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[2006] FCA 1089
Federal Court of Australia
2006-08-04
Bennett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 17 March 2006, Federal Magistrate Raphael dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of the Delegate of the first respondent not to grant a protection visa to the appellant (SZCCF v Minister for Immigration & Multicultural Affairs [2006] FMCA 408). 2 The appellant appeals to this Court from the Federal Magistrate's decision and seeks leave to rely on a ground of appeal not raised below, which is opposed by the first respondent. In order to understand and evaluate the grounds of appeal raised before me, including the application for leave to argue a matter not raised before the Federal Magistrate, it is necessary to consider the basis of the Tribunal's decision.
The Tribunal's decision 3 The Tribunal made its decision in the absence of the appellant, based upon the material before it, which included the Department file and the Delegate's decision. It would seem that the appellant did not receive personal notification of the hearing before the Tribunal. The appellant does not challenge the finding of the Federal Magistrate at [2] that the requirements of the Migration Act 1958 (Cth) ('the Act') for notification were complied with. 4 In accordance with the relatively standard way in which these decisions are set out the Tribunal dealt with the matter under a series of headings. Under the heading 'claims and evidence' the Tribunal described the procedural history of the application for review and set out the factual matters raised by the appellant in her written application to the Tribunal and also in the written material submitted by the appellant to the Department in support of her application for a protection visa. The Tribunal also referred to the Delegate's decision and certain country information that had been referred to in that decision. 5 Under the heading 'FINDINGS AND REASONS'the Tribunal reminded itself that it was for the appellant'to satisfy the Tribunal that all of the statutory elements [of a well-founded fear of persecution] are made out' and that the decision-maker is not required to make out that case nor required to accept uncritically any and all of the allegations made. 6 The Tribunal stated that it accepted that the appellant was a citizen of Mongolia as claimed and recited the relevant parts of her claims, in particular her claim to have been persecuted in the past and to fear a repeat of that persecution for reason of her membership of a particular social group. The Tribunal described the particular social group as 'an unnamed support group which informed and educated women [in Mongolia] about life overseas'. It can be taken from the context of the Tribunal's decision that those women the appellant was informing and educating were women at risk of people trafficking in Mongolia by organised crime groups. 7 The Tribunal then stated that, having considered the appellant's evidence, it was not satisfied that she has a well-founded fear of persecution within the meaning of the Convention if she returns to Mongolia. The Tribunal explained that it was not so satisfied because it found her claims to be 'extremely vague and lacking in useful detail'. The Tribunal then gave some examples of the kind of information that was missing such as 'useful information about the un-named support group or about the Applicant's actual activities with that group'. The Tribunal referred to further claims on the part of the appellant, noting that they had been found 'vague and unsupported' by the Delegate and that the Tribunal had no further information from the appellant. 8 It is clear that the Tribunal did not reach the requisite level of satisfaction that the appellant had actually experienced persecution. It followed that, as a matter of logic, the Tribunal was not required to consider whether her fear of persecution was well-founded. 9 After coming to that finding the Tribunal added: '[i]n any case, the Applicant's written evidence suggests that she was of interest to the traffickers because she opposed their business by educating and informing potential victims rather than for reasons of her membership of a particular social group.'
Effective state protection 10 The first ground of appeal is, in substance, that the Tribunal erred in failing to consider whether a failure by the State to provide effective protection to the appellant constituted persecution for a Convention reason. The ground was raised before the Federal Magistrate and is said to arise from that part of the sentence set out at [9] above which identified the appellant as being 'of interest to the traffickers because she opposed their business…rather than for reasons of her membership of a particular social group' (emphasis added). 11 The sentence is a curious inclusion in the Tribunal's decision, because the Tribunal seems to have accepted that it was her membership of a particular social group (the unnamed support group which informed and educated women about life overseas) upon which the appellant relied to establish a well-founded fear of persecution for a Convention reason. 12 However, as I have stated above, the Tribunal was not satisfied that the appellant had actually experienced persecution. The Federal Magistrate with respect correctly observed at [6] what follows as a matter of logic: 'there is no necessity for a state to provide protection to a person who is not being persecuted and so, in order for the Tribunal to be required to make an assessment of the availability of state protection, it has to be satisfied that there is something to protect the applicant from. In this case the Tribunal was unable to reach such a state of satisfaction, for the reasons expressed and set out herein and in the Tribunal's own decision.' 13 The appellant did not clearly point to any relevant information before the Tribunal that would enable a finding of a state policy of tolerance or condonation of any persecution, even if it did exist. The most that can be said from the country information to which the appellant referred is that it included a statement that 'a lack of resources constrains the Mongolian Government in implementing policy initiatives in women's issues'. 14 A mere lack of resources does not of itself give rise to the kind of lack of state protection that is necessary to establish a well-founded fear of persecution for a Convention reason. As McHugh J observed in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [33]: '[t]he inability of Australian governments to eliminate [death or serious injury from motor car accidents] does not determine whether the fear [of death or serious injury from a motor accident] is well-founded.'
