SZAQK v Minister for Immigration
[2004] FMCA 407
•25 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQK v MINISTER FOR IMMIGRATION | [2004] FMCA 407 |
| MIGRATION – Review of RRT decision – where application for review made out of time – where applicant claimed an attempt had been made to traffic the applicant to India for forced prostitution – where applicant claimed to have suffered sexual harassment in the workplace – where applicant’s complaints regarding this harassment was ignored by authorities – whether in finding that these incidents did not constitute persecution the Tribunal fell into jurisdictional error – where RRT decision pre-dates s.91R Migration Act – whether Tribunal should have considered whether lack of action on part of State authorities amounted to persecution – whether Tribunal erred in failing to conclude that “Nepali women without the protection of a male relative” was a particular social group for the purposes of the Convention. |
Migration Act 1958 (Cth) s.477(1)
NAHI v MIMIA [2004] FCAFC 10
Abebe v Commonwealth (1999) 197 CLR 510
Waterford v Commonwealth (1987) 163 CLR 54
SFGB v MIMIA [2003] FCAFC 231
MIMA v Khawar (2002) 76 ALJR 667
Applicant S v MIMA [2004] HCA 25
Dranichnikov v MIMA (2003) 197 ALR 389
Prahastono v MIMA (1997) 77 FCR 260
MIMA v Respondents S152/2003 [2004] HCA 18
MIMA v Ibrahim (2000) 204 CLR 1
| Applicant: | SZAQK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 886 of 2003 |
| Delivered on: | 25 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms T Jowett |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 886 of 2003
| SZAQK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Nepal. She arrived in Australia on 19 January 1998 and lodged an application for a protection (class AZ) visa on 4 February 1998. On 18 April 1998 a delegate of the Minister refused to grant her a protection visa and on
14 May 1998 the applicant applied for review of that decision. The Tribunal arranged a hearing which took place in July 2000 when the applicant was represented by a Migration agent who presented written submissions to the Tribunal. On 30 August 2000 the Tribunal determined to affirm the decision of the delegate and handed down that decision on 14 September 2000. The applicant applied for review of the decision on 21 May 2003 considerably later than the 21 days allowed under s.477(1) Migration Act 1958. The Minister has filed a notice of objection to competency.
Certain claims made by the applicant concerning her identity and her situation which form the basis for the delegate’s decision were recanted prior to the hearing and a new statement dated 14 July 2000 was submitted to the Tribunal. The Tribunal proceeded on the basis of this statement and the oral evidence of the applicant. In the statement the applicant said that she was a single women born in a country area of Nepal in 1969. The area is undeveloped and the population are uneducated, illiterate, conservative and traditional.
“The place where I was brought up is totally male dominated and women are considered to be their slaves or servants. They have say in each and every affairs of day to day lives. Women must have male protection for their survival. … Although I belong to the second top cast I have always been the victim of basic human rights violation due to lack of male protection and poverty.”
The applicant told the Tribunal that she had been persuaded by a village elder to go to Kathmandu with him in search of a position. He did not take her to Kathmandu, he took her to the Indian border where he proposed to traffic her into prostitution in India. She was stopped by the police and as she began to tell her story the village elder disappeared. After a short time in detention the police arranged for her to return to her native village. When she arrived there she found that the village elder had spread rumours about her being a prostitute and she was provided with no comfort from her family and felt that she must leave the village. This she did with the assistance of a distant relative with whom she arrived in Kathmandu around 1991. She commenced work in a garment factory and during the seven years or more which she spent in Kathmandu before leaving for Australia she worked in various garment and carpet factories. She claimed that she had found it impossible to arrange a marriage because the rumours that she had become a prostitute clinged to her. More importantly for the purposes of these proceedings she claimed that she had been the victim of sexual harassment at the hands of owners, management and customers of the places in which she worked. She said that she tried to report these events to the police but nothing would happen except that she would be asked to attend various places to give statements. “All would result in me to be labelled as a prostitute”.
