SZAFP v Minister for Immigration
[2003] FMCA 357
•28 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAFP v MINISTER FOR IMMIGRATION | [2003] FMCA 357 |
| MIGRATION – Review of RRT decision – application for a protection visa – where the applicant was raped by members of the Ukrainian police force – where the applicant claims to have been harassed after she reported the crime –where the applicant claimed to have a well-founded fear of persecution for reasons of political opinion on account of her ‘standing up for her rights’– where the Tribunal asked itself the question of whether the applicant was persecuted for reasons of her membership of a social group – whether the Tribunal was in error by not casting around for groups other than that which it did identify and which were not otherwise obviously or readily identifiable – whether there is a real chance the applicant will suffer persecution in the future. |
Migration Act 1958 (Cth), s.91R(1)(a) and (b)
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Applicant A v Minister for Immigration (1996) 7 CLR 225
SBBK v Minister for Immigration [2002] FCA 565
Minister for Immigration v VFAY [2003] FCAFC 191
SDAV v Minister for Immigration (2003) 199 ALR 43
Minister for Immigration v Yusuf (2001) 206 CLR 323
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Minister for Immigration v Khawar (2002) 187 ALR 574
Re Minister for Immigration and Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Saliba v Minister for Immigration (1998) 159 ALR 247
| Applicant: | SZAFP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 257 of 2003 |
| Delivered on: | 28 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 22 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T Slevin |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 257 of 2003
| SZAFP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Ukraine. She arrived in Australia on
6 January 2001. On 16 February 2001 she lodged an application for a protection (Class XA) visa. On 30 May 2001 a delegate of the Minister refused to grant a protection visa and on 6 June 2001 she applied for review of that decision.
On 1 October 2002 the Tribunal contacted the applicant. It advised her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The applicant was invited to a hearing before the Tribunal which took place on 17 December 2002. The Tribunal came to its decision on 6 January 2003 and handed it down on 4 February 2003. The Tribunal’s decision was to uphold that of the delegate not to grant a protection visa. The applicant now seeks review of that decision from this court.
The applicant is a young woman with qualifications as a teacher of Russian language and literature. She resided in the Ukraine all her life save some short visits to Poland in connection with her obtaining an Australian visa. Her family, including her parents and her son, remain in the Ukraine.
The applicant’s claim to have a well-founded fear of persecution for a convention reason arises out of an incident which took place in the summer of 1999 and its after effects. The Tribunal accepted that the applicant and her friend were walking along the main street of the town in which she lived when a police car stopped in front of them and they were pushed into it. The two women were taken to the police station where they were accused of being prostitutes. At the police station the two women were taken into separate cells and there raped by members of the police force. The Tribunal was advised that the second woman was only about 16 years of age and within about a month or so of the incident had died, possibly at her own hand.
The Tribunal accepted that following this incident the father of her friend complained to the local public prosecutor about the rape. It accepted that shortly thereafter the applicant was visited by the prosecutor who, after initially being polite, suggested to her that she had given false evidence and told her that she could be charged on this basis. The Tribunal accepted that the applicant wrote a letter of complaint to the prosecutor in October 1999 and that the father of her friend wrote another letter to a more regional prosecutor on her behalf in May 2000. The Tribunal made findings that certain other allegations by the applicant concerning events which occurred to the friend’s father were not substantiated.
The Tribunal accepted that the applicant was required to attend upon a female psychologist in January 2000 and that subsequently a male health worker visited her. The applicant attempted to draw certain conclusions from these visits in that they were an act of harassment or an attempt to put her under pressure. The Tribunal did not accept this conclusion.
The applicant alleged that she had been sacked from her job as a teacher because of pressure placed upon the school arising out of her complaints concerning the rapes. The Tribunal did not accept that this had occurred because it noted that the applicant had a letter from the school indicating that she remained employed by them at the time she applied for her visa into Australia.
