AZAAC v Minister for Immigration - [2008] FMCA 1506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1506

MIGRATION – Protection visa – child applicant – attribution of parental subjective fears of persecution – relevant principles.

Migration Act 1958 (Cth), ss.476, 474, 91S

Craig v The State of South Australia (1995) 184 CLR 163
STJB v MIMIA [2004] STA 861
STJB v MIMIA [2005] FCAFC 9
Dranichnikov v MIMIA [2003] HCA 26
SDAQ v MIMIA (2003) 129 FCR 137
Chen Shi Hai v MIMIA (2000) 201 CLR 293

Applicant:

AZAAC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 356 of 2007

Judgment of:

Lindsay FM

Hearing date:

14 April 2008

Date of Last Submission:

14 April 2008

Delivered at:

Adelaide

Delivered on:

11 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr Roder

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application for judicial review filed on 21 November 2007 be refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 356 of 2007

AZAAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 21 November 2007 which decision affirmed the decision of the Minister not to grant the applicant a protection visa.
The decision is, pursuant to s.474 of the Act, a privative clause decision and will be regarded as being final and conclusive unless it can be shown to have been vitiated by jurisdictional error as that concept was explained in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
The applicant was aged three years at the time of the Tribunal decision. He was born in New South Wales, Australia on 3 June 2004.
The applicant’s parents and a sister were unsuccessful in their claims for protection visas in separate proceedings before the Tribunal.
The applicant’s father was the principal applicant in the earlier proceedings.
His application for the issue of constitutional writs was heard by Selway J in the Federal Court in 2004 in STJB V MIMIA [2004] STA 861 His Honour refused the application.
The reason why the applicant’s family’s claim failed before the delegate, the Tribunal and the Federal Court was because of the applicability of s.91S of the Act to the circumstances of this family.
The fear of the applicant’s father was that of being persecuted for revenge for wounding the members of another family and not simply for his membership of the family or for other convention related reasons.
The decision of Selway J was upheld by the Full Court of the Federal Court in STJB v MIMIA [2005] FCAFC 9. An application for special leave to appeal to the High Court was refused on 16 December 2005.
The circumstances relating to the genesis of the blood feud in the case of this family as set out in detail in the Tribunal’s decision and I do not propose to repeat it herein. It was accepted that the applicant could not succeed in this case if the claim for refugee status was upon the same basis of a fear of persecution for revenge in respect of the blood feud involving the family. Section 91S of the Act, it was conceded, would continue to be a bar to a claim for refugee status on that basis.
Before the Tribunal the applicant’s father was candid in acknowledged that his problems stemmed from his uncle shooting members of rival families. There would not have been a blood feud without that cause and their fear stemmed from that act (see CB182). Understandably, those acting on behalf of the applicant in this matter when before the Tribunal sought to recast the nature of the origin of the blood feud in a way that was not tainted with the lack of success of the promotion of this aspect of the matter and the family’s earlier application. It was suggested in this case that the reason for the blood feud arose from an imputed political opinion relating to the family of which the applicant is a member being a traditional Kulak family and the rival families being newcomers who had been supported by the government to move into the area. The shooting which had been carried out by the applicant’s father’s uncle was one that arose out of a dispute as to the seizure of land by the newcomer families.
So before the Tribunal the application was pursued, firstly, on account of the membership of the family but upon the basis of that family having an imputed political opinion.
Alternatively, it was suggested that the persecution was on account of membership of a particular social group of a “Kulak family” and “male Albanian child subject to the Kanun” or blood feud.
As I read the Tribunal’s decision, to some extent these alternative ways of casting the application overlapped, but the essential features of the claim for refugee status were the fact that the applicant was the child of a former Kulak family who opposed families who were part of a new order in the context of disputes involving the ownership of land. The feud was not one that related to the shooting incident involving the applicant’s father’s uncle but arose out of a political controversy which had resulted in the applicant’s family membership making him liable to persecution for a convention reason.
It is clear from the Tribunal’s decision that considerable latitude was given to the applicant’s representatives in formulating their description of the basis of their fear of persecution. The Tribunal was happy to regard the application as being upon either of the alternatives mentioned or a combination of one or more of them.
The key findings of the Tribunal are set out at CB189-190:
In the present matter, it was clear from Mr [X]’s evidence at the hearing that the reason for the blood feud and the resulting harm which was feared on the applicant’s behalf was the shooting incident, where Mr [X]’s Uncle Ded shot at members of the Lleshi and Biba families. No evidence which had been submitted on any other occasion undermined that evidence at the hearing. AS such, the Tribunal is satisfied that the stem of the blood feud was the act of the shooting incident. Although the representative submitted that the shooting incident arose because the Lleshi and Biba families were attempting to build on land which the [X] family considered to be theirs, and so arose as a result of the [X] family’s Kulak status, either as an imputed political opinion or as a particular social group of “Kulak families” the Tribunal is not satisfied that this is the case. On the basis of the evidence provided at the Tribunal’s hearing and Mr [X]’s statutory declaration from 2000 which was also provided for the purposes of the review, the Tribunal is satisfied that the blood feud was directly caused by the act of Uncle Ded shooting at members of the Biba and Lleshi families and not for any other reason.
