Minister for Immigration & Multicultural & Indigenous Affairs v VFAY

Minister for Immigration & Multicultural & Indigenous Affairs v VFAY - [2003] FCAFC 191 - FCAFC 1951 case summary — Zoe

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THE APPEALS 1 Two appeals have been heard consecutively. Each appeal has been brought by the Minister for Immigration and Multicultural and Indigenous Affairs ("Minister") against a decision of a Federal Magistrate granting an application under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") for relief in respect of a decision of the Refugee Review Tribunal ("RRT"). In both cases, the RRT had affirmed a decision of a delegate of the Minister not to grant a protection visa under the Migration Act 1958 (Cth) ("Migration Act"). 2 Each of the respondents is a citizen of Afghanistan and was aged about 15 when he fled that country in order to escape the depredations of the Taliban, in particular the Taliban's practice of forcibly recruiting young males for military service. Each is an Hazara and a Shi'a Muslim. We refer to the respondents, respectively, as VFAY and SHBB. 3 VFAY's application for judicial review, was heard by Driver FM in Melbourne. On 27 March 2003, his Honour declared that the decision of the RRT made on 22 July 2002 was invalid and of no effect. His Honour also ordered that the Minister be prohibited from acting in reliance on the decision of the RRT, that the RRT's decision be set aside and that the matter be remitted to the RRT for redetermination according to law: see VFAY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 35. In view of the order setting aside the RRT's decision, it is not entirely clear why the declaration was necessary or appropriate, but nothing turns on that for present purposes. 4 SHBB's application for judicial review was heard in Adelaide. On 11 April 2003, Driver FM in substance made identical orders in favour of SHBB as he had made in VFAY v Minister: SHBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 82. 5 The appeals were originally listed for hearing together because they were apparently thought to raise the same or at least very similar issues. In fact, as the argument developed, it became clear that although there was some overlap, the issues were distinct. Accordingly, we shall deal with each appeal separately. 6 It is nonetheless appropriate to make a general comment at the outset. The RRT in VFAY's case expressed the view that the prospect of these young men being returned to Afghanistan in the circumstances prevailing in that country was "deeply troubling" for VFAY himself and for those supporting him. A similar observation was made by the RRT in relation to SHBB, although it seems that both he and VFAY will soon reach the age of 18 which, in Australia at least, marks the attainment of adulthood. The role of the Court is not, however, to determine the appeals simply by reference to whether VFAY and SHBB will face hardship or even serious harm if they are returned to Afghanistan. The only question for this Court is whether the Magistrate erred in law in holding that the RRT in each case had committed a jurisdictional error. It is the Minister who has a discretion under s 417(1) of the Migration Act to substitute decisions more favourable to VFAY and SHBB than those made by the RRT. The Minister may, if he so decides, exercise that discretion on compassionate or humanitarian grounds.

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Criteria for Grant of Protection Visa 7 The Migration Act authorises the Minister to grant to a non-citizen permission (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). One of those prescribed classes is the protection visa (s 36). 8 Section 36(2) of the Migration Act provides as follows: "(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse or a dependent of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa." Section 36(2) has taken this form since 2 October 2001. Both applications were lodged after this date: VFAY lodged his application on 10 October 2001; SHBB lodged his application on 2 November 2001. Accordingly, it is the current version of s 36(2) that governs both applications. 9 Schedule 2 of the Migration Regulations 1994 (Cth) 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. Each includes as a criterion that: "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." 10 A refugee is defined in Article 1A(2) of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the 1967 Protocol ("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." 11 Article 33 of the Convention imposes a primary obligation upon Contracting States that qualifies as a protection obligation for the purposes of s 36(2) of the Migration 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:

it operates in respect of a "refugee"; and
it prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason. 12 The Convention does not define "persecution". However, s 91R of the Migration Act, enacted by the Migration Legislation Amendment Act (No 6) 2001 (Cth), provides as follows: "(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist." Section 91R came into force on 1 October 2001 and applies to both applications.

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Jurisdiction of the Court 14 The jurisdiction of the Federal Court in relation to decisions under the Act derives primarily from s 39B of the Judiciary Act 1903 (Cth). This relevantly provides as follows: "(1) … the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c ) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." 15 The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) created a class of decisions called "privative clause decisions". Section 474(2) of the Migration Act defines "privative clause decision" to mean "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." It is not in dispute that the decisions of the RRT, the subject of these appeals, were "privative clause decisions" within the meaning of s 474(2). 16 Section 474(1) provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." The High Court in Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24, held that s 474 is constitutionally valid, on the basis that, properly construed, it does not preclude judicial review on the ground of jurisdictional error that would support the grant of prerogative relief under s 39B(1) of the Judiciary Act or the issue of constitutional writs pursuant to s 75(v) of the Constitution.

