Haider v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 A young man claiming to be an Afghan national seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision to refuse him a protection visa. His application for review of the Tribunal decision is said to have been lodged out of time. Although claiming before the Tribunal to be 18 years of age, he now contends that he did not know his age and that he may be a minor. This possibility is said to have implications for the validity of his original application, the application to the Tribunal and the application to this Court, as well as the effectiveness of the notification of the decision. In that connection it is said to give rise to obligations on the Minister as statutory guardian of unaccompanied non-citizens minors under the Immigration (Guardianship of Children) Act 1946 (Cth). The factual issue in this case is whether or not the applicant is a minor. If not, then on the evidence in the case the application to this Court, having been made more than twenty eight days after notification to the applicant of the Tribunal's decision, the Court lacks jurisdiction. History of Proceedings 2 The applicant is a young man who arrived in Australia by boat and without any authority on 17 December 2000. He claimed to be a national of Afghanistan. He applied for a protection visa on 1 January 2001 and was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 25 January. He applied to the Tribunal on 2 February 2001 for a review of the decision. On 23 March, the Tribunal affirmed the decision not to grant him a protection visa. On 8 May 2001, the applicant filed an application for review of the decision of the Tribunal. That application was heard at the same time as the application in W145 of 2001 which involved a 15 year old male, claiming to be an Afghan national. 3 The Minister filed a notice of objection as to competency in respect of both applications asserting, in each case, that the application was lodged more than twenty eight days after the applicant was notified of the Tribunal decision. On this basis, it was said, the Court lacks jurisdiction to review the decision. 4 The applicant's age is in contention. 1982 was shown as his year of birth on the record of his initial interview. It is, however, contended on his behalf that the question whether he is a minor was not resolved by the evidence of that birth date. On 26 July, I made an order that the proceedings continue without the appointment of a tutor or next friend and that the respondent was not to seek any order for costs against any legal representative of the applicant by reason of want of capacity. The hearing of the application was set down for 5 September to enable an application for legal aid to be pursued in relation to cognate proceedings in the Supreme Court of Western Australia concerning the appointment of a legal representative. The orders so made followed argument both on this case and the related case. One set of reasons was published in relation to those orders - Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985. 5 The question arose in the argument leading up to the making of the orders whether, if the applicant were a minor, the role of the Minister as statutory guardian under s 6 of the Immigration (Guardianship of Children) Act had any affect on the conduct of the case and on the question of his legal representation. In the event, that question did not impact upon my conclusion that it was open to the applicant, even if he were a minor, to proceed with the application without the appointment of a next friend or tutor, subject of course to the objection as to competency. 6 The proceedings came on for substantive hearing on 5 September at which time both the objections as to competency and the applications for review in this matter and W145 were argued. A notice of amended grounds of review was filed on 31 August 2001. On the same day, counsel for the applicant filed a motion under s 39B of the Judiciary Act 1903 (Cth) for an order that the notice of objection to competency be struck out as an abuse of the process of the Court and for other orders. 7 At the hearing on 5 September, affidavit evidence was received from a solicitor employed by the Australian Government Solicitor that, on 1 December 1999, the Minister, acting under s 5 of the Immigration (Guardianship of Children) Act had delegated certain of his powers and functions to specified office holders of the Western Australian Department for Family and Children's Services. That department is now known as the Department of Community Development. The delegation was in the following terms:

By failing to provide the Applicant with a translation of its reasons or to ensure that it was translated to him within 14 days of handing down its decision the Tribunal failed in the circumstance to of the case to comply with the provisions of section 430D(2) of the Migration Act ["the Act"] and thereby failed to observe a procedure which the Act (sic)" The Notice of Motion 11 The applicant's motion of 31 August sought an order that the notice of objection to competency be struck out as an abuse of process of the Court and other orders: "2. That the Respondent consider and determine in accordance with law whether it is in the best interests of the Applicant that he be involuntarily removed from Australia. 