SZBPG v Minister for Immigration - [2005] FMCA 1298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPG v MINISTER FOR IMMIGRATION

[2005] FMCA 1298

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, s.426A

Minister for Immigration & Multicultural Affairs v Respondent S2152/2003 (2003) 205 ALR 487
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
SDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531
B41/2003 v Refugee Review Tribunal [2005] FCAFC 4

Applicant:

SZBPG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2090 of 2003

Judgment of:

Barnes FM

Hearing date:

5 September 2005

Delivered at:

Sydney

Delivered on:

5 September 2005

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms S Mason

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Refugee Review Tribunal be joined as a second respondent to the proceedings.
That the application is dismissed.
That the applicant pay the first respondent's costs fixed in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2090 of 2003

SZBPG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Ukraine, arrived in Australia in September 2002 and applied for a protection visa. In her protection visa application she claimed in essence to fear persecution by reason of membership of a particular social group of ‘young women forced to prostitution’. She claimed to fear persecution in a variety of ways, in particular that she would be forcibly sent overseas as a sex slave and that if she refused to co-operate she feared that she would be murdered. Her application was refused and she sought review by the Tribunal.
In the review application lodged on 3 March 2003 she provided one home and mailing address and nominated a migration agent as her authorised recipient to act on her behalf in the case. She repeated her claim to fear persecution having left Ukraine for reason of membership of a particular social group of young women forced into prostitution.
The Tribunal wrote to the applicant at her home address and also to her migration agent as her authorised recipient, acknowledging receipt of the application. It wrote again to her home address and also to her authorised recipient on 8 July 2003 advising that it had considered the material before it in relation to the application but was unable to make a decision in her favour on that information alone. It invited her to attend a Tribunal hearing at a date and time specified. The applicant was advised that if she did not attend the hearing and a postponement was not granted the Tribunal could make a decision on her case without further notice.
The Tribunal reasons for decision record that no response to this invitation was received, either from the applicant or from her authorised recipient, that neither letter had been returned unclaimed to the Tribunal and that the applicant did not appear at the Tribunal hearing.
It appears from the Tribunal reasons for decision that the applicant did not advance any further reasons, submissions or materials to the Tribunal for consideration other than the summary of her claims in the review application.
In the circumstances, pursuant to section 426A of the Migration Act 1958, the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal summarised the applicant's claims as set out in her protection visa application and repeated in the review application, in particular her claim that she was threatened with being kidnapped and delivered overseas forcibly as a sex slave as a member of a particular social group being young women forced into prostitution.
The Tribunal noted that the applicant had provided no information which would suggest the existence of such a social group in Ukraine but had made it clear that she was not and never had been a prostitute. The Tribunal accepted that even if such a social group of people forced into prostitution existed in the Convention sense the applicant would not be a member of it. The Tribunal stated however that in any event it was not satisfied that such a social group existed in the Convention sense.
The Tribunal indicated that it had wished to clarify with the applicant at the hearing whether she intended to infer a different social group. It considered the possibility that she meant ‘young women at risk of being forced into prostitution’ but was not satisfied on the limited evidence before it that such a social group existed in the Convention sense, noting that the hypothetical group would be defined by the feared persecution, that the applicant had not claimed that all young woman in the Ukraine were at risk of being forced into prostitution and there was nothing before the Tribunal to lead it to such a conclusion.
The Tribunal found therefore that the applicant's stated fears were not Convention-related. It indicated that it had wished to canvass with the applicant whether or not her fears were genuine, but given its finding that her fears were not Convention-related, it was not necessary to make a definitive finding on this point.
However, the Tribunal did indicate that the scant information before it and the independent country information was not such as to lead it to be satisfied that the applicant was approached with offers of overseas employment and threatened with harm when she refused. This was another matter the Tribunal would have wished to canvass at the proposed hearing. On the information before it the Tribunal was not aware of Ukrainian women unwilling to travel abroad to find work being coerced to do so by threats from organised crime.
It also noted that independent evidence indicated that while trafficking in women was a problem in the Ukraine, the modus operandi appeared to be to lure young women to travel abroad on the basis of false promises of legitimate employment and then to coerce them into prostitution when stranded abroad. It found the applicant was an educated women and obviously aware of the dangers of accepting unsolicited overseas job offers. It considered her chances of being forced into prostitution to be remote.
The Tribunal also had regard to independent evidence indicating increased efforts by the government to combat trafficking in women. The applicant had not claimed she had sought protection from the authorities of the Ukraine. This was another issue that the Tribunal had wished to discuss with her. On the basis of the information before it the Tribunal stated that it would not have been satisfied that the applicant had been or would be denied her country's protection. It was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this court on 8 October 2003. She has not filed written submissions. The first ground in her application in that the Tribunal made an error in understanding the correct test to apply (effectuality of state protection). However, as set out above the applicant failed because of the Tribunal's finding that her stated fears were not Convention related. In particular it was not satisfied on the limited information before it that the applicant was a member of a particular social group for the purposes of the Refugees Convention as claimed.