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VFAY's CLAIMS 18 VFAY was born in about 1986 in Bamiyan Province. He arrived in Australia on 23 August 2001, unaccompanied and without a visa. He was thereafter detained at the Port Hedland Immigration Centre as an "unlawful non-citizen" as defined in the Migration Act, s 14(1). 19 On 10 October 2001, VFAY applied for a protection visa. In his application, VFAY claimed to fear that he would be taken to the front lines to fight for the Taliban and that he would be killed. He said that the Taliban used this approach as a method of getting rid of Hazara and Shi'a people. In a subsequent submission, dated 2 February 2002, prepared while the United States-led invasion of Afghanistan was under way, VFAY claimed that the Taliban was still operating in his home province of Bamiyan. VFAY said that he had no details of his family and did not know whether they were alive or dead. He referred to the Taliban "still taking young men like they were before" and to "Pashtun and Tajik also taking us as we [Hazara] are the minority". 20 On 20 May 2002 the delegate rejected VFAY's claim on the ground that he (the delegate) could not be satisfied that VFAY was a minor or, indeed, that he came from Afghanistan. VFAY sought review of the delegate's decision by the RRT. 21 On 8 July 2002, VFAY made a statutory declaration, which was before the RRT. This was largely directed towards meeting the delegate's misgivings about VFAY's apparent lack of knowledge about conditions in Bamiyan province. However, he stated that he could not go back to Afghanistan because "if my family are dead I have nowhere to live. I cannot support myself and I have nowhere to go". 22 The RRT also had before it a series of written submissions made on VFAY's behalf by the Asylum Seeker Resource Centre. These submissions addressed VFAY's situation in considerable detail and argued that despite the formation of a new interim government in Afghanistan in December 2001, the Taliban remained a real threat to the safety of Hazara Shi'as. The submissions also referred to VFAY's fears of future persecution by ethnic Pashtuns and Tajiks if he returned to Afghanistan.

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the rrt's reasons 23 Despite the delegate's rejection of VFAY's claim to be from Afghanistan, the RRT accepted his claim that he was a citizen of that country and was an Hazara Shi'a Muslim. The RRT found that VFAY was 16 years of age and that he had left Afghanistan because of his fear of the Taliban, in particular his fear of being forcibly recruited for military service. 24 The RRT also accepted that VFAY had a "genuine, and readily understandable" fear of returning to Afghanistan in the prevailing circumstances. There was considerable uncertainty in the country and many people faced great hardship. The RRT acknowledged that VFAY could face danger if he were to return and that he was particularly vulnerable because of his age. However, the RRT identified the relevant question as follows: "the [RRT] must address whether there is a real chance that the applicant would be persecuted in Afghanistan for a Convention reason in the reasonably foreseeable future. As stated in the outline of the relevant legal principles which the Tribunal is required to apply, persecution involves systematic and discriminatory conduct. Moreover, the essential or significant reason for such treatment must be among the reasons specified in the Refugees Convention: these are the person's race, religion, nationality, membership of a particular social group or political opinion." The reference to the "essential or significant reason" is plainly based on s 91R(1)(a) of the Migration Act, although that provision uses the expression "essential and significant reason". 25 On the basis of independent country information, the RRT found that there was no chance that the Taliban would re-emerge as a contender for power in the country, including VFAY's province of Bamiyan, in the reasonably foreseeable future. Circumstances in Afghanistan had changed in "a substantial and material way" since mid-2001. According to the RRT, there was no longer any real chance that VFAY would face persecution by the Taliban if he were to return to Afghanistan. 26 Nor did the RRT accept VFAY's submission that he faced persecution as an Hazara. The RRT was satisfied that the conditions in Afghanistan had changed sufficiently to mean that the past mistreatment suffered by Hazaras did not indicate a real chance that they would suffer persecution in the foreseeable future. Similarly, since the collapse of the Taliban regime there had been no restrictions on followers of the Shi'a branch of Islam in Afghanistan. 27 The RRT considered it likely that if VFAY returned to Afghanistan he would return to his home district of Waras where his family had lived for many years. The RRT acknowledged that, like VFAY himself, it did not know what had happened to his family. The RRT accepted that VFAY feared for his family and did not know what had become of them. It recognised that "as a young man returning unaccompanied to his country [VFAY] will be vulnerable". This was confirmed by advice from the United Nations High Commission on Refugees ("UNHCR"), which had referred to the precarious security and humanitarian situation in Afghanistan. The UNHCR had also advised that there were others who were vulnerable, such as the disabled and ill, women without effective male protection, the elderly and the landless. 28 The RRT said that it understood that the prospect of VFAY returning to his home area was "deeply troubling" for him, but the evidence did not show that the essential and significant reason for the difficulty he might face was one of the Convention reasons. VFAY came from an Hazara area in a Hazara-led province to which Hazaras were returning. There was no evidence that he would face harm there or while en route as a Shi'a or because of any political opinion that might be imputed to him. While there was a level of lawlessness in areas through which VFAY might have to travel, the lawlessness applied generally rather to any particular ethnic minority. 29 The RRT noted that VFAY had claimed that he feared persecution in Afghanistan by reason of his membership of a particular social group. The RRT dealt with this claim as follows: "The particular social groups suggested by the applicant's adviser are children, separated children or unaccompanied Hazara minors and all of these formulations related to the vulnerability of such people. I have considered whether children, separated children or unaccompanied Hazara minors can constitute a particular social group as the term is used in Australian refugee law. I do not consider that it could be said that children or unaccompanied young people share characteristics which make them recognisable or cognisable as a social group set apart from the rest of the community unless their vulnerability and fear of coming to harm is also used as a defining factor and this is not permitted under the law. Even if such groups could be said to be particular social groups, I do not consider that it would be the applicant's membership of such groups which would be the essential and significant reason for what might become of him. Rather, the difficulty which the applicant could encounter upon return seems to me to be because of his youth and inexperience and so limited capacity to manage in a difficult environment and the generalised insecurity and hardship which prevails in his country." (Emphasis added.) 30 The RRT then considered whether the harm that VFAY might experience in Afghanistan because of the general insecurity would be attributable to his ethnicity, religion, imputed political opinion or any other Convention reason. While the RRT thought it possible that VFAY might be a victim of "opportunistic criminal acts", there was no real chance that the essential and significant motivation for what might occur would be a Convention reason. 31 The RRT summarised its conclusions as follows: "In the light of independent information before me about factors which can make it safe or not to return and about the applicant's circumstances, I consider that there is not more than a remote chance that, if the applicant were to return to Waras in Bamiyan province in the reasonably foreseeable future, then he would face persecution because of his Hazara ethnicity, his religion or his actual or imputed political opinion. Nor do I consider that the evidence indicates a real chance that he would face treatment amounting to persecution because of his membership of the particular social groups suggested by his adviser (even if such particular social groups as the term is used in Australian refugee law can be said to exist in Afghanistan). I find that the applicant's fear is not well-founded within the meaning of the Refugees Convention." 32 Finally, the RRT accepted that adequate or effective state protection did not exist in Bamiyan. But it did not follow from that finding that VFAY was a refugee. "First, I have concluded that there is not a real chance that the applicant would be persecuted for a Convention reason if he were to return. The harm which might befall him is not of a character which constitutes persecution because the essential and significant reason for it would not be one of the reasons in the Refugees Convention. Second, there is no evidence of which I am aware to indicate that what meagre policing (or other services which could be regarded as state protection) as there is would be less available to the applicant because of a Convention reason than to others." 33 For these reasons, the RRT was not satisfied that VFAY was a person to whom Australia owed protection obligation under the Convention. Thus he did not satisfy the criterion set out in s 36(2)(a) of the Migration Act.

