VFAA v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 514

FEDERAL COURT OF AUSTRALIA

VFAA v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 514

MIGRATION – whether the Refugee Review Tribunal failed to take the appellant’s age into account as a relevant consideration or ignored relevant material in relation to that matter

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 - cited
Thirukkumer v Minister for Immigration and Multicultural Affairs [2001] FCA 864 – cited

VFAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V930 OF 2003

MERKEL J
29 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V930 OF 2003

BETWEEN:	VFAA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	29 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V930 OF 2003

BETWEEN:	VFAA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	29 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a young Afghan who arrived in Australia in August 2001 and applied for a protection visa. His visa application was refused by a delegate of the respondent and that decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). The appellant’s application for judicial review of the Tribunal’s decision was dismissed by a Federal Magistrate.  The appellant has appealed to the Court against the decision of the Magistrate.

2. Before the Tribunal the appellant argued that he should be granted a protection visa on a number of grounds. His primary argument was that he feared persecution at the hands of the Taliban, Pashtuns and Sunni Muslims generally. The persecution was claimed to be by reason of  his:

   (a)race (Hazara);

   (b)religion (Shi’a Muslim);

   (c)membership of a particular social group (“young men in our teenage years who do not want to join the Taliban or any other army” or “able-bodied Hazara men”: essentially those groups likely to be conscripted by the Taliban); and

   (d)real or imputed political opinion (allegiance to Hezb-i-Wahdat or other anti-Taliban/Pashtun groups).

3. The appellant later claimed that his village was associated with Sheikh Ustad Akbari, the leader of a faction of the Hezb-i-Wahdat, which had defected to the Taliban. He claimed to fear persecution from the current leader of Hezb-i-Wahdat on the basis of an imputed affiliation to Akbari.

4. During the hearing before the Tribunal, by which time the appellant appeared to be nearly 17 years of age, he claimed his fears of persecution upon his return to Afghanistan were, in part, based on a claim that he had no family to defend him on his return.

5. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan.  The Tribunal’s decision was summarised, as set out hereunder, in the appellant’s contentions to the Magistrate, which summary was adopted by the Magistrate:

   “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.”

6. The finding set out in para (d) was the main matter in issue before the Magistrate and on the appeal to the Court.

7. The background to that finding is as follows.  Prior to the Tribunal hearing a question had arisen concerning the appellant’s age and nationality. Evidence put before the respondent’s delegate suggested that the appellant was 22 and that he was born and raised in Syria. The appellant’s own statement was that he was 16 and an Afghan.  The delegate procured a wrist x-ray and analysis to determine the appellant’s age.  The x-ray was said to indicate that the appellant was aged 19. That matter remained in issue between the parties and the appellant’s representatives put evidence before the Tribunal attempting to demonstrate that the appellant’s age and national origin were as he claimed. In its decision the Tribunal stated:

   “I accept that the Applicant is a national of Afghanistan and that he believes that he is 16 years old. As I indicated to him in the course of the hearing before me, I am not prepared to place any weight on the unsubstantiated allegation of another person in the detention centre that the Applicant is 22 years old…

   So far as the Applicant’s age is concerned I regard the radiologist’s report as equivocal… Setting aside the submission of the Applicant’s representative that a different standard of proof should apply to unaccompanied minors, which I have dealt with above, 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.” (p 21)

8. Elsewhere in its reasons the Tribunal rejected a submission based on the UNHCR Handbook that, as the appellant was an unaccompanied minor, he should be afforded “a liberal application of the benefit of the doubt”.  The Tribunal accepted that, although the Handbook may be regarded as offering sound and sensible advice to decision-makers, the Refugees Convention makes no special provision for minors and no different standard of satisfaction applies in relation to:

   “…findings of fact when an applicant is a minor as distinct from an adult although the fact that an applicant is a minor is obviously relevant when assessing credibility.”

9. In respect of the appellant’s later claim concerning Sheikh Akbari, the Tribunal did not accept the appellant’s explanation for not raising the claim at an earlier stage and, relevantly for present purposes, stated:

   “I likewise do not accept that, as the Applicant said at the hearing before me and as submitted by the Applicant’s representatives, the Applicant did not mention this claim because he was not asked.  …

   I do not accept that, as submitted by the Applicant’s representatives, the Applicant’s uncertainty and lack of knowledge about the asylum process, his mental health, his lack of education, and what they suggest is a cultural practice in Afghanistan of only offering information when directly asked explain the Applicant’s failure to mention his claimed fear of being persecuted by reason of his perceived association with Akbari and the Taliban.  I consider it particularly significant in this context that the applicant claims that he has been facing discrimination from other Hazaras in the detention centre by reason of his perceived association with Akbari and the Taliban.  One would imagine that this claim would therefore have been at the forefront of the Applicant’s mind yet he made no mention or it.  I do not consider it credible that, if the Applicant genuinely feared being persecuted by reason of his perceived association with Akbari and the Taliban, he would not have mentioned it at the second interview.”

