SZMHQ v Minister for Immigration and Citizenship [2008] FCA 1840

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court of Australia, given on 22 August 2008 and published as SZMHQ v Minister for Immigration and Anor [2008] FMCA 1190. The learned federal magistrate dismissed the appellant's application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), dated 17 April 2008, and handed down or sent on 13 May 2008. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, not to grant the appellant a protection visa. 2 The appellant is a citizen of Thailand, who arrived in Australia on 2 September 2007. On 12 October 2007, she applied to the Department of Immigration and Citizenship for a protection visa. The decision of the delegate of the Minister refusing to grant the visa was made on 20 December 2007. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean, respectively, the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two documents, taken together, as the "Convention". 4 For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 5 The appellant appears to have invoked the Convention ground of membership of a particular social group. She claims that, in Thailand, her stepfather sold her into a relationship with a man who was a friend of his. The man abused her and tried to kill her. She says that she has a well-founded fear that if she returns to Thailand she will be further abused, or even killed, by her stepfather and her husband. 6 The Tribunal did not accept the appellant's account of her experiences in Thailand. It found that she had not given consistent or credible evidence regarding her personal circumstances, and the events which she claimed led to her departure from Thailand, and which formed the basis of her claim for a protection visa. In particular, there were significant discrepancies between the addresses at which the appellant said in her application for a protection visa she had lived during various specified periods, and the evidence she gave to the Tribunal about where she had lived, with whom and at what times. 7 Because it did not accept her evidence, the Tribunal did not accept that the appellant had suffered harassment and abuse from her stepfather and stepsiblings in Thailand. It did not accept that the appellant's stepfather had sold her into a relationship with the other man. The Tribunal did not accept that the appellant was in a relationship with the other man, in which she suffered psychological and physical abuse from him; that the man threatened, or attempted, to harm her, causing her to fear for her life; or that these factors caused her to flee the relationship. The Tribunal did not accept the appellant's claim that she approached the police for assistance or protection after the man tried, or threatened, to kill her. The Tribunal did not accept that the appellant's family played any role in notifying the man of the appellant's whereabouts at times when she claimed to have left him, or that this was a reason why the appellant felt she would not be able to escape the relationship and its attendant risk of harm. The Tribunal therefore did not accept that the appellant had a well-founded fear of being persecuted for a Convention reason if she returned to Thailand immediately, or in the foreseeable future. 8 In her application to the Federal Magistrates Court, the appellant relied on two grounds. The first concerned a letter that the Tribunal had posted to the appellant, providing her with particulars of information and other matters required by s 424A of the Migration Act. The appellant did not reply to this letter. She said she had not received it. The second ground was that the Tribunal had failed to consider an aspect of the appellant's claim, namely, that she had a well-founded fear of persecution on the basis of the Convention reason of membership of a particular social group in the light of her claim and independent information about Thailand, and that she was entitled to have the claim dealt with. 9 In his reasons for judgment, the federal magistrate found that there was no substance in either of these grounds. At [4], his Honour relied on s 441C(4) of the Migration Act. Under that subsection, in conjunction with s 441A(1) and (4), if the Tribunal dispatched the letter required by s 424A to the appellant by pre-paid post or other pre-paid means, to the last address for service provided to the Tribunal by the appellant in connection with the review, the appellant is taken to have received the document within seven working days after the date of the document, if the address is in Australia. 10 As to the second ground, at [7], the federal magistrate pointed out that the issue of a nexus between the appellant's claims and a Convention ground did not arise because the factual claims made by the appellant were rejected. 11 In her notice of appeal the appellant relies on the same two grounds. 