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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa for reasons of membership of a particular social group - whether the Tribunal had made a jurisdictional error by failing to make a positive determination as to applicant's age - whether the applicant had sufficient capacity to understand the nature of his application -whether there is any utility in sending the matter back for reconsideration of the issue of age and capacity - whether there was a `real chance' of persecution in the foreseeable future - whether the applicant's fears are Convention related - whether Tribunal made a jurisdictional error by failing to consider whether the applicant belonged to a particular social group.

WAIK v Minister for Immigration [2003] FMCA 33 (20 February 2003)

WAIK v Minister for Immigration [2003] FMCA 33 (20 February 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIK v MINISTER FOR IMMIGRATION
[2003] FMCA 33



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa for reasons of membership of a particular social group - whether the Tribunal had made a jurisdictional error by failing to make a positive determination as to applicant's age - whether the applicant had sufficient capacity to understand the nature of his application -whether there is any utility in sending the matter back for reconsideration of the issue of age and capacity - whether there was a `real chance' of persecution in the foreseeable future - whether the applicant's fears are Convention related - whether Tribunal made a jurisdictional error by failing to consider whether the applicant belonged to a particular social group.



Immigration (Guardianship of Children) Act 1947 (Cth), s.6

Migration Act 1958 (Cth), ss.36, 46, 47(3), 48A, 48B, 50, 69, 414, 417, 476

Migration Regulations Reg 2.07

Lek v Minister for Immigration, Local Government & Ethnic Affairs (No.2) (1993) 45 FCR 418

Abdi v Minister for Immigration [1998] FCA 1335

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

Yilmaz v Minister for Immigration (2000) 100 FCR 495

Minister for Immigration v B (2000) 105 FCR 304

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

Weheliye v Minister for Immigration [2001] FCA 1222

WAGD of 2001 v Minister for Immigration [2002] FCAFC 162

Soondur v Minister for Immigration [2002] FCAFC 324

Odhiambo v Minister for Immigration [2002] FCAFC 194

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2

SBBK v Minister for Immigration [2002] FCA 565

Applicant:
WAIK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 206 of 2002



Delivered on:


20 February 2003



Delivered at:


Sydney



Hearing date:


10 February 2003 via videolink to Perth



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Dr J Cameron



Counsel for the Respondent:


Mr A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The applicant to bring in agreed short minutes of order within seven days.

(2) The above order stayed for a period of seven days.

(3) Respondent to pay applicant's costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 206 of 2002

WAIK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a young man from the Nangahar Province in the east of Afghanistan. He is of Pashtun ethnicity. The applicant arrived in Australia on 22 August 2001. On 14 November 2001 he lodged an application for a protection (Class XA) visa. His application was considered by a delegate of the Minister who, on

11 April 2002, refused to grant a protection visa. On 19 April 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant gave oral evidence to the Tribunal on the

2 July 2002 and the Tribunal made its decision on the 31 July 2002 to uphold the original decision of the delegate.

2. The applicant claims that in the year 2000 in his home village he met a girl named Nur Bibi. The saw each other clandestinely for some time after which the applicant asked his parents whether they could approach Ms Bibi's parents to seek her hand in marriage for their son. His parents did this but they were rejected on the grounds that Ms Bibi was betrothed to a relative. Ms Bibi's family belonged to a sub group of the applicant's tribe which was in dispute with the sub group to which the applicant belonged. When the applicant's parents were told that he could not marry Ms Bibi the applicant was instructed by them to marry another women of their choosing. This he did. However, the applicant appeared to have continued to see Ms Bibi from time to time. He claims that on one occasion he went to her home to speak with her. Her father heard them talking and disturbed them. The father had a shotgun. He shot at the applicant. The applicant managed to make his escape. The applicant fled to the home of a relative in another village and whilst there learned that Ms Bibi's fiance had refused to marry her on the grounds of her association with him and that because of this disgrace her father had killed her. He was told that Ms Bibi's father and relations would bring him before the Taliban as an adulterer and that he would be stoned to death. He therefore made his escape and fled to Australia.