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the JUDGMENT OF THE magistrates court 34 The learned Magistrate held that it was inherent in the reasoning of the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, that "children per se are readily identifiable as a particular social group" for the purposes of the Convention. The "unifying characteristic" required by the authorities is that children are immature and subject to the control and protection of their families or other adults. 35 His Honour considered that the RRT had erred in failing to refer to the Convention on the Rights of the Child ("CRC") in considering whether children or separated children constituted a particular social group in Afghanistan. The CRC "underscores the point that children in society are an especially vulnerable group deserving of special consideration and protection…". He also considered that Articles 20(1) and 22(2) of the CRC (which have been set out in [17] above) demonstrated that "children have been recognised internationally as an identifiable group meriting consideration as asylum seekers". 36 His Honour concluded that the RRT erred in finding that children, separated children or unaccompanied Hazara minors could not constitute a particular social group: "Children as a whole plainly do share characteristics which make them recognisable or cognisable as a social group set apart from the rest of the community without any reference to concepts of vulnerability and fear of coming to harm. In my view, it is self evident that children are readily identifiable as a particular social group in any society. I find that children are a particular social group for the purposes of the Convention and that a subset of children can, in particular circumstances, also constitute a particular social group. Children separated from their parents or guardians are also readily recognisable or cognisable without any reference to fear of persecution. All societies take special measures to deal with separated children, for example, through the establishment of orphanages and the concept of wardship. In addition, separated children have been recognised internationally as entitled to special consideration as asylum seekers. The finding of the presiding member of this point was erroneous. The error made was an error of law going to jurisdiction." 37 The Magistrate accepted that it was open to the RRT to conclude that VFAY did not face persecution as an Hazara. However, his Honour also held that the RRT had erred in finding that the absence of effective State protection was immaterial. It had overlooked a relevant consideration in the form of country information suggesting that children separated from their families in Afghanistan are in a more vulnerable position than children who are with their families. As a separated child, VFAY would be especially vulnerable to lawlessness and other criminal acts in Afghanistan in circumstances in which the RRT had accepted that effective State protection was not available. According to his Honour: "It can and should be accepted that criminals and others beyond the reach of the law prey in particular upon the vulnerable (those unable to protect themselves or those not under the effective protection of another). It is this factor which gives the risk of harm faced by the applicant a serious and systemic character necessary to satisfy the definition in s 91R of the Migration Act." 38 Since the RRT had committed errors going to its jurisdiction, the decision of the RRT was a nullity and it was appropriate to grant prerogative relief.

