Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - jurisdictional error - failure to take account of relevant considerations - whether the applicant is a separated child at risk of persecution in Afghanistan - decision a nullity.

SHBB v Minister for Immigration [2003] FMCA 82 (11 April 2003)

SHBB v Minister for Immigration [2003] FMCA 82 (11 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHBB v MINISTER FOR IMMIGRATION
[2003] FMCA 82



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - jurisdictional error - failure to take account of relevant considerations - whether the applicant is a separated child at risk of persecution in Afghanistan - decision a nullity.

WORDS AND PHRASES - Particular social group.



Migration Act 1958 (Cth), ss.65, 474

Chan Yee Kim v Minister for Immigration (1989) 169 CLR 379

Htun v Minister for Immigration (2002) 194 ALR 244

McHinangome v Minister for Immigration [2001] FCA 1089

Minister for Immigration v Islam [2001] FCA 1681

Minister for Immigration v Yusuf (2001) 206 CLR 323

Minister for Immigration v Rajalingam (1999) 93 FCR 220

N1202/01A v Minister for Immigration (2002) 68 ALD 21

Paul v Minister for Immigration (2001) 113 FCR 396

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

SBBN v Minister for Immigration [2002] FCA 816

Sellamuthu v Minister for Immigration [1999] 90 FCR 287

VFAY v Minister for Immigration [2003] FMCA 35

Applicant:
SHBB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ17 of 2003



Delivered on:


11 April 2003



Delivered at:


Adelaide



Hearing date:


7 March 2003



Judgment of:


Driver FM


REPRESENTATION

Counsel for the Applicant:


Mr S Churches, appeared pro bono publico



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Mr M Roder



Solicitors for the Respondent:


Sparke Helmore



THE COURT DECLARES THAT

1. The decision of the Refugee Review Tribunal made on 15 November 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 remitted to the Tribunal for redetermination according to law.

(4) The respondent is to pay the applicant's reasonably incurred legal disbursements.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ17 of 2003

SHBB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

2. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") to affirm a decision of the delegate of the Minister not to grant the applicant a protection visa. The decision was made on 15 November 2002 and communicated to the applicant by letter dated 18 November 2002. An application for review of the RRT decision was filed in the Federal Court on 12 December 2002 and was transferred to this Court by order of His Honour Selway J on 14 January 2003.

3. An amended application was filed in this Court on 21 February 2003. 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. ("the Convention"). The amended application asserts that the RRT decision is infected by jurisdictional error in that the RRT erred in law in merely expressing that it was "not satisfied" that "young males without a protector..." are perceived as a distinct group within Afghan society. It is asserted that the RRT is required to come to a considered conclusion as to material facts, which it had not. The applicant also asserts that the RRT erred in law in referring to the question of "social group" in the context of Afghanistan as a whole when claims had been made by the applicant as to his ethnic Hazara group being only in a "safe" majority in Bamiyan province. Reference to Afghanistan as a whole is said to be an irrelevant consideration. Thirdly, the applicant asserts that the RRT erred in law in merely expressing that it was "not satisfied" that boys residing in Bamiyan have continued to be at risk of being coerced into military activity. The applicant asserts that the RRT had before it evidence that at least required a finding properly based on that evidence. It is asserted that the RRT should have made a determination of the extent of the risk of persecution faced.

4. I adopt the following background facts from the applicant's contentions of fact and law filed on 21 February 2003. The applicant is a teenager. His date of birth is unknown. It is recorded as 1 January 1986 in the two visa application forms submitted by the applicant and in a personal particulars form he completed. His age is given as 16 (which is in accord with the above birth date) in his statement in support of his application for a visa made in May 2002 (court book, page 40). At the RRT hearing he gave his age as 15. The RRT in its reasons described the applicant as having been born in 1986 (court book, page 171).

