SZKCM v Minister for Immigration

[2007] FMCA 866

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 866

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a woman in Kyrgyzstan – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) – whether the Tribunal erred in its consideration of the particular social group and the risk of future persecution considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

SZEEU v Minister for Immigration (2006) 150 FCR 214
VJAF v Minister for Immigration [2005] FCAFC 178

Applicant: SZKCM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG277 of 2007

Judgment of: Driver FM

Hearing date: 5 June 2007

Delivered at: Sydney

Delivered on: 5 June 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr A Markus

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG277 of 2007

SZKCM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 18 December 2006 and was handed down on 3 January 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Kyrgyzstan and had made claims of persecution as a woman in Kyrgyzstan.  The background to the applicant’s protection visa claims and the Tribunal decision on them is summarised in the Minister’s written submissions filed on 28 May 2007.  I adopt as background for the purposes of this judgment paragraphs 1 to 4 of those written submissions:

   The applicant, a national of Kyrgyzstan, arrived in Australia on 1 June 2006 and applied for a protection visa on 30 June 2006.  Her application was refused by a delegate of the Minister on 21 August 2006, and on 18 September 2006 she applied for review of that decision by the Tribunal.[1]

   Briefly, the applicant claimed to fear persecution as a member of a particular social group comprising “women in Kyrgyzstan”.  She claimed that she had been approached a number of times by an organised crime group specialising in women trafficking and prostitution and put under pressure to cooperate with them.  After her friend was raped and she was threatened, they both went into hiding and left the country as soon as they could.[2]

   The Tribunal did not accept that the applicant had been approached and put under pressure by an organised crime group as she claimed.  Referring to country information, the Tribunal concluded that the applicant (an educated professional woman and a member of the national badminton team) did not fit the profile of a person likely to be targeted by such criminals.[3]  The Tribunal also thought it implausible that a criminal gang would spend approximately three months pursuing the applicant and seeking to persuade her to accept their proposition, and found the applicant’s evidence at the hearing contradictory in some respects.[4]

   The Tribunal was prepared to accept that “women in Kyrgyzstan” might constitute a “particular social group”, but did not accept that members of that group per se faced a real chance of persecution of the kind mentioned by the applicant.  Smaller groups within the larger class of “women in Kyrgyzstan” did face a real chance of harm; but the applicant was not a member of any of those smaller groups.[5]

   [1]     See Relevant Documents (RD) 99.

   [2]     See the summary at RD 101-102.

   [3]     RD 116-117.

   [4]     RD 117.

   [5]     RD 117-118.

2. These proceedings commenced with a show cause application filed on 30 January 2007.  In that application, the applicant asserted actual notification of the Tribunal decision on the day it was handed down on 3 January 2007.  I find that the application was filed within time. 

3. The applicant now relies upon an amended application filed on 11 April 2007. The applicant asserts that the Tribunal committed jurisdictional error by failing to give the applicant particulars of information adverse to her claims as required by s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). The particulars simply summarise the effect of the section. The amended application and the applicant’s affidavit in support of her original application assert that she was not invited to comment on any information pursuant to the section.

4. I accepted as evidence the court book filed on 6 March 2007. I also have before me the Minister’s written submissions filed on 28 May 2007. I invited oral submissions from the applicant. It was apparent from those submissions that she has discussed the circumstances of her review before the Tribunal with other protection visa applicants. She understands that other applicants have been notified of adverse information pursuant to s.424A and she is concerned that she was not given the same opportunity.

5. The applicant, however, misunderstood the effect of the section. The applicant believed that the section gave her a general opportunity to be informed in advance of how the Tribunal would deal with her claims. The section does not confer such a right. The Tribunal decision turned upon information that the applicant herself gave to the Tribunal for the purposes of the review and also detailed country information. Neither class of information required disclosure pursuant to s.424A(1). The Minister’s submissions in paragraphs 5, 6 and 7 deal with that issue. I agree with those submissions and adopt them for the purposes of this judgment:

   The amended application filed on 11 March 2007 alleges that the Tribunal failed to comply with s.424A of the Migration Act, by failing to give the applicant an opportunity to comment on adverse information. The particular information in relation to which an obligation is said to have arisen is not specified.

   In rejecting the Applicant’s claims the Tribunal relied on:

   i)country information, against which it considered the applicant’s background (as outlined by her) to conclude that she was unlikely to have been the target of a criminal gang; and

   ii)its assessment that parts of her claims were implausible or contradictory.

   Neither country information[6] nor the Tribunal’s subjective assessments of an applicant’s case[7] attracted obligations under s.424A(1). The Tribunal therefore did not err by not canvassing these issues with the applicant in writing.

