FEDERAL COURT OF AUSTRALIA Applicant S469 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 64 MIGRATION – protection visa – application for order nisi on remittal from the High Court – particularsocial group – are woman a social group as a matter of law – procedural fairness – failure of Tribunal to refer to particular document in reasons that was before the Delegate – was the applicant reasonably misled WORDS & PHRASES – 'particularsocial group' Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 Minister for Immigration & Multicultural & Indigenous Affairs v Applicant S194 of 2002 [2003] FCAFC 273 Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783 Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 SDAV v Minister for Immigration & Multicultural & Indigenous Affairs; Minister for Immigration & Multicultural & Indigenous Affairs v SBBK (2003) 199 ALR 43 R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 APPLICANT S469 OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, TONY MAGUIRE DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JANET DUCKMANTON MEMBER OF THE REFUGEE REVIEW TRIBUNAL N340 OF 2003 BENNETT J 6 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N340 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIVE RELIEF BETWEEN: APPLICANT S469 OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT TONY MAGUIRE DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JANET DUCKMANTON MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 6 FEBRUARY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The order absolute is refused. 2. The proceedings are dismissed. 3. The applicant is to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N340 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIVE RELIEF BETWEEN: APPLICANT S469 OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT TONY MAGUIRE DELEGATE OF THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JANET DUCKMANTON MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: BENNETT J DATE: 6 FEBRUARY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Thailand who arrived in Australia on 10 May 2002. On 28 February 2002 she lodged an application for a protection (Class XA) visa. On 25 June 2002 a delegate of the first respondent ('the Delegate') refused to grant the protection visa and on 30 June 2002 the applicant applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). In December 2002, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. On 19 December 2002, the applicant, as prosecutor, commenced proceedings in the High Court by way of draft order nisi. On 6 February 2003, Gaudron J ordered that the proceeding be remitted to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). An amended application for review on remittal from the High Court was filed in this Court on 19 November 2003. background 2 The applicant gave a history, initially before the Delegate and later before the Tribunal, which can be summarised as follows: (a) The applicant claims to have been discriminated against and persecuted 'as a female in my home country'. She claims that women do not have a social identity in Thailand and that '[l]ittle chance will be given to females if they want to find a job for making a living'. (b) The applicant finished high school at the age of 20. She was unable to obtain a tertiary education in Thailand because her family was not an 'official' family and therefore unable to afford higher education for their daughter. (c) The applicant found it difficult to find a job despite trying 'every newspaper' andshe 'knocked at hundreds of doors of the companies'. Female staff were not wanted. (d) Finally the applicant was hired by a small company to assemble toys, on the condition of no pay for the first three months of employment. The working conditions were very poor with long shifts and insufficient rest breaks. (e) The applicant's supervisor always found fault with her and often shouted at her. On one particular day the supervisor made the applicant work overtime, claiming she 'didn't do my job well'. On this occasion the applicant claims that the supervisor 'raped' and 'beat' her. (f) The applicant 'decided to fight for justice' and 'sued' the supervisor in 'local court'. The court 'sentenced that I was guilty and I was fined with $5000'. (g) The applicant's parents sold their house and gave $1000 to the court as a bribe to influence the outcome of the case but this was not enough. The applicant surmised that the supervisor paid more to the court and so the outcome went in his favour. The applicant claims that this demonstrates that 'a common civilian cannot get justice' in Thailand. (h) As the applicant's family did not have the money to pay the fine, the court took the family's belongings. (i) One of the applicant's friends showed her mercy and helped her get a passport to leave Thailand. the decision of the delegate 3 Independent country information before the Delegate indicated that the Thai constitution provides equal treatment for all its citizens. However, the Delegate accepted that in practice Thai women do not enjoy the same rights as men in all matters and similarly that there is a large disparity in the social and financial standing of a large section of the poorer majority and the well off minority. The Delegate also accepted that some corruption takes place within government and the judiciary. The Delegate noted, however, that the mere existence of these social and economic factors alone does not constitute circumstances upon which an applicant can base a claim of persecution on any of the grounds in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Convention'). 