3. The applicant claimed that the change of regime in Afghanistan did not alter his position. The Sharia Law which designated death by stoning for adultery was still operative in his region. He submitted that the government would not protect him from execution in this way because the same people who had been in charge during the Taliban era were still in control. The applicant also made claims of a general fear of persecution arising out of the situation in Afghanistan and the possibility of the re-emergence of the Taliban. These concerns were not accepted by the Tribunal as having a `real chance' of occurring and at [CB 92] the Tribunal found:

"There is not a real chance that the applicant will be persecuted by the Taliban or some other Pashtun group if he were to return to Afghanistan. I am not satisfied that the applicant's fears of Convention persecution on this basis are well-founded."

The Tribunal likewise did not accept a claim by the applicant that the existence of his flight to the west and application for asylum would place him in danger in Afghanistan currently or in the foreseeable future.

4. When the matter came before me for the hearing of an application for review of the decision of the Tribunal, the applicant was represented by Dr Cameron who appeared on his behalf pro-bono. The applicant filed amended ground for review which raised two grounds:

(1) That the Tribunal fell into jurisdictional error when, having noted the submission of his adviser that he was seventeen years, old it failed to make a positive determination as to his age.

ALTERNATIVELY

(2) [The Tribunal] fell into jurisdictional error when it failed to address the central issue raised by the applicant's submissions, namely that he feared persecution, and that this fear stemmed from the anticipated failure of such authorities that there may have been to administer the rule of law in Afghanistan to protect him from extrajudicial killing, on the grounds that he had committed adultery and that such failure would stem from membership of a social group, being a social group different from that of the feared aggressor, and of the authority from which he might otherwise expect to seek protection against such extrajudicial killing.

I will deal with each of these grounds in turn.

Age

5. At [CB 57] there is a copy of a letter from the applicant's adviser dated Tuesday 30 April 2002 addressed to the Tribunal in the following form:

"Dear Member

Our client was effused (sic) his protection visa on 11 April 2002, an application for appeal has been filed with the Tribunal. Our client has requested that the Tribunal be notified of his medical condition, he states that he has a kidney problem and has been flown to Perth a number of times for treatment. His request is that his hearing be as soon as possible.

He also wishes to have it noted that his date of birth was incorrectly documented, apparently he has attempted to have it corrected at his interview with the Department. He informs us that he is now 17 years of age, he was 16 when he left. He states he knows that he is 17 not 19 as recorded.

In the Tribunal's reasons for decision at [CB 82] the Tribunal stated:

"The applicant confirmed that when he arrived in Australia he was 17 years of age. He stated that he did not know how old he is now. He added that he did not know what year he was born in and it was tradition in his area not to write down one's date of birth."

There would certainly appear to be confusion concerning his date of birth at [CB 1] it is given as 01/01/83 and that is repeated at [CB 2]. At [CB 5, 6 and 7] there are given dates of birth of other members of his family all of whom appear to have been born on the 1 January in various years. This is apparently a customary way of writing age. At [CB 28] in a statement written in English the applicant claims to be 18 years of age.

6. The importance of the age factor arises in the following way. When an applicant applies for a Class XA visa he or she is required to complete a form which gives particular about himself or herself and his or her family. The form includes a declaration which must be signed by all the persons who are included in the application for a protection visa. This is an important declaration because it states that the information provided is complete, correct and up to date in every detail. The form acknowledges the effects of giving false or misleading information, it gives undertakings to the department, it authorises the government to make inquiries and it states that the person signing has read and understood the information supplied to that person in the application. The Minister's delegate and Tribunals take the responses to the form very seriously. They frequently point out in their decisions discrepancies between what is written in the form and evidence given before them. Sometimes these discrepancies are used to lend weight to findings of lack of credibility on the part of applicants.

7. There is a note on the form in bold black ink in the following terms:

"If any of the applicants who should answer this question and sign the declaration is under 18 years of age or lacks legal authority to sign on their own behalf, the parent or guardian must sign on their behalf."

