable, it is not owing to the fear of persecution: S152/2003 at 492, [19]; Khawar at 10, [21] per Gleeson J and at 21, [61] – [62] per McHugh and Gummow JJ. Moreover, if the country of nationality provides its citizens with the level of protection that they are entitled to expect according to international standards, fear of harm will not amount to a fear of persecution: S152/2003 at 496, [29].”
In this instance the applicant was a victim of domestic violence from a private individual. There was no suggestion that such domestic violence was for a Convention reason. The Convention nexus may be met by a consideration of the sufficiency of state protection against the acts of non-state agents. As Hale LJ said in the Court of Appeal in Horvath v Secretary of State for the Home Department, as was quoted with approval by Lord Hope of Craighead in the House of Lords at (2001) 1 AC 489 at 497:
“[I]f it is sufficient, the applicant’s fear of persecution by others will not be well founded’, if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.” [emphasis added]
Consistent with Horvath, as the High Court held in MIMA v Khawar (2002) 210 CLR 1, a selective or discriminatory failure by a state to enforce the criminal law against non-state actors who assault members of a particular social group is capable of constituting persecution under the Convention (that is, it may then be ‘for a Convention reason’ provided by the motivation of the state). In Khawar a Pakistani woman had complained of serious and prolonged domestic violence on the part of her husband and members of her family, that the police in Pakistan refused to enforce the law against such violence or otherwise offer her protection and that such refusal was part of systematic discrimination against women which was both tolerated and sanctioned by the state. The High Court held that persecution may result from the combined effect of the conduct of private individuals and the state and: ‘a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm’ (see Gleeson CJ at [30]). As Gleeson CJ stated, that the requirement that the persecution be by reason of one of the Convention grounds ‘may be satisfied by the motivation of either the criminals or the state’ (ibid at [31]). In that case the Tribunal had erred in failing to make findings on material put forward by the applicant which would tend to show a systemic failure by the police authorities to investigate or lay charges in respect of complaints by women of domestic violence against them. She had complained of selective enforcement of laws of general application respecting serious assault by one individual upon another, which was said to constitute a form of selective or discriminatory treatment amounting to persecution by the State authorities (McHugh and Gummow JJ at [77]-[80]). As their Honours pointed out, at [84]:
“whilst malign intention on the part of state agents is not required .., [65], it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group. If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here.”
Turning to the claims made in the present case, it is apparent from her protection visa application that the applicant complained that even though she lodged complaints, the authorities did nothing to protect her from the domestic violence inflicted by her former husband. She claimed in her application for a visa that the authorities ‘do nothing to protect women like me’ and that they were:
powerless to do anything. They think that marriage problems are matters that have to be resolved at home. They will not take any action unless the woman is found dead. Men think they have all the power because the authorities do nothing to stop them. I complained that my human rights have been violated but in a country that does not protect or defend human rights, my complaint went into deaf ears. I consider that I belong to a particular social group within the definition of the Convention because my case is not isolated and I will try to obtain proof of this.

No further evidence or “proof” was provided by the applicant in support of this aspect of her claim. In her review application she merely reiterated that the state was powerless to prevent private persecution. She did not provide any evidence about other cases or of selective or discriminatory inactivity of the state in responding to women’s complaints of domestic violence.
In the Tribunal hearing the applicant elaborated on her claims of mistreatment and harassment by her husband and the police response to her complaints. She claimed that she had told the police that her husband was assaulting her, that the police would come but her husband had already left, that sometimes the neighbour would ring the police and sometimes she would, but that the police did not always come quickly and her husband always knew when they were coming and left. She also told the Tribunal that on one occasion her husband was arrested by the police but was detained only one night. On another occasion the police told her that he would be detained for some three months but they were unable to locate him to arrest him. She reported that the police gave orders to arrest her husband if he approached the building in which she was working but that her husband went in front of the building with some friends and mocked the police.
The claims raised by the applicant were put on the basis that she was a member of a particular social group being women subject to domestic violence in Peru. The Tribunal accepted that the applicant had been a victim of domestic violence, but concluded that the violence to which she was subjected by her husband arose from personal considerations and was not related to a Convention reason. It was in that context that the Tribunal went on to note country information in relation to domestic violence in Peru and to find that on balance the country information indicated that there did exist on the part of the authorities both a willingness and an ability to provide adequate protection for women who were subjected to domestic violence (the first state protection finding). The Tribunal then considered whether there had been adequate protection for the applicant in the past and whether on the basis of the country information in relation to domestic violence and the applicant’s own evidence, effective state protection was available to the applicant (the second state protection finding).