4 The applicant's failure to provide specific detail to support her application led the Delegate to express serious doubts about the applicant's personal credibility and the genuineness of the claims of persecution. The Delegate considered the applicant's inability or unwillingness to provide a credible or detailed account of her claimed experiences were not consistent with the actions and behaviour of a person who holds genuine fears of persecution for a Convention reason. The Delegate also noted that the applicant had not made any specific claims that she fears persecution if she returns to Thailand. 5 The Delegate found that the applicant had not demonstrated that there is a Convention ground that is the essential and significant reasons for the persecution feared and was consequently not satisfied that the applicant was a person to whom Australia owed protection obligations. the decision of the tribunal 6 The basis of the applicant's application for review before the Tribunal was: 'As a women in Thailand, I was at the bottom of the society. I suffered to [sic] much discrimination and persecution. I need protection from Australian Government.' 7 On 2 July 2002, the Tribunal wrote to the applicant indicating, inter alia, that she should send any documents, information or other evidence she wanted the Tribunal to consider. None were sent. 8 By letter dated 1 October 2002, the Tribunal notified the applicant that it was unable to make a favourable decision on the papers alone and invited the applicant to give oral evidence and present arguments at a hearing. On 18 October 2002, the applicant advised the Tribunal in writing that she did not wish to attend a hearing and consented 'to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it'. 9 The Tribunal accepted that the applicant was female but was not satisfied that 'females' in Thailand constitutes a particular social group. The Tribunal referred to High Court authority (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A')) and also stated that it was not satisfied that all Thai women have some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, such as to make them a cognisable group within Thai society. 10 Having come to this conclusion, the Tribunal then considered the applicant's claim in these terms: 'It follows, therefore, that even if any of the Applicant's highly implausible and unsubstantiated claims relating to the rape by her supervisor and the fines imposed by the Court are actually true, any harm that she may have suffered arose from a particular set of personal relationships and circumstances rather than for a Convention-related reason. On the meagre evidence before me, I am not satisfied that the Applicant has ever suffered persecution in Thailand for a Convention-related reason or has a well-founded fear of so suffering in the reasonably foreseeable future.' 11 On this basis, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention. the application for review 12 The applicant's amended application for review to this Court contains the following grounds: '1. The Refugee Review Tribunal (the RRT) erred in law in determining that the Applicant did not fall within a class of persons constituting "a particular social group" for the purposes of Article 1A(2) of the Refugees Convention Particulars The RRT found (RD 62.2): "I am not satisfied that "females" in Thailand constitute a particular social group" 2. The Refugee Review Tribunal (the RRT) erred in law in denying the Applicant procedural fairness in failing to consider the US State Department Country Report on Human Rights Practices – 2001 Thailand (the Report) when that Report had been before the delegate (RD 39, para B5), extracts from that Report had been referred to by the delegate (RD 41.6 – 42.3), the Applicant might reasonably have anticipated that the Report would be considered by the RRT (RD 49.4, 51.2), but the Report was not before the RRT and the Report contained information relevant to the Applicant's claims Particulars Documents produced under FOI request US State Department Country Report on Human Rights Practices – 2001 Thailand' 13 The second and third respondents entered a submitting appearance save as to costs. ground one 14 The applicant's primary submission is that, as a matter of law, women constitute a particular social group for the purpose of the Convention. Counsel submits that the only fact for the Tribunal to determine, which it did, is that the applicant is a woman. Questions of fact, such as the particular country concerned were, it is contended, not relevant. The applicant relies on Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 ('Khawar') as establishing that proposition. Further, while the Tribunal did refer to the applicant's claims in the passage extracted at [10] above, the applicant submits that it failed to consider them in the context of the applicant as a member of a particular social group and failed to consider if there had been relevant persecution. Rather, it is submitted, the Tribunal did not consider the applicant's claims because of the finding that she does not come within the Convention requirement of membership of a particular social group. 