VFAA v Minister for Immigration
[2003] FMCA 389
•12 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VFAA v MINISTER FOR IMMIGRATION | [2003] FMCA 389 |
| MIGRATION – Review of Decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a Protection Visa – no reviewable error disclosed – not an error to make no finding as to applicant’s age – application dismissed. |
Migration Act 1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (number 134 of 2001)
Migration Regulations 1994 (Cth)
S157/2002 v the Commonwealth of Australia (2003) HCA 2
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR
Minister for Immigration & Multicultural Affairs v Tedella (2001) FCA 832 at 19-21
Craig v South Australia (1995) 184 CLR 163
VAO v Minister for Immigration & Multicultural Affairs (2002) FCA FC 31
Minister for Immigration & Ethnic Affairs v Gou (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 117 CLR 661
Minister for Immigration & Multicultural Affairs v Kumar (1999) FCA 156
Parra v Minister for Immigration & Multicultural Affairs (2000) FCA 85
WACW v Minister for Immigration & Multicultural and Indigenous Affairs (2002) FCAFC 155
R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598
Minister of Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288
| Applicant: | VFAA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 907 of 2002 |
| Delivered on: | 12 September 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 11 April 2003 Applicant’s post hearing submission received: 23 April 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms D Mortimer |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent's costs pursuant to the Federal Court Rules. In default of agreement to be taxed in accordance with Order 62 thereof.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 907 of 2002
| VFAA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By order of Justice Merkel, made 29 August 2002 these proceedings were transferred to the Federal Magistrates Court.
The applicant is a citizen of Afghanistan who arrived in Australia on a boat on 16 August 2001. He is of Hazara ethnicity and of the Shi’a Muslim religion. He was detained upon arrival as an unlawful citizen and interviewed "in connection with his illegal entry" on 23 August 2001. He claimed at that time that:
a)his date of birth was 27 July 1985;
b)his place of birth was Petawjoi, Warras in the Bamian province of Afghanistan (Supplementary Court Book [SCB] 2);
c)he undertook religious studies at a mosque for four years (SCB 3);
d)his father was taken by the Taliban in 1999 and the family farm was later confiscated (SCB 4);
e)he had five brothers three of whom were killed during the Russian occupation of Afghanistan. His living brothers were aged 24 years and 14 years (SCB 4).
The applicant said that at the instigation of his uncle he left Afghanistan and travelled through Iran, Malaysia and then Indonesia before arriving in Australia.
On 11 September 2001 the applicant applied for a protection visa (class XA). He was interviewed in connection with that application on 12 September 2001 and again on 4 February 2002. He was assessed against the criteria in respect of a subclass 785 visa as he had not been immigration cleared for the purposes of s.172 of the Migration Act 1958 (the Act).
On 23 April 2002 a delegate of the respondent refused his application (CB 66-74) and by application received 24 April 2002 the applicant sought review of that decision by the Refugee Review Tribunal (RRT) (CB77-80).
On 6 June 2002 the applicant attended a hearing before the RRT and gave evidence in support of his application. He provided various written submissions and other material in support of that application and was assisted by a migration agent.
Further written submissions were provided to the RRT on behalf of the applicant dated 18 June 2002 (CB 153-172). By a decision dated 21 June 2002 the RRT affirmed the primary decision not to grant the applicant a protection visa (CB 213-242).
The findings of the RRT (at CB 231 onwards) are succinctly and accurately set out in the applicant's contentions of fact and law filed
3 October 2002. Essentially the RRT found that:
a)the applicant was a national of Afghanistan;
b)the applicant believed that he was 16 years old;
c)the central question in the review was whether the applicant had a well founded fear of being persecuted for a Convention reason if he were to return to Afghanistan. The RRT was not so satisfied given the material changes which have taken place in Afghanistan since the applicant left. The RRT reasons for its decision, inter alia, were;
i)the Taliban are no longer in control of Afghanistan;
ii)there was nothing in there evidence to suggest that any young men were being forced to fight for the Taliban or any other army in Afghanistan today;
iii)given that the government is based on the Northern Alliance it would be strange if Hazara were at risk of being persecuted by reason of being imputed with a political opinion in support of the Northern Alliance;
iv)the interim cabinet consists of five Hazaras;
v)Bamian province is firmly under the control of Karim Khalili, the leader of the Hezbe-i-Wahdat. There was nothing in the evidence to suggest that Hazaras or Shi’a Muslims were being persecuted in Bamian province at the present time.
d)in reaching its decision, whether the applicant was 16 or 19 or 22 years of age had no bearing on the outcome of the review and so it did not make a finding on the applicant's age.
Statutory framework - criteria for grant of a Protection visa
The Act authorises the Minister to grant to a non-citizen permission (to be known as a visa) to travel to and enter Australia and/or remain in Australia (s.29). There are prescribed classes of visas (s.31) and one of those prescribed classes is the Protection visa (s.36).