Reading the Tribunal’s decision fairly and as a whole it is apparent that the Tribunal did consider the attitude of the state as well as the sufficiency of state protection against private acts of domestic violence on the evidence before it. In considering the independent information in relation to domestic violence affecting women in Peru and the government response to such conduct, the Tribunal had regard to information about the limited reporting of domestic violence by women, their lack of confidence of an outcome and the time cases took to be resolved in the courts – all material which could be seen to support the applicant’s claims. However it also had regard to the existence of legislation to deal with domestic violence which had been amended in response to criticisms, the establishment of centres for female victims of domestic violence and education programmes and specialised domestic violence divisions in the police force.
In this context the first state protection finding that the state was willing and able to provide adequate protection for women subject to domestic violence, meant that the requisite Convention nexus was not present. It was not present in the motivation of the applicant’s former husband and, given its willingness to provide adequate protection for women subject to domestic violence as indicated by legislative and other action, it was not present in the motivation of the state. Implicit in the Tribunal findings is a rejection of any suggestion that the state tolerated or condoned the inflicting of serious harm such as domestic violence. It is relevant in this respect that it has been held that if the state is merely unable to protect a person suffering domestic violence for clearly shown reasons of shortage of resources, maladministration, incompetence or ineptitude ‘that would not convert personally-motivated domestic violence into persecution on one of the grounds set out in Article 1A(2)’ (Khawar at [26] per Gleeson CJ and also see McHugh and Gummow JJ at [84] drawing a distinction between systemic failure of enforcement because of a shortage of resources as opposed to selective and discriminatory treatment and see Respondents S152/2003 at [84]).
The Tribunal’s finding that, on balance, the country information indicated that there existed on the part of the authorities of Peru both a willingness and an ability to provide adequate protection for women who are subjected to domestic violence (the first state protection finding) must be understood (as the majority pointed out in Respondents S152/2003) in light of the terms of Article 1A(2), the evidence before the Tribunal and the nature of the case the applicant sought to make out. Following the conclusion that the domestic violence arose from personal considerations and was not perpetrated for a Convention reason, the subsequent finding in relation to state protection meant that the state’s motivation did not provide the requisite Convention reason. The state was willing to provide protection. The evidence did not establish that it condoned or tolerated the harm or that any insufficiency in state protection was discriminatory for a Convention reason. This is reinforced by the subsequent Tribunal consideration of the response of the authorities to the applicant’s particular complaints. In such circumstances there was not such a failure of state protection as to ‘turn the acts of others into persecution for a Convention reason’ as discussed in Horvath and Respondents S152/2003.
In the absence of any Convention reason for the harm feared, it was not necessary for the Tribunal to consider what kind of inability to protect a person in a position of the applicant from harm of the kind she had suffered would justify a conclusion that it was owing to a well-founded fear of persecution that, being outside her country, she was unwilling to avail herself of her country’s protection (cf Respondents S152/2003 at [25]). In other words the issue that arose for consideration in Respondents S152/2003 that brought into play the question of an obligation on the State to take reasonable measures to protect the lives and safety of its citizens could not be determinative because there was no Convention nexus established. It is not necessary to determine whether the Tribunal should have expressly addressed the issue of the level of state protection required by international standards in addressing the ability of the state to provide protection or, indeed, whether, as Mansfield J suggested in Applicant A99 of 2003 at [28], such an approach is merely a possible ‘alternative formulation’ of the question of whether the country of origin has taken ‘reasonable’ measures to protect the lives and safety of its citizens. Even if the Tribunal should have referred to international standards for example as part of what Mansfield J in Applicant A99 of 2003 described as the second step, such an error could not be determinative as the requisite Convention nexus was not established.