“I say that I have never been married, and there is no male protection in Nepal to turn to, and I will not find anyone to marry me in Nepal. I have experienced very hard times since my tender age and the harassment, persecution and injustice I had gone through cannot be explained through words. I felt it from the bottom of my heart. It is all because I am a woman, born in a remote place poor and no male protection.”
At [CB 164] the Tribunal sets out its discussion with the applicant concerning the incidents of sexual harassment. It reported
“The Tribunal asked the applicant if she ever encountered difficulty with the authorities or the police. The applicant said that unless one had money the police were not interested in doing anything. The Tribunal asked the applicant if she had ever been arrested. She said that she had not but that when she reported difficulties to them they had just laughed at her. The Tribunal asked the applicant the nature of the difficulties about which she complained to the police. The applicant said that if one was a girl and working that employers would look and joke in a bad way and try to touch them. She said that the police would do nothing if she complained. The applicant said that she complained on three of four occasions. She said that she had no money so the police had no reason to listen to her. The tribunal asked the applicant if the people she lived with in Kathmandu had encountered similar problems. She said they had and they had also reported the matters to the police but since there was no money in it for them the police had not been interested.”
The Tribunal accepted the applicant’s evidence of the attempt to traffic her and that there was trafficking in girls and young women from Nepal into India but said [CB 165] – [CB 166]
“The Tribunal also notes the applicant’s evidence that she moved to Kathmandu and lived and worked there. The Tribunal also notes that the independent evidence suggests that it is mainly girls and young women who are trafficked into prostitution. The Tribunal finds that, disturbing as the attempt to traffic her to India must have been, it was foiled by the Nepalese authorities and that this occurrence some ten years earlier does not give rise to a well-founded fear of persecution given that there is only a remote chance that she will be forced into prostitution, for any Convention reason should the applicant return to Nepal now or in the reasonably foreseeable future.”
The Tribunal accepted the published information that women in Nepal suffer broad based discrimination and are subject to domestic violence and accepted that during the period the applicant stayed in Kathmandu she and other women with whom she worked and lived suffered harassment because of their sex. It accepted her evidence as consistent with the published evidence that her attempts and similar attempts by her colleagues to obtain official interest in her complaints were unsuccessful. At [CB 166] the Tribunal said
“The Tribunal notes the view expressed in Yan Xu v MIMA (unreported, FCA, 18 April 1997 at p16) by Olney J that a generalised failure to adhere to basic human rights standards would not entitle a person to refugee status on that basis. The harm must be sufficiently serious to amount to persecution. The Tribunal finds that while the three or four incidents complained of by the applicant were distressing and constitute unacceptable behaviour they do not amount to persecution in a Convention sense as defined by Australian law.”
The applicant takes issue with this finding because it appears to proceed from an erroneous assumption that because the applicant only complained three or four times to the authorities she only suffered harassment on three or four occasions. She also argues that in using the word “harassment” the Tribunal neglected to consider that some of her complaints involved actual assault by touching. This decision was handed down before s.91R found its way into the Migration Act. The Tribunal was required to consider the seriousness of the complaints so as to make a finding as to whether or not that constituted persecution within the Convention. This task is a fact-finding task. It is not a matter with which the Court can interfere: NAHI v MIMIA [2004] FCAFC 10 at [10]. To the extent that the task which it undertook was predicated on another fact which constituted a wrong finding of fact the Court is equally unable to interfere: Abebe v Commonwealth (1999) 197 CLR 510; Waterford v Commonwealth (1987) 163 CLR 54; SFGB v MIMIA [2003] FCAFC 231. These matters do not constitute grounds for ordering review.
In her amended application the applicant argues that the Tribunal erred in failing to appreciate that persecution can be suffered not only through the positive harm of her employers (non-state agents) but also through the discriminatory inactivity of state authorities in not responding to violence of non-state agents: MIMA v Khawar (2002) 76 ALJR 667 at [85] and [87]. Of course, Khawar had not been decided when this case was heard. The difficulty which the applicant faces in making this submission is that whilst Khawar stands for the proposition that the withholding of protection from persecution by authorities for a Convention reason may support a claim for refugee status even if the acts of persecution by others in the community are not themselves motivated by a Convention reason, there has to be an act of persecution. In this case the Tribunal found that the acts complained of do not amount to persecution.