15 The first respondent submits that the question whether or not a particular social group exists is a question of fact for the Tribunal. That, it is submitted, is consistent with the decision of Moore J in Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 ('Kaur'), of Weinberg J in Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783 ('Ndege')and of the Full Court in Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517and is not inconsistent with Khawar. It being a question of fact, the next question is whether it was open to the Tribunal to find that it was not satisfied that women in Thailand were a social group, based on the evidence before it, such as it was. 16 If the question whether women are a particular social group is a question of fact and not a question of law, the next question is whether such a finding was open to the Tribunal. Counsel for the applicant conceded that, if the question is one of fact, the finding was open to the Tribunal on the evidence before it. Counsel for the first respondent accepted that, if the question is one of law, the matter should be sent back to the Tribunal properly to analyse the applicant's case. It seems to me from the Tribunal reasons and the expression 'it follows, therefore' as set out in [10] above, that the Tribunal's consideration of the applicant's case was affected by its conclusion as to social group. 17 In Ndege, Weinberg J determined that whether a particular social group exists is to be determined as a question of fact. In Kaur, Moore J, in considering whether the Tribunal had erred in rejecting the proposition that 'women' or 'Sikh women' constituted a particular social group, accepted that the question is one of fact and that conclusions in other cases that might appear analogous or similar do not dictate the conclusion nor alter the position that it is a question for the Tribunal to decide. 18 In R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 ('Ex parte Shah'), Lord Steyn (at 635) observed: 'Generalisations about the position of women in particular countries are out of place in regard to issues of refugee status. Everything depends on the evidence and findings of fact in the particular case.' 19 Specific factual matters concerning women in Pakistan were considered and, as pointed out by Lord Hope of Craighead (Ex parte Shah at 657), the context of the inquiry is the country of the person's nationality and the social customs and attitudes therein. This necessitates factual findings and is inconsistent with a binding conclusion of law. The particular social group must exist independently of, and not be defined by, the persecution (Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 ('Applicant A'), per McHugh J at 263 and Ex parte Shah, per Lord Steynat 639). 20 The applicant relies upon Khawar to establish the proposition that it is a matter of law that women in Thailand constitute a particular social group. Ms Khawar was a citizen of Pakistan. An issue that arose for consideration was, in the words of Gleeson CJ at 7: 'whether women (or, for present purposes, women in Pakistan) may constitute a particular social group within the meaning of the Convention' (emphasis added). 21 At 11 and at 13, Gleeson CJ noted that Ex parte Shah showed that it is possible that Ms Khawar might be able to establish the facts to be found by the Tribunal if it be the case that women in Pakistan may be described as a particular social group. In the view of the Chief Justice, women in a particular country may constitute a social group and it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are such a group. I do not read the Chief Justice as saying that, as a matter of law, women in all countries are a particular social group for the purposes of the Convention. 22 Further, at 27-28, McHugh and Gummow JJ said: 'The case put here is that Mrs Khawar was a member of a particular social group in Pakistan. Again, the Tribunal failed to make the necessary finding. It failed to determine whether Ms Khawar was a member of such a group. It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the members of the household. Other formulations have been referred to earlier in these reasons and nothing said here is intended to foreclose a finding that a group so defined existed. This is a matter for the Tribunal on reconsideration of the case.' and, at 28: 'The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships. The alleged systemic failure of enforcement of the criminal law in certain situations does not dictate the finding of membership of a particular social group.' 