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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant a child separated from his parents - whether the RRT erred in finding that the applicant was not a member of a "particular social group" - whether separated children in Afghanistan are a particular social group considered - RRT decision a nullity.

VFAY v Minister for Immigration [2003] FMCA 35 (27 March 2003)

VFAY v Minister for Immigration [2003] FMCA 35 (27 March 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAY v MINISTER FOR IMMIGRATION
[2003] FMCA 35



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant a child separated from his parents - whether the RRT erred in finding that the applicant was not a member of a "particular social group" - whether separated children in Afghanistan are a particular social group considered - RRT decision a nullity.



Migration Act 1958 (Cth), s.91R, 474

Applicant A v Minister for Immigration (1997) 190 CLR 225

Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293

Khawar v Minister for Immigration (2002) 187 ALR 574

Minister for Immigration v Applicant S [2002] FCAFC 244

Minister for Immigration v Wang [2003] HCA 11

Minister for Immigration v Yusuf (2001) 206 CLR 323

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

SBBN v Minister for Immigration [2002] FCA 816

WAIK v Minister for Immigration [2003] FMCA 33

Applicant:
VFAY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ863 of 2002



Delivered on:


27 March 2003



Delivered at:


Melbourne, via videolink to Port Hedland



Hearing date:
17 February 2003

via videolink to Melbourne and Port Hedland



Judgment of:
Driver FM



REPRESENTATION

Counsel for the Applicant:
Mr J W K Burnside QC, appeared pro bono publico

Ms N Karapanagiotidis



Counsel for the Respondent:
Mr Gilbert



Solicitors for the Respondent:


Blake Dawson Waldron



THE COURT DECLARES THAT

(1) The decision of the Refugee Review Tribunal made on 22 July 2002 is invalid and of no effect.

THE COURT ORDERS THAT

(1) The Minister is prohibited from acting in reliance upon the decision of the Tribunal.

(2) The decision of the Tribunal is set aside.

(3) The matter is to be remitted to the Tribunal for redetermination according to law.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ863 of 2002

VFAY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on 22 July 2002 and communicated to the applicant by letter dated 23 July 2002. The original application for review was filed in the Federal Court on 9 August 2002 and transferred to this Court by order of his Honour Heerey J on 27 August 2002.

2. An amended application was filed in this Court on 31 October 2002. The applicant seeks prerogative relief and costs. The applicant states that he is a citizen of Afghanistan who lodged an application for a protection visa on the basis that he had a well founded fear of persecution giving rise to protection obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The amended application asserts that the RRT decision was not made in good faith or was not a bona fide or genuine attempt to exercise the powers conferred on the RRT. The following particulars are given:

a) the RRT's erroneous interpretation of the phrase "membership of a particular social group";

b) the failure of the RRT to properly consider the applicant's particular claim, namely his feared persecution on the basis of his membership of a particular social group;

c) the RRT's pre-judgement of the issues relating to whether the applicant held a well founded fear of persecution in the event of his return to Afghanistan;

d) the RRT's failure to properly consider the applicant's ability or capacity to resettle in Afghanistan;

e) the RRT's pre-determined view that the applicant would not be at risk of persecution because of his attempt to seek asylum in a western country.

3. The amended application also asserts that the RRT decision contravened a "jurisdictional factor" or an "inviolable limitation or restraint" or a "structural" element in the operation of the Migration Act 1958 (Cth) ("the Migration Act") in that the RRT failed to satisfy certain indispensable pre-conditions to it exercising its jurisdiction.

4. At trial, the applicant was represented pro bono by Mr J W K Burnside QC. It is appropriate that I place on record the Court's appreciation for the willingness of counsel to appear on this basis in the interests in the fair and efficient administration of justice. Mr Burnside did not press the third to the fifth ground of review and pressed the first and second only insofar as they are said to establish an error of law going to jurisdiction. Mr Burnside submitted that in the light of the High Court decision in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2, it was only necessary for him to establish an error of law going to jurisdiction in order to establish a ground for the granting of prerogative relief. Mr Burnside further submitted that the privative clause in s.474 of the Migration Act had no operation in those circumstances in the light of the decision of the High Court. The matter was heard by me on that basis. However, I gave leave for the parties to provide further written submissions concerning the operation of the privative clause and Mr Gilbert, for the Minister, has done so.