Nevertheless, the Tribunal in this instance did consider the ability of the state to provide protection and made findings which addressed the other elements of Article 1A(2). There was independent evidence before the Tribunal in relation to what might be described as both positive and negative aspects of the state protection available in Peru (including evidence about Peru’s adoption of international rights obligations and of concerns about the efficacy of the law and practice and reform proposals). Such evidence was considered by the Tribunal. The weight to be given to particular items or aspects of the independent evidence was a matter for the Tribunal. Its conclusion that ‘on balance’ there was an ability as well as a willingness on the part of the authorities to provide adequate protection had regard to the independent evidence and also to what the applicant had experienced in the past. There was evidence before it which entitled the Tribunal to conclude that Peru had provided a reasonably effective police force and that there was a reasonably impartial system of justice, bearing in mind that no country can be required to provide an assurance of safety (Respondents S152/2003 at [28]). The existence of legislation which had been amended in response to criticism, in conjunction with centres for women who were the victims of domestic violence, education programmes for the police and specialised domestic violence divisions in the police force as well as evidence of police responsiveness to the past complaints of the applicant is such that, despite other evidence to the contrary, it cannot be said that the Tribunal could not be so satisfied. It did not express itself in terms of whether the state police and authorities met international standards. There was material in the country information relied on by the Tribunal relating to Peru’s adoption of international covenants and conventions and a suggestion that specified steps were necessary to fulfil Peru’s international obligations to combat violence against women (for example, in the Human Rights Watch Memorandum: Peru: Law of Protection from Family Violence dated March 31, 2000. However, as indicated, there was no need for the Tribunal to consider whether or not there is an internationally acceptable standard of protection from domestic violence in Peru because that violence was not for one of the Convention reasons and the State did not provide that reason by its tolerance or unwillingness to afford protection. The Tribunal did not exceed its jurisdiction or constructively fail to exercise its jurisdiction by failing to make findings in terms of international standards of protection.
Further, insofar as the first ground of review is expressed in terms of ‘relevant considerations’, it has not been established that the international standards of protection required and provided by Peru or received by the applicant (parts (1) – (3) of paragraph 4 of the further amended application) are ‘relevant considerations’ in the sense of integers of the applicant’s claims (see MIMA v Yusuf (2001) 206 CLR 323). The Tribunal considered the applicant’s claims which were not expressed in terms of a failure by the state to meet international standards of protection.
The final aspect of the applicant’s first ground was that the Tribunal erred by failing to refer to or make any findings on ‘whether the applicant reported her husband’s harassment on many occasions and the police said they were going to investigate and never did and whether she was told to come back immediately after a bashing when there was proof’. It was not, however, incumbent on the Tribunal to make such specific findings about particular past events. What has happened in the past does not of itself determine whether a person is a refugee (Respondents S152/2003 at [74]). It is, of course, relevant, but in this instance the Tribunal accepted what the applicant said about reporting her husband’s attacks on her to the police and the police response. This would encompass an acceptance that these specific incidents occurred. However in making findings about the adequacy of past protection the Tribunal also took into account that when the applicant reported specific incidents to the police the police did take action by coming to the house and the husband would leave, that on one occasion the husband was arrested and that on another occasion the police attempted to detain him. The Tribunal also had regard to the fact that the police took the applicant’s complaint that her husband harassed her at the workplace seriously and ordered that he was to be arrested if he attempted to enter the workplace. The Tribunal addressed the applicant’s complaint that the police were at times slow to arrive and that her husband was released after his arrest, but considered the overall performance of the police in response to the applicant’s requests for help in finding that the slowness of their response and the release of the husband after arrest did not amount to inadequate state protection. Such findings addressed the integers of the applicant’s claims. It was not necessary for the Tribunal to make findings on every item of evidence put in support of substantive claims at the level of specificity contended for by the applicant.

Ground 2 – procedural fairness.

The other ground relied upon by the applicant was that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by failing to raise with the applicant the critical issue on which her application depended and by failing to disclose the material on which it based its decision to find against her. In written submissions it was contended that the applicant was denied procedural fairness because the Tribunal based its decision in that respect on various independent reports produced after the delegate’s decision (in 2000 and 2001) but did not put to the applicant the content or substance of such reports or give her an opportunity to respond to them.
