FEDERAL COURT OF AUSTRALIA

Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 214

Cases

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 Refd

Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 Cited

Minister for Immigration &  Multicultural & Indigenous Affairs v Applicant S194 of 2002 [2003] FCAFC 273 Cited

Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 Cited

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 Refd

Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783 Cited

Muin v Refugee Review Tribunal (2002) 190 ALR 601 Refd

R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 Cited

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs;  Minister for Immigration & Multicultural & Indigenous Affairs v SBBK (2003) 199 ALR 43 Cited

APPLICANT S469 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 191 OF 2004

KIEFEL, ALLSOP AND CRENNAN JJ

SYDNEY

13 AUGUST 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a citizen of Thailand and arrived in Australia on 10 May 2002.  On 7 June 2002 she lodged an application for a protection visa.  On 25 June 2002 the delegate of the Minister refused her application.  The appellant unsuccessfully sought review of that decision by the Refugee Review Tribunal.  Its decision was made on 24 October 2002, handed down on 19 November 2002.  The appellant then applied for injunctive and other relief in the High Court.  Her application for an order nisi was remitted to this Court on 6 February 2003.  An amended application for review was filed in this Court on 19 November 2003.

2                     In her statement in support of her application for a protection visa the appellant had claimed that she was discriminated against in Thailand because she is female.  Women have little chance of obtaining employment and she did so with difficulty.  Even so her employment was on the basis that she would work for the first three months without wages.  After about one month, whilst she was working overtime, her supervisor beat and raped her.  She brought proceedings against the supervisor, but failed when he argued, successfully, that she had seduced him.  She was fined by the Court.  This resulted in her family losing their assets.

3                     The Tribunal was not satisfied that females in Thailand constitute a particular social group.  In its view all Thai women could not be said to have a unity of characteristics, attributes, activities, beliefs, interests or goals which made them a cognisable group within Thai society.  This conclusion is not in conflict with the decision of the High Court in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at 252, [36].

4                     The Tribunal regarded the appellant’s claims relating to the rape, and the fine imposed by the Court, as ‘highly implausible’.  If they were true, in its view the harm she suffered arose from her personal circumstances and relationships with people and not for a Convention-related reason.

5                     In her amended application for review the appellant’s grounds were that the Tribunal was in error in finding that she did not come within a class of persons constituting a ‘particular social group’;  and that the Tribunal denied her procedural fairness in failing to consider a report which had been referred to by the delegate – the US State Department Country Report on Human Rights Practices - 2001 Thailand.  It was alleged that she might reasonably have anticipated that the report would be considered by the Tribunal.

6                     Before her Honour the primary judge it was conceded that if the Tribunal were entitled to determine the question whether the appellant belonged to a particular social group, the finding made by the Tribunal was open on the evidence before it.  The appellant’s point was that it was to be determined as a question of law.

7                     The appellant relied upon Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1.  Her Honour considered that, not only did the case fail to support the appellant’s contention, it confirmed that the identification of a social group was a matter of fact to be determined by the Tribunal.  Her Honour further observed that this approach accorded with views expressed elsewhere:  R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 at 635 and 657 and in this Court:  Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401;  Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783;  Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 at 274;  SDAV v Minister for Immigration & Multicultural & Indigenous Affairs;  Minister for Immigration & Multicultural & Indigenous Affairs v SBBK (2003) 199 ALR 43 at 54.  Her Honour was clearly correct.  See also Applicant S v Minister for Immigration & Multicultural Affairs at 251-252,  [35].

8                     The report in question was not in the departmental file or in the Tribunal’s file and the Tribunal did not refer to it in its reasons.  Her Honour held that it could not be inferred that the Tribunal did not have resort to the report from the bare fact that it was not mentioned in its reasons.  It might be that the document was not before the Tribunal, but equally the Tribunal may have considered it and rejected it as irrelevant or it may have simply overlooked it:  Minister for Immigration &  Multicultural & Indigenous Affairs v Applicant S194 of 2002 [2003] FCAFC 273.

9                     It is not necessary for us to resolve this evidentiary issue, since the further finding by her Honour provides the answer to the appellant’s contention.  For there to be a breach of procedural fairness the appellant needed to establish that she was in fact misled about the Tribunal’s having had the report, as was the case in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  The appellant’s case here, by contrast, was entirely hypothetical.  It was put no higher than that the appellant might reasonably have anticipated that the Tribunal had the report which, broadly speaking, favoured her.  There was no evidence that the appellant in fact had any belief about the Tribunal’s access to the report or that she would have taken steps to bring it to its attention, had she appreciated it may not have had it.  This ground of appeal fails.

10                  There is no error shown in her Honour’s reasons.  Given an opportunity to identify any error the appellant was unable to do so.  In any event the Tribunal made it clear it was not satisfied of the claim on the meagre evidence before it, in particular that even if the harm alleged occurred (which it did not accept) it was not Convention-related.   The appeal should be dismissed with costs.

Associate:

Dated:              13 August 2004