Subsections (1) and (2)(a) of s.36 as it stood when the applicant lodged his application for a Protection visa read as follows;
36
(1)There is a class of visas to be known as protection visas;
(2)A criterion for a protection visa is that the applicant for the visa is:
a) a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Migration Legislation Amendment (Judicial Review) Act2001 (number 134 of 2001) made an amendment to that subsection inserting the words, "the Minister is satisfied" after the word "whom" in the subsection.
Part 2 of the Migration Regulations 1994 (Commonwealth) sets out criteria for the grant of various classes of visa pursuant to Regulation 2.03. Subclass 785 of Schedule 2 deals with temporary Protection visas and subclass 866 with Protection visas both including as a criterion that:
… the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
Article 33 of the Convention relating to the Status of Refugees gives rise to a primary obligation upon States that qualify as a protection obligation for the purposes of s.36(2) of the Act. The Contracting States, by that Article, undertake not to expel or return a refugee to the frontiers of territories in which his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group, or political opinion. The obligation otherwise known as the "prohibition against refoulement" has two important elements:
1)it operates in respect of refugees;
2)it prohibits their expulsion or return to the frontiers of territories where their lives or freedoms will be threatened for a Convention reason.
A ‘refugee’ is defined in Article 1A(2) of the Convention as amended by the Protocol as any person who:
… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288.
The RRT is established by s.457 of the Act. Its functions include the review of decisions refusing the grant of Protection visas. In carrying out its functions under the Act the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s.420). It is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case (s.420).
Consideration
By application filed in the Federal Court on 16 July 2002 the applicant sought constitutional and declaratory relief in respect of the decision of the RRT. The application is particularised in paragraphs 1, 2 and 3 where it is said that the RRT exceeded its jurisdiction or committed a jurisdictional error. The applicant argued the RRT was required to determine his age and to examine not just a Hazara man but a Hazara boy aged 16 years with psychological problems and a speech defect. In addition the RRT was said to have failed to ask itself whether the changes reported in Afghanistan were sufficiently durable, and the changed circumstances sufficiently stable, so as to remove any real possibility of persecution of persons in the applicant's position. On the matter proceeding before me the applicant only pressed grounds (a) and (b) as set out in paragraph 32 of the contentions of fact and law filed 3 October 2002. The applicant abandoned the claim that the RRT had committed jurisdictional error or exceed its jurisdiction by a failure to ask itself the right question in assessing whether circumstances had changed in Afghanistan so that the applicant's fear of persecution was no longer well-founded.
At the time of the filing of the applicant's contentions of fact and law a Notice of Constitutional Matter was also filed by the applicant. This application was not proceeded with and predated the High Court handing down its decision in S157/2002 v the Commonwealth of Australia (2003) HCA 2. In a post hearing submission filed on behalf of the applicant pursuant to the leave of the Court, Counsel for the applicant referred the Court to the cases as set out in paragraph 2 of that post hearing submission.
The applicant's age
On 21 February 2002 the applicant agreed to undertake a wrist x-ray to confirm his age as doubts had been expressed to him about his age at that time by a delegate of the respondent (CB 52). The results of the x-ray which took place on 28 February 2002 were recorded (CB 53-54). Some weight was given to that radiological examination by the delegate of the respondent in its decision dated 23 April 2002 (CB 65-75) the examination having "put his age (the applicant) at 19 years."
The RRT did not make a finding as to the age of the applicant. The applicant contends that the RRT failed to make a finding of fact which was material, namely the age of the applicant. The applicant did not identify the legislative source of any such obligation. It is clear that s.430(1)(c) of the Migration Act (1958) creates no such obligation. What the RRT is required to do by virtue of that section is:
“to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.” (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] 180 ALR1 at page 346 per McHugh, Gummow and Hayne JJ).
The applicant also argued that the RRT had committed a jurisdictional error in that it failed to take into account a relevant consideration being the applicant's age and status as a minor and his psychological and physical condition including his stutter. The applicant contended that a consideration of these matters by the Tribunal was obligatory in determining the applicant's ability to safely return to his Bamian homeland and in its determination as to the credibility or otherwise of the applicant.
The applicant argued that the failure to make findings on an aspect of an applicant's case which is material to the proper discharge by the RRT of its task will result in constructive failure to exercise jurisdiction (see Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832 at 19-21). The applicant argued the RRTs failure to determine his age meant that it had failed to ask itself whether it would be safe for a Hazara minor to make the journey to his home village in the Waras district of the Bamian province of Afghanistan traversing through Pashtun controlled areas alone. The applicant argued that these were plainly matters which significantly affected the existence or otherwise of a real chance of persecution.
I find the RRT did consider the question of the applicant’s age. The tribunal member noted that he accepted that the applicant believed he was 16 years old. The Tribunal member however said at (CB 233):
“So far as the applicant's age is concerned I regard the radiologist's report as equivocal in light of Dr Ratcliffe's opinion. Setting aside the submission of the applicant's representatives that a different standard of proof should apply to unaccompanied minors, .. whether the applicant is aged 16 or 19 or 22 has no bearing on the outcome of this review and I do not consider it necessary that I make a positive finding as to the applicant's age.”