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THE MINISTER'S submissions 39 The Minister submitted that the Magistrate had erred in five respects. The first four errors identified by the Minister concerned the Magistrate's holding that unaccompanied Hazara minors and children separated from their parents or guardians are "readily recognisable or cognisable" as social groups and that the RRT had committed a jurisdictional error in finding otherwise. The fifth error was said to be the Magistrate's failure to accord appropriate significance to the RRT's finding that even if VFAY was a member of a particular social group, any harm that might befall him in Afghanistan would be the product of the generalised insecurity and hardship in that country and not his membership of a particular social group. The Minister's submissions were as follows. 40 First, the High Court in Chen Shi Hai v Minister had not laid down any general principle that children in general could be a particular social group. In order for a particular social group to be recognised, there had to be country-specific evidence of attitudes towards and the treatment of the putative social group. In the absence of evidence about the treatment of and attitudes towards unaccompanied minors or separated children in Afghanistan, it was not open to the RRT (let alone incumbent on it, as the Magistrate held) to find that VFAY's status as a separated child made him a member of a particular social group for the purposes of the Convention. 41 Secondly, the finding by the Magistrate that children separated from their parents or guardians are a particular social group because "[a]ll societies take special measures to deal with separated children" revealed a misunderstanding of the process of identifying a particular social group for the purposes of the Convention. That process requires evidence directed to such matters as the characteristic uniting the collection of individuals, the circumstances setting the group apart from the rest of the community in the relevant country (Afghanistan, not any other country) and the fact that the relevant society recognises the group as one set apart from the remainder of the community. In the present case there was simply no relevant evidence. There was, at most, a claim that an "unaccompanied minor of Hazara ethnicity" or a "separated child" constituted a well-recognised group which would be particularly vulnerable if returned to Afghanistan. However, that claim essentially relied on a shared fear of persecution as a unifying factor, which is an impermissible approach: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. 42 Thirdly, the Magistrate had erred in regarding the CRC as determinative of the question whether separated children should be regarded as a particular social group for the purposes of the Convention. The obligations assumed by Australia under the CRC do not oblige this country or any other signatory to recognise such children as a particular social group independently of the circumstances in a given country. The CRC does not affect the construction of the Convention, nor of the terms of the Migration Act defining the criteria for grant of a protection visa. According to Mr Hanks, the obligations under the CRC can be read as affecting the process by which children's claims for protection under the Convention are determined, but not the substance of those claims. 43 Fourthly, the Magistrate erred in identifying a series of "relevant" considerations that the RRT should have taken into account. None of those matters was such a consideration. They were no more than pieces of evidence that would have placed VFAY in a particular social group, if such a group existed. Any failure to take such evidence into account would be an error within jurisdiction: Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396, at 422 [76]-[79] per Allsop J. 44 Fifthly, in any event, even if the RRT was bound to consider whether VFAY was a member of a particular social group, it did not commit a jurisdictional error. Having found that VFAY's status as a separated child did not make him a member of a social group, the RRT went on to consider VFAY's claim on the hypothetical basis that separated or unaccompanied children in Afghanistan constituted a particular social group. It found that even if there was such a group, VFAY's membership of the group would not be the essential and significant reason for any harm that might befall him in Afghanistan. In making this alternative finding, as Mr Hanks pointed out, the RRT was following the language of s 91R(1)(a) of the Migration Act. Accordingly, so he submitted, any error made by the Tribunal was immaterial to the result.