3. The Respondent seek the appointment by the Court of an appropriately qualified next friend to assist the Applicant in an application for a protection or other appropriate visa. 4. The Respondent receive and consider any fresh application for a protection visa lodged by or on behalf of the Applicant and consider it according to law. 5. The Respondent direct the release of the Applicant from immigration detention and place him in the care of the Director of the Department of Family and Social Services and provide him with a bridging or other appropriate visa. 6. The Respondent pay to the Applicant a reasonable weekly allowance the amount of which to be fixed by the Director of the Department of Family and Social Services. 7. That the Respondent reimburse to the Applicant any amount paid to the Applicant or by any person on behalf of the Applicant in respect of any expenditure by him for which the Respondent is responsible as guardian. 8. That the Respondent insure and keep insured the Applicant in respect of all medical treatment including psychological counselling which the Applicant might reasonably require." 12 The motion also sought declarations as follows: "9. That the Applicant's application for a protection visa dated 1 January 2001, not having been approved by a parent or guardian of the Applicant, is void and of no effect. 10. That the Respondent has a duty to consider and determine independently of any entitlement to a protection visa whether it is in the best interests of the Applicant to be deported from Australia. 11. That the duties and obligations of the Respondent as guardian during the period of guardianship include: 11.1 the provision and funding of accommodation for the Applicant; 11.2 the provision and funding of all reasonable expenses in relation to the education of the Applicant in an appropriate educational facility; 11.3 the provision and funding of all reasonable health and medical services including such psychological counselling as may be required; 11.4 an obligation to provide such funding as may be necessary to ensure that the Applicant can live within and participate in the Australian community during the period of his guardianship." Statutory Framework 13 The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens. These are dealt with in Division 3 of Part 2 of the Migration Act 1958 (Cth). The Minister has general power under the Act to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29). There are prescribed classes of visas under the Regulations as well as classes provided for specifically in the Act (s 31). Criteria for visas of specified classes may be prescribed in the Regulations (s 31(3)). Where an application is made for a visa it is to be considered by the Minister (s 47) and if satisfied that the criteria for the grant of a visa prescribed by the Act or Regulations have been met and that other conditions, which are not relevant for present purposes have been met, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse the grant (s 65). Section 36 of the Act provides for the grant of protection visas. It specifies as a criterion for a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)). This criterion is replicated in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa. Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas. Both include as a criterion that: "…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention." 14 The primary obligation which qualifies as a protection obligation arises out of Article 33 of the Refugees Convention. Under that Article the Contracting States undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The obligation which is otherwise known as the prohibition against refoulement has two important elements:
It operates in respect of refugees.
It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason. A refugee is defined in Article 1A(2) of the Convention 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." 15 Part 7 of the Migration Act deals with review of protection visa decisions. A decision to refuse to grant a protection visa is reviewable by the Tribunal (s 411(1)(c)). Applications for review to the Tribunal are made under s 412 of the Act and, if a valid application is so made, the Tribunal must review the decision (s 414). The Tribunal in carrying out its functions under the Act is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). In so doing it is not bound by "technicalities, legal forms or rules of evidence" and is required to act "…according to substantial justice and the merits of the case". 16 The Tribunal is required to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)). This requirement does not apply in circumstances which are not relevant for present purposes. The Tribunal is empowered under s 427 to, among other things, require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation (s 427(1)(d)). 