SZIBG v Minister for Immigration
[2007] FMCA 686
•10 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 686 |
| MIGRATION – Refugee – claimed “sex worker” – no Convention nexus – effective state protection available – applicant did not seek international protection abroad – no s.424A error – inconsistencies not part of Tribunal’s decision – s.424A(3)(b) exception – application dismissed. |
| Migration Act 1958, ss.424A, 424A(3)(b), 424A(1), 424A(1)(b), s.424A(2), 424A(3) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAF 195 NBKT, M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195 SZCIA v Minister for Immigration & Multicultural Affairs [2006] FCA 238 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] 52 FCR 437 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZGXS v Minister for Immigration and Citizenship [2007] FCA 398 NBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 57 |
| Applicant: | SZIBG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 60 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 22 February 2007 and 10 April 2007 |
| Date of Last Submission: | 14 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms. T. Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 60 of 2006
| SZIBG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised)
This is an application filed on 6 January 2006 and amended on 13 April 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 11 November 2005 and handed down on
1 December 2005, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
The applicant is a citizen of Thailand who arrived in Australia on
21 March 2005. On 2 May 2005 she lodged an application for a protection visa with the first respondent’s Department. On 30 July 2005, a delegate of the first respondent’s Minister refused to grant a protection visa, and on 30 August 2005, the applicant applied for review of that decision.
The applicant’s claims for protection were set out in her application for a protection visa (see Court book (“CB”) CB 1 to CB 24). Her application for review is reproduced at CB 34 to CB 37. Nothing further by way of claims was added to her application for review. The applicant also attended a hearing before the Tribunal on 11 November 2005. The Tribunal’s account of what occurred at the hearing is set out in its decision record, reproduced at CB 54 to CB 56.8.
In short, the applicant’s claims to protection were that in 1998 she had been “sold by her family” to a man named “Soung” and had been a sex worker in Thailand since that time. She claimed to have been mistreated by Soung and that she owed him money and that when she attempted to escape (by going to the Netherlands) that he made “death threats” against her family. She claimed that due to police corruption, the “Thai mafia have much power”. The applicant claimed to fear that if she returned to Thailand, her safety, and life, would be in danger from Soung and that there would be no protection available to her in Thailand from him.
The Tribunal's “Findings and Reasons” are set out in its decision record reproduced at CB 56.9 to CB 60. The Tribunal found:
(1)There were a number of inconsistencies and contradictions in the applicant’s claims as between her protection visa and what she said and at the hearing (CB 57.1).
(2)Notwithstanding this, it gave the applicant the benefit of doubt and accepted that she was a sex worker who worked for “Soung” and that she borrowed money from him to go to “Holland”. Further, it accepted that while she was in the “Netherlands” she did not claim international protection (CB 57.5).
(3)While her claims about Soung and his relationship with the police were consistent with independent country information available to the Tribunal in regard to sex workers in Thailand, that the claims lacked “key information and detailed supporting evidence” and “more importantly a Convention nexus” (CB 58.1 to CB 58.2).
(4)In accepting this independent country information, the Tribunal was satisfied that the Thai authorities and the “NGO community in Thailand” would provide support and effective protection to the applicant from the criminal activity of Soung and the “Thai mafia” and that effective state protection is available to the applicant (CB 59.1 to CB 59.2).
(5)It was satisfied that the essential and significant reason for her fear of Soung was not Convention related (CB 59.4).
(6)That if the applicant did have a well founded fear of serious harm amounting to persecution for a Convention reason, she would not have returned to Thailand in February 2005 but would have sought international protection in the Netherlands (CB 60.3).
(7)It did not accept that “any subjective concerns” that the applicant may have was for a Convention reason and was not able to satisfy itself that the applicant had a well founded fear of serious harm amounting to persecution for a Convention related reason on any basis (CB 60.6).
(8)Further, that it was satisfied that she would be able to return to Thailand and live wherever she liked away from Soung in safety (CB 60.7).