It was contended that while the Tribunal member told the applicant at the conclusion of the Tribunal hearing that she would look at the country information on Peru, particularly in relation as to whether there was effective state protection for cases like hers involving domestic violence, the Tribunal erred in failing to disclose to her for comment the particular material on which it based its decision. It was contended that such information consisted of the country information cited in the Tribunal decision and that it was not favourable because the Tribunal found against the applicant on the basis of that material. It was also contended that although relevant issues had been raised with the applicant and the applicant was aware from the Tribunal decision of material prior to 1999 in relation to state protection, the reports relied on by the Tribunal were more extensive and raised additional issues. In particular it was claimed that the Human Rights Watch memorandum on the Law of Protection from Family Violence dated March 31 2000 dealt with whether Peru was meeting its international obligations to women and suggested that legal and structural problems continued to deny women access to genuine protection, remedy and redress. The applicant submitted that the Tribunal failed to inform her of the detailed information that went to the effectiveness of protection provided by Peru which was used against her and that hence she was denied the opportunity to respond to such information. It was said that such information could have made a difference because the material relied on by the Tribunal in fact invited submissions to the effect that it supported the applicant’s case and that the level of protection provided by Peru did not meet international standards.
The application for review of the delegate’s decision was made on

2 November 2000. Accordingly s.422B of the Migration Act 1958 did not apply to the procedure to be adopted by the Tribunal in the conduct of its review: Migration Legislation Amendment (Procedural Fairness) Act 2002, S3, Schedule 1, Item 7(5). Hence s.424A of the Act did not, for the purposes of the review of the delegate’s decision by the Tribunal, represent a complete statement of the Tribunal’s obligation to afford procedural fairness to the applicant: WAEJ v MIMIA [2003] FCAFC 188 at [36] (cf dicta in WAAJ v MIMIA [2002] FCAFC 409 to the contrary).
It is a basic principle of the rules of natural justice that:
“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. This does not mean that all the material which comes before the decision-maker must be disclosed but ‘in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made’.”
(Re MIMA; Ex parte Miah (2001) 206 CLR 57 [40] [96]-[97] per McHugh J citing Brennan J in Kioa v West (1985) 159 CLR 550 at 628 citing in turn Kanda v Government of Malaya (1962) AC332 at 337; Bridge v Baldwin (1964) AC 40 at 113 – 114 and De Verteuil v Knaggs [1918] AC 557 at 560 – 561. Also see NARV v MIMIA [2003] FCAFC 262 at [15] per Ryan and Finkelstein JJ).
In Kioa v West the information in question was a Departmental submission to the Minister which cast doubt upon the genuineness of Mr Kioa’s desire to seek a legitimate extension of his stay in Australia and addressed his involvement with other’s seeking to circumvent Australia’s immigration laws. It was in that context that Brennan J said (at 629) that an allegation in the material ‘was apparently credible, relevant and damaging’ and that a failure to give Mr Kioa the opportunity to deal with it amounted to a non-observance of the principles of natural justice. Mason J in the same case suggested (at 587) that if a decision-maker intends to reject the application ‘by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant … there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter…’ (Deane J suggested that the opportunity to be heard included, in the circumstances of that case, the opportunity for the applicant to deal with matters raised against him in the Departmental submission).
Counsel for the applicant also relied on the decision of the High Court in Miah. In that case the information in question concerned a change of government which had occurred after the application. The High Court held that fairness required that before the delegate decided against the applicant on the basis of a material change in circumstances he should have warned him of the possibility and given him an opportunity to comment. Gaudron J stated that the basic principle with respect to procedural fairness was that a person should have an opportunity to put his or her case and to meet the case that was put against him or her and that the applicant “was not given the opportunity to put a case by reference to the change in government or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity” (at [99]).
McHugh J set out the basic principle of natural justice as cited above. His Honour went on to state, however, that in the exercise of the power conferred by a provision equivalent to s.424 (which empowers the decision-maker to get any information he or she considers relevant) natural justice will not always require that an applicant have an opportunity to comment on the material (at [141]):
“Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application.”
In contrast certain situations required disclosure according to McHugh J. First where the decision-maker proposed to use new material of which the applicant may be unaware and which was or could be decisive against the applicant’s claim for refugee status it should be disclosed. Secondly, where material concerned circumstances that had changed since the application and was being used after considerable delay and thirdly where ‘material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the [decision-maker] uses it’ (at [141]). In Miah the new material ‘was undoubtedly decisive’ of the applicant’s claim and the applicant could not reasonably have expected the type of information to be used as it was because he reasonably perceived the change of government as irrelevant to his situation. In that case the decision maker was obliged to inform the applicant ‘that he was contemplating using information about the election results and to offer the [applicant] an opportunity to comment’ (at [143]). McHugh J made the important point that the rules of natural justice are flexible and adaptable to the particular circumstances of each case.