In relation to the claim for membership of a social group of “Kulak family” and “male Albanian child” the Tribunal found at CB189:
However, even if in some circumstances these groups might constitute particular social groups (it is unnecessary for present purposes to make a finding on that point), the Tribunal is not satisfied that the harm which is feared on behalf of the applicant is “for reasons of” his membership of any such purported group. As set out above, the Tribunal finds that it was the shooting incident which triggered the blood feud, and Mr [X]’s evidence at eh hearing was that the applicant’s fear stemmed solely from that blood feud. The harm feared was not aimed at members of “Kulak families” or “male Albanian children” as groups and the Tribunal finds that the harm feared is not for reasons of membership of any such purported groups.
In respect of the claim for harm by reasons of the applicant’s imputed political opinion as a member of a former Kulak family, the Tribunal found at CB189:
However the Trinal finds that this social divide and any imputed political opinion it might carry is not the reasons for the harm feared. It is clear on the evidence which has been provided that the fear of harm on behalf of the applicant (that he will be harmed, or left without a father, or forced to remain indoors) stems from the blood feud. Although the [X] family was angry at the perceived incursion into land which they considered to be theirs, it was the act of shooting at the opposing families for which recriminations are sought, apparently without resolution.
The claim for refugee status on the basis of the independent country information provided which demonstrated that Albanian children were being kept “inside” due to fear of harm stemming from a blood feud was also discretely dealt with at CB190:
However, that country information does not indicate that such a fear is for reasons of being Albanian children per se, but rather because their families are also caught up in a blood feud. Mrs [X] also expressed a fear on behalf of the applicant that Mr [X] would be killed in the blood feud and the applicant would grow up without a father. To attempt to categorise the applicant as a member of a particular social group on this basis (such as “Albanian children whose families are involved in a blood feud”) would be to define the group by the shared fear of persecution as the defining attribute of the class, which formulation has been rejected in the Courts in similar situations (see SCAL v MIMIA [2003] FCA 548 at [20]; SCAL v MIMIA [2003] FCAFC 301 at [19] and STXB v MIMIA (2004) 139 FCR 1 at [37]). If these events were to take place, the Tribunal is also not satisfied that they would be for reasons of any other ground enumerated I the Convention.
Mr Ower appeared on behalf of the applicant child before me. He began by referring to the well known High Court of Australia decision of Dranichnikov v MIMIA [2003] HCA 26 and to the off-cited passage at [26]:
At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group of the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason. (Footnotes omitted)
He said that a failure by a Tribunal to follow the sequence of events adumbrated in that case would not in itself amount to jurisdictional error but that combined with the other errors in this case the departure from that sequence of task solving was significant.
Mr Ower then took me to a careful analysis of the decision of the Full Court of the Federal Court in SDAQ v MIMIA (2003) 129 FCR 137 in the context of the discussion as to whether fear which is subjectively held is held for a convention reason. He emphasised the discussion of that topic by Cooper J at [15] and [16].
The nexus between the subjective fear and the convention reasons for which a person is prosecuted (or the causal link between the two) can only be addressed by inquiring as to the objective material available as to what is in the minds of the persons who perpetrate the persecution.
Mr Ower cited these passages so as to emphasise that the task was not ended by the identification or satisfaction of the subjective fear but required this further inquiry as to whether the holding of the opinions or the membership of the social group or the religious affiliation was the real reason for the persecutory treatment.
The reason why Mr Ower emphasised this aspect of the matter became clear when he turned to the evaluation of the subjective element in the context of children of the age of the applicant in this case.
The High Court dealt with an application for a protection visa in the context of a very young child in Chen Shi Hai v MIMIA (2000) 201 CLR 293.
The decision proceeded on the basis of an assumption that no issue arose as to the need to inquire of the subjectively held fear in the context of children this age. As the High Court points out at [4]:
No point has been taken that, by reason of his age and circumstances, the appellant, himself, lacks the fear necessary to bring him within the Convention definition of “refugee”. Rather, it is accepted that his parents’ fears on his behalf are sufficient. Nor is it in issue that those fears are well founded. In this regard, there is an unchallenged finding by the Tribunal that it is likely that, in China, the appellant will suffer serious disadvantage amounting to persecution. What is in issue is whether, in terms of the Convention, that persecution is “for reasons of … membership of a particular social group.” To understand how that question arises, it is necessary to say something of the appellant’s family background.
The matter had been addressed by the single Judge of the High Court the appeal from whom’s decision had taken the matter from the High Court (French J as he then was). Mr Ower provided me with a passage from the unreported Judgment of His Honour in that matter dated 5 June 1998. His Honour said in relation to an issue in relation to an objective fear being held by an infant:
I should add that a contention was advanced for the respondent that the applicant would not qualify for refugee status because being a young child it lacked the awareness to have a well founded fear of persecution. In my opinion that very literal construction of the words of the Convention should be rejected. Although a well founded fear in a subjective sense is necessary, ti can, in the case of a child, in my opinion, be derived from the fear held for the child by his or her parents. To conclude otherwise is to exclude from the protection of the Convention those who might in some cases be most in need of its protection including young children and the intellectually disabled.