17 Part 8 of the Migration Act deals with the review of decisions by the Federal Court. Section 475(1) defines as "judicially-reviewable decisions" the following: "(a) decisions of the Migration Review Tribunal; (b) decisions of the Refugee Review Tribunal; (c) other decisions made under this Act, or the regulations, relating to visas." Decisions which are not "judicially-reviewable decisions" are defined in s 475(2) and include RRT-reviewable decisions. Applications may be made for review by the Federal Court of judicially-reviewable decisions on any one or more of the grounds set out in s 476(1) of the Act. Section 478 provides: "(1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application, outside the period specified in paragraph (1)(b)." The jurisdiction of the Federal Court to deal with judicially-reviewable decisions is conferred by s 486: "The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution." That jurisdiction is intended to be exhaustive in respect of judicially-reviewable decisions as appears from s 485 which provides: "(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2) or (3), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903. (2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975. (3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part." 18 Under the provisions of the Immigration (Guardianship of Children) Act 1946 (Cth) the Minister for Immigration is the guardian of non-citizen children. This is provided in s 6: "6. The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens." 19 The term "non-citizen child" is defined in s 4AAA, which provides: "4AAA(1) Subject to subsections (2) and (3), a person (the "child") is a non-citizen child if the child: (a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends, or is intended, to become a permanent resident of Australia. (2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of: (a) a parent of the child; or (b) a relative of the child who has turned 21; or (c) an intending adoptive parent of the child. (3) Subsection (1) does not apply if: (a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the "adult"); and (b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and (c) the adult intends to reside with the child in a declared State or Territory. (4) A person is a non-citizen child if: (a) the person has not turned 18; and (b) a direction under s 4AA is in force in relation to the person." Section 4AA provides for a minor who enters Australia as a non-citizen in the charge of, or for the purpose of living in Australia under the care of, a relative of the person where the child intends to become, or is intended to become, a permanent resident of Australia. In such a case the Minister, if satisfied that it is necessary in the interests of the child to do so, may direct in writing that the child be the Minister's ward. This must be done with the consent of the relative. A non-citizen child is not to leave Australia except with the consent in writing of the Minister who shall not refuse to grant any such consent unless satisfied that its grant would be prejudicial to the interests of the non-citizen child (s 6A). This section, however, does not affect the operation of any other law regulating the departure of persons from Australia (s 6A(4)). The Minister may place a non-citizen child in the custody of a person who is willing to be the custodian of the child and is, in the opinion of the Minister, a suitable person to be that custodian (s 7). The Act does not affect the operation of any provision of laws of any State or Territory relating to child welfare (s 8). There is provision for exemption of certain children or classes of children from the Act by ministerial order (s 11). No such order has been referred to by counsel for the Minister in the present case. The Evidence 20 The initial record of interview with the applicant upon his arrival in Australia set out the date of his birth as 1982. His occupation was said to be "shepherd". His only education was said to be "religious study". He described his language as "Dari". He named his father and mother and his four brothers and sisters, all of whom were at that time still in Afghanistan. He had no family or relatives on the boat with him when he came to Australia. His reason for leaving Afghanistan was said to be that the Taliban made it hard on his family because they were Sh'ia Muslims. The Taliban were taking young men from his village to prison. His father told him to flee from the country. 21 The application for a protection visa also showed 1982 as his date of birth. The application was prepared by a migration agent located in Melbourne. His supporting statement with the application began: "I am a young 18 year old Afghan Hazara." In the statement he claimed that the Taliban had started searching houses in his home village some six months previously. They beat his father so badly that he fainted. The applicant was out of the house at the time. His father, he said, was "52 years old". He described him as "thin and weak". The Taliban, he said, were looking for young men to be sent to fight against Ahmad Shahmasood, leader of a Tajik ethnic group. His father was worried about him and arranged a smuggler to get him out of Afghanistan. He said that if returned to Afghanistan he would be arrested by the Taliban and killed. He said he is recognisably Hazara from his face and language. 22 In his application to the Tribunal, the applicant's year of birth was again shown as 1982. The application was prepared with the assistance of an interpreter. In a written submission of 27 February 2001, the applicant's advisers stated: "Our client is an 18 year old Hazara." The transcript of the hearing before the Tribunal records that the applicant was asked how old he was and replied "18". He did not know what year he had been born according to the Afghan calendar. He could identify the current year correctly according to the Afghan calendar. 