5. The applicant comes from a village called Dandeolack in the Waras district of Bamiyan province in Afghanistan. He fled Afghanistan in February 2001, leaving behind his parents and three younger brothers. The materials before the RRT included a letter from Dr Sev Ozdowski OAM, Human Rights Commissioner, to the RRT dated 25 July 2002 (court book, page 126).

6. In its reasons for decision the RRT accepted that the applicant is a Hazara and a Shi'a Muslim, and that he had a well founded fear of being persecuted by the Taliban for reasons of race and religion when he lodged his protection visa application. The RRT also accepted that he lived in Dandeolack in the Waras district of Bamiyan province until February 2001. However, the RRT noted that the political circumstances in Afghanistan have changed dramatically since the applicant fled the country. Based upon the evidence of those dramatic political changes, the presiding member concluded that the applicant no longer faced persecution by reason of his race, religion or imputed political opinion (court book, pages 190-191). While the presiding member noted that there was a generalised risk of violence or internal turmoil in Afghanistan the presiding member concluded that that risk did not itself establish a Convention basis for a fear of persecution and found that the applicant did not have a well founded fear of persecution by reason of his membership of a particular social group.

7. At trial, Mr Churches, for the applicant, submitted that in finding that it was "not satisfied" that young males without a protector are perceived as a distinct group within Afghan society the RRT had failed to make a necessary and conclusive finding. He submitted that this amounted to an error of law going to jurisdiction: N1202/01A v Minister for Immigration (2002) 68 ALD 21 at 36-37 [53] to [56]; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 348 [75] and 352 [85]. In addition, Mr Churches submits that in the context of claims made by the applicant as to being at risk as a Hazara outside his majority Hazara province of Bamiyan, it was an irrelevant consideration for the RRT to attempt to define "social group" by reference to the whole of Afghanistan, when the relevant area was Bamiyan. He submits that irrelevancy on that scale goes to error of law; Yusuf at 350-351 [81]. Thirdly, Mr Churches submits that the RRT noted (court book, page 189) the reference in Chan Yee Kim v Minister for Immigration (1989) 169 CLR 379 to a perceived possibility of harm being as low as 10 per cent being able to sustain a well founded fear of persecution. Mr Churches submits that the RRT failed to carry out its lawful function of determining the likely fate of young males dealing with warlords and their militias following the fall of the Taliban. Rather, the RRT found that it was "not satisfied" (court book, page 192) that boys would be coerced. Mr Churches submits that in the absence of a concluded decision, the RRT should have speculated as to the likely fate of the applicant and in particular, should have considered whether a 10 per cent chance of serious harm was established.

8. Mr Roder, for the Minister, submits that there is no substance in the applicant's submissions. He submits that the RRT finding that it was "not satisfied" that there was a particular social group of young males without a protector was a clear finding. He submits that findings by tribunals in such terms have consistently been upheld by the Full Federal Court (eg Minister for Immigration v Rajalingam (1999) 93 FCR 220; McHinangome v Minister for Immigration [2001] FCA 1089).

9. Likewise, Mr Roder submits that the third ground of attack upon the RRT's decision was misconceived. He submits that the RRT did make a positive finding, after considering whether there was a chance of less than 50 per cent that young unprotected males may be conscripted by warlords. In addition, Mr Roder points out that the finding was only relevant insofar as the RRT was considering what the position might be if it was wrong in concluding that young unprotected males in Afghanistan did not constitute a particular social group.

10. In relation to the second ground of challenge, Mr Roder submits that the RRT was only obliged as a matter of law to consider the particular social group defined by the applicant. He submits that the RRT does not commit jurisdictional error by failing to consider a different and more limited social group not advanced by the applicant or by his solicitors before the RRT: SBBN v Minister for Immigration [2002] FCA 816 per Mansfield J. Mr Roder submits that, in any event, there was no material before the RRT to suggest that the particular social group advanced by the applicant was peculiar to the Bamiyan province.