Bearing these matters in mind, Mr Ower contended that the gravaman of the error of the Tribunal in this case appears at CB184 when the Tribunal says:
In the circumstances of the present proceedings, where the applicant is too young to give evidence for himself, the Tribunal has accepted Mr [X]’s evidence (in line with the general principles of guardianship) as the evidence that the applicant would himself have given, had he been able to do so.
Mr Ower says that when we return to the key passages of the Tribunal’s findings (set out above) at CB189 and CB190 it is clear that the Tribunal confined itself simply to inferring the subjective fear which was held by the parents and failed to undertake the broader task- the one involved in the search for the causative link between the fear and the motive for persecuting -described in the cases referred to above.
It will be recalled that the Tribunal did not consider it necessary to determine whether the groups promoted by the applicant’s representatives might constitute particular social groups because it was not satisfied that the harm feared by the applicant arose by reasons of his membership of any of those groups.
Mr Ower said that the Tribunal should have looked at the evidence that was available to objectively ascertain the motives of those who were responsible for the persecution. It had failed to do that and that amounted to jurisdictional error. A Tribunal which had set about making the appropriate inquiry in this way might or might not reach the same conclusions as the Tribunal in this case but that is not to the point. This is how I understood the ground of jurisdictional error referred to in the Application filed on 21 December 2007 to have been presented to the Court. I hope I have summarised the argument accurately and fairly.
It is an argument that I am not persuaded by.
There are notional difficulties associated with finding a subjective fear to exist in the mind of a child who is claiming refugee status. The attribution of the state of mind of the parents to the child may be a form of legal fiction but it is one that inures to the benefit of the child in cases such as this.
The reference to such a course of action being “in line with the general principles of guardianship” which is found at CB184 is an unnecessary interpolation by the Tribunal. It is not clear what general principles of guardianship are being referred to. The reference to them adds nothing to the underlying concession that the Tribunal has made in respect of the applicant child having the benefit of an attributed subjective fear of persecution.
It was unsurprising that the Tribunal relied upon the evidence of the adult visa applicants and the father in particular in making findings with respect to the risks presented to the child arising from the reality of feuding families in Albania. The evidence of the parents was the principal evidence relied upon by the applicant at the hearing before the Tribunal. The evidence of the parents focused upon the risk presented to the child on account of the blood feud the families referred to. The complaint really is that the Tribunal should have looked beyond the case presented by the parents on behalf of the applicant, focusing as it did upon the blood feud, and found in the country information objective material indicative of grounds for fear of persecution for a convention related reason.
The country information which appears in the CB99 and CB101 suggests all manner of harm that can befall children in Albania for a variety of reasons, many of them unrelated to Convention persecution, but there was nothing connecting the circumstances of this child to any risk of harm that was unrelated to that which stemmed form the blood feud in which his family was involved.
Mr Ower’s contention was not that the Tribunal gave too much weight to the father’s evidence. His reasons for eschewing such a characterisation of his argument are obvious in the context of this not being a merits-review hearing. He rather suggested that a focus on the father’s evidence led to a failure to take into account available objective material grounding the fear. I understand the way in which Mr Ower pitched the argument but my difficulty is that I am not able to ascertain that there was before the Tribunal any such material upon which the Tribunal could have relied. As noted above, the Tribunal did not proceed through the serial Dranichnikov v MIMIA (supra) process but rather, bypassing the argument in relation to whether or not the proposed social group existed, dealt with the matter upon the basis that the fear of harm was not for a convention reason. That is not an unauthorised way for the Tribunal to approach its task. In some circumstances it would be inappropriate. I do not think that it was inappropriate here. I certainly do not think that it gives rise to jurisdictional error.
The Tribunal expressly considered the claim that the applicant fears harm as a result of being a child in Albania. It evaluated the evidence presented by the parents on behalf of that claim and examined the country information as well and came to a conclusion that the risks presented to the child stemmed from the blood feud. I can readily conceive of cases where dealing with the subjective element and then the nexus between that and the convention related harm simply upon the basis of an attribution to the child of parental fears would give rise to a jurisdictional error. They would be circumstances where, for example, there was material before the Tribunal providing an objective basis for the fear which is attributed to the child being held for a convention related reason. The only material available to the Tribunal here was either country information that did not relate to convention-related persecution or material that indicated that the perceived harm arose from the existence of the blood feud and its consequences.

I do not consider that the Tribunal fell into jurisdictional error in affirming the decision of the delegate not to grant the applicant child a protection visa. The application will therefore be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms D. Ryder

Date: 19 November 2008