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vfay's submissions 45 Ms Mortimer, who appeared with Ms Karapanagiotidis for VFAY, acknowledged in her oral submissions that the appeal had to succeed unless the Minister's fifth and final submission could be answered. Ms Mortimer further accepted that s 91R(1)(a) of the Migration Act defines the concept of persecution as used in the Convention, by requiring at least one of the reasons mentioned in Article 1A(2) to be "the essential and significant reason" for the persecution feared by an applicant for a protection visa. 46 Ms Mortimer submitted, however, that the RRT's alternative finding was flawed because it had failed to understand the correct questions that had to be asked. It was incumbent on the RRT to inquire what form of harm or persecution was feared by VFAY and then inquire whether the feared harm or persecution would be inflicted because he would be a separated child or an unaccompanied Hazara minor. On the RRT's findings, there was no question that VFAY was at risk of harm capable of constituting persecution. But the RRT had failed to understand that it was required to ask why VFAY was likely to face that harm. According to Ms Mortimer, the RRT had not addressed that question sufficiently clearly, in part because it had impermissibly conflated questions of persecution and the reasons for persecution. It should have inquired, for example, whether a Hazara child travelling alone might be picked on or targeted. 47 On the assumption that VFAY could overcome the first hurdle, Ms Mortimer submitted that the Magistrate had been correct to conclude that the RRT should have identified separated children or unaccompanied Hazara minors as particular social groups for the purposes of the Convention. Both groups met the tests laid down in the authorities for designation as a particular social group. While in some cases it might be necessary for an applicant to refer to country information showing that the putative group was perceived by society as a distinct group, that was not a universal requirement. If the unifying characteristics of the group are obvious, as in the case of a group comprising children, specific evidence of community perceptions is not needed. 48 In any event, there was material before the RRT which was capable of supporting findings that unaccompanied Hazara minors and separated children constituted particular social groups in Afghanistan. The submissions to the RRT on behalf of VFAY had referred to the vulnerability of children in Afghanistan and to the risk of persecution of Hazaras. Moreover, the Magistrate was correct in invoking international human rights conventions to identify unifying characteristics that mark out people as members of a particular social group. The need for special protection of an unaccompanied child asylum seeker could be such a characteristic.

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reasoning 49 In Applicant A v Minister, at 242, Dawson J accepted, by reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, at 568, per Burchett J, that there is a "common thread" which links the expressions "persecuted", "for reasons of" and "membership of a particular social group" in Article 1A(2) of the Convention. As was said in Ram v Minister, the link is "a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of the particular social group. He is persecuted because he belongs to that group". 50 Dawson J's approach was endorsed in Chen Shi Hai v Minister, at 299, 302, per Gleeson CJ, Gaudron, Gummow and Hayne JJ. The Honours added this observation: "As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of 'refugee'. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct." 51 McHugh J in Applicant A v Minister, at 257-258, made a similar point: "When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of international discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return." 52 It is for these reasons that Dawson J in Applicant A v Minister observed that the humanitarian scope of the Convention is limited. His Honour commented (at 248) that: "[n]o matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees. …It would…be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them". 53 Gummow J (with whom Gleeson CJ and Hayne J agreed) endorsed this passage in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, at 49. Gummow J pointed out (at 49) that the Convention's definition "does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention." 54 The decision in Haji Ibrahim establishes that it is an error to employ the notions of "differential operation" or "differential impact" as criteria for determining whether an applicant has a well-founded fear of persecution for one of the Convention reasons. As Gummow J observed (at 51) such expressions are distractions from the text of the Convention definition. 55 Chen Shi Hai v Minister establishes that persecution for the purpose of the Convention (in that case of "black" children born in breach of China's one child policy) can proceed from reasons other than "enmity" or "malignity": at 305. That does not, however, deny the need for a fear of discriminatory infliction of harm amounting to persecution. The joint judgment endorsed (at 304) the proposition put by French J that "the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted". 56 Similarly, McHugh and Gummow JJ said in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, at 28, that the reason for the persecution must be found in the "singling out of one or more of the five attributes expressed in the Convention definition". 57 In our view, the RRT in the present case correctly appreciated the questions that it had to ask. It plainly accepted that VFAY was at risk of harm if he were to return to Afghanistan. The RRT also plainly understood, on the assumption that separated children or unaccompanied Hazara minors were particular social groups, that it had to consider whether the feared harm would be inflicted by reason of VFAY's membership of those social groups. The RRT answered this question in the negative, finding that any difficulty VFAY might encounter would be because of his limited capacity to manage in the generalised insecurity and hardship prevailing in Afghanistan. 58 In answering this question in the negative, the RRT drew a distinction that has been recognised in the authorities. In Haji Ibrahim, for example, the RRT found that the applicant's fear of harm in conditions of class warfare prevailing in Somalia was not by reason of his membership of a particular clan, but was the consequence of civil unrest (at 53). This finding was held by the High Court not to involve any error. 59 In effect, the RRT in the present case found that VFAY would not be subject to discriminatory conduct amounting to persecution by reason of his status as an unaccompanied Hazara minor or a separated child. Indeed, the RRT's finding that, in view of the changed circumstances in Afghanistan, Hazaras were not at risk of persecution necessarily led it to conclude that VFAY was not at risk of persecution by reason of membership of a social group comprising unaccompanied Hazara minors. 60 It is true, as Ms Mortimer pointed out, that the RRT recognised that as an unaccompanied child in Afghanistan, VFAY would be "vulnerable" to harm. But the RRT's reference to the UNHCR advice shows that what it had in mind was that certain groups, such as children, the sick and the elderly, would be less able to cope with the "generalised insecurity and hardship". The fact that the general conditions in Afghanistan might have a differential impact on some groups does not show that the members of those groups will be subject to persecution because of their membership of a particular group. Nor was it an error for the RRT to find otherwise. 61 The RRT made its alternative finding on the hypothetical basis that, contrary to its view, the asserted social groups existed in Afghanistan. Perhaps for this reason, it expressed its conclusions in summary fashion. Nonetheless, it neither mis-stated the relevant principles nor failed to understand them. 62 It follows that the Magistrate erred in law in concluding that the RRT had committed a jurisdictional error. As Ms Mortimer correctly acknowledged, in these circumstances, there is no need to address the other issues that were the subject of argument. In particular, it is not necessary to consider whether the RRT should have found that separated children or unaccompanied Hazara minors constituted particular social groups in Afghanistan: cf Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458, at 464 per curiam; Minister for Immigration and Multicultural Affairs v Applicant S (2002) 70 ALD 354 (special leave to appeal granted by the High Court on 8 August 2003).