The Tribunal accepted the evidence of the applicant that she had been arrested in May 2000 upon an allegation of possessing drugs. However, the Tribunal was not satisfied on the available evidence that the arrest and charge were related to her rape and her subsequent complaints to the prosecutor. The Tribunal gives reasons for this conclusion at [CB 82].
The applicant alleged that she had been beaten by unknown assailants in May 2000 and then forced to undergo detention for a week in a psychiatric clinic following her hospitalisation for the beating. The Tribunal’s reasons for declining to accept this allegation are also set out at [CB 82].
In the third paragraph on [CB 82] the Tribunal states:
“The Tribunal accepts that the applicant has suffered harm sufficiently serious as to amount to persecution in the past in that she was raped by police after an arbitrary arrest. The US State Department Country Report indicates both that arbitrary arrest and detention are problems in the Ukraine, and that violence against women is pervasive. The Tribunal does not accept, however, that the motivation for this attack, or for her detention in a psychiatric clinic, assuming that this occurred, was Convention related. The applicant has said that she was harmed because she complained to the Prosecutor about the violation of her rights. It is clear from the evidence, however, that the most serious assault on her was apparently arbitrarily perpetrated by local authorities, was not done for a Convention reason. Furthermore, the Tribunal is not satisfied on the applicant’s evidence that the detention in a psychiatric clinic took place as a result of her complaint to the Prosecutor, or for any Convention reason.”
The applicant who represented herself before the Tribunal was unable to articulate her claim for protection under the Convention in a way that it might have been articulated by a skilled migration agent. The Tribunal construed the argument she was putting forward as one of fear of persecution for the Convention reason of political opinion. Political opinion was interpreted by her as standing up for her rights or expressing disagreement with human rights violations. At [CB 83] the Tribunal says:
“The Tribunal has taken account of Australian case law which has cautioned against a narrow interpretation of ‘political opinion’ (for example, the Full Federal Court in V v MIMIA (1999) 92 FCR 355 at 363; Zheng v MIMIA [2000] FCA 670 (Merkel J 23 August 2000).
The Tribunal has indicated that it does not accept that the two incidences of serious harm to the applicant, her rape and her deprivation of liberty in being confined to a psychiatric clinic, were motivated by her political opinion, even if is interpreted as broadly as “standing up for one’s rights”. The rape occurred before any complaint to authorities on the applicant’s part. There is no satisfactory evidence that the psychiatric clinic episode was connected with her assertion of her rights.”
On the topic of the applicant’s actual claim of persecution for political belief that Tribunal said at [CB 84] :
“Even if the Tribunal were to accept all the applicant’s claims including beatings by unknown assailants, and her belief that the beatings, arrest on drug charges and dismissal from employment were arranged by the authorities, it does not accept that the motivation for her mistreatment was her political opinion, however widely interpreted…There is no evidence that the mistreatment she encountered at the hands of the authorities was inflicted on her because the authorities imputed to her a political opinion… It is the Tribunal’s view that the evidence would indicate that the initial assault by police was a purely criminal matter, and that the police sought to cover up a criminal rape perpetrated by their colleagues in order to avoid possible repercussions, such as criminal convictions against them. The Tribunal is therefore satisfied that the essential and significant reason for the applicant’s persecution was personal or criminal, and therefore not Convention-related.”
The Tribunal did not stop at this finding. At [CB 84] it stated:
“In the light of the country information relating to the pervasiveness of violence against women (page 16), the Tribunal also considered whether the applicant’s rape could have been construed as having been motivated by the applicant’s membership of a particular social group (“women” or “Ukrainian women”), even though this was not claimed by the applicant. The Tribunal is not satisfied, on the evidence of the evidence of the country information, that “women” or “Ukrainian women” constitute a particular social group in terms of the Convention.”