23 This is consistent with the existence of the particular social group being a matter of fact for the Tribunal rather than a matter concluded by law. It is also consistent with Article 1A(2) of the Convention and sections 36 and 91S of the Migration Act 1958 (Cth), which refer to a 'particular social group' and not to a social group per se. This imports a characteristic of a specific and thus identifiable social group of a particular, specific and identifiable character (Khawar per Kirby Jat [43] and per Callinan J at [48]; Applicant A per Brennan CJ at [234]). These are factual matters. 24 Kirby J, at 30 and 33–34, repeatedly referred to a failure to make findings of fact both as to the question of the membership of a particular social group and as to the facts concerning Ms Khawar herself. The error of law found by his Honour was a failure to make necessary findings of fact, including the fact of membership of a particular social group. At 42 and following, Kirby J considered whether women could constitute a particular social group and concluded that they could, 'depending upon the evidence in the case and the facts found by the administrative decision-maker'. 25 Callinan J questioned whether women in Pakistan were capable of constituting a particular social group within the meaning of the Convention. 26 I do not conclude that, following Khawar, it is a matter of law and not of fact for determination by the Tribunal that women (or females) in Thailand constitute a particular social group for the purposes of the Convention. I also note that the Full Court in SDAV v Minister for Immigration & Multicultural & Indigenous Affairs; Minister for Immigration & Multicultural & Indigenous Affairs v SBBK (2003) 199 ALR 43, observed at 54 that, following Khawar, it was open to the Tribunal to find that the applicant was a member of a particular social group, whether women in Pakistan or some narrower social group and, (at 55), that such a finding is a matter for the Tribunal. 27 There are numerous cases in this Court in which it has been stated that the question whether a particular group could constitute a particular social group for the purposes of the Convention is a matter of fact to be determined by the Tribunal on the evidence before it. In particular, in Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 Stone J (at 274), with whom Whitlam J agreed, commented that, when the whole of the Chief Justice's judgment in Khawar is considered, the comments about women as a social group can be seen to depend on the evidence presented to the Tribunal as to the position of women in Pakistani society and culture generally. 28 In view of the matters to which I have referred and the approach that has consistently been taken in this Court, I conclude that the Tribunal did not err in dealing with the question as a matter of fact and not as a matter of law. As I have noted, it is not suggested that in those circumstances, the finding was not open to the Tribunal. Ground two 29 The applicant asserts that there was a denial of natural justice on the part of the Tribunal in failing to consider the document "Country Reports on Human Rights Practices for 2001, Washington, US State Department March 2002, Chapter on Thailand" ('the Report') when the Tribunal either represented to the applicant that the Report would be taken into account and thereby misled her or, in the alternative, having access to the Report which had been considered by the Delegate, failing to take it into consideration. 30 It was common ground that the Report was not in the files of the Department or of the Tribunal, that the Report was referred to by the Delegate and that the Report was not referred to by the Tribunal. There were in fact two reports dated 2000 and 2001 but, ultimately, the differences between them were not relevant, so I will consider this ground in relation to the Report. 31 Even if the Report had been before the Tribunal, there was no obligation to refer to it. Nor was there any obligation on the part of the applicant to refer to it or to any other country information. The applicant submits that, having read the Delegate's decision, she would have assumed that the Report was before the Tribunal and that, therefore, the applicant had been denied procedural fairness (Muin v Refugee Review Tribunal (2002) 190 ALR 601 ('Muin')). The applicant relies upon the fact that there is information in the Report that 'in the broad is helpful to her case' whether or not it was referred to and that she was entitled to be heard on that Report. 32 Counsel for the applicant conceded that, if the applicant fails to establish that she was misled or reasonably would have been misled and that she would have taken an action had she not been misled, she has not been denied procedural fairness and does not come within the principle in Muin. There is no evidence from the applicant in this matter and no agreed facts. 