The Tribunal in its reasons (CB 232) noted the applicant's representative's submission that as an unaccompanied minor the applicant should be afforded "a liberal application of the benefit of the doubt", referring to the statement in the UNHCR handbook on procedures and criteria for determining refugee status to that effect. That handbook is in the nature of a guide and has no force in Australian law (see WACW v the Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 155). The Tribunal member did not find that “a different standard of satisfaction applies in relation to findings of fact when an applicant is a minor as distinct from an adult” although he went on to say “the fact that an applicant is a minor is obviously relevant when assessing credibility.” In assessing that credibility it was open to the RRT to rely on the material before it. The RRT did not make any adverse finding as to the credibility of the applicant.
The Tribunal gave the applicant abundant opportunity to put such evidence as the applicant desired to put before the Tribunal. The decision-maker brought to the applicant's attention all critical issues and/or factors on which the decision was likely to turn to enable the applicant to have an opportunity to deal with such matters. The reasons provided were lengthy and detailed and examined each and every matter put before the Tribunal by the applicant.
The applicant originally claimed that he was at risk of persecution by reason of his ethnicity as a Hazara and religion as a Muslim, they being his Convention grounds.
Before the Tribunal the applicant argued in a submission made by his representatives that the applicant feared being persecuted by reason of his race, his religion, his real or imputed political opinion and his membership of the particular social group comprising "able bodied Hazara men." (CB 220) The Tribunal member put to the applicant that there was nothing in the evidence available to him to suggest that any young men were being forced to fight for the Taliban or for any other army in Afghanistan today. The applicant replied that it was correct that for the time being youths were not being forced to go to the front line (CB 221).
At the hearing the Tribunal member asked the applicant why he had not mentioned his fear of being persecuted by reason of a perceived association with Sheikh Akbari in the supplementary statement he had made in February 2002 or when he had been interviewed by a departmental officer in February 2002. The applicant said the question had not been raised (CB 222). At the hearing the Tribunal member indicated to the applicant that the information available to him suggested that Sheikh Akbari was not a Hazara but a Shi’a Muslim and that there was no reference in the information available to him to persecution of people from his village or the Waras district by reason of any perceived association with the Akbari faction which had rejoined the Northern Alliance. It was submitted on behalf of the applicant ultimately by his representatives that even if Sheikh Akbari were Qizilbash there was a perception that he was Hazara and this was a reasonable assumption for the applicant, a 16 year old boy to make. The RRT made no adverse finding as to the credit of the applicant in this regard for the reasons stated.
The applicant did not claim that he had a well-founded fear of persecution because of his age or his physical or psychological condition including his stutter. The respondent argued therefore that there was no obligation upon the RRT to consider or make findings in respect of those matters in the absence of any claimed Convention nexus. Secondly the respondent argued that "relevant considerations" as identified by the applicant and as understood in Craig v South Australia (1995) 184 CLR 163 and Yusuf do not comprehend pieces of evidence or material (see VAO v MIMA [2002] FCAFC 31 per Full Court at (17)). I accept those arguments of the respondent.
What the applicant tries to do in effect is to claim it to have been part of the Tribunal's function to make good a case for the applicant where the applicant has not articulated the existence of all of the elements of a well-founded fear of persecution on a particular basis but has claimed some elements of a claim such as his age and that referable to it. This is clearly not the responsibility or obligation of the Tribunal (see Parra v the Minister for Immigration & Multicultural Affairs [2000] FCA 85 at 13.)
The RRT was not mandated by the Act to consider the applicant's age and physical and psychological condition as matters of fact to be considered. However, it cannot be said that the RRT did not take into account these factual matters. On a number of occasions in the course of the reasons the RRT referred to the applicant's youth and submissions and findings made in relations thereto.
The applicant was required to establish that he had a well-founded fear of persecution for a Convention reason. He was unable to do so. The RRT clearly took the question of the applicant's safe return to his homeland and submissions made in relation to his age into account because it made a comprehensive finding at (CB 242) that the applicant did not have a real chance of persecution “by reason of his race or his religion or his real or imputed political opinion in the course of returning to his home in Bamian province.”
In my opinion the Tribunal has not failed to address a question which it was required to address in order to determine whether it was satisfied that the criteria required for the grounds of a Protection Visa under s.36 of the Act was satisfied. I am unable to identify any jurisdictional error of law on the part of the Tribunal in this matter. In effect the applicant is claiming that the Tribunal should not have made the findings it did on the merits. Such complaint does not give rise to any ground of review before me. A merits review of the decision of the RRT is not open to this Court (see MIMA v Eshetu [1999] 117 CLR 661 at 56 and MIMA v Kumar [1999] FCA 156 per Kenny J at 38).
Absent of any jurisdictional error of law this decision is a privative clause decision and there is no failure to satisfy any of the so-called "Hickman" provisos. I will order that the application is dismissed and the applicant is to pay the respondent's costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Jones T
Date: 12 September 2003
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