The Tribunal then went on to consider whether there was a sustained or systemic absence of state protection for Ukrainian women because of a perception of them by the Ukrainian state as less deserving of rights and freedoms than other members of society in accordance with the dicta of Lindgren J Minister for Immigration v Khawar (2001) 187 ALR 574. The Tribunal came to the conclusion that whilst the situation for female victims of sexual violence in Ukraine is far from ideal there was some provision of governmental support which led it to the conclusion that Ukrainian authorities did not perceive women as not deserving of equal protection under the law. The Tribunal came to the view at [CB 86]:
“The Tribunal has considered whether there is a real chance the applicant will face Convention based persecution if she returns to Ukraine in the foreseeable future. It has found that she has not suffered Convention based persecution in the past. She lived in the Ukraine for a period of some seven months before leaving for Australia without being harmed. There is nothing in the applicant’s evidence to indicate that she is at risk of being seriously harmed for a Convention reason in the future. It is, from the Tribunal’s view, highly unlikely that she would again encounter the serious harm she has suffered in the past. However, even if she were to be subjected to harm of this kind, she has not provided evidence which would satisfy the Tribunal that such harm would be inflicted on her for other than criminal or personal reasons. The Tribunal is therefore not satisfied that there is a real chance that the applicant will be persecuted, within the meaning of the Convention, if she returns to Ukraine. It is therefore is not satisfied that the applicant has a well-founded fear of persecution.”
Now it may well be that another Tribunal could take an entirely opposing view of the evidence of the applicant and the country information so that it could conclude that Ukrainian women were indeed at risk from pervasive acts of violence against them. It could have come to the conclusion that there was a sustained or systemic absence of state protection and that the applicant’s rape by members of the police force was ample evidence of this. But these are matters which go to the merits of the claim and it is not within the power of this court to substitute its conclusions from the relevant evidence for those of the Tribunal: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
The applicant does not ask the court to undertake this task. Her reason for seeking review was expressed by her Counsel in the following form. He claimed that the exercise carried out by the Tribunal of the identification of social groups to which the applicant might belong was over simplified and that a better assessment would have produced a result that she was a member of a social group. He states that if the Tribunal had thought properly about particular social groups it might have made a different finding on the question of the post-rape actions of the authorities which could have led to the conclusion that the applicant was the subject of persecution for Convention reasons. The applicant was saying that the manner in which the Tribunal did give consideration to whether or not she was a member of a social group was so inadequate that it did not constitute a proper consideration of this matter which led to jurisdictional error. This consisted of the Tribunal failing to ask itself whether the applicant was a member of a particular social group consistent with the evidence. Counsel suggested that based upon the facts found by the Tribunal, a particular social group that the applicant may be considered to be a member of is
“Ukrainian citizens who complained that they had been detained and subjected to violence at the hands of officials.”
It is well accepted that persecutory conduct cannot define the social group (Applicant A v Minister for Immigration (1996) 7 CLR 225 at 264 per McHugh J) but the applicant claims that the definition of the group as previously set out does not do that. I am not too sure about that. But even if the applicant is right she does not go on to say what persecution she suffers by being a member of such a group. If it is the things that happened to her post the rape then the Tribunal has found that none of these amount to persecution and it doubtless had in mind when considering that the provisions of s.91R(1)(b) and (c) of the Migration Act 1958 (Cth) (“the Migration Act”) which requires the persecution to be serious and systematic.
The applicant also relied on the dicta of Tamberlin J in SBBK v Minister for Immigration [2002] FCA 565 where His Honour said at [28]:
“In Khawar Kirby J at [101] and [102] found that the Tribunal has committed an error of law in failing to make findings of fact on the respondent’s allegation that she was unable to secure protection of the law and agencies in Pakistan against the serious harm perpetrated against her and that she was a member of a “particular social group” of, at least, one of the kind propounded before the Tribunal. His Honour considered that until such factual findings were made it was impossible for the Tribunal to apply accurately to the facts, the Convention definition which the respondent had evoked. He also considered that the Tribunal had failed to address itself to the essential features of the case which the respondent had presented to establish persecution and to identify herself with particular social group “in Pakistan”. Such a failure represented an impermissible attempt, in His Honour’s view, to oversimplify the matter by ignoring essential factor determinations which if decided in particular ways would have brought the respondent within the Convention definition of a refugee.”