33 The first respondent's submissions can be summarised as follows: (a) There is a lack of evidence of any misleading of the applicant or of any act or omission on her part arising out of the letter from the Tribunal. (b) The letter to the applicant referred to the Department's 'file' having been sent to the Tribunal and not to the Report or to any particular document. (c) There is, in fact, no country information or copy of the Report in the Department's 'file'. (d) The applicant could only have been misled if she had assumed that every piece of country information would be copied and put into the file and there is no evidence of that. (e) It is not reasonable to have been misled in the circumstances. (f) The fact that the Report was not in the Tribunal file does not mean that it was not before the Tribunal; it was not in the Department 'file' but was before the Delegate, referred to in the Delegate's reasons. (g) The applicant has failed to establish that the Report was not before the Tribunal. (h) There was no obligation on the part of the Tribunal to take account of the Report. (i) Failure to have regard to this particular piece of country information was not a jurisdictional error. 34 The letter from the Tribunal to the applicant dated 2 July 2002 informed her that the Tribunal would ask the Department of Immigration & Multicultural & Indigenous Affairs ('the Department') to 'send us its file' and informed the applicant that, at the hearing before the Tribunal, she had the opportunity to give the Tribunal evidence to support her application, including documents. 35 I accept the submissions of the first respondent. The applicant has not established that the Tribunal failed to consider the Report or that the Report was not before the Tribunal. The fact that it was referred to by the Delegate when it was not physically present in the Department's file demonstrates that mere absence of the physical document in the Tribunal file is not sufficient to establish that it was not before the Tribunal. 36 In Minister for Immigration & Multicultural & Indigenous Affairs v Applicant S194 of 2002 [2003] FCAFC 273 ('Applicant S194'), the Full Court observed that the bare fact that a document was not mentioned in the Tribunal's reasons is consistent both with that document not being before the Tribunal and with the Tribunal considering, rightly or wrongly, that it was irrelevant or unimportant or with the Tribunal simply overlooking it. Neither of the latter two circumstances would amount to jurisdictional error. It follows that there is a need, if the applicant is to establish jurisdictional error, that there must be more than a mere absence of reference to a document in the Tribunal's reasons. 37 The Tribunal did not refer to the Report in its reasons. That alone does not constitute jurisdictional error (Applicant S194). The applicant does not contend that she did, in fact, anticipate that the Report would be considered by the Tribunal and there was no evidence to that effect. Her contention is that she might reasonably have so anticipated. For there to have been a denial of procedural fairness in these circumstances, the applicant would need to establish not only that a reasonable person in her position would have been misled but also that she was misled (Muin, per Gaudron J at 618). Otherwise, it cannot be said that the breach, if it occurred, could have affected the outcome. The applicant has failed to establish a denial of procedural fairness. Conclusion 38 As to the claim that the Tribunal was bound, as a matter of law, to find that females in Thailand constitute a particular social group for the purposes of the Convention, that question is a matter of fact for the Tribunal. It has been conceded by the applicant that, as a matter of fact, it was open to the Tribunal on the evidence before it to find that it was not satisfied that the particular social group is so constituted. There is no jurisdictional error. 39 As to the claim of denial of procedural fairness in respect of the failure by the Tribunal to refer to the Report when it informed the applicant that the Department file was before it; there is no evidence that the Report had been in the Department file, there is no evidence that the Tribunal did not have the Report before it, there is no evidence that the applicant was misled in any way nor any evidence that the applicant would have taken any action or failed to take any action as a result of the letter from the Tribunal. The applicant has not established a denial of procedural fairness or other jurisdictional error. additional matters 40 Order 51A rule 5 provides: (1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply. 41 The matter was fully argued before me without reference to any procedural considerations or to any considerations arising from the fact that the application was for an order nisi and before the decision in NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297. 42 Prior to delivery of these reasons, I sought from counsel their view as to the basis upon which orders should be made. Counsel have agreed that the matter was argued before me on the basis of an order absolute. Counsel have consented to orders being made on the basis that the application was for an order absolute. Accordingly, I make the following orders: 1. The order absolute is refused. 2. The proceedings are dismissed. 3. The applicant is to pay the first respondent's costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 6 February 2004 Counsel for the Applicant: R Killalea Solicitor for the Applicant: Morgan, Ardino & Co Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Clayton Utz Date of Hearing: 3 December 2003 Date of Judgment: 6 February 2004