By way of amended application filed on 13 April 2006, settled by Counsel, who assisted the applicant for the purpose of making the amended application, the applicant puts forward one particularised ground:
“1. Jurisdictional error: breach of s424A of the Migration Act 1958 Cth”
PARTICULARS
a)The Tribunal used information specifically about the applicant not given to the Tribunal by the applicant for the purposes of the application for review as part of the reason of its decision to affirm the decision of the delegate.
b)The information was the:
i) “education information”
ii) “sex slavery information”
iii) “Holland escaped information” and
iv) “death threat against family information”
c)the Tribunal did not disclose the adverse information” ”
On the same day, the applicant filed an affidavit made by her on
6 January 2006, again prepared with the assistance of Counsel. She explained that in her view, the Tribunal's decision was affected by jurisdictional error because it breached s.424A of the Migration Act 1958 (“the Act”). In that the Tribunal relied on evidence she had provided in her application for a protection visa to find that her evidence was inconsistent and the Tribunal failed to provide that part of the information (which was provided in the protection visa application, and not given to the Tribunal for the purposes of the review) to her pursuant to s.424A(1), and invite her comments.
When the matter came on for hearing on 22 February 2007 before the Court, Ms T. Wong appeared for the respondent. The applicant was unrepresented. The matter however was adjourned until today as the interpreter who was engaged by the Court to assist the applicant on that day informed the Court that he was also a registered migration agent, and that he had previously been consulted by the applicant in that capacity. He felt he could not proceed in these circumstances.
When the hearing resumed on 10 April 2007, Ms. Wong again appeared for the respondent. The applicant remained unrepresented. She was assisted by a different interpreter in the Thai language.
The applicant was not able to assist the Court further with her claims. She submitted letters from an educational institution, Strathfield College, which confirmed that she was studying English.
The applicant’s particulars to her amended application do not specifically identify those parts of the Tribunal's decision record which deal with the findings arising from the information generally identified by the applicant in the amended application, which are said to be the pieces of information in respect of which the Tribunal failed in its statutory duty. However, I note that in written submissions Ms. Wong has helpfully sought to link the general description of the information at paragraph (b) (see amended application at page 1 of what is annexed to the application form) of the applicant's particulars in the amended application to the Tribunal's decision record.
I agree that the reference to “education information” and “sex slavery information” appears to relate to that part of the Tribunal's “Findings and Reasons” at CB 57.1 to CB 57.4:
“The Tribunal finds that there are a number of inconsistencies and contradictions in the applicant’s claims made in her protection visa and at the hearing. For example in her protection visa application she claims she left school after nine years in 1992 (when she would have been 12 years old) and had no other education, whereas at the hearing she claimed she left school when she was 18 years old and then attended university from 1999 in Bangkok for two years and her tuition was paid for by her father (which also contradicted her claimed (sic: claim) in her protection visa application that her family was very poor and need money so they sold her to Soung when she was only 18 years old. She also claimed at the hearing that she lived in Hat Yai for the last three years prior to coming to Australia at the same time claimed that she only worked as a sex worker for Song (sic: Soung) in Bangkok, meaning that she had not worked as a sex worker for the last three years unless she regularly commuted what is a very large distance to Bangkok for work.”
Any reliance on information by the Tribunal on information that it “considers would be the reason or a part of the reason for affirming the decision that is under review” requires the Tribunal, pursuant to s.424A(1) of the Act to give such information to the applicant and to invite the applicant to comment on it and the Tribunal must do so in the manner set out in s.424A(2) which relevantly means in writing (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24). Unless of course such information can be seen to fall within one of the exceptions set out in s.424A(3).
The majority in the Full Court judgement of Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, as illuminated by the subsequent Full Court judgement in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) establishes that a Tribunal relying on information provided in a protection visa application and comparing such information to information provided by the applicant to the Tribunal, and to subsequently make findings of inconsistency or contradictions in evidence provided by an applicant which can be said to be the reason of or part of the reason for its decision, is not information that falls within the exception set out in, relevantly, s.424A(3)(b) of the Act.