As recently confirmed in Minister for Immigration v VFAY [2003] FCAFC 191 at [49]:
“In Applicant A v Minister, at 242, Dawson J accepted by reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, at 568, per Burchett J, that there is a “common thread” which links the expressions “persecuted”, “for reasons of” and “membership of a particular social group” in Article 1A(2) of the Convention. As was said in Ram v Minister, the link is
“a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of the particular social group. He is persecuted because he belongs to that group.”
Furthermore, at [50] the Full Court quotes from Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 where Gleeson CJ, Gaudron, Gummow and Hayne JJ held:
“…not every form of discriminatory or persecutory behaviour is covered by the Convention definition of ‘refugee’. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution.”
I am not satisfied that the applicant has proven that there is a ‘common thread’ which links the discriminatory post-rape treatment to a Convention-based reason. The applicant has shown that she suffered harassment as a result of reporting the crime but I am not satisfied that she has shown that as a member of a particular social group she was singled out and persecuted by or with the tacit acceptance of the government of Ukraine: Applicant A v Minister for Immigration (1997) 190 CLR 225 at 257-258 per McHugh J. As stated by His Honour:
“Discrimination – even discrimination amounting to persecution – that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of a refugee, no matter how terrible its impact on that person happens to be.”
Furthermore, in VFAY it was held that there must be evidence of social and cultural attitudes and practices in Ukrainian society which points to an identifiable social group. The Tribunal did take into account country information which said that women in Ukraine are at risk of pervasive acts of violence against them at [CB 82], but came to the view that the harm suffered by the applicant was not persecution ‘for reasons’ of membership of a particular social group.
As noted in [18] no evidence is provided about the persecution of members of the social group defined by the applicant’s counsel as “Ukrainian citizens who complain that they have been detained and subjected to violence at the hands of officials”.
On the question of jurisdictional error, an analysis of the cases relating to failure to consider whether or not an applicant fell within a particular social group seems to indicate that they fall within two classes. Firstly, there are those cases where the Tribunal does not consider that matter at all: SDAV v Minister for Immigration (2003) 199 ALR 43; Minister for Immigration v Yusuf (2001) 206 CLR 323. Secondly, there are the class of cases where the Tribunal may consider a particular social group but does not consider an obvious alternative: Dranichnikov v Minister for Immigration (2003) 197 ALR 389; Minister for Immigration v Khawar (2002) 187 ALR 574. This case falls within that second group. The difficulty is that the applicant has not suggested any obvious social group into which she would fall that the Tribunal did not consider. The one that it did suggest seems to me to be not available for the reasons which I have given. I can’t see how the Tribunal can be held to be in jurisdictional error by not finding some other group (not yet identified) to which the applicant might belong. If the applicant can’t suggest it now when might she be able to suggest it? In Re Minister for Immigration and Another; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [31] Gleeson CJ says:
“The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s.47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis.”
I am aware of the strictures of Sackville J contained in Saliba v Minister for Immigration (1998) 159 ALR 247 at 258 where His Honour said:
“The general principle is that a Tribunal is not alleged to make out an applicant’s case. However, there are circumstances where the Tribunal may be obliged to undertake further factual inquiries even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170; 65 ALR 549 (Wilcox J); Luu v Renevier (1989) 91 ALR 39 at 49-50 (Full Federal Court). It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applicant’s claim that he or she satisfies the Convention on a particular basis, the RRT may be required to consider the issue. Particularly is this so where the RRT accepts the substance of the applicant’s account.”
I find that the Tribunal did adopt the proper approach. It made certain findings as to facts which, as I have indicated, other Tribunals may not have agreed with. Based upon those facts the Tribunal assessed the applicant’s actual claim and then went further to assess claims not made arising out of her possible membership of a social group. Again, on the facts found by the Tribunal, I cannot see that the Tribunal was in error in not casting around for groups other than that which it did identify and which were not otherwise obviously or readily identifiable.
I dismiss this application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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