5. I adopt the following background facts from the written submissions filed on behalf of the applicant on 31 October 2002. The applicant is a citizen of Afghanistan of Hazara ethnicity and Shi'a religion. He was born in Sargholom, Waras, Bamiyan Province. At the time of the RRT decision, the applicant was 16 years of age, having been born in 1986. He is an unaccompanied minor. The applicant initially arrived in Australia on 23 August 2001 and thereafter he has been detained at the Port Hedland Immigration Detention Centre.

6. On 10 September 2001 the applicant lodged an application for a protection visa. The applicant claimed to fear persecution for reasons of his ethnicity, religion, actual or imputed political opinion and membership of a particular social group. The applicant's claims are set out in his protection visa application (court book, pages 1-26). His further statement of 2 February 2002 (court book, pages 47-48), his statutory declaration of 8 July 2002 (court book, pages 114-116) and his adviser's written submissions to the RRT dated 2 July 2002 (court book, pages 79-82), 5 July 2002 (court book, pages 86-96), 8 July 2002 (two submissions) (court book, pages 97-116), 11 July 2002 (court book, pages 117-123) and 16 July 2002 (court book, pages 124-139).

7. On 20 May 2002 a delegate of the respondent refused to grant a protection visa to the applicant (court book, pages 60-64). On 22 May 2002 the applicant applied to the RRT for review of the delegate's decision. The RRT affirmed the delegate's decision on 22 July 2002 (court book, pages 140-168).

Consideration and findings

8. Mr Burnside submits that the RRT adopted an erroneous interpretation of the phrase "membership of a particular social group". It had been put to the RRT that the applicant fell into three possible social groups, namely:

a) unaccompanied minors of Hazara ethnicity from Afghanistan;

b) separated children; and

c) a group of able bodied young men of fighting age.

9. Mr Burnside conceded that the third suggested social group could not be accepted as a particular social group for the purposes of the Convention in light of the decisions of the Federal Court in Minister for Immigration v Applicant S [2002] FCAFC 244 and SBBN v Minister for Immigration [2002] FCA 816. However, he submitted strongly that both common sense and proper legal analysis compels the conclusion that children or the postulated subsets of children in this case can and should be accepted as constituting a particular social group for the purposes of the Convention.

10. The RRT found that children or unaccompanied young people did not share characteristics which make them recognisable or cognisable as a social group set apart from the rest of the community and that their "vulnerability and fear of coming to harm" is what defines the group (court book, page 165).

11. Mr Burnside took me to the decision of the High Court in Khawar v Minister for Immigration (2002) 187 ALR 574. In that case it was accepted that married women in Pakistan without the protection of a male relative constituted a particular social group. Mr Burnside was not initially able to take me to particular authority establishing that children or subsets of children have been accepted by the courts as constituting a particular social group for Convention purposes. However, he adopted my statement from the bench that the issue had been dealt with by the High Court and the Federal Court in relation to children born in breach of China's "one child policy Mr Burnside also submits on the basis of the reasoning in Khawar and the existence of the Convention on the Rights of the Child that it was obvious that children constitute a readily identifiable and particularly vulnerable group within society, especially where they are separated from their families.

12. Mr Burnside submits that the reasoning of the RRT that unaccompanied children were not identifiable as a social group, except by reference to the harm that they may suffer, is clearly erroneous.

13. Mr Gilbert submits that the reasoning of the RRT is not erroneous. In his further written submissions Mr Gilbert submits that there are no special provisions in the Convention which deal with refugee applicants who are minors. He submits that children at large are not members of a particular social group for the purposes of the Convention. He concedes that children, or a subset of children, could constitute a particular social group in particular circumstances, but that a case by case analysis is required. Mr Gilbert submits that the decision of the High Court in Chen Shi Hai v Minister for Immigration (2000) 210 CLR 293 relating to children born in breach of China's one child policy is distinguishable, and that the case does not establish any general principle that children generally in China (or anywhere else for that matter) constitute a particular social group. Mr Gilbert also distinguishes Khawar on a similar basis. Further, Mr Gilbert submits that the Convention on the Rights of the Child carries no implication for the Refugees Convention.