In the case of SZBMI, which was heard with SZEEU, Allsop J., in considering this issue, relevantly said at [221]:
"I do not regard the operation of s.424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s.424A(1)(b)."
His Honour said in SZEEU at [225]:
"If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s.424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”
I note that in some part the Tribunal did rely on inconsistencies in information provided entirely at the hearing. In the extract of the Tribunal's decision record quoted above, the following information to which the Tribunal referred:
“…She also claimed at the hearing that she lived in Hat Yai for the last three years prior to coming to Australia at the same time claimed that she only worked as a sex worker for Song (sic) in Bangkok, meaning that she had not worked as a sex worker for the last three years unless she regularly commuted what is a very large distance to Bangkok for work.”
is a comparison between two sets of information provided by the applicant at the hearing conducted by the Tribunal, such that it could be said that both sets of information fall within the exception set out in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act.
But in any event, as to the remainder of “education information” and “sex slavery information”, I accept Ms Wong's submission that whilst the Tribunal's observations of inconsistencies and contradictions between what the applicant said in her protection visa application and at the hearing may, on its face, bring such information (that is the information contained in the protection visa application) within s.424A(1) of the Act and outside the exclusion in s.424A(3)(b) of the Act, the Tribunal did not rely on these inconsistencies and contradictions to make any adverse findings against the applicant, such that it could be said that at least a part of the Tribunal's decision relied on this information, or the inconsistencies and contradictions which were said to have arisen in part from it.
The Tribunal went on to find immediately following the extract quoted above (at CB 57.4):
“However and notwithstanding these significant discrepancies the Tribunal is willing to give the applicant the benefit of the doubt and accepts that she is a sex worker who worked for a man called Soung.”
I agree with Ms Wong's submissions that the inconsistencies could not be said to be even at least a part of the Tribunal's decision to affirm the decision under review, in that notwithstanding the noting of the inconsistencies and contradictions, the Tribunal proceeded on the basis of the claims as put forward by the applicant and accepted her claims that she was a sex worker who worked on for a man called Soung. I agree that there was no breach of s.424A of the Act (as illuminated by Federal Court authority) in respect of the “education information”, and the “sex slavery information” as asserted by the applicant in her amended application.
The applicant also seeks to rely, for the same purpose, on what is described as the “Holland escape information”. Again, the applicant does not point to any specific finding or part of the Tribunal's decision record in which she says the Tribunal relied on “Holland escape information”. Ms. Wong put forward that this appears to be a reference to the following from the Tribunal's findings and reasons (at CB 57.5):
“It [(in context, the Tribunal)] also accepts from her claims made in her protection visa application that earlier this year she went to Holland (having borrowed money from Soung for this purpose).”
Ms. Wong submitted that again the Tribunal did not make any adverse finding against the applicant based on this information which it said were claims made in her protection visa application. I agree with
Ms. Wong that just on the extract above, it does not appear that the Tribunal made any adverse finding against the applicant in relation to her having gone to Holland, a claim which the Tribunal says was made in the protection visa application. Plainly, the Tribunal accepted what the applicant said in this regard, such that it could not be said, on its own, to be a reason for affirming the decision under review.
However the Tribunal did go on to find (at CB 57.5):
“The Tribunal also accepts that while in the Netherlands she did not claim refugee status or seek international protection for any reason whatsoever.”
This latter finding, that is, that she did not claim refugee status or seek international protection while she was in the Netherlands, that is the fact that she did not do so, was a part of the Tribunal’s reasons for its decision. At CB 59.5 it said:
“Indeed the Tribunal is satisfied that if she had a well-founded fear of serious harm for a Convention reason she would have sought refugee status in the Netherlands in January/February 2005, but accepts that she did not do so. Moreover, the Tribunal is also satisfied that if she had such a well-founded fear of serious harm for a Convention reason she would not have been willing to return to Thailand from the Netherlands, let alone be willing to return to Soung.”