12 As to the first ground, she has informed me from the bar table that she did not receive the letter sent pursuant to s 424A of the Migration Act. She has informed me that she had lived and continues to live at the address that she gave to the Tribunal in connection with her application for review, the address to which the Tribunal appears to have posted all its correspondence to her. She acknowledges receipt of other correspondence posted to that address. Although she has not given evidence to me on oath or affirmation, I have no reason to disbelieve her when she says that she did not receive the letter sent to her pursuant to s 424A. She has responded to other correspondence and there appears to be no reason why she would not have responded to the particular letter. 13 Despite this, unfortunately for the appellant, s 441C(4) of the Migration Act effectively deems the appellant to have received the letter, even if she did not actually receive it. The Tribunal's obligations under s 424A are limited by subs (2) of that section to the choice of one or more of the methods specified in s 441A, except in the case of a person in immigration detention. As I have said, one of the methods specified in s 441A of the Migration Act is that specified by subs (4), namely posting by pre-paid post or other pre-paid means to the last address for service provided to the Tribunal by an applicant in connection with the review. The fact that the letter may have gone astray in the mail, and may never have arrived, does not entitle the appellant to succeed on this ground. 14 Counsel for the Minister also argued, and the federal magistrate said at [4] of his reasons for judgment, that the Tribunal may have gone beyond its obligations under s 424A, because the letter related to information provided by the appellant herself, which was unlikely to have been "information" for the purposes of s 424A. Whilst this position may be arguable, I do not find it necessary to determine whether that argument should be accepted. 15 Counsel for the Minister also argued that, so far as it appears from the Tribunal's reasons for decision, all of the inconsistencies dealt with in the letter were put to the appellant in the course of the Tribunal's hearing, and she was thereby given an opportunity to deal with them. The process of confronting the appellant with inconsistencies in the hearing, and giving her an opportunity to comment on them on the spot, if followed completely, may have ameliorated the consequences of her non-receipt of the letter. It would not constitute a complete answer to any failure to comply with s 424A, and would not have afforded such a full opportunity for the appellant to comment on the inconsistencies, and perhaps to explain them, as she would have had with the benefit of the letter. It may be that the possible failure of the process under s 424A in this case could provide a basis for the Minister to reconsider the decision denying a protection visa, pursuant to s 417 of the Migration Act, if the case were otherwise to be regarded as a suitable one. 16 As to the second ground, the federal magistrate was undoubtedly correct to say that no occasion arose for the Tribunal to ask itself how a well-founded fear of the appellant might be connected with a Convention ground, because the Tribunal rejected the proposition that the appellant had a well-founded fear. 17 It is possible for there to be a particular social group for the purposes of the Convention, consisting of women who suffer abuse at the hands of men if, in the country concerned, there is a systemic failure to provide protection and assistance for such women. It is not known whether, in the present case, the appellant's evidence would have been sufficient to establish such a systemic failure. Any such decision would have been a decision of fact for the Tribunal to make, and not one for the Federal Magistrates Court or this Court. 18 The fact that the Tribunal did not get as far as determining this issue was a result of the Tribunal's findings as to the appellant's lack of credibility, based on the unexplained or inadequately explained inconsistencies in her evidence. The lack of explanation, or of adequate explanation, for those inconsistencies in turn may have been connected with the appellant's non-receipt of the letter sent under s 424A of the Migration Act. 19 In the circumstances, I am required to find that the appellant has not made out either ground of the appeal. I am not able to detect any error on the part of the federal magistrate, or any jurisdictional error on the part of the Tribunal. The appeal must therefore be dismissed. 20 The usual principle is that costs follow the event. The appellant has not advanced any reason why this principle should not be applied and I am not able to discern any such reason from the circumstances in the case. Counsel for the Minister has requested me to fix the costs in the sum of $1,900. That is a somewhat lower sum than might otherwise be obtainable on a taxation of costs. In part, this is because the solicitors for the Minister have not briefed separate counsel and have not claimed in respect of the appearance of the Minister's solicitor as counsel to argue the appeal. To fix the costs in that sum will avoid any further costs involved with the assessment of costs by a registrar. Accordingly, I should make the orders sought, that the appellant pay the Minister's costs of the appeal and that the costs be fixed at $1,900. 21 The Court orders that: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, fixed at $1,900.