   [6]     VJAF v Minister for Immigration [2005] FCAFC 178.

   [7]     E.g. see the authorities referred to in SZEEU v Minister for Immigration (2006) 150 FCR 214, 259 [206].

6. The applicant also submitted in general terms that the procedure followed by the Tribunal in not inviting comment was unfair. To the extent that s.424A has any basis in procedural fairness as that term is understood under the general law, I accept the Minister’s counsel’s oral submissions that the procedure followed by the Tribunal was fair. The court book discloses that the applicant was invited to a hearing before the Tribunal and attended and gave evidence and answered questions. The record of the Tribunal decision discloses that there was extensive discussion of the applicant’s claims with her at that hearing. In particular, the Tribunal’s concerns about the credibility of her claims and the importance of the country information before the Tribunal was disclosed and discussed. I find that the Tribunal did not breach s.424A and that the procedure followed by the Tribunal was fair.

7. The Minister’s submissions properly raise another issue.  That is, the manner in which the Tribunal assessed the future risk of the applicant suffering persecution as a woman in Kyrgyzstan.  The Minister’s written submissions on that issue are set out in paragraph 9:

   Had the Tribunal’s findings about the Applicant been different, its observation that the particular social group of “women in Kyrgyzstan” (semble as a whole) does not face a real chance of persecution[8] might perhaps raise a question as to whether the test for refugee status had been properly understood.  However, the Tribunal had found that the Applicant herself was not “targeted”, and the question whether she faced harm for a Convention reason therefore did not arise.  The Tribunal went on to conclude that the Applicant “would not be targeted as a member of a particular social group ‘women in Kyrgyzstan’”[9] – a conclusion which reflects both a correct understanding of the test to be applied, and a logical consequence of rejecting the Applicant’s claim that she was a target on any basis.

   [8]     RD 118.

   [9]     RD 118.

8. The Tribunal in its reasons dealt with this issue in the following terms[10]:

   Given the Tribunal’s finding above, the Tribunal does not accept the applicant has been targeted by an organised crime group specialising in women trafficking and prostitution in the past.  The Tribunal accepts that “women in Kyrgyzstan” may constitute a particular social group and that the applicant is a member of this group.  However the Tribunal is not satisfied on the independent evidence before it that this particular social group faces a real chance of serious harm from criminal organisations involved in the forced prostitution and trafficking of women.  Rather, the Tribunal finds that there are further particular social groups within the broader group “women in Kyrgyzstan” such as “women unable to earn a livelihood” and “women living in the South of Kyrgyzstan” who are targeted by these criminal groups because of their particular vulnerabilities and do face a real chance of serious harm.  However, the Tribunal does not accept the applicant is a member of any of these particular social groups.  As it has found above, the [applicant] is a professional career woman, who lives in the capital Bishtek and is a member of the country’s badminton team.  Given the applicant’s particular circumstances the Tribunal is satisfied she would not be targeted as a member of a particular social group “women in Kyrgyzstan”.  The Tribunal therefore does not accept the applicant faces a real chance of persecution from any criminal group involved in the trafficking or prostitution of women if she returned to Kyrgyzstan for reasons of her membership of a particular social group “women in Kyrgyzstan” or for any other Convention reason.  Accordingly, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   [10] RD 117-118

9. Three things may be said about this aspect of the Tribunal’s reasons.  First, the Tribunal understood that notwithstanding its rejection of the applicant’s claims of having been persecuted in the past, it was necessary to consider whether she would in the future be persecuted.  Secondly, the Tribunal accepted that the particular social group advanced by the applicant might exist and that she was a member of it, although the Tribunal’s efforts to subcategorise the particular social group were probably unfortunate.  Thirdly, on a fair reading, what the Tribunal was really saying was that the members of the particular social group of “women in Kyrgyzstan” did not all face an equal risk of harm.  Their risk depended upon various attributes, based upon the available country information.  Those attributes included their level of education, employment opportunities and geographical location.  The applicant possessed one necessary attribute in that she is a woman.  She did not possess the others.  In the absence of those additional attributes, the Tribunal found that the risk of harm faced by the applicant was not significant.  That finding was open to the Tribunal on the material before it and I find that no error is disclosed.

10. I find that the Tribunal decision is free from jurisdictional error.  Accordingly, the decision is a privative clause decision and the application must be dismissed.  I will so order. 

11. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $4,200.  That is less than the Court scale in this instance.  The applicant said that she did not know what to say in relation to costs.  She was upset at the time.  I am satisfied that costs of not less than $4,200 have been reasonably and properly incurred on a party and party basis.  I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in that sum. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date: 13 June 2007