That she did not seek protection whilst in the Netherlands is in my view information on which the Tribunal relied, in part, for the making of its decision.
But I cannot see that this information can be said to have been put forward by the applicant in her application for a protection visa. That is, the information that she did not apply for protection in the Netherlands when she was there. This appears to have been information that emerged during the course of the hearing with the Tribunal. The Tribunal's account (unchallenged by other evidence) of what occurred at the hearing at CB 55.1, reveals:
“The Tribunal asked the Applicant that when she went to the Netherlands in January 2005, how long she planned to live there and she replied she escaped to live with relatives. The Tribunal repeated the question and she claimed that if they had not threatened her family, she would not have gone back to Thailand. Asked if she worked in the Netherlands, she replied in the negative. Asked what she did in the Netherlands, she replied that she stayed with relatives. The Tribunal put to the Applicant that she did not claim to have sought refugee status in the Netherlands and asked her why she didn't do so she replied because Soung threatened her family, she had to return.”
I note the approach of Young J. in NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAF 195 (“NBKT”) (with whom both Gyles J. agreed at [17] and Stone J. agreed at [23]), where he considered the exemption in s.424A(3)(b) at [41] to [64]. See in particular [59] and [60].
In all these circumstances therefore, to the extent that the Tribunal's decision can be said to have relied, in part, on information that the applicant did not apply for protection while she was in the Netherlands, then such information was information that emerged during the course of the hearing with the applicant in circumstances such that the applicant’s answers to questions as to what she did in the Netherlands, omitting any reference to her seeking protection in that country, led the Tribunal to the conclusion that it then put to her that she had not sought protection in that country. Her reply is consistent with such a view. In all therefore, it cannot be said that the Tribunal’s reliance on the information that the applicant did not seek protection in the Netherlands was information provided by the applicant in her protection visa application. It was information which can be said to have derived from the applicant herself put to the Tribunal at the hearing, such that such information comes within the exception contained in s.424A(3)(b) of the Act.
As to the information that the applicant had gone to the Netherlands in January 2005, in its decision record, the Tribunal specifically states that it accepts her claim made in her protection visa application that she had gone to Holland. However it is also clear from the Tribunal's account of what occurred at the hearing, that the applicant volunteered this information to the Tribunal at the hearing. The Tribunal's account of what occurred at the hearing in this regard (at CB 54.3) reveals:
“Asked if she had ever been to any other country, the Applicant claimed that she went to the Netherlands on 15 January 2005 to escape “him” and then returned to Thailand on 3 February 2005.”
Further, it is also plain that the applicant's passport was before the Tribunal, from which the Tribunal could also have derived the fact that she had gone to the Netherlands at that time. The Tribunal records (at CB 56.8):
“On the basis of her Thai passport cited at the hearing”
While the applicant had provided this information in her protection visa application, she plainly volunteered this information to the Tribunal at the hearing in such circumstances that it could be said that she submitted this information to the Tribunal for the purposes of the review (see NBKT, M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 (“SZDMJ”) at [5] and [6], SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435). In any event the Tribunal plainly could have discerned such a fact from the passport which was before it. In fact, the Tribunal records not only that it cited the passport, but that it noted entry stamps in her passport (CB 54.4).
In all, therefore, in relation to what the applicant describes as the “Holland escape information”, I cannot see that the Tribunal's actions reveal a breach of s.424A of the Act in all the circumstances.
The applicant puts forward a fourth category of information in relation to which the Tribunal is said to have breached its obligations pursuant to s.424A(1) of the Act. This is described as the “death threat against family information”. Yet again, this is not put forward with any referral to any specific part of the Tribunal’s decision record or any specific finding. Ms. Wong submitted that this is likely to be a reference to that part of the Tribunal's “Findings and Reasons” reproduced at CB 57.6:
“Indeed, the Applicant claims in her protection visa application that she returned to Thailand because Soung made “death threat against my family” and, when she returned, Soung hit her many times and her family then moved to another area in order that she could run away again.”