14. Mr Gilbert submits that the following considerations are relevant in determining whether a postulated social group is a particular social group for the purposes of the Convention:

a) the term particular social group is indeterminate and flexible. Attempts to provide an exhaustive definition have been resisted by the courts (Applicant A v Minister for Immigration (1997) 190 CLR 225 per McHugh J at 259);

b) there must, however, be a common unifying element, characteristic, attribute, activity, belief, interest or goal which unites the members of the group (Applicant A, per Dawson J at 241, McHugh J at 264, 266);

c) the group must be cognisable within the relevant society: there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community by reason of those shared characteristics (Applicant A per Dawson J at 241, McHugh J at 264, 266);

d) the group cannot be defined by persecution suffered or a common fear of persecution (Applicant A, per Dawson J at 242, McHugh J at 263, Gummow J at 285-6);

e) whilst persecution cannot define the social group, the actions of the persecutors may serve to identify or cause the particular social group in the society (Applicant A per McHugh J at 264).

15. Mr Gilbert, in his oral submissions, further submits that even if the RRT fell into error on this question, the RRT considered the application for a visa on the basis most favourable to the applicant and, in a very thorough and carefully reasoned decision, concluded that the applicant did not have a well founded fear of persecution should he return to Afghanistan. He relies on the decision of the Federal Court in SBBN v Minister for Immigration and also the terms of s.91R of the Migration Act generally on the question of whether the RRT properly concluded in any event that the applicant did not have a well founded fear of persecution.

16. In reply, Mr Burnside submits that, apart from drawing an erroneous conclusion on the question of whether an applicant is a member of a particular social group, the RRT committed a further error of law going to jurisdiction in that it failed to properly consider whether the applicant faced persecution in Afghanistan as an unaccompanied child. There was evidence before the RRT that the Red Cross had been unable to locate the applicant's family in Afghanistan. It had been asserted, on behalf of the applicant, to the RRT that the applicant's family may have been murdered by the Taliban and, indeed, mass graves of the Hazaras had been discovered in the Bamiyan province. The presiding member concluded that this submission was mere speculation and took into account country information that children living with their families in Afghanistan were not at significant risk (court book, page 159). Mr Burnside submits that notwithstanding that the presiding member declined to speculate on the question of whether or not the applicant would be able to find his family in Afghanistan, she took into account an irrelevant consideration, namely the more safe position of minors in the care of their families, and neglected a relevant consideration, namely, that unaccompanied minors are unable to access effective State protection in Afghanistan (at least outside of Kabul) and are accordingly in an especially vulnerable position.

17. In Minister for Immigration v Applicant S, at paragraph 23, His Honour North J referred to the decision of the High Court in Applicant A v Minister for Immigration (1997) 190 CLR 225and adopted the following quote from McHugh J in that case:

While persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left handed men are not a particular social group. But, if they were persecuted because they were left handed, they would no doubt become quickly recognisable in their society as a particular social group. Their persecution for being left handed could create a public perception that they were a particular social group. But it would be the attribute of being left handed and not the persecutory acts that would identify them as a particular social group.

18. Nevertheless, in Applicant S the Federal Court concluded that it was impossible to define able bodied men in Afghanistan as a particular social group except by reference to the alleged persecutory conduct. Likewise, in Applicant A v Minister for Immigration, the High Court concluded that the parents of a child born in breach of the Chinese one child policy did not constitute a particular social group because they were not identifiable except by reference to the alleged persecutory conduct.

19. However, in Chen Shi Hai v Minister for Immigration, the High Court found that children born in breach of the Chinese one child policy could constitute a particular social group for the purposes of the Convention. In that case, at paragraph 76 (albeit in relation to another point), Kirby J said this:

The Convention applies in terms to a "person". In those terms it is incorporated into Australian domestic law. By Australian law, as well as by international law, a child is a person. It could hardly be otherwise. Indeed for the purposes of international refugee law, children are often amongst the most vulnerable groups of refugees in special need of the protection of the Convention. They sometimes arrive in a country of refuge without parents or guardians. They are entitled to the determination of their legal rights, that fact notwithstanding. It would be astonishing if the Convention did not apply to them according to its plain language.