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SHBB's CLAIMS 64 SHBB was born in 1986 in Bamian Province, Afghanistan. He lived in the village of Dandeolock in that Province until he left Afghanistan in February 2001, fearing persecution by the Taliban because of his race and religion. SHBB arrived in Australia in June 2001 without a visa and was detained as an unlawful non-citizen. 65 On 2 November 2001, SHBB applied for a protection visa. In his application, SHBB claimed that the Taliban had captured his village in 1999 and that he had escaped forcible conscription only because his father had paid money to the Taliban. In response to a letter of 1 May 2002 from the Department informing SHBB of the changing circumstances in Afghanistan, SHBB submitted a further written statement on 9 May 2002. In that statement, SHBB said that he had he had no knowledge of what had happened to his parents and expressed the fear that Pashtuns would continue to persecute Hazaras. 66 On 11 June 2002, the Minister's delegate rejected SHBB's application. The delegate accepted that at the time of SHBB's departure from Afghanistan, he was at risk of persecution for the Convention reasons of race or ethnicity and religion. However, since SHBB's arrival in Australia, the situation in Afghanistan had changed, since the Taliban had been defeated and a change of government had taken place. Because of the changes, the delegate did not accept that SHBB had a well-founded fear of persecution for a Convention reason if he were to return to the Province of Bamian. 67 The delegate acknowledged that it was not safe to assume that SHBB could easily be reunited with his family and recognised SHBB's current status "as a single child without familial support". The delegate noted that, although the UNHCR did not necessarily consider unaccompanied minors as a group requiring protection within the Convention definition of "refugee", they constituted a group of particularly vulnerable persons if returned to Afghanistan. There was a severe shortage of food, shelter and other resources. These circumstances gave rise to serious humanitarian concerns for the welfare of SHBB. Nonetheless, they did not amount to a Convention basis for the applicant's fears. 68 On 13 June 2002, SHBB lodged an application with the RRT for review of the delegate's decision. In a letter dated 23 July 2002, SHBB's solicitors lodged a written submission identifying four Convention grounds for SHBB's fear of persecution. These were actual or imputed political opinion (anti-Taliban); race (Hazara ethnicity); religion (Shi'a religion); and particular social group ("young Afghan boy without an effective protector or guardian"). 69 Most of the very detailed submission addressed the position of Hazaras in Afghanistan and the on-going risk of persecution whether or not the Taliban remained a force in that country. However, the submission said that, in addition: "[T]he applicant is a young Afghan boy without an effective protector or guardian hence he would be more vulnerable to being targeted for mistreatment." The submission also claimed that SHBB was in a "far greater vulnerable position of being persecuted due to being a Hazara Shi'a and only 16". 70 In an attachment to the submission, the solicitors referred to the authorities dealing with the concept of "particular social group". They argued that SHBB was part of a cognisable group set aside from Afghan society, namely a "young male without a protector, guardian or any other means of support". 71 On 25 July 2002, the Human Rights Commissioner wrote to the RRT at the request of SHBB's solicitors. The Commissioner drew the RRT's attention to the CRC, Articles 20(1) and 22(2). The Commissioner asked the RRT to give special consideration to SHBB's status as an unaccompanied child entitled under the CRC to special protection and assistance. The Commissioner contended that to refuse SHBB a protection visa would be highly likely to leave him "extremely vulnerable on return to Afghanistan". 72 The RRT conducted a hearing on 26 July 2002. On 7 August 2002, SHBB's solicitors made a second submission on his behalf. That submission repeated the claim that SHBB was a member of a cognisable group set aside from Afghan society. The submission also claimed that, as a young boy travelling alone and without the protection of any adult male or female family member, SHBB would be persecuted in Afghanistan. 73 On 10 September 2002, SHBB's solicitors made a further submission. This submission referred the RRT to an article indicating that those separated from their parents and families are "even more vulnerable than other children to abduction, forced recruitment into armed forces, exploitation and trafficking across borders". 74 In his oral evidence to the RRT, SHBB explained that he feared being conscripted if he returned to Bamian Province because he was afraid that his family would not be there, he was a minor, his future was unknown and insecure and the war in Afghanistan was not over. A witness who had come to Australia from Afghanistan in about 1995, gave evidence in support of SHBB. She said it was not safe for a child to return to Afghanistan when the child knew nothing of his family, there were no orphanages in the country and there was no guarantee that SHBB could travel safely from Kabul to Bamian. She also said there were children in Afghanistan aged 15 and 16 who were armed.