The applicant complains that the Tribunal erred in the manner in which it came to the conclusion that the applicant was not a member of a particular social group. This was done by the Tribunal between [CB 166] –[CB 168]. The Tribunal first considered whether there could be a social group made up of “women or young women in Nepal”. It said:
“If there is a relevant social group the question is whether in any relevant sense an applicant faces persecution as a member of the postulated group. The Tribunal notes the published evidence, cited above, on the status of women in Nepal. It notes that while the Constitution that there should be no discrimination on the grounds of sex that violence against women is a serious problem in Nepal and that there is also concern at the incidence of rape and incest. The Tribunal notes also that the Government and NGO community has sought to take steps to alleviate these problems but that progress is slow. The Tribunal is not satisfied on the evidence before it that the characteristics of a high level of domestic violence and a relatively weak but growing Government and NGO attempt to tackle this problem, whether considered together together or separately, distinguish “women in Nepal” from the rest of the Community as a social group that is cognisable to the extent that it has something that may sensibly be identified as “membership” (cf Morato v MILGEA (1992) 39 FCR 401 at 405, 406; RAM v MIEA & Anor (1995) 57 FCR 565 at 569).
In this case there was no evidence before the Tribunal that suggested that “uneducated single women without male protection” might be cognisable as a particular social group in Nepal or that uneducated single women without male protection might attract differential recognition or treatment for reasons of membership of such a group. The applicant’s adviser suggested that this group faced persecution because their lack of education and male protection made them vulnerable to harassment and being forced into prostitution.
The Tribunal is not satisfied on the evidence before it that the characteristics of a lack of education and lack of male protection, whether considered together or separately, distinguish “uneducated single women without male protection in Nepal” from the rest of the community as a social group that is cognisable to the extent that it has something that may sensibly be identified as “membership”.”
The Tribunal did not have the benefit of the High Court’s views of the law on particular social groups as propounded in Khawar and set out its view of the law as it then was. I think that it is fair to say that if the matter had been heard today the Tribunal would have taken into account what the High Court said in Khawar and it could have possibly have come to a conclusion that there was a social group consisting of Nepali women without the protection of a male relative. But it remains that any consideration of whether a failure to apply the law emanating from the decision in Khawar and explained in such decisions as Applicant S v MIMA [2004] HCA 25 and Dranichnikov v MIMA (2003) 197 ALR 389 constituted a jurisdictional error on the part of the Tribunal seems to me to founder upon the shoal of the lack of evidence of persecution. This Tribunal came to the conclusion that the discrimination that it accepted the applicant suffered from did not constitute persecution as the law then stood. The law has now changed and s.91R has placed upon a Tribunal a stricter standard. However, whether or not conduct constitutes persecution is for the Tribunal alone to determine. As Hill J said in Prahastono v MIMA (1997) 77 FCR 260 at [271] when it comes to deciding whether particular conduct amounts to persecution “the Tribunal is the final arbiter.” However unpleasant the harassment suffered by the applicant may be, it remains the case that not all acts of harm constitute persecution. As McHugh J said in MIMA v Respondents S152/2003 [2004] HCA 18, reflecting MIMA v Ibrahim (2000) 204 CLR 1:
“The feared harm must be of a serious nature that goes beyond simple discrimination … It is not to be supposed that the Convention required signatory States to give asylum to persons who were persecuted for a Convention reason but who were unlikely to suffer serious infringement of their rights as human beings. Thus, for the purpose of the Convention, the feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it …”
A decision as to what constitutes persecution is the very essence of the Tribunal’s task and in the absence of a jurisdictional error in the manner in which it came to that conclusion, its findings must stand. I am not satisfied that the Tribunal did err in a jurisdictional sense in that regard and therefore I am unable to grant the applicant review of the Tribunal’s decision.
I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 25 June 2004