FEDERAL COURT OF AUSTRALIA

SZBPG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1726

SZBPG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1611 OF 2005

STONE J

30 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                       The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate delivered on 5 September 2005 in which her Honour dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (‘Tribunal’).  On 5 August 2003, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the appellant a protection visa.

Background

2                     The appellant, a citizen of Ukraine, arrived in Australia on 12 September 2002.  On 20 September 2002, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 February 2003, the delegate of the first respondent refused to grant the visa to the appellant and on 3 March 2003 she applied for review of that decision with the Tribunal.

3                     According to her protection visa application, the appellant claimed to fear persecution on account of her membership of a particular social group; namely, young women forced into prostitution.  She stated that her fear was of being forcibly sent overseas as a sex slave or that if she refused to co-operative with ‘women traffickers’ she would be murdered. 

4                     The appellant claimed that in Ukraine she was always under pressure from organised crime groups involved in trafficking in women.  She stated that she was approached by members of these groups who offered her work overseas as a waitress.  When she refused their offers, she claimed they threatened her and ‘promised’ that she would be kidnapped and delivered forcibly overseas as a sex slave.  The appellant also claimed in her protection visa application that organised crime groups operated in Ukraine without any control from the Ukrainian authorities.  The authorities were said to be corrupt, underpaid and without the means to fight the organised crime groups.  On these bases, she stated that she feared for her life and safety and decided to leave Ukraine and seek protection.

Proceedings in the Tribunal

5                     In her application to the Tribunal for review of the delegate’s decision, the appellant made no new claims and merely repeated the claims made in her visa application.  The appellant also indicated that she wanted the Tribunal to send correspondence in respect of her application to her migration advisor as her authorised recipient.

6                     By letter dated 8 July 2003 addressed to both the appellant and her authorised recipient, the Tribunal informed the appellant that it had considered the material before it and was unable to make a decision in her favour on the basis of that information alone.  As such, the Tribunal invited the appellant to a hearing and enclosed a ‘Response to Hearing Invitation’ form.  The letter also stated that if the appellant did not attend the hearing and the Tribunal did not postpone it, the Tribunal could make a decision on her case without further notice.  According to its reasons, the Tribunal did not receive a response from either the appellant or her authorised recipient and neither letter was returned as unclaimed.

7                     When the appellant did not appear at the hearing, the Tribunal proceeded, pursuant to s 426A of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to enable the appellant to appear before it.

The Tribunal’s reasons

8                     The Tribunal noted that while the appellant had claimed that the basis of her fear of persecution was her membership of a social group defined as ‘young women forced to prostitution’, she had not provided any information to suggest the existence of such a group in Ukraine.  The Tribunal accepted the appellant’s contention that she was not, and never had been, a prostitute.  As such, even if such a social group existed in the Convention sense (as to which it was not satisfied), the Tribunal found that she would not be a member.

9                     The Tribunal’s reasons identify a number of issues which it wished to clarify with the appellant had she attended the hearing.  First, the Tribunal intended to ask her whether she had meant to infer that she was part of a wider class; that is, ‘young women at risk of being forced into prostitution’.  The Tribunal nevertheless turned to consider this and was not satisfied, on the limited evidence before it, that such a social group existed in the Convention sense.  The Tribunal, referring to the comments of Dawson J in Applicant A v Minister for Immigration and Multicultural and Ethnic Affairs (1997) 190 CLR 225 at 242, found that the hypothetical group being considered would be defined by the feared persecution.  See also, Applicant A per McHugh J at 263.  The Tribunal stated:

‘The applicant has not claimed that all “young women” in Ukraine are at risk of being forced into prostitution, and there is nothing before the Tribunal to lead it to such a conclusion.  The Tribunal therefore finds that “young women at risk of being forced into prostitution” do not constitute a particular social group in Ukraine, in the Convention sense.  The Tribunal finds, therefore, that the applicant’s fears are not Convention-related.’

10                  The Tribunal also wished to probe the genuineness of the applicant’s fears, however, given the finding that (a) she was not a member of the social group claimed, and (b) the wider group considered by the Tribunal was not a particular social group in the Convention sense, it was not necessary for the Tribunal to make a definitive finding on this issue.  Nevertheless, the Tribunal did note that independent evidence, which it accepted as accurate, that indicated that while trafficking of women is a problem in Ukraine, the general method appeared to be to lure women to travel abroad on the basis of false promises of legitimate employment  and then to coerce them into prostitution.  The Tribunal also noted that it was not aware of Ukrainian women unwilling to travel abroad to find work being coerced to do so by means of threats from organised crime groups.

11                  Further, the Tribunal was not satisfied that the appellant had been approached with offers of overseas employment and was threatened with harm when she refused but it noted that it had also wished to ask the appellant about this at the hearing.  The Tribunal found that the appellant was an educated woman who was aware of the dangers of accepting unsolicited overseas job offers.  As such, it considered her chances of being forced into prostitution as remote.

12                  Finally, the Tribunal accepted independent country information that the Ukrainian authorities were making increased efforts to combat trafficking in women.  It noted that the appellant had not claimed that she ever sought protection from the authorities and that this was another issue it wished to discuss with her at the hearing.  On this basis, the Tribunal was not satisfied that the appellant had been or would be denied her country’s protection.

13                  Consequently, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in Ukraine for a Convention reason.