20. It was, in my view, inherent in the High Court decision that children per se are readily identifiable as a particular social group. It would be hard to think of any other group within any human society (with the possible exception of women) who are more immediately recognisable as a separate group. The unifying characteristic is that children are immature and subject to the control and protection of their families, or others. They are persons who are too young to be accepted as full and independent members of society. In Chen Shi Hai it was unnecessary for the High Court to deal with the broader issue, both because there was no question of children as a whole being persecuted in China, and because a particular subset of the broader class was the one requiring consideration. In the context of the Chinese one child policy it was also apparent that children born in breach of the policy were treated differently from children not born in breach of the policy. It logically followed that children born in breach of the policy were an identifiable social group for the purposes of the Convention.

21. The existence of the Convention on the Rights of the Child was referred to in the RRT decision (court book, page 167). That Convention underscores the point that children in society are an especially vulnerable group deserving of special consideration and protection. The Convention on the Rights of the Child was not considered relevant by the presiding member, who considered that Convention only in relation to the question of whether the applicant had a legitimate expectation that the RRT would exercise its discretion consistently with Australia's treaty obligations (court book, page 167). The presiding member considered correctly that the Convention on the Rights of the Child could not override the terms of the Migration Act and the Refugees Convention. However, the presiding member did not refer to the Convention on the Rights of the Child in considering whether children, or separated children, constitute a particular social group in Afghanistan.

22. In my view, the presiding member should have done so. In my view, the Convention on the Rights of the Child contains provisions relevant to the determination of the question of whether children, and separated children in particular, constitute a particular social group in any society. Article 22(2) of the Convention on the Rights of the Child relevantly states:

In cases where no parents or other members of the family can be found, the [asylum seeker] child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in [article 20 of] the present Convention.

Article 20(1) relevantly states that:

A child temporarily or permanently deprived of his or her family environment...shall be entitled to special protection and assistance provided by the State.

23. The significance of these international instruments is that they demonstrate that children have been recognised internationally as an identifiable group meriting consideration as asylum seekers. In addition, separated children have been singled out for special consideration.

24. The presiding member made the following conclusion in relation to this issue (court book, page 165):

I have considered whether children, separated children or unaccompanied Hazara minors can constitute a particular social group as the term is used in Australian refugee law. I do not consider that it could be said that children or unaccompanied young people share characteristics which make them recognisable or cognisable as a social group set apart from the rest of the community unless their vulnerability and fear of coming to harm is also used as a defining factor and this is not permitted under the law.

25. In my view, the presiding member erred in reaching this conclusion. Children as a whole plainly do share characteristics which make them recognisable or cognisable as a social group set apart from the rest of the community without any reference to concepts of vulnerability and fear of coming to harm. In my view, it is self evident that children are readily identifiable as a particular social group in any society. I find that children are a particular social group for the purposes of the Convention and that a subset of children can, in particular circumstances, also constitute a particular social group.

26. Children separated from their parents or guardians are also readily recognisable or cognisable without any reference to fear of persecution. All societies take special measures to deal with separated children, for example, through the establishment of orphanages and the concept of wardship. In addition, separated children have been recognised internationally as entitled to special consideration as asylum seekers. The finding of the presiding member of this point was erroneous. The error made was an error of law going to jurisdiction: WAIK v Minister for Immigration [2003] FMCA 33 at [20]. Prima facie, therefore, the applicant is entitled to prerogative relief in consequence of my finding.

27. However, the presiding member went on to say (court book, page 165):

Even if such groups could be said to be particular social groups, I do not consider that it would be the applicant's membership of such groups which would be the essential and significant reason for what might become of him. Rather, the difficulty which the applicant could encounter upon return seems to me because of his youth and inexperience and so limited capacity to manage in a difficult environment and the generalised insecurity and hardship which prevails in his country.

28. The presiding member found that, based upon country information, it did not appear that the applicant faced persecution as a Hazara. I accept that, whether that conclusion was right or wrong, it was reasonably open to the presiding member on the material before her. The presiding member accepted that the applicant faced a risk of harm due to the uncertain security situation in the country but that this was the same risk faced by anyone returning to Afghanistan. The presiding member said (court book, page 166):

I have considered carefully whether the harm that applicant might come to because of the general insecurity in Afghanistan would be because of his ethnicity, religion or imputed political opinion or any other Convention reason. I consider it possible the applicant might be the victim of opportunistic criminal acts but, against the background of all of the information before me, I do not consider that there is a real chance that the essential and significant motivation for what might occur would be one of the reasons in the Refugees' Convention.