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RRT'S REASONS 75 The RRT found that SHBB had a well-founded fear of being persecuted by the Taliban for reasons of race and religion when he lodged his visa protection application. However, the RRT also found that the political circumstances in Afghanistan had changed dramatically since SHBB had left the country. It accepted as authoritative the reports to the effect that the Taliban had been effectively eliminated as a political and military force in the country. Moreover, Hazaras and Shi'as were fairly represented in the Interim Authority. The RRT also accepted that there had been an unprecedented international commitment to the establishment of a representative and effective government in Afghanistan. 76 The RRT accepted country reports that, as an Hazara, SHBB would not face persecution upon returning to an area, such as his home district, where Hazaras form a majority of the population. A report by UNHCR stated that there were no security problems for Hazaras returning to Bamian Province. On the basis of the dramatic political changes and the circumstances prevailing in Bamian, the RRT was not satisfied that: "there is a real chance in the reasonably foreseeable future that he will be persecuted by Pashtuns or members of other ethnic groups, or (former) members or supporters of the Taliban, for reasons of race, religion or imputed political opinion." 77 The RRT referred to SHBB's submission that he was a member of a particular social group defined as "young males without a protector, guardian, or any other means of support". On the available evidence, the RRT was not satisfied that this was perceived as a distinct group within Afghan society. It was therefore not satisfied that SHBB was at risk of being harmed because he was a member of a particular social group so defined. 78 The RRT also stated that it was not satisfied that there had been conflicts between commanders in Bamian Province after the downfall of the Taliban that had put residents there at risk of harm for a Convention reason. On the same basis, it was not satisfied that men or boys residing in Bamian Province had continued to be at risk of being conscripted or otherwise coerced into engaging in military activity following the downfall of the Taliban. The RRT did not accept the submission that SHBB was perceived within Afghanistan to be a member of a particular social group defined by reference to military activity or conflict. It followed that the RRT was not satisfied that SHBB had a well-founded fear of being persecuted because of his race, religion, any imputed political opinion or his membership of a particular social group. 79 The RRT noted a report by the Department of Foreign Affairs and Trade ("DFAT") that Afghans can generally travel through areas of Afghanistan where other ethnic groups are in the majority. The RRT did not therefore accept that SHBB was at risk of serious harm en route to his home area because of his race or any other Convention reason. 80 The RRT concluded its reasons as follows: "I understand that the applicant is fearful of returning to Afghanistan given his youth; his loss of contact with his family; his experience of the Taliban; reports…that remnants of the Taliban and Al-Qaida exist in particular areas of Afghanistan and are viewed by NATO as potential perpetrators of violent or terrorist acts; the effect of the drought in his home area; the general impoverished living conditions for people in Bamian; the history of mistreatment of Hazaras and Shi'a Muslims in Afghanistan; and his exposure to reports on developments in that country since his arrival in Australia. In making its decisions the Tribunal is confined to considering whether an applicant is a refugee as defined in Australian law. Where there are humanitarian considerations in an applicant's case, the Minister may exercise his discretion to substitute a more favourable decision for the Tribunal's decision under section 417 of the Act."