Proceedings in the Federal Magistrates Court

14                  The appellant filed an application for judicial review in the Federal Magistrates Court on 8 October 2003.  The grounds of review were; first, the Tribunal made an error in understanding the ‘correct test’ to apply in relation to the efficacy of State protection; and secondly, the ground of membership of a particular social group and Convention nexus was not finally decided and therefore the Tribunal failed to correctly apply the definition of a ‘particular social group’.

15                  In relation to the first ground of review, the Federal Magistrate noted the Tribunal’s decision was based on its finding that the appellant’s stated fears were not Convention related and it was not satisfied that she was a member of a particular social group in the Convention sense.  Her Honour observed the Tribunal went on to consider the issue of State protection and was not satisfied that the appellant had been or would be denied her country’s protection: see [12] above.  The Federal Magistrate held that no jurisdictional error was contained in the Tribunal’s consideration of this issue: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487.

16                  As to the second ground of review pressed by the appellant below, the Federal Magistrate noted that the Tribunal considered both the particular social group referred to by the appellant in her applications and, on its own initiative, also considered a possible wider group of young women at risk of being forced into prostitution.  In this respect, her Honour held that the Tribunal had complied with its obligation to consider not only the claims raised expressly by a visa applicant, but also any implicitly raised on the material before it: see SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90.

17                  In relation to the particular social group expressly referred to by the appellant, the Federal Magistrate noted the Tribunal’s finding that the appellant was not a prostitute and had never been one, and therefore she was not a member of this group.  In respect of the second, wider group, her Honour held that the Tribunal’s finding that it was not satisfied that such a social group existed was open to it on the limited evidence and consistent with the judgments of the High Court in Applicant A.

18                  Given the unparticularised nature of the application for review before her, the Federal Magistrate also considered whether the Tribunal failed to consider some other particular social group.  Her Honour held, however, that the function of the Tribunal was to respond to the case put by a visa applicant and no such other group was raised: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 per Kirby J at [78] and Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

19                  The Federal Magistrate held that the Tribunal considered all substantive issues raised by the limited evidence before it.  While noting that women have in certain circumstances been found to constitute a particular social group, her Honour held the appellant in this case had not claimed that all young women were at risk of being forced into prostitution and there was nothing before the Tribunal to suggest such a conclusion.  Her Honour concluded that no error was established in the manner in which the Tribunal dealt with the issue of particular social group.

20                  At the hearing of her application for review before the Federal Magistrate, the appellant contended that everything in her protection visa application was not exactly correct and that the form had been completed by her migration advisor on her behalf.  Her Honour held that the Tribunal complied with the statutory notification procedures, that it had sent the hearing invitation to the appellant at her address and that the alleged conduct of the migration agent would not support a claim of a lack of procedural fairness or other jurisdictional error on the part of the Tribunal.

21                  The Federal Magistrate dismissed the application for review.

This appeal

22                  The appellant’s notice of appeal to this Court, filed on 7 September 2005, raises the following grounds of appeal; first, that not all the material facts were taken into account; and secondly, the Court has misapplied the definition of Convention group.  Neither ground is particularised and the appellant has not filed any written submissions. 

23                  In relation to this first ground of appeal, there is nothing to indicate that her Honour failed to take account of a material fact.  To the extent that the appellant intends to raise this claim in respect of the Tribunal’s decision, there is no material before the Court to indicate that the Tribunal failed to consider all the material facts before it.  The Tribunal had limited evidence before it and was unable to question the appellant about certain aspects of her claims.  The appellant has not pointed to any material the Tribunal failed to consider and this ground must be rejected.

24                  At the hearing of the appeal, when asked to elaborate on the alleged error made by the Tribunal in applying the definition of a particular social group under the Convention, the appellant contended that she was a member of a different social group to those considered by the Tribunal; namely, young women who are at risk of persecution because they refused to go into prostitution or refused to be trafficked.  Leaving aside the fact that the appellant did not raise this point before the Federal Magistrate, in my view the failure of the Tribunal expressly to avert to this particular social group does not avail the appellant. 

25                  As noted above at [8]-[9], the Tribunal was not satisfied that the appellant was a member of the social group referred to in her protection visa application and application for review.  Moreover, the Tribunal of its own initiative (not having been able to raise this with the appellant) considered a further social group (that is, young women at risk of being forced into prostitution) and found that this did not constitute a particular social group for Convention purposes.  As her Honour observed, the function of the Tribunal was to respond to the case put by the appellant: see [18] above.  The Tribunal considered the claim made by the appellant and a further possible claim that arose from the material before it.  There is nothing in the material before the Tribunal to require it to consider the claim raised by the appellant at the hearing of this appeal.  In particular, as set out at [10]-[11] above, the Tribunal noted that it was not aware of Ukrainian women unwilling to travel abroad to find work being coerced to do so by means of threats from organised crime.  Rather, the general approach was to lure the women overseas with false promises of legitimate employment.  In addition, the Tribunal was not satisfied that the appellant had been approached with offers of overseas employment and was threatened with harm when she refused.  In sum, the Tribunal set out the appropriate tests and assessed the appellant’s claims consistently with them.  In my view, her Honour was correct to hold that the Tribunal’s reasoning does not disclose any reviewable error.

26                  For these reasons the appeal must be dismissed with costs.

Associate:

Dated:              30 November 2005