23 The applicant had one year of education at a local mosque. He did not stay at school longer as he did not want to study. He had not been to school before turning 15 or 16. Further in the course of his evidence to the Tribunal he said: "My father told me that I am 18 years old, but from the passport I cannot tell you what's happening - what happened." This was in response to a claim put to him by the Tribunal member that the smuggler had been caught by police in Indonesia and that he was carrying the applicant's passport when he was caught. A photocopy of the passport had been passed on by Indonesian authorities to the Australian Government. It was put to him that he had a Pakistani passport with his photo in it and that it seemed to be correct. He said he did not know, the smuggler had made the passport. The details on the passport had indicated that he and his family came from Quetta. He responded: "I don't know, the smuggler made that passport and whatever he did, I'm not sure." 24 In his evidence on the review proceeding in this Court, the applicant said he had never seen his birth certificate and was not aware of the date of his birth. He heard his father tell the smuggler who arranged for him to come to Australia that he was 18 years old. Other than that he had no information as to the date of his birth. He said he was not closely questioned about his age until he received the assistance of a lawyer in connection with his application in this Court. He was not aware that this was of any importance. 25 The applicant said the authorities in the detention centre had provided him with help in applying for a protection visa and in connection with his application to the Tribunal. He was not aware of any other person being appointed to look after his interests. He had not been given any assistance beyond that given to other applicants for a protection visa in the detention centre. He was not given any assistance to apply for legal aid for his application for review to this Court and was not provided with a lawyer until after the first directions hearing on that application. He was unsuccessful in his application for legal aid. He had not heard from the person who assisted him at the hearing before the Tribunal and had never met that person face to face. He was aware that neither the Minister's delegate nor the member of the Tribunal believed his claim that he was a Hazara from Afghanistan. He had not been provided with any assistance which might help him to prove that he did come from Afghanistan and not from Pakistan. He would have been willing to talk to any expert who could listen to his dialect with a view to telling whether he was Hazara from Afghanistan or Hazara from Pakistan. He maintained that he was from Afghanistan. He said he was afraid of being returned to either country. He did not know what would happen if he were to be returned to Pakistan as he did not have any family there. 26 In relation to the notification of the Tribunal decision, he said he remembered receiving a message that an officer of the Department of Immigration and Multicultural Affairs ("DIMA") wanted to see him. He saw a Mr Wallis in the office with an interpreter, Mr Farid. Mr Wallis told him through the interpreter that his application had been rejected. He said he could go to the Federal Court and that he had twenty-eight days to apply. He was also told that the Tribunal did not believe that he was Afghan. He was given a copy of the Tribunal's decision, but it was never translated for him by an interpreter provided by DIMA. Another detainee attempted to translate it to him. He is broadly familiar with its content. Since the hearing before the Tribunal he has not been provided with any legal advice other than that which he is presently receiving to assist him in connection with his application to this Court. He has not heard from the organisation which assisted him with his application to the Tribunal. He was not provided with any form to assist him seeking review by the Federal Court and he contacted the Court to get the necessary form. He also applied to the Legal Aid Commission for help but his application was refused. 27 The Tribunal in its reasons found that the applicant was not from Afghanistan. It did not accept his claims that his father had been beaten by the Taliban and that he had to go into hiding whenever the Taliban came to his village. It found that he had fabricated those claims to make a case for claiming to be a refugee. Having found that he was not a national of Afghanistan and not required to return there, his claims that he would be persecuted if returned to Afghanistan were not well-founded. On that basis the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal made no express finding as to the age of the applicant, simply referring to his own evidence that he was 18 years old. The Objection as to Competency 28 According to the applicant's own application for review, he was notified of the Tribunal's decision on 26 March 2001. The mode of that notification was the subject of his evidence. Absent any other consideration the time for filing an application for review of the Tribunal decision expired on 23 April 2001. The application was filed on 8 May 2001. 29 The only other consideration that may be relevant is the possibility that the applicant was a minor at the time he lodged his application for a protection visa and/or at the time he was notified of the Tribunal decision, the argument being that neither the application for a visa nor the notification was thereby effective. That issue is addressed in the related case, W145 of 2001, which was heard concurrently with this application. In the event, for the reasons published in that case, the question is one of factual rather than legal capacity to make an application if properly assisted and to receive a notification of the Tribunal decision - Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516. 