10. It also found that, in any event, the claim was not well-founded.

11. The Tribunal also did not accept that Hazaras or Shi’a Muslims were being persecuted in Bamian, the appellant’s province, or that the appellant was at risk for a Convention reason in having to pass through Pushtun areas in order to return to his home in the Bamian Province.

12. The application to the Magistrate and the appeal to this Court are said to be based on the Tribunal’s failure to determine the appellant’s age and then consider his age, and his physical and psychological condition.  The appellant submitted:

    “3.…

    (a)In reaching its satisfaction about whether the Appellant had a well founded fear of persecution on the Convention grounds of religion and/or race and ethnicity, the RRT was required to determine the Applicant’s age and the failure to do so constituted a failure to make a finding on a material question of fact.

    (b)In reaching its satisfaction about whether the Appellant had a well founded fear of persecution on the Convention grounds of religion and/or race and ethnicity, the Appellant’s age, physical condition (ie. his stutter) and his psychological condition (he has been diagnosed as having psychological problems and had a guardian appointed) were relevant considerations which the RRT failed to take into account.

    …

    9.The Appellant’s age was a material question of fact.  In determining the risks faced by the Appellant if he were to return to Afghanistan, it was necessary to consider the Appellant’s age, and the characteristics which may attend a person of that age: immaturity, inability to appreciate risks or dangers, vulnerability to harassment or mistreatment because of the absence of anyone to ‘defend’ him.

    10.Similarly, the Appellant’s stutter, and his mental health difficulties, were characteristics he had and would continue to have, on his return to Afghanistan.  They are part of his personal make up, just as if he were blind or deaf.

11.While the Appellant’s age, physical and mental characteristics are not the ‘Convention grounds’ relied upon (cf her Honour’s analysis at [28]), the exercise of speculating about the nature and level of the ‘chance’ a person may face persecution in the future for a Convention reason is not undertaken in a vacuum.  That is the reason that past events are taken into account: they may be indicators of future treatment.

12.In the same way, the physical and mental characteristics of an individual, whose fear of persecution the RRT is assessing, must be taken into account by the RRT.  Those characteristics themselves may serve to increase, or decrease, a person’s chances of facing persecution.  An unaccompanied Hazara minor may provide an easier target for racially-motivated conduct than a strong, able bodied 30 year old Hazara male.  In both cases, it may be their Hazara ethnicity that is the primary motivation for the treatment, but choice of victim may be influenced by other factors.

13.So, in the present case, where the RRT is assessing the likelihood that a Hazara returning to Kabul will be able to reach his home province safely (see the RRT decision at 24-25, 29-30), without being subjected to racially-motivated violence, the characteristics of that Hazara, which may assist or hinder him, need to be considered.”

1. The respondent disputed the appellant’s contentions.  She contended:

   “4.However, age, and the existence of a stutter and a ‘psychological condition’ are not Convention grounds upon which a visa applicant can rely.  There is therefore no obligation upon the RRT to consider whether the appellant has a well-founded fear of persecution for those particular reasons.  In any event, the appellant does not contend, nor could he, that he ever articulated a claim, nor was one squarely raised on the material, that he had a well founded fear of persecution for those identified reasons.  Rather, his claim was that, as a Hazara and Shia Muslim from Afghanistan, he had a well-founded fear of persecution from the Taliban, the Pasthuns and the Sunni Muslims.  At best, the appellant had claimed that young men were at risk of being recruited to fight in the conflict in Afghanistan (he conceded however that it was correct that for the time being youths were not being forced to go the front line).  However, the RRT rejected that claim and noted the absence of evidence ‘that young men are being forced to fight for the Taliban or for any other army in Afghanistan.’

   5.The appellant’s representatives had also referred to the appellant’s age and his claimed ‘psychological condition’ but only as a proffered explanation (a) for the appellant’s delay in articulating a claim about his perceived association with Sheikh Akbari; and (b) the appellant’s possible incorrect understanding that Sheikh Akbari was Hazara and not Qizilbash.  On any view the RRT considered those explanations.