29. The presiding member also considered whether effective State protection would be available to the applicant. She said this (court book, page 167):

The evidence does not indicate to me that adequate or effective State protection exists in Bamiyan. However, there are two factors which mean that it cannot follow from this conclusion that the applicant is a refugee. First, I have concluded there is not a real chance that the applicant would be persecuted for a Convention reason if he were to return. The harm which might befall him is not of a character which constitutes persecution because the essential and significant reason for it would not be one of the reasons in the Refugees' Convention. Second, there is no evidence of which I am aware to indicate that what meagre policing (or other services which could be regarded as State protection) as there is would be less available to the applicant because of a Convention reason than to others.

30. In my view, this conclusion overlooks a relevant consideration. There was country information before the RRT that children separated from their families in Afghanistan are in a more vulnerable position than children who are with their families. The Red Cross has been unable to locate the applicant's family. It is not merely a matter of speculation whether or not the applicant will be able to find his family in Afghanistan. It must be accepted that until such time as he does find them he is a separated child. As a separated child, he will be especially vulnerable to lawlessness and other criminal acts in Afghanistan in circumstances in which the RRT accepted that effective State protection is not available. While that lawlessness and criminal activity is not condoned or sponsored by the State, the absence of State protection is relevant. It can and should be accepted that criminals and others beyond the reach of the law prey in particular upon the vulnerable (those unable to protect themselves or those not under the effective protection of another). It is this factor which gives the risk of harm faced by the applicant a serious and systemic character necessary to satisfy the definition in s.91R of the Migration Act.

31. Further, the presiding member should have referred to the UNHCR Guidelines on Policy and Procedures in dealing with Unaccompanied Children Seeking Asylum (Geneva, 1997) which relevantly states that:

In the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child's stage of development...as well as his/her special vulnerability. Children may manifest their fears in ways different from adults. Therefore, in the examination of their claims, it may be necessary to have greater regard to certain objective factors, and to determine, based upon these factors, whether a child may be presumed to have a well-founded fear of persecution.

32. I find that the RRT committed errors of law going to jurisdiction in that the RRT failed to accept that the applicant was a member of a particular social group for the purposes of the Convention and failed to take into account a consideration relevant to the determination of the question of whether the applicant had a well founded fear of persecution.

33. These errors went to the jurisdiction of the RRT. In the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth the High Court held that the privative clause in s.474 of the Migration Act will not protect a decision involving errors of law going to jurisdiction. The High Court specifically dealt with the question of a breach of the rules of procedural fairness, but, in my view, it is clear from the reasoning of a majority of their Honours in that case that any error of law going to jurisdiction will be sufficient to prevent the operation of the privative clause. See, for example, the observations of Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]. In his further written submissions, Mr Gilbert sought to limit the impact of the High Court's decision and correctly pointed out that not all legal error constitutes jurisdictional error. The High Court was itself careful to make this limitation, for example at [77], specifically in relation to statutory procedural requirements. However, the decision of the RRT on the question of the social group to which the applicant belonged is one going to a fundamental issue in the exercise of the RRT's jurisdiction. I reiterate my agreement with Raphael FM in WAIK v Minister for Immigration at [20] that a failure to address the question of whether an applicant falls into a particular social group constitutes jurisdictional error. So is an erroneous refusal to accept the social group to which an applicant belongs. The jurisdictional error in this case is compounded by the failure to properly consider the risk of harm faced by the applicant. This also constitutes jurisdictional error because the failure affected the exercise of power by the RRT: Minister for Immigration v Yusuf (2001) 206 CLR 323. As a matter of law, the decision of the RRT is a nullity. The decision of the RRT is not a "privative clause" decision. I will therefore grant the prerogative relief sought by the applicant.

34. The case will need to be returned to the RRT for redetermination according to law. There is no legal reason why that redetermination should not be carried out by the same RRT member. There is no issue of bias or any other disqualifying consideration. On the contrary, the decision of the presiding member was, in all respects other than the aspects dealt with in these reasons, extremely thorough and well reasoned. There are sound practical reasons why the same RRT member should re-hear the case. However, in the light of the decision of the High Court in Minister for Immigration v Wang [2003] HCA 11 I will not make any order in relation to this aspect of the matter.

35. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 March 2003
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