Kirby J in Miah cited Brennan J in Kioa v West and suggested that there were ‘special considerations’ in the case before him which suggested that the delegate was obliged to call the information to the notice of the prosecutor including the fact that it was judged ‘of crucial importance even determinative, for the outcome of the application’ (at [193]). His Honour accepted what the Full Court of the Federal Court had said about the requirement of disclosure in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592:
“[The] entitlement extends to the right to rebut or quality by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which had been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decisions in question.”
Kirby J stated at [196]:
“It follows that the prosecutor ought not to have been taken by surprise, as he was … To conclude in this way does not imply that every delegate receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment … That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act.”
Counsel for the applicant also referred to the statement in WACO v MIMIA [2003] FCAFC 171 at [33] that the Tribunal had a duty if an applicant sought to give evidence at a hearing to raise plainly and unambiguously the critical issues on which the application might depend so that he or she may have an opportunity of being heard on them.
Finally the applicant relied on the decision of the Full Court in Naidu v MIMIA [2004] FCAFC 184 in which the court stated that in the particular circumstances of that case procedural fairness obliged the respondent (in relation to a decision to cancel a permanent visa) to identify to the applicant the substance of comments about threats to young people that had been made by a judge in sentencing him for an offence which were relied on to the detriment of the applicant to give him an opportunity to advance his case by being informed of the case which had to be met.
Turning to the circumstances of this case, a number of issues must be addressed. First no question arises of reliance by the Tribunal on material personal to the applicant (cf Kioa v West and Naidu). The information in question consisted of a US Department of State Report for Peru on 2001, a March 2000 Human Rights Watch Memorandum on the law of protection from family violence and January 2000 and February 2000 reports from the Canadian Research Directorate, Immigration and Refugee Review Board. As McHugh J acknowledged in Miah (at [141]) natural justice will not always require that an applicant have an opportunity to comment on material obtained by a decision-maker. In particular the Tribunal is not obliged to put the applicant on notice of non-adverse country information. Some aspects of the information cited in the Tribunal decision were favourable to the applicant. Other aspects were not favourable and were relied on to find by the Tribunal in its finding that on balance the country information indicated that there did exist on the part of the Peruvian authorities both a willingness and an ability to provide adequate protection for women subjected to domestic violence. However the critical issues (in particular relating to whether the Peruvian government was able to protect the applicant) were made apparent to the applicant, despite the fact that the specific items of country information referred to by the Tribunal were not put to her for comment.
The applicant was not only made aware of the relevance of the issue of state protection but also, more pertinently, of the critical issues. The decision of the delegate relied substantially on information about the situation in Peru which, while predating the specific items referred to in the Tribunal decision, canvassed the critical issues. The material the delegate relied on related to essentially the same issues adverse to the applicant which were canvassed in the later material referred to by the Tribunal in relation to the government of Peru, its attitude towards and actions in respect of violence towards women. Thus the delegate referred to the US Department of State Country Report on Human Rights Practices for 1999. That report referred to the 1993 legislation in relation to domestic violence and to 1997 improvements. It described the establishment of a Women’s Emergency Programs by PROMUDEH (The Ministry of Women’s Advancement and Human Development). It set out complaints about police indifference made to the Human Rights Ombudsman, despite the new law requiring all police stations to receive complaints about domestic violence. It then described a 1998 program to educate police about domestic violence and to train officers in processing such cases as well as the opening of central facilities staffed by women with representatives of all relevant government institutions to which abused women might have recourse. It also outlined the government’s responsiveness to the Human Rights Ombudsman in amendments to the criminal code to provide greater protection to victims of sexual violence. Reference was also made to a 1999 press report of ratification by Peru of an Inter-American Convention for the prevention, punishment and elimination of violence against women, amendments to the law to fill in gaps and the creation of over one thousand local Women’s Defence Offices to assist abused women which had set up emergency units with all services for victims in one location and contained a police station run by women officers and other facilities. Finally the delegate noted that the attorney maintained these had been adequate official response but a series of problems obstructed implementation. The reference to this aspect of the report, while limited, indicated that not all of the material relied on was adverse to the applicant’s case.
In her application for review the applicant suggested that the state was completely powerless to prevent private persecution. She referred to her experiences, but no documentary evidence was provided by her in support of this contention.
