SZAFS v Minister for Immigration

[2003] FMCA 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFS v MINISTER FOR IMMIGRATION [2003] FMCA 415

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claimed that she had been sold into prostitution by her parents – where the applicant claims to have a well-founded fear of persecution for reasons of membership of a particular social group – whether the Tribunal made a jurisdictional error by limiting the definition of the social group to “women in Thailand” instead of “poor women in Thailand” or “prostitutes in Thailand” – whether the Tribunal ignored relevant country information – whether the applicant had access to effective protection in Thailand.

Migration Act 1958 (Cth), s.91R

Craig v South Australia [1995] 184 CLR 163
Minister for Immigration v Yusuf [2001] HCA 30

Applicant: SZAFS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 272 of 2003

Delivered on: 11 September 2003

Delivered at: Sydney

Hearing date: 11 September 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitor for the Applicant: Mr C Jayawardena

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 272 of 2003

SZAFS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a Thai citizen who arrived in Australia on 29 January 2002. On 28 February 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 9 July 2002 a delegate of the Minister refused to grant a protection visa and on 9 August 2002 she applied for a review of that decision by the Refugee Review Tribunal.

2. On 2 December 2002 the Tribunal wrote to the applicant informing her that it had considered the material before it in relation to her application but was not able to make a decision in her favour on that information alone.  The Tribunal invited the applicant to attend a hearing on Friday 17 January 2003 [CB 31].  The applicant, possibly for the reasons which have been explained by her advocate today, namely her fear of authority, did not take advantage of this offer and the Tribunal proceeded to consider her case on the papers that were then before it.  These consisted of the application and a typewritten statement dated 28 February 2002, a decision of the delegate and certain country information.

3. The applicant stated that she was a young woman born in 1973 in Chang Rai.  She was educated to primary school level but her parents would not allow her to continue her education in secondary school.  She claimed that her parents in 1993 found her a job as a beautician in a beauty salon.  She told the delegate that a beautician was a euphemism for a prostitute and that she was required to provide sex services in addition to beauty services. She stated that she had been tortured and imprisoned by her parents who has become angry at her refusal to enter into this trade and who had threatened to throw her out of the house.

4. As a result of her parents’ actions the applicant did take the job and continued in it for nine years.  After that time she was unable to stand the situation any longer and so she sought assistance from people who were able to obtain a passport for her and a visitor's visa to Australia.  She says in her statement after explaining the indignities that she suffered in her trade:

   “At this time accidentally I'd hear of that Australia accepts refugees 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.”

   In her application to the Refugee Tribunal at [CB29] the applicant states:

   “I cannot go back to Thailand because my job cannot be kept, my life cannot be insured, my welfare cannot be guaranteed.  Female is the lowest class in Thailand.  There is no way I can do with Government and the society.”

5. The Tribunal in its decision commenced with a review of the primary application and the review application and then proceeded to extract from the country information a US State Department report on the status of women in Thailand. This is found at [CB 42]. The reason that the Tribunal did this was because it proceeded on the basis that the applicant's ground to have a well founded fear of persecution for a Convention reason was that he was a member of the social class of women in Thailand and that that social class was either persecuted within the definition contained in s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) or was a class of persons to whom state protection was not available. The applicant's statement at [CB15] para 2 starts with the words:

   “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.”

6. The Tribunal considered, in its findings and reasons, the fact that the applicant was put on notice by the delegate's decision of the reasons he was not satisfied that she had a well founded fear of persecution and notes that the applicant failed to provide in her review application any additional information addressing those concerns.  The Tribunal noted that it did not have the opportunity of considering those matters that she had deposed to because of her non-attendance at the hearing.

7. The Tribunal noted, in its findings and reasons, that women in Thailand are constitutionally guaranteed equal rights and have equal access to higher education and doubted the applicant's statement that her parents refused to pay the fees for her continuing education in secondary school because the Constitution's provision for the right of free public education went through to Grade 12.  The Tribunal is critical of the applicant's statement concerning her parents requiring her to take the job in the beauty salon some seven years after she had left school.  The Tribunal indicates that the applicant has provided no information as to why her parents' purportedly demeaning and brutal treatment of her was not met by her leaving home at an earlier age than she eventually did.  The Tribunal noted that although the applicant said that she had no-one to turn to and nowhere to hide, country information indicated that there were Government crisis centres to care for abused women and that NGO’s provide a range of shelters and other services for them. 

8. The Tribunal also found inconsistent a statement that she couldn't go back to Thailand because her job could not be kept and her statement that her job was, in fact, so dreadful that it amounted to persecution and was the very reason why she fled into Australia. 

9. Finally, the Tribunal came to the view that it would not accept the applicant's claim that she was a member of a particular social group for the purposes of the Convention, viz women in Thailand.  The Tribunal 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 ... 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 fear because of the person's membership or perceived membership of the particular social group; Applicant A and Another v MIEA and Another (1997) 142 ALR 331 per Dawson J at 340 ... I find that "women in Thailand" do not constitute a cognisable group within Thai society in the sense described in Applicant A.  Hence the harm the applicant claims to have suffered at her parents' hands would not be for a Convention reason.”

10. There appeared before me today on behalf of the applicant Mr Jayawardena.  He had provided me with some written submissions which he had put together following some rather late instructions from the applicant.  The case which he outlined to me was that the Tribunal had failed to exercise its jurisdiction because it did not look cumulatively at the evidence provided by the applicant. 

11. He argued that if the Tribunal had done that it would have come to a different conclusion.  Mr Jayawardena also argued that the Tribunal had wrongfully limited the social group to which the applicant belonged to women in Thailand when he believed that it could be construed as poor women in Thailand or possibly prostitutes in Thailand. 

12. 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 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.

13. 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. 

14. I assume that that argument would be addressed to the findings of the High Court in cases such as Craig v South Australia [1995] 184 CLR 163 or Minister for Immigration v Yusuf [2001] HCA 30. 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 contained between CB48 and 67 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.

15. 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.

16. Insofar as Mr Jayawardena argues that the Tribunal made errors in the way in which it interpreted the evidence of the applicant I will say this. It is always unfortunate when one sees errors in a decision.  The particular error drawn to my attention here is in the Tribunal's interpretation of the phrase "her job cannot be kept".  Mr Jayawardena has offered an alternative view as to what the applicant may have meant by that phrase and it is one that I would personally be inclined to accept but that is not to the point.  An error made by the Tribunal of that type is an error of fact and is an error which is clearly within jurisdiction.

17. In all of these circumstances I am unable to give review of this decision. I dismiss the application and 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.

18. I have heard what Ms Rayment has had to say.  I think it is open for the Minister to refer the papers, the submissions and the amended statement to the Law Society if he wishes.  I do not propose to do so on the basis that Mr Jayawardena has only recently come into this matter and has made some effort to provide representation for his client. I am not going to order that he pay the costs on this occasion.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  11 September 2003