11. In addition to these submissions, Mr Roder submits that even if jurisdictional error were otherwise established, the application should be dismissed because as a matter of law the alleged particular social group could not be accepted. He refers to the decision of His Honour Mansfield J in SBBN at [25].

12. At trial I invited supplementary submissions from counsel on two issues: first, the operation of the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act"), and secondly whether the RRT erred in failing to consider whether the applicant faced a well founded fear of persecution as a separated child in Bamiyan province. The Minister's solicitors filed supplementary submissions on those issues on 19 March 2003. The solicitors submit that there is no obligation on the RRT to consider an issue which has not been raised by an applicant. Secondly, the solicitors submit that there was no evidence before the RRT that children in Afghanistan are perceived as a particular social group and that the letter from the Human Rights Commissioner did not point to any persecution of children in Afghanistan. Thirdly, the solicitors submit that the concept of jurisdictional error must be narrowly construed. Finally, they submit that the concept of narrow jurisdictional error was endorsed by the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 and that, absent some manifest defect in jurisdiction an error of law will not invalidate a decision in the face of the privative clause.

13. In his supplementary written submissions in reply, filed on 1 April 2003, Mr Churches joins issue with the respondent's solicitors on each of the matters dealt with in their supplementary written submissions. Mr Churches acted pro bono for the applicant. It is appropriate that I place on record this Court's appreciation for the willingness of counsel to appear and make submissions on this basis, in the interests of the fair and efficient administration of justice.

Consideration and findings

14. This case is factually similar to the case of VFAY v Minister for Immigration [2003] FMCA 35. In that case I decided that the RRT committed an error of law going to its jurisdiction in rejecting the applicant's contention that children and separated children in particular constitute a particular social group in Afghanistan. I also found that the RRT had made a jurisdictional error in failing to take into account a relevant consideration, namely the systematic nature of the risk of serious harm from lawless elements coming to separated (and hence unprotected) children in Bamiyan province, where the RRT had found in that case that no effective state protection was available.

15. In both proceedings the RRT had been referred to the Convention on the Rights of the Child. In VFAY the presiding member had received a submission on that Convention from the applicant's representative at the RRT hearing. In this case the RRT had before it a letter dated 25 July 2002 from the Human Rights Commissioner. In that letter the Human Rights Commissioner clearly pointed out to the presiding member the importance of considering the Convention on the Rights of the Child when considering an application from an asylum seeker who is a separated child. In addition, the Human Rights Commissioner referred the presiding member to the UNHCR's guidelines on policies and procedures in dealing with unaccompanied children seeking asylum (Geneva, 1997) which emphasised the special care that needs to be taken in considering claims of asylum from unaccompanied children. There is a reference in the RRT reasons to this letter (court book, page 171) but the presiding member seems not to have acted on it. There is no reference to the Convention on the Rights of the Child or to the UNHCR guidelines in the decision and reasons of the RRT. The presiding member failed to make any finding whether the applicant is a child and whether separated children constitute a particular social group in Afghanistan and whether separated children face a risk of persecution in Bamiyan province due to the lack of effective State protection in that province.

16. I accept Mr Roder's submission that the RRT did make a clear finding that "young males without a protector, guardian or any other means of support" are not perceived as a distinct group within Afghan society. The RRT clearly rejected a group defined in that way as a particular social group for the purposes of the Convention. The presiding member was correct in rejecting the postulated social group of young males without a protector, guardian or other means of support: SBBN at [25]. However, the position of children in general and separated children in particular is quite different from young males of indeterminate age. In SBBN the applicant was an adult.

17. As is noted by the respondent's solicitors in their supplementary written submissions, there are mixed authorities on the question of whether the RRT commits an error of law in failing to consider an issue not raised by a visa applicant: Minister for Immigration v Islam [2001] FCA 1681; Sellamuthu v Minister for Immigration [1999] 90 FCR 287 at 292. In my view, those apparently conflicting authorities can be reconciled. The first establishes that, as a general principle, it is not the function of the RRT to make good a case not put forward by an applicant. It is for applicants to advance their own claims and for the RRT to assess them. However, Sellamuthu establishes that, in order to come to a lawful state of satisfaction pursuant to s.65 of the Migration Act, the RRT cannot ignore a relevant consideration which is manifest on the material before the RRT, even if the applicant does not specifically advert to it. That point was, in effect, endorsed by His Honour Merkel J in Htun v Minister for Immigration (2002) 194 ALR 244 at [13] and [14].