The applicant signed the form.

8. The applicant argues that if he were under the age of 18 years at the time he applied for the visa he could only make a valid application with the assistance of a guardian appointed by the respondent in accordance with the duties imposed upon him by the provisions of s.6 of the Immigration (Guardianship of Children) Act 1947 (Cth).

9. Migration Regulation 2.07 is relevantly in the following form

"Reg 2.07

Application for visa - general

(1)....

(3) An applicant must complete and approved form in accordance with any directions upon it."

The applicant submits that if he was under 18 years of age he was legally incompetent to sign the form himself. It was required to be signed by his guardian. Because the form was not completed in accordance with the directions it was not valid and under s.47(3) of the Migration Act 1958 (Cth) ("the Migration Act") the Minister is not to consider an application that is not a valid application. As the application was not a valid application any action taken by the respondent in relation to it was invalid and therefore the decision was not a decision for the purposes of s.414 and s.417 of the Migration Act.

10. Section 69 of the Migration Act deals with the effect of compliance or non compliance and is in the following form:

"(1) Non-compliance by the Minister with sub division AA or AB or s.494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed."

The applicant argues that this section cannot save the decision because the application is one which the applicant was precluded by statute from making. The question thus put was raised in like terms before the Full Bench in WAGD of 2001 v Minister for Immigration [2002] FCAFC 162. Unfortunately it was raised on the day of the hearing of the appeal by way of an application to amend the notice of appeal. The application was refused and in a short judgment between [14] -[19], Their Honours explained their views that the application was inconvenient. At [20] Their Honours said:

"There is inconvenience in allowing the proposed grounds of appeal to be agitated in these circumstances. If there were no other opportunity for the appellant to vindicate rights which are the subject of the proposed grounds, the Court would be slow to shut out the appellant from arguing such grounds. However, in relation to proposed ground 6, the appellant remains able to assert the invalidity of the original refusal to grant him a protection visa, even if proposed ground 6 is not argued in this appeal. It is open to the appellant to make an application for a protection visa, and, in so doing, to assert that no previous valid application has been made. The position is as described by Gyles J in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 507 as follows:

"It is not immediately apparent to me why the appropriate method of proceeding, if the appellant is correct, is not for an unsuccessful applicant to simply make another substantive application and, if the Minister fails to deal with it because of s.48A [of the Act], then to bring proceedings in the nature of mandamus to compel the Minister to act. This would avoid the absurdity of an applicant appealing to the Court to have to have its own application to the RRT being declared invalid, whilst continuing to press an appeal on the merits. However, the Minister does not oppose the amendment to the notice of appeal to raise the issue, and we must consider it."

The course of action suggested by the Full Bench in WADG and by Gyles J Yilmaz is open to this applicant. But he has chosen to agitate the matter before me and the respondent has not objected to it.

11. Although the applicant argues that the purported decision of the respondent's delegate cannot be saved by s.69 of the Act in the circumstances of this case since the application is one which the applicant was precluded by statute from making, this does not seem to be supported by the decision in Soondur v Minister for Immigration [2002] FCAFC 324. That case involved a family application for protection which included two children, one of whom was approximately seven when a first relevant application was made and the other was only one. The first family application was decided against the mother and the daughters in about 1992. In 2000 the daughters submitted their own separate applications which were rejected pursuant to s.48A of the Migration Act. The application which was considered by the Full Bench involved ss.36, 46, 47, 48A, 48B, 50, 55, 65(1) and 69(1) of the Act. However, the court made a number of findings which were relevant in this case. Firstly at [38] it was suggested that with regard to applications pursuant to the Migration Act generally the situation seemed to be that it was necessary to enquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application at the time the application was made.

