SZANM v Minister for Immigration
[2004] FMCA 378
•16 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANM v MINISTER FOR IMMIGRATION | [2004] FMCA 378 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ghana by reason of pressure to undergo female circumcision – whether effective state protection available to the applicant in Ghana – RRT found that effective protection is available – no reviewable error found – application dismissed. |
Minister for Immigration v Respondents S152/2003 [2004] HCA 18
| Applicant: | SZANM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ756 of 2003 |
| Delivered on: | 16 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 16 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ756 of 2003
| SZANM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 6 March 2003 and handed down on 1 April 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is a woman from Ghana who claimed persecution in that country by reason of her fear of being subjected to the practice of female circumcision or female genital mutilation. The relevant background facts and circumstances are set out in paragraphs 4- 7 of written submissions prepared by Mr Smith on behalf of the Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant is a citizen of Ghana who arrived in Australia on 4 September 2000 as a member of the Ghanaian Olympic Team. On 29 August 2001 she lodged an application for a protection visa. On 22 November 2001 a delegate of the respondent refused to grant the visa and the applicant applied to the RRT for review of that decision.
The applicant claimed that she was a native of a small village in the upper west region of Ghana and sought protection in Australia because she feared persecution by the natives of her village arising from her unwillingness to be circumcised in accordance with tradition and customary rites. In June 2000 she was told by her grandmother that she had to return to her village to be circumcised and when she objected to the demand her family was angry with her and threatened to force her to be circumcised.
Tribunal’s decision
The RRT accepted that female genital mutilation is a dangerous practice inimical to the human rights and physical and emotional health of women [court book, page 56.10]. However, it found that there was effective state protection against the harm that the applicant fears [court book, page 57.8] and also that the applicant would be able to draw on official, community and family assistance in refusing to undergo circumcision such that there was no real chance of her being forced to undergo circumcision [court book, page 58.1].
On the basis of these findings the RRT concluded that the applicant was not a person to whom Australia owed protection obligations and affirmed the decision under review.
The applicant proceeds on the basis of her application filed on 5 May 2003. The applicant also relies upon an affidavit filed on 9 June 2004. The affidavit is in reality a document which sets out the applicant's legal arguments. I have had regard to it as if it were written submissions. Annexed to the affidavit are a series of newspaper articles, apparently from Ghana, detailing instances of female genital mutilation. The applicant confirmed to me that, with one exception, these articles were not before the RRT at the time it made its decision.
The legal arguments set out in the applicant's affidavit differ from the grounds contained in her application for review. The grounds of review appear to be substantially an attack on the merits of the RRT decision. As I explained to the applicant, I cannot decide whether or not she is a refugee. Various asserted jurisdictional errors are set out in the applicant's affidavit. These are not particularised except to the extent of asserting that the RRT erred in law by impliedly dividing women who are subjected to female circumcision into groups. The relevant groups are young women and mature women and women in rural areas as opposed to those living in cities. The applicant also asserts that the RRT erred in law by failing to consider whether the need to live in urban areas to avoid the threat of serious harm constitutes persecution.
In my view, there is no substance to any of the grounds set out in the application, to the extent that they have legal significance, and the submissions in the applicant's affidavit. The RRT did not err by actually or impliedly dividing women subject to a risk of female genital mutilation into groups. The RRT simply had regard to country information which was discussed with the applicant at the RRT hearing. That country information indicated that the only significant risk of women being subjected to the practice of female genital mutilation existed in rural areas. The country information also indicated that those at greatest risk were young women in rural areas.
It is apparent from the RRT decision, in particular that part set out on page 56 of the court book, that the applicant, through her adviser, was not asserting that she was at any risk from the Ghanaian authorities. Rather, she was concerned that because she has family links to a small village in rural Ghana, the Ghanaian authorities may not be able to provide her with effective protection from the practice of female genital mutilation. The RRT found that effective state protection is available in Ghana. The practice of female genital mutilation is illegal in Ghana by legislation passed in 1994. Moreover, the country information established to the RRT’s satisfaction that the Ghanaian Government is taking active measures in order to attempt to stamp out the practice.
Although it was not available to the RRT, the newspaper articles provided to me by the applicant underscore this finding. Those articles reflect not only public condemnation of the practice of female genital mutilation in Ghana, but also active measures to deal with those who are responsible for the practice.
The RRT found that the applicant was born in Accra and has spent the greater part of her life in Ghana's second city, Kumasi. It followed that as the applicant had a relatively sophisticated urban background and was of mature age, she should be able to avail herself of the state agencies which existed to protect her from any risk of being subjected to female genital mutilation.
The RRT also noted that the applicant's fear of being subjected to the practice of female genital mutilation stemmed from her grandmother. However, the applicant’s own evidence indicated that her grandfather was opposed to the practice as apparently was her mother. This indicated that the applicant could look to support from within her own family. There appears to me to be a substantial factual basis for the RRT’s findings. I can see no legal error in the approach taken by the RRT. Further, the RRT proceedings appear to me to have been fair. For completeness, I agree with an adopt Mr Smith's written submissions from paragraph 8 through to paragraph 11:
The RRT was not able to make a decision favourable to the applicant on the material initially available to it. Accordingly, it invited the applicant to attend a hearing on 26 February 2003. At that hearing the RRT asked the applicant to comment on independent country information about female genital mutilation in Ghana [court book, page 55.4]. The applicant responded to this material and her adviser sought to draw distinction between the laws adopted by the Government and what actually happened. The adviser submitted that the applicant’s fear was not merely a matter of persecution by the Ghanaian authorities themselves but of their inability to provide effective protection to those at risk of the practice of female circumcision. The applicant’s final comment at the hearing was that her fear was of being forced to submit to circumcision, with its attendant health risks, against her will on return to Ghana.
The RRT clearly addressed these claims. It accepted, as stated above, that female genital mutilation was dangerous and unacceptable but, in essence, found that there was no real chance that it would happen against the applicant’s will. The reasons for this finding were not only the legislative prohibition of the practice but also the practical assistance given by the Ghana to those at risk of mutilation and the ability of the applicant to draw on the assistance of her family. In respect of this last matter, it is to be noted that the applicant’s grandfather had been able to prevent his daughters from undergoing circumcision [court book, page 53.5].
The RRT’s finding that there was effective state protection against the harm was relevant to three matters: first, the well-foundedness of the fear; second, whether or not the practice amounted to persecution within the meaning of the Convention; and third, whether the applicant’s unwillingness to avail herself of external or diplomatic protection from the state was owing to her fear of persecution: Minister for Immigration v Respondents S152/2003 [2004] HCA 18. Here, the RRT clearly used the effective state protection finding in the first of these senses. There was no error of law in the RRT’s decision.
The procedure adopted by the RRT involved no unfairness to the applicant. She was represented at the hearing held by the RRT on 26 February 2003 and both she and her adviser took the opportunity presented by the RRT to comment upon the adverse material relied upon by the RRT in its decision. The RRT observed all the requirements of natural justice.
There is no jurisdictional error in the decision of the RRT. It follows that the RRT decision is a privative clause decision. I must dismiss the application.
On the issue of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Smith submits that an order for costs fixed in the sum of $4,000 on a party-party basis would be appropriate. The applicant continues to assert the merits of her claims. Although the factual basis of the applicant's claims were somewhat unusual, the legal issues raised in the matter were relatively straightforward. Only modest preparation was required in order to produce the court book and in order to prepare for today's hearing. In my view, an order for costs fixed in the sum of $3,000 will be adequate recompense to the Minister. I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 June 2004
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