On 9 April 2002 the Tribunal wrote to the applicant advising her that it had looked at all the material relating to her application but was not prepared to make a favourable decision on that information alone.
The Tribunal held a hearing on 7 June 2002. The transcript of the hearing is before the court and reveals that the Tribunal member asked the applicant whether she ever did anything or went to anybody else besides the police, that she described her complaints to the ‘prefectura’ (the department of police investigations) and that they tried unsuccessfully to locate him at his mothers to arrest him for harassment. When asked if she went to women’s shelters the applicant said that there were no women’s shelters. The Tribunal member continued:
“Q. The country information I have on Peru says that there are 12 women’s police stations to deal specifically with violence, domestic violence.
A. Well, you have to be gravely disfigured in order to be taken into account when you go to one of those refuges for women. But it’s not really a refuge, and actually this is a new thing and it’s called Women’s – or Police for Women, or something like that, the place.”
The Tribunal then asked the applicant if she had ever approached them, she said she had once about a month after being bashed but they asked her why she didn’t come for help immediately and referred her to the prefectura. She told the Tribunal she had reported the violence once when the women’s centre opened and did not go back because they told her to wait for the police report.
The Tribunal then said:
“Q. But they offer refuge. It’s not just to say arrest the person; they offer the woman a place to stay.
A.   Well, I wasn’t aware – didn’t know about that. I didn’t know they did that. As far as I know, there’s refuge for abandoned children on the streets and things like that, but not for mother’s or women.
Q.     There are refuges for mothers and children.
A.     I never knew about that.”
The Tribunal also raised with the applicant what she thought would happen to her if she went back to Peru (she feared her husband would kill her although she did not know his whereabouts) and whether there were things she would like to tell the Tribunal about. She said that she could not go back to Peru as she had no one there and had her daughter in Australia. She suggested that her other daughter in Peru did not have anything.
At the end of the hearing the Tribunal member told the applicant she would think about what she had been told and ‘look at the country information on Peru, particularly in regards to whether there is effective state protection for cases like yours, domestic violence’ and then write a decision.
It is apparent from the transcript of the hearing that despite the concluding comments, the Tribunal did, contrary to the applicant’s submission, put some country information to the applicant for comment, in particular in respect of women’s shelters and refuges and that the applicant was aware of the existence of a women’s centre as well as the police and prefectura and commented on their operation.
As to the material referred to in the Tribunal decision, the 2001 Country Information Report updated the 1999 reported cited in the delegate’s decision. The Tribunal relied upon its discussion of issues adverse to the applicant which had been raised in the delegate’s decision, including the scope of the domestic violence law (as well as 2000 amendments relating to sexual violence not of direct relevance to the applicant’s claims and hence not a change in circumstances which had to be brought to her attention), the operation of the Women’s Emergency Program, and the availability of facilities staffed by women and programs to educate police and train officers. It repeated the concern of the Human Rights Ombudsman’s Office that police officers reacted indifferently to charges of domestic violence and dealt with specific concerns about rape victims not relevant to the applicant.
That part of the Human Rights Watch Memorandum cited addressed the fact that domestic violence was a problem in Peru (information favourable to the applicant but also canvassed briefly in the delegate’s decision), the 1993 and 1997 laws, the establishment of women’s police stations and one-stop centres discussed in the delegate’s decision and remaining problems in law and practice and the establishment of a Commission reviewing the law which had not yet reported.
The Canadian report of February 2000 also described the laws of 1997, support groups for women, the work of PROMUDEH in establishing phone lines for victims of sexual violence, the establishment of women’s shelters to provide refuge for battered women, emergency centres, the role of the ombudsman and the existence of specialised domestic violence divisions in police stations and contained some statistics on resolution of complaints as well as a discussion of the July 1999 laws relating to sexual violence. The earlier January 2000 Canadian report is in part favourable to the applicant in that it canvassed matters such as an increase in complaints and the low rate of reporting of domestic violence. It reported on the law on family violence which predated the delegate’s decision as well as what were described as advances since the promulgation of that law – such as the creation of more places for public complaints, the women’s police stations, a Commission for Women and the establishment of women’s sections in police stations. It also contained information on societal attitudes to domestic violence and perceived shortcomings in the law favourable to the applicant.