12. Secondly, if the applicant was found to have sufficient understanding, consideration would have to be given as to whether the fact that she, not a parent or guardian, had signed the form amounted to substantial compliance with the requirement to complete an approved form. Thirdly, the failure to consider the second appellant's rights (by making the investigation of her capacity) was an error of law that fell within s.476 of the Migration Act and effected the jurisdiction of the decision maker. The court then considered the utility of referring the decision back to the Tribunal and in so doing considered the nature of the application. At [49] Gray J giving the majority opinion said:

"In my view it cannot be said that the first appellant's application for a protection visa on 19 December 2000 was a nullity. The better view is that the Migration Act does not make into a nullity even an application that is not a valid application for the purposes of s.46. The Migration Act does not speak of "invalid" applications (except so far as the more recent amendment to s.46 is concerned). If an application that is not a valid application for the purposes of s.46 is considered pursuant to s.65, the resultant decision is preserved by s.69. (See Yilmaz v Minister for Immigration [2000] FCA 906 at [19-25] per Spender J and [72] and [93] per Gyles J) and other authorities there quoted. The fact that an application might fail does not mean that it is to be considered a nullity."

13. The situation appears to be that the present application before me, although invalid, had been saved by s.69 but is still open to review. Soondur is authority for the fact that one ground of review might well be that the Tribunal failed to investigate the capacity of the applicant to make the application. A Tribunal is entitled to hear an application for review from a minor without requiring that minor to be represented by his or her guardian or representatives appointed by the guardian (Odhiambo v Minister for Immigration [2002] FCAFC 194). In this case it is not at all clear what age the applicant is. He may well have been a person with full legal capacity at the time he made his application. If an investigation was carried out, and if it was found that he was a minor, further investigation would be required as to whether or not he had sufficient mental capacity as described in Soondur and Odhiambo to make the application and make representations to the delegate and to the Tribunal on his own behalf. In Soondur when the court considered the utility of sending the matter back to carry out these investigations it came to the conclusion that the factual questions involved in those issues, particularly the capacity of the second appellant could not be determined by the court and therefore provided review.

14. But this case is different. The applicant did not appear on his own. He was represented. If it was necessary to appoint an agent for the Minister as the applicant's guardian such a person would be obliged to consider the necessity for such representation. Section 6 does not require the Minister to be appointed it has automatic effect. The applicant submits that the guardian would have to consider the type of arguments that could be raised by the applicant in relation to these proceedings. I am not satisfied that this is so. The whole purpose of appointing an immigration agent as the applicant's adviser is because that person is the expert in the field and can be presumed to be putting forward on behalf of the applicant the best possible case. Why would a department of the state in which the applicant is currently confined be expected to second guess the migration consultant in relation to the points to be put up on behalf of its ward?

15. The applicant argues that if a state representative was appointed he could and would have raised, in particular, the issue of effective protection and the applicant's membership of a social group as the basis for the grant of protection. These were arguments raised in the hearing before me. I will deal with them further. I am not aware of any authority which indicates that a minor's representative must be a counsellor of perfection. It seems to me that there is no utility in referring the matter back to the Tribunal for the investigations which the applicant wishes to have carried out because, even if it was found that the applicant was both underage and did not have the necessary mental capacity to represent himself the steps that would be taken to assist him would consist of appointing a migration agent to act on his behalf. This is exactly what happened. It follows that I would not hold the Tribunal's decision to be invalid on these grounds.

Whether the applicant's fear is convention related

16. Although the Tribunal at [CB 88-89] expresses doubts as to the veracity of the applicant's story concerning his relationship with Nur Bibi, it does seem to accept that he feared reprisal from her family and punishment as an adulterer arising from his association with her. The Tribunal held that these fears were not convention related. The threat he faces is being turned over to some religious control arm of the local authority which will execute him by stoning. The Tribunal accepts that this is a disproportionate punishment but points out at [CB 90:

"His fear derives from these circumstances and has nothing whatsoever to do with any of the five convention reasons. The young woman's family are not concerned with his race, religion or nationality, or with his membership of any social group or with his political opinion. Rather they are concerned to exact some form of retribution from him for what has happened to their daughter. His conduct is perceived by them to have resulted in shame on their family. It is a harm directed at him as an individual as revenge and for reasons which are personal to him."