Ms. Wong submitted that again there was no indication that the Tribunal used this information in a manner adverse to the applicant, such that it could be said that it was obliged to put this information to the applicant in writing because it was a part of the reason for its decision. Her submission was that the Tribunal does not breach s.424A merely by restating the applicant's claims. The submission was that the Tribunal did not accept the applicant's claim that her family had received death threats was because, on what is quoted above, but the applicant provided no evidence to support these claims. The Tribunal stated, in its decision record (at CB 59.6):
“The Applicant claims that the reason she returned to Thailand from the Netherlands was because Soung made “death threat against my family”, but provides no evidence to support these claims such as a letter from her family.”
The respondent relied on SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195 and SZCIA v Minister for Immigration & Multicultural Affairs [2006] FCA 238 to support the argument that the Tribunal does not breach s.424A of the Act where it fails to be satisfied on the evidence that a particular claim has been made out.
I agree with Ms. Wong’s submission in this regard. Particularly when the reference to what is set out at CB 57 in this regard is seen in the context of the Tribunal's findings as set out subsequently at CB 59. Plainly, the Tribunal accepted that the applicant's claims to have been a sex worker in Thailand were generally consistent with independent country information available to it. But importantly, it found that her claims, in as much as they are related to the relationship with Soung, were lacking in key information, and detailed supporting evidence, and a Convention nexus.
Specifically, in relation to the death threats against her family, beginning at CB 59.1, the Tribunal noted that it accepted independent country information that there would be effective state protection available to the applicant, and that there was not a real chance that she would be killed if she returned to Thailand for a Convention related reason. It then proceeds to deal with a number of specific claims made by the applicant which lead to these findings. In relation to the applicant’s specific complaint that she returned to Thailand from the Netherlands because Soung made death threats against her family, the Tribunal plainly rejects this claim because the applicant did not provide any evidence to support this claim, for example, such as a letter from her family. In all, therefore, I do not see a breach of s.424A of the Act in this regard as represented in the application to the Court.
In a matter not raised by the applicant, Ms Wong referred the Court to that part of the Tribunal’s decision record at CB 60.8 where the Tribunal states that it was satisfied the applicant could return to Thailand and live wherever she liked away from Soung in safety. To the extent that this may be a finding that the applicant could safely relocate within the country of claimed persecution. Ms. Wong conceded that the Tribunal may not have considered the “relocation” issue to the extent required by Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] 52 FCR 437.
However, she relied on what Moore J said in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (“VBAP”) for the proposition that the Tribunal’s finding in relation to whether the applicant had a well founded fear of persecution was made on a separate and independent basis to that referring consideration of relocation within Thailand. In any event, Ms. Wong submitted that the Tribunal found that the applicant could rely on state protection.
I agree that VBAP (see also SZGXS v Minister for Immigration and Citizenship [2007] FCA 398 at [10] to [11], NBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 57 at [63]) provides authority to support the respondent’s position. It does not appear that the Tribunal gave adequate consideration to this issue. But any jurisdictional error which can be said to consequently arise does not assist the applicant in establishing the relief she seeks. The Tribunal’s conclusion that she was not a person to whom Australia owed protection obligations is supported by a quite separate basis that the applicant’s concerns (claims) in all the circumstances did not lead it to reaching the requisite level of satisfaction that a protection visa should be granted (see the Tribunal’s conclusion at CB 60.7 immediately proceeding the reference to “relocation”).
In all therefore, the applicant's grounds as stated in the amended application are not made out. Nor on considering the material before the Court, could I discern any other jurisdictional error (apart from the purported “relocation” finding) in the Tribunal's decision. On this basis the application before the Court is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 9 May 2007
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