Hence, as the Tribunal stated, it was not necessary to make a definitive finding as to whether or not the applicant’s fears were well-founded or genuine, although it went on to address that issue and the information on which it would have sought comment at the hearing including the issue of state protection. In relation to state protection its finding was that on the basis of the information before it the Tribunal would not have been satisfied that the applicant had been or would be denied her country's protection.
In the absence of any additional material or submissions advanced by the applicant (despite the invitation to do so) the Tribunal expressly considered the attitude of the Ukrainian authorities towards people trafficking and their ability to successfully combat such occurrences consistent with the decision in Minister for Immigration & Multicultural Affairs v Respondent S2152/2003 (2003) 205 ALR 487. No jurisdictional error is established in the manner contended.
The second ground relied on is that the ground of membership of a particular social group and Convention nexus was not finally decided and that the Tribunal failed to correctly apply a definition of particular social group in relation to the applicant.
The Tribunal considered the social group referred to by the applicant, both in her protection visa application and in her application for review. However it found that even if there was a group of young women forced into prostitution, as the applicant was not on her own evidence a prostitute, she would not be a member of it. The Tribunal went on to consider whether the applicant may have meant a wider definition of young women at risk of being forced into prostitution. In that way it met its obligation to consider not only the claims raised expressly by the applicant but also any raised impliedly on the material before it (see in particular, SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90).
The Tribunal finding that it was not satisfied on the limited evidence before it that such a social group existed was a finding that was open to it on the material before it consistent with the approach of the High Court in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225. There are no particulars of this ground in the application for review. In so far as the applicant contends that the Tribunal failed to consider some other particular social group, I note that as Kirby J said in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at 78, the function of the Tribunal is to respond to the case that the applicant advances, also see Abebe v The Commonwealth (1999) 197 CLR 510.
The Tribunal considered all substantive issues raised by the limited evidence before it in which the social group to which the applicant claimed to belong was expressed as young women forced into prostitution. I note in that respect that as the respondent suggested, while women have in certain circumstances been found to constitute a particular social group (see Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at 32 per Gleeson CJ) in this instance, the applicant had not claimed that all young women were at risk of being forced into prostitution and there was nothing before the Tribunal to lead it to such conclusion. In the absence of a Convention nexus to the applicant's claims, it was not necessary for the Tribunal to go on to consider whether those claims gave rise to a well-founded fear in the Convention sense. No error is established in the manner in which the Tribunal dealt with the issue of particular social group.
In the hearing today the applicant claimed that not everything in her protection visa application was exactly correct and that the form had been completed by a migration agent on her behalf. She stated that she did not see her application until she saw the court book.
No such claim was made in her application for review to this court. Her claims, as made in the protection visa application, are in essence repeated in the application for review to the Tribunal. In any event, the claims that she now makes about the conduct of her migration agent do not establish a lack of procedural fairness or other jurisdictional error on the part of the Tribunal. The Tribunal invited the applicant to attend a hearing by letter sent to her home and mailing address as well as to her authorised recipient.
The applicant did not attend the hearing. In so far as she claims that this is in some way attributable to the conduct of her migration agent in connection with her protection visa application, there has been no denial of procedural fairness by the Tribunal. It complied with the statutory notification of hearing provisions. It was open to it to proceed to make a decision in the applicant's absence. In that respect, see SDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 and B41/2003 v Refugee Review Tribunal [2005] FCAFC 4. If the applicant has a complaint about the conduct of her migration agent, that may be a matter dealt with elsewhere. It is not a matter that establishes jurisdictional error by the Tribunal reviewable by this Court.
As no jurisdictional error has been established the decision is a privative clause decision to which section 474 of the Migration Act 1958 applies. The application must be dismissed. For the sake of completeness and in light of the decision of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 the Tribunal should be joined as a respondent to the proceedings.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that she meet the costs of these proceedings including prior interlocutory proceedings. The applicant states that she cannot pay at the moment because she is not in employment. However, her impecuniosity is not a reason for departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent although it may be a matter taken into account by the respondent in determining when and how to seek to recover such costs.
In this instance the amount sought is appropriate in light of the nature of this and other similar cases and the past history of this matter.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 September 2005