17. Before me the applicant argued that these findings ignored the applicant's true fear which was that he would not be protected against extrajudicial killing on the grounds of imputed adultery. He went on to argue that the Tribunal did not consider whether he was a member of a particular social group, being a member of that section of his tribe which the governor of the state would not seek to protect from extrajudicial killing by persons such as the parents of Nur Bibi who were members of an opposing faction.

18. The applicant also argues that the Tribunal did not address the question of whether there was in Afghanistan at the time of the hearing an infrastructure of laws designed to protect its nationals against harm of the sort said to be fearrd by the applicant or whether there was an Afghanistan at the time of the hearing effective judicial and law enforcement agencies governed by the rule of law. My reading of the Tribunal's reasons and in particular those found at [CB 90-91] is that the Tribunal accepted the possibility that the applicant would be the subject of extrajudicial killing on the basis of his association with Nur Bibi if he returned and that the governor would be powerless to prevent this. The sole reason for the Tribunal's apparently unpalatable decision not to provide protection was that the applicant's fear was not convention related. It did not address the question of the applicant's membership of a social group defined by the differences between his subgroup and that of the parents of Nur Bibi. Nor did it consider the governor's expected failure to prevent the execution in the light of this definition of the applicant's status.

19. In Weheliye v Minister for Immigration [2001] FCA 1222 the court decided that the Tribunal had failed to address the question of whether the applicant had well-founded fear of persecution by reason of membership of the social group of `young Somali women without male protection'. Goldberg J held that by misdescribing the social group, the Tribunal failed to consider the causal link between the persecution feared by the applicant and the applicant's membership of the particular social group. Further, it was held that the Tribunal also failed to consider whether the law against adultery was applied and administered in a discriminatory manner in Somalia. At [47] Goldberg J quoted a passage from the judgment of McHugh J in Applicant A v Minister for Immigration (1997) 190 CLR 225:

"...Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group...In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.

Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate objective will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the state and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution..."

And in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 the majority held that:

"Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application."

Therefore, a law will not be a law of general application if it applies only to a particular section of the population. Goldberg J made it clear that it was necessary for the Tribunal to determine whether the law applied throughout the country and to all the population in the sense that it was applied and enforced throughout the land in a non-discriminatory way. At [51] he outlines guideline test for Tribunal members:

(1) First, the Tribunal must ascertain whether the law is in fact of general application and is not a law which targets or applies to only a particular section or group of the population; and

(2) Second, if the law is of general application to the whole population, is it applied and administered in a discriminatory manner.

20. A failure to address the question of whether an applicant falls into a particular social group has been accepted as constituting jurisdictional error (Lek v Minister for Immigration, Local Government & Ethnic Affairs (No2) (1993) 45 FCR 418, Abdi v Minister for Immigration [1998] FCA 1335, Minister for Immigration v B (2000) 105 FCR 304 and SBBK v Minister for Immigration [2002] FCA 565). I do not need to determine whether this type of jurisdictional error is one that is protected by s.474 because to my mind it is clear that the decision of the High Court in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 clears the way for such review to be granted today. It seems to me that it would be possible for the Tribunal to find that the applicant was a member of the social group defined by me at [16] and that the governor's inability to prevent what any civilised society would consider to be the imposition of a disproportionate punishment by way of an extrajudicial killing of a cruel and unusual nature, would bring this young man within the protection of the convention and hence the protection of the Commonwealth of Australia.

21. Given the findings which the Tribunal has already made, namely that the essence of the claim is accepted, I see no reason why this matter should have to be referred to another Tribunal differently constituted. The order that I propose to make is that the matter be referred back to the Tribunal as originally constituted for the purposes of considering whether or not the applicant falls within a particular social group and that the persecution he fears arises therefrom so that he is entitled to protection. This order will be stayed for a period of seven days during which the parties may make representations to me in writing as to why a different order should be made on the constitution of the Tribunal.

22. As the applicant is represented I would ask his representative to bring in appropriate agreed short minutes of order within seven days on the assumption that the matter is to be referred back to the Tribunal for further consideration on this basis. I order that the respondent pay the applicant's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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