30 The question whether the applicant in this case is a minor is to be resolved by the evidence before this Court. To the extent that it may go to the jurisdiction of the Court to entertain the application, it is a matter not to be concluded by reference to the findings of the Tribunal which, of course, acts upon evidence which would not be admissible in a court of law. 31 It was submitted to the applicant that when first asked where he was born he told authorities that he did not know but that his father told him he was 17 and would shortly be 18. His false passport appears to give his date of birth as 6 May 1978 which is obviously incorrect. His evidence in Court was that he does not know his age. Absent a birth certificate, he produced no evidence one way or the other. What he might have been told about his own age was inadmissible because it was necessarily founded upon hearsay. It was conceded that the Court could not satisfy itself of his minority or otherwise by inspection. Evidence of his date of birth, it was said, could be obtained by the Minister demonstrating that he was over 18 years. 32 The factual issue whether the applicant is of the age of 18 years or more is critical to the submissions which were to the effect that, if a minor, he could not make an application for a valid visa on his own account and that the Minister could not make such an application for him because of his conflict of duties as statutory guardian and decision-maker. These submissions led on to the further contention that the Minister could not validly refuse his application for a visa and that he was entitled to the declarations sought in the motion. 33 In my opinion, the submissions fail at the threshold on the question of age. Although no question of a formal onus of proof arises in the Tribunal, it will arise in the Court in connection with the determination of the factual issue which the applicant now raises. It is for the applicant to demonstrate by admissible evidence that he is a minor. That is to say, it is for his lawyers in this Court to produce evidence of his minority. In some cases, such as a child of tender years, that may be apparent upon inspection and no further evidence would be required even if his or her precise age could not be established. It is conceded, and quite properly, that it is not apparent from inspection of the applicant that he is a minor. 34 The applicant's minority is also a condition of the Minister's guardianship for which s 6 of the Immigration (Guardianship of Children) Act provides. That is apparent from the terms of s 6 read with s 4AA. To invoke that guardianship as the applicant seeks to do, requires it to be shown that the subject is under the age of 18. The submission points to no evidence that the applicant is a minor. There is no basis therefore upon which I could make the necessary finding that the applicant is a minor. It is upon that finding that the superstructure of the remaining submissions for the applicant rests. 35 I should add that the evidence before the Tribunal was consistent with the applicant's age being 18 or more. His year of birth as 1982 and his age as 18 were repeated in the documents and submissions put to the Tribunal. He also said that he undertook his Mosque religious education when he turned 15 or 16. He identified the year of that education as 1997 to 1998. Assuming conservatively that he turned 15 in December 1997, he would have turned 18 in December 2000. On that conservative assumption, he was 18 when he applied for his protection visa. In that application he specified the year of birth of his siblings as 1984, 1986, 1988 and 1990. It is consistent with that pattern that he was eldest child born in 1982. It is not necessary for present purposes to make any final findings based on these considerations. It is sufficient to say that the applicant has not established that he is a minor and, indeed, does not claim to be. 36 In the event, for the reasons I have given in Jaffari v Minister for Immigration and Multicultural Affairs delivered today, the question is one of fact, that is, was the notification effective to communicate to the applicant the decision of the Tribunal and was that communication understood. It is plain on the evidence that it was understood. The applicant was notified of the decision and the notification, albeit oral, was sufficient for the purposes of s 478(1)(b) of the Migration Act 1958 (Cth) - Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 at 167 (Jenkinson J) and 178 (Beazley J); Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 at [37]. The application was lodged out of time. The Court therefore lacks jurisdiction to entertain it - Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269. The objection to competency is made out and the application must be dismissed. A section 78B notice issued in respect of certain matters raised on behalf of the applicant in connection with the interaction between the Commonwealth legislation and State laws relating to child welfare. On the findings I have made those questions do not fall for consideration in this case.

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Judgment (34 paragraphs)

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Legislation Cited (4)

Cases Cited (6)