From this information the Tribunal gave weight to a number of matters. It accepted that not infrequently women in Peru failed to report domestic violence as they were not confident of an outcome and that court cases took a considerable time to be resoled. These are findings favourable to the applicant. The adverse matters relied on were matters referred to in the delegate’s decision or the hearing - the legislation, its amendment in response to criticism, the establishment of centres for victims of domestic violence and police education programs run by PROMUDEH and the existence of specialised domestic violence divisions at police stations. Hence the applicant had the opportunity to address the issues about what the Peruvian government had done in relation to domestic violence.
Importantly, while the Tribunal decision referred to information which post-dated the delegate’s decision, the substance or gravamen of that information, particularly insofar as it was adverse information, was consistent with the information set out in the delegate’s decision. None of the material was personal to the applicant. As the Full Court of the Federal Court stated in S558 of 2003 v MIMIA [2004] FCAFC 283 at [20] the concept of practical injustice referred to in Lam can be traced to earlier High Court authority “which tended to confine it to the requirement for a decision-maker to bring to the attention of a person affected by the critical issue, factor or consideration personal to the applicant on the basis of information obtained from another source on which the administrative decision was likely to turn.” It cannot be said that the later consistent information took the applicant by surprise (see McHugh J in Miah and Deane J in Kiao v West). In substance it contained the same adverse information as was relied on by the delegate. It also contained information favourable to the applicant. However the information is not such that it could not reasonably have been expected to be used in the way it was used. Nor can it be said that the conclusions reached would not be open to the Tribunal on the material. The Tribunal’s reliance on the updated material has not been shown to have occasioned any ‘practical injustice’ to the applicant (see Re MIMA; Ex parte Lam (2003) 195 CLR 502).
The material relied on by the Tribunal canvassed the same issues as discussed by the delegate, it was not ‘more’ adverse to the applicant and did not involve any considerations personal to the applicant. There had not been a change in circumstances relied on by the Tribunal. Hence the critical issues were sufficiently made known to the applicant. In VHAP of 2002 v MIMIA [2004] FCAFC 82 the Full Court of the Federal Court considered a finding by the trial judge that the Tribunal had not afforded an applicant natural justice because it had not disclosed all the country information in its possession relevant to the decision. Gyles and Conti JJ agreed with Allsop J that the trial judge was in error in finding that there was any operative breach of the rules of natural justice ‘as the country information related to issues which were clearly on the table to be addressed.’ (at [17]). The reasoning of Allsop J is instructive. His Honour pointed out that the Tribunal in that case had recourse to country information about relevant issues (aspects of the applicant’s claims about the situation in China). It based its conclusions in part on that information. The applicant was informed of the substance of matters raised by such country information by the delegate but, as in this case, none of the country information in the possession of the Tribunal was provided to the applicant in the review process. However Allsop J stated (at [27]):
“Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.”
Rather, as His Honour went on to state: ‘Natural justice is ultimately a question of fairness’ (at [28]). Applying His Honour’s reasoning to this case, the applicant came armed with claims about her country of origin. To perform the task required by ss36 and 65 of the Migration Act 1958 the Tribunal ‘was required to inform and educate itself about [the country of nationality] generally, and about aspects of [the country’s] life and affairs pertinent to the [applicant’s] claims. In so analysing that material the Tribunal might form a view about the [applicant] or her version of events, which fairness dictated, must be raised.’ (at [28]).
The Tribunal accepted the applicant’s claims about what had happened to her. It informed her that it could not make a favourable decision on the information before it (including the delegate’s decision) which canvassed country information relevantly to the same effect as that ultimately relied upon. It raised with her the steps she had taken to seek protection from the state. Particular aspects of protection (such as the availability of refuges) were canvassed. In the circumstances of this case the applicant was given an opportunity to be heard on the critical issues on which her application might depend insofar as they related to the situation in Peru. Natural justice did not require that the specific updated information (not being a change in circumstances relied on by the Tribunal) be brought to the attention of the applicant.
As Allsop J stated at ([28]):
“The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be relevant.”
In the particular circumstances of this case, the ‘subjects of concern’ (see Allsop J in VHAP of 2002 v MIMIA [2004] FCAFC 82 at [28]) had been sufficiently brought to the attention of the applicant. I am not persuaded that the Tribunal fell into jurisdictional error by failing to raise with the applicant the critical issues on which her application depended as contended. Nor am I satisfied that it erred by failing to disclose the specific material on which it based its decision.
The application must be dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 February 2005.