   6.Thirdly, and in any event, there is nothing in the RRT’s reasons from which to infer that the RRT did not consider the appellant’s circumstances including his age and his ‘psychological condition.’  As noted at para 4 above, the appellant’s age was expressly considered by the RRT in the context of one of the appellant’s claims.

   7.Moreover, at CB 223 the RRT summarised material, including the representative’s submissions, concerning the appellant’s age and his mental health.  It also summarised a submission that it would be unsafe for the appellant to travel through Afghanistan to his homeland.  However, the RRT was not obliged to accept that material or the representative’s submissions.

   8.The appellant focuses solely upon comments by the RRT at CB 233.7 that the RRT ‘did not consider it necessary’ to make ‘a positive finding as to the Applicant’s age.’  However, that passage in context does not confirm that the RRT did not consider the appellant’s age.  On the contrary, a fair reading of the reasons at CB 232-233 confirms that the RRT implicitly accepted that the appellant was ‘an unaccompanied minor.’

   …

   10.At best the appellant’s submission is that the RRT ought to have attributed greater weight to the appellant’s age and his ‘psychological condition.’  However, that was a matter for the RRT.”

2. In substance the appellant, in reliance upon Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 350-351 ([80]-[82]), claimed that the Tribunal fell into jurisdictional error by failing to take into account, or ignored relevant material, about the appellant’s age, (or put another way, his youth) and other characteristics (his stutter and psychological problems) that may have made him more vulnerable to the kinds of Convention persecution he claimed to fear if he returned to Afghanistan.

3. The appellant’s Senior Counsel pointed out that the appellant’s claims related to future conduct feared by him that was not necessarily based upon or derived from past discriminatory conduct.  Thus, the appellant contends that the Tribunal was required, but failed, to properly assess the risk of the persecution feared by the appellant, which assessment could not take place without findings being made as to the appellant’s particular vulnerability because of his age and the other personal characteristics relied upon by the appellant.

4. There are two fundamental difficulties with the appellant’s submissions.  He accepts that his claims do not include a claim to fear persecution for a Convention reason that is based on his age or the other personal characteristics.  In any event, the material does not raise such a claim.  Accordingly, it is difficult for the appellant to contend that a failure by the Tribunal to make specific findings in respect of his age or those characteristics constitutes jurisdictional error in the sense discussed in Yusuf at [80]-[82].

5. The second fundamental difficulty relates to the assumption underlying the appellant’s submissions namely, that the Tribunal did not take into account the appellant’s personal characteristics, including his age, or did not assess the risk of the persecution feared by the appellant without any assessment of those characteristics.  The Tribunal was cognisant of and, in a number of passages in its reasons, referred to those characteristics but, in particular, his situation as a person who “believed he is 16 years old” or who was an “unaccompanied minor” or “a young man”.

6. In my view the reasons do not indicate that, in assessing the risks claimed to be feared by the appellant, the Tribunal’s findings were based solely on its assessment of those issues in relation to a class of persons of which the appellant was a member, rather than on its assessment of the appellant.

7. The following factors indicate that that is so.  First, the findings were expressed to be made in relation to the appellant.  Second, the Tribunal’s reasons were cognisant of and referred to the appellant’s position as a minor and his claim of lack of family protection.  In those circumstances there is no proper basis for concluding that the Tribunal failed to take those matters into account when it made specific findings that it was not satisfied the appellant’s fear of persecution was well-founded.  Third, as was pointed out by Heerey J in Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 at [20], a reviewable ground is not made out merely because the Tribunal failed to refer to matters upon which an applicant relies, nor is the Tribunal required to give a line-by-line refutation of the applicant’s evidence when there was evidence that was contrary to findings of material fact made by the Tribunal.

8. Finally, the Tribunal conducted a video hearing at which the appellant, through an interpreter, gave his version of the relevant events.  Even if the limitations of such a hearing are accepted, it is likely that the Tribunal was able to, and did, form an impression of the appellant’s youth and personal characteristics, which it took into account when assessing his evidence.

9. In my view the respondent’s submissions should be accepted and, in particular, the respondent is correct in contending that, in substance, the appellant’s submission is that the Tribunal ought to have attributed greater weight to the appellant’s age and his psychological condition.  Plainly, that was a matter for the Tribunal and is not a ground of review.

10. For the above reasons I am not satisfied that the appellant has made out a case of reviewable or jurisdictional error.  Accordingly, the Federal Magistrate did not err in dismissing his application.  It must follow that the appeal is to be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:            28 April 2004

Counsel for the Applicant:	Ms D Mortimer SC
Solicitor for the Applicant:	Allens Arthur Robinson
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 April 2004
Date of Judgment:	29 April 2004