18. In the light of the claims made by the applicant and the letter from the Human Rights Commissioner, the presiding member needed to consider whether the applicant is a separated child and whether separated children in Afghanistan constitute a particular social group. As I found in VFAY, separated children in Afghanistan should be accepted as constituting a particular social group. In addition, the RRT had material before it indicating that the applicant was born in 1986. This was, indeed, noted by the presiding member (court book, page 171). However, the presiding member made no finding on whether or not the applicant is a child. In addition, the RRT had material before it indicating that the applicant is a separated child. He had clearly left his family behind in Afghanistan. The Human Rights Commissioner in his letter noted that the Red Cross had been unable to trace them. They may well be dead. Mass graves of Hazaras killed by the Taliban have been found in the province. In failing to consider whether the applicant is a child and in failing to consider and accept that separated children in Afghanistan constitute a particular social group the presiding member erred.

19. If the RRT had considered the applicant's position as a potential member of the particular social group of separated children in Afghanistan, it is likely that the RRT would then have been drawn to consider the position of separated children in Bamiyan province, where no effective state protection exists. As I noted in VFAY, in that province in the absence of state protection, separated children face a serious and systematic risk of harm from lawless elements, because persons beyond the reach of the law habitually prey upon unprotected persons.

20. In failing to consider whether the applicant was a child and whether, as a member of the group of separated children in Afghanistan, the applicant faced persecution due to opportunistic attacks upon the unprotected in Bamiyan province, the RRT failed to take into account relevant considerations. In Paul v Minister for Immigration (2001) 113 FCR 396 per Allsop J (with whom Heerey J agreed ) observed at [79]:

Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction...they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.

21. However, His Honour went on to observe that in circumstances where an element or integer of a claim put forward was not dealt with by reason of failing to take into account relevant considerations then a jurisdictional error would have been committed.

22. In this case it was an inherent part of the applicant's claim that he was a separated child fearing persecution in Bamiyan province (court book, pages 26, 40). The delegate made specific findings on the claim (court book, page 53). The issue was clouded by the clumsy formulation of the relevant particular social group by the applicant's solicitor in written submissions to the RRT, but it should have been sufficiently clear from the asylum application made by the applicant, properly informed by consideration of the letter from the Human Rights Commissioner, and the decision of the delegate, that the RRT needed to consider the applicant's position in Afghanistan (and in Bamiyan province in particular) as an alleged separated child. The RRT failed to do so and that failure constitutes a failure to address an element or integer of the applicant's claim. Accordingly, I find that the RRT committed a jurisdictional error. The consequence is that the decision of the RRT is a legal nullity and the decision is not protected by the privative clause in s.474 of the Migration Act: Plaintiff S157 of 2002 v Commonwealth. On this basis the applicant is entitled to the prerogative relief that he seeks. I accept that the High Court's decision establishes that not all errors of law amount to jurisdictional error, but the decision also establishes that once jurisdictional error is established, the privative clause has no operation.

23. I reject the other grounds of review advanced by the applicant. Having properly rejected the contention that "young males without protectors in Afghanistan" constitute a particular social group the RRT did not have to consider the position of that group in Bamiyan province or Afghanistan generally. In addition, the RRT did make a clear finding concerning the risk of boys or young men residing in Bamiyan being conscripted or otherwise coerced into engaging in military activity. The RRT did not fail to make a finding on that point. The finding made by the RRT on that point was reasonably open to it on the material before it.

24. I will hear the parties as to costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 April 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia