Consideration - ground 1(a)
61 It is clear from the text of the Tribunal's reason at [40] that it was well aware that the question for it was the level and nature of the risk to the child in assessing whether fears the subject of his claims were well-founded. It is also clear that the Tribunal was aware of the significance of considering the 'reasonably foreseeable future'. That is an expression used on numerous occasions in its reasons.
62 It is one thing to be aware of the task to be undertaken and another to carry it out. The Tribunal's reasons are relatively detailed and it is to be acknowledged that the Member seems to have gone to some trouble to accommodate a number of hearings with the appellants. However, I do not consider that [40] of the reasons discloses proper consideration of each of the fears raised on behalf of the child, the materials before it, the impact of the feared deprivation on the child in his particular circumstances and whether and how that impact might be alleviated. Such consideration was required so that the Tribunal could properly assess whether cumulatively or separately the fears were such as to satisfy it that there was a well-founded fear of serious harm.
63 The issue is dealt with in [40] with a level of brevity and ambiguous language that does not sufficiently disclose the reasoning or foundation for the reasoning.
64 The Tribunal commences its reasons at [40] by noting the appellants' argument that the absence of citizenship documentation would lead to the deprivation of identified rights such as the right to vote, obtain a drivers' licence, access health services, access higher education, own property, file a court application, or travel overseas for employment.
65 The Tribunal then states the extent to which it accepts the child will be affected by the absence of citizenship documentation. It does not address the particular claims as to deprivation but instead makes the general statement that it accepts that without citizenship documentation the child will not be able to receive or access 'a number of government services', or have the same 'opportunities and rights' in Nepal as citizens who have evidence of their citizenship. The Tribunal does not specify the relevant government services or the relevant opportunities that it considers might be denied or the harm that might flow from such deprivation.
66 Although it does not identify the specific deprivation, it then finds that any deprivation does not amount to serious harm because the child's parents can meet his 'basic needs' in the reasonably foreseeable future. It does not explain what it means by 'basic needs'.
67 It is well established that the reasons of the Tribunal are to be read as a whole and without an eye too keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 270, 272; see also Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 at [31]. But even allowing for such guidance (and leaving aside the question of healthcare which was dealt with separately), the Tribunal's reasons do not descend into a consideration of the components of the claim, such as the prospect that education might be denied to the child, the harm that might result and how it is said that the parents are able to mitigate the harm that might otherwise result. It might seem open to speculate as to what the Tribunal had in mind: that the father would be in a position to pay for all such services that the government might otherwise provide, at least in the short term. After all, at [59] the Tribunal addresses the prospect that the father will be able to work and finance the 'basic and essential needs' of the child. But such speculation is inappropriate, particularly in circumstances where the rights and services referred to in the claim are not all of the nature that can bought. Although limited, there was some material before the Tribunal that was relevant to the claims identified by the appellants, such as that referred to at [25] above, but it is not possible to discern from the reasons whether the evidence was overlooked, not considered credible or whether the Tribunal did not accept that all claims listed at [40] of its reasons fell within the ambit of its reference to 'government services' or 'opportunities'. Nor is it clear whether the Tribunal failed to refer to it because it considered it related to a time further into the future than (say) the next few years of the child's life, and therefore being a time perhaps considered too remote by the Tribunal.
68 Having carefully considered the reasons of the Tribunal and in particular what is said at [40], I consider that the Tribunal fell into error in the manner in which it carried out its statutory task. The identification of the period of the 'reasonably foreseeable future' was a matter for the Tribunal, having regard to the claims and the evidence. However, the Tribunal should have considered the particular fears as articulated on behalf of the child, assessed whether there was evidence to support them, considered the individual circumstances of the child and considered the circumstances of the country to which he would return. The generalised reference to the risk of not receiving or accessing 'a number of government services', or not having the same 'opportunities and rights', combined with the generalised reference to the child's 'basic needs' being met by his parents does not reveal a sufficient engagement with the claims or the task required.
69 There might be different ways in which such error might be described, but I am prepared to accept the appellants' description as developed during the hearing, that being that the Tribunal's failure to engage with the claims or undertake the qualitative task required to assess the nature and effect of the identified feared harm comprised a constructive failure on the part of the Tribunal to carry out its statutory task, and so comprised jurisdictional error. I consider the primary judge erred in failing to find that the Tribunal fell into error.
70 However, I should add that the primary judge was presented with an argument relating to the serious or significant harm tests that was apparently less developed than as presented to this Court. The primary judge said that the argument as to ground 1 before him was confusing. In fairness to his Honour, he attempted to unravel and address it. For example, it seems that the attention of the primary judge was not drawn sufficiently to the express concern about access to education that was made by the father and to which I was referred by counsel. To the contrary, the primary judge proceeded on the basis that no claim was made based on fetters on access to education in Nepal and that limited access to education was raised only in the context of relocation to India ([91]-[92] of the primary judge's reasons). I do not consider the father's reference to education was so limited, and the provision of material by him that refers to limits on access to education in Nepal (albeit in the context of a stateless person) supports that view. There was also the DFAT information that in particular addressed the lack of access to higher education.
71 Nor is it clear, based on the Tribunal's reasons, that the Tribunal assumed that the right to education is a right that would otherwise be met by the parents. So much would depend upon whether it included education as one of the denied government services and whether it considered education to be a basic need. The reasons do not disclose as much. For completion, I note that there would not seem to be any issue that the denial of access to education may, depending upon the circumstances, amount to persecution. See generally the discussion in Hathaway and Foster, The Law of Refugee Status (2nd edition, Cambridge University, 2014) at [3.5.3]; and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [29].
72 Before leaving this ground, I note that counsel for the appellants acknowledged that some of the claims referred to at [40] of the Tribunal's reasons would not necessarily rise to the description of serious harm, the inability to vote being one of those. However, that concession highlights the need for the Tribunal to assess each of the relevant basic rights it was feared would be denied as referred to in [40]. The harm that might flow from the denial of such rights and that founds the claimed feared persecution may well differ depending on its nature.
73 Counsel for the appellants also submitted that the Tribunal was obliged to consider the position of the child, not just upon his return to Nepal, but into adulthood. In support of that submission counsel relied on rights that would, on the submission, clearly affect the child as an adult: the denial of access to formal sector employment, such as full-time permanent jobs that provide sick leave and pensions in circumstances where the court has recognised that denial of access to employment can constitute serious harm (referring to Chan Yee Kin at 430); denial of the right to travel overseas, the effect of such a limitation being exacerbated where DFAT information reflects that Nepalese nationals frequently leave Nepal to obtain work; the denial of the right to file a court application, leaving the child (as an adult) vulnerable to violation of his rights without any redress; the denial of the right to own property or register personal property, leaving the child (as an adult) unable to open bank accounts and impairing his ability to subsist; and the denial of access to tertiary education.
74 The Minister submitted that matters such as employment, voting, overseas travel, ownership of property and tertiary education extended too far into the future to constitute harm within the reasonably foreseeable future. That conclusion may have been open to the Tribunal depending on the evidence (applying the principles as discussed in AKH16 v Minister for Immigration and Border Protection set out above and Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 279) but it is not apparent that the Tribunal dismissed the relevance of the matters to the question of harm on that basis. Rather, it placed emphasis on the prospective role of the parents in mitigating harm arising from the feared denial of access to government services.
75 It is not necessary or appropriate for this Court to determine the relevant time that comprises the 'reasonably foreseeable future' in this case, particularly in light of the decision I have reached as to the argument at ground 1(a). That task is for the decision maker, having regard to the evidence and the particular circumstances of the applicant. However, I have referred to the respective submissions of the parties because they again highlight the need for the Tribunal to assess the nature of the rights said to be affected by the lack of evidence of citizenship and the particular circumstances of the child, so that the 'reasonably foreseeable future' can be appropriately assessed.
76 Finally, the appellants place some weight on the feared access to health services arising from lack of citizenship documentation. This claim was dealt with separately by the Tribunal, which found that there was insufficient evidence as to the nature of any medical needs of the child. That conclusion was open to the Tribunal on the evidence ([36]-[37] of the Tribunal's reasons). I do not consider that error is disclosed as to the consideration of harm in the context of the child's access to medical treatment.