Failure to disclose information 15 The second ground of appeal concerns whether or not any part of the Tribunal's reasons were based upon information that should have been disclosed to the appellant pursuant to s 424A(1) of the Act. Leave is required for the appellant to raise this ground as it was not argued before the Federal Magistrate. 16 It is submitted by the appellant that s 424A(1) of the Act applies in this case in two ways. First, there was a reference in the Tribunal's reasons to country information that had been before the Delegate. The country information included the response of the Department of Foreign Affairs and Trade to a series of questions apparently asked by the Tribunal concerning the status of women trafficking in Mongolia ('the response'). 17 The appellant accepts that if the response was information of a kind to which s 424A(3)(a) of the Act applied it did not need to be disclosed to the appellant. However, the appellant submits that because the response commenced with the words 'several female applicants claim to have participated in protesting against women trafficking in Mongolia on behalf of a local womens support group' (emphasis added), the information must be 'specifically about the applicant or another person' and not 'just about a class of persons of which the applicant or other person is a member' (s 434A(3)(a)). 18 It is clear to me that when one looks at the response in its totality, the information relates only to a class of persons. All of the answers to the questions and the questions themselves relate to a class of persons, being victims of women trafficking or persons participating in protests against women trafficking, and not to any individual. Accordingly, even if that did form part of the information upon which the Tribunal relied, the Tribunal was not obliged to disclose the response to the appellant. 19 The second way in which the appellant relies on s 424A(1) of the Act is the assertion that the Tribunal did not inform the appellant that it 'relied upon [the] finding of the Delegate'. In particular, attention is drawn to a sentence in the Tribunal's decision in the 'FINDINGS AND REASONS' section that says '[t]he delegate noted that the Applicant's claims were very vague and unsupported'. It is said that that constitutes information within s 424A(1). 20 I do not accept that submission. It is clear to me that, reading the Tribunal's decision as a whole, it was the absence of information alone that led to the Tribunal being unable to reach the requisite degree of satisfaction and that the Tribunal was simply explaining its thought processes in that regard. Not all information or material to which the Tribunal refers necessarily becomes information that leads to a factual finding based upon its terms nor does it necessarily form part of the reasons for the decision. 21 The basis for the Tribunal's decision was that it was the unsatisfactory nature of the evidence before the Tribunal alone that was the reason for affirming the decision of the Delegate. That such information does not come within s 424A(1) has been reaffirmed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [223] to [224] and again in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12].
Conclusion 22 The matters raised by the second ground of appeal were of some substance and an explanation has been given as to why they were not raised before the Federal Magistrate where the appellant was unrepresented. I grant leave to the appellant to amend the notice of appeal to rely upon the new ground of appeal. 23 I find that there has been no contravention of s 424A(1) of the Act. 24 The fact that the Tribunal did not consider whether a lack of effective state protection was available to the appellant was not jurisdictional error in circumstances where the Tribunal was not satisfied that the appellant had experienced persecution. 25 As the appellant has failed to demonstrate either jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate I have no alternative but to dismiss the appeal. 26 I order the appellant to pay the first respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Associate: Dated: 18 August 2006 Solicitor for the Appellant: R Turner
SZCCF
Minister for Immigration & Multicultural Affairs