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the judgment OF THE MAGISTRATE'S COURT 81 The learned Magistrate observed that the case was factually similar to that of VFAY v Minister [2003] FMCA 35, in which he had decided that the RRT had committed a jurisdictional error by rejecting the contention that children and separated children, in particular, constituted a particular social group in Afghanistan. 82 In the present case, the RRT had before it a letter from the Human Rights Commissioner clearly pointing out the importance of considering the CRC when dealing with an application for a protection visa from a separated child. The Commissioner had also referred the RRT to the UNHCR's guidelines for dealing with unaccompanied children seeking asylum, which emphasised the special care that needs to be taken in considering the claims of asylum from unaccompanied children. His Honour considered that, while the RRT had referred to the letter, the Presiding Member had not acted upon it. 83 The Magistrate accepted the Minister's submission that the RRT did make a clear finding that "young males without a protector, guardian, or any other means of support", were not perceived as a distinct group within Afghan society. This conclusion was "correct". However, the position of children in general and separated children in particular was quite different from young males of indeterminant age. 84 The Magistrate accepted that it is for applicants to advance their own claims to the RRT and for the RRT to assess those claims. However, it had been established by Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287, that the RRT cannot ignore a relevant consideration which is manifest on the material before it, even if the applicant does not specifically advert to that material. Accordingly, in the light of SHBB's claims and the letter from the Human Rights Commissioner, the RRT should have considered whether SHBB was a separated child and whether separated children in Afghanistan constituted a particular social group. 85 His Honour followed his own decision in VFAY v Minister that separated children in Afghanistan should be accepted as constituting a particular social group. The RRT had material before it indicating that SHBB was a separated child. In failing to consider whether SHBB was a child and in failing to consider and accept that separated children in Afghanistan constituted a particular social group, the RRT had erred. 86 In his Honour's view, had the RRT considered SHBB's position as a potential member of a particular social group of separated children in Afghanistan, it would have considered the position of separated children in Bamian Province, where there was no effective state protection. In the absence of state protection, separated children faced a serious and systematic risk of harm from lawless elements, because persons beyond the reach of the law habitually prey upon unprotected persons. In failing to address whether as a member of group of separated children in Afghanistan SHBB faced persecution due to opportunistic attacks upon the unprotected, the RRT had failed to take into account relevant considerations. 87 According to the Magistrate, it was "an inherent part" of SHBB's claim that he was a separated child fearing persecution in Bamian Province. While the issue was clouded by the clumsy formulation of the relevant particular social group by SHBB's solicitors, it should have been clear to the RRT that it had to consider the applicant's position in Afghanistan (and in Bamian Province in particular) as a separated child. The RRT did not do so and thereby failed to address an element or integer of SHBB's claim. This amounted to jurisdictional error. The decision of the RRT was a legal nullity and was not protected by the privative clause in s 474 of the Migration Act.

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THE MINISTER'S SUBMISSIONS 88 The Minister advanced, in substance, two arguments in support of the appeal. 89 First, in the absence of evidence about attitudes to and treatment of separated children in Afghan society, children in Afghanistan separated from their parents are not per se recognisable as a particular social group. According to Mr Hanks, unless there is evidence of a unifying element binding them as members of a discernible group in Afghan society, the RRT had no basis for recognising separated children as a particular social group for the purposes of the Convention. Since there was no evidence about the treatment and societal or cultural attitudes towards separated children in Afghanistan, it was not open to the RRT to find that SHBB's status as a separated child in that country made him a member of a particular social group for the purposes of the Convention. 90 In the present case, apart from evidence that SHBB did not know what had happened to his parents, the only claims were that

a young Afghan boy without adult protection would be vulnerable to persecution;
separated children were more vulnerable than other children; and
young males without a protector were a cognisable group set aside from the rest of Afghan society. However, none of these claims relied on evidence relating to attitudes in Afghan society towards children. Moreover, they relied on a shared fear of persecution as the unifying factor. 91 Mr Hanks submitted that the CRC does not oblige Australia to recognise separated children, per se, as a particular social group. Australia as a party to the CRC had general obligations to all separated children, but those obligations did not include recognition of separated children as a "particular social group" for the purposes of the Convention. 92 Mr Hanks acknowledged that if there were appropriate evidence pointing to children being identified in a particular society as a distinct group and treated as such (for example, the "black children" in Chen Shi Hai), it would be open to a child from a relevant country to claim membership of a particular social group for Convention purposes. But the success of that claim would depend upon specific evidence relating to social and cultural attitudes and practices in the particular country. In the absence of that evidence, there could be no basis on which a decision-maker could find that a child was a member of a particular social group or had a well-founded fear of persecution by reason of that membership. 93 Secondly, Mr Hanks submitted that, if SHBB was advancing a claim that he feared persecution by reason of his status as separated child, the RRT plainly dealt with that claim. Accordingly, the Magistrate's holding that the RRT had failed "to address an element or integer of [SHBB's] claim" was in error. 94 Although SHBB's "particular social group" claim was not articulated on the basis of him being a "separated child", the RRT was well aware that SHBB was a young person separated from his parents. There was no real distinction between the particular social group advanced by SHBB and "separated children" in Afghanistan. Thus, when the RRT rejected the claim that SHBB belonged to a particular social group described as "young males without a protector, guardian or any other means of support", it was also rejecting the claim that the relevant social group constituted separated children.

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reasoning 97 It may be accepted that the RRT should not limit itself to the case articulated by an applicant where the facts found by it, or not negated by its findings, might support an argument that the applicant is entitled to the protection of the Convention: Minister v Applicant S at 371 [73], per Stone J, citing Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38. 98 The difficulty facing SHBB in the present appeal is that Dr Churches did not point to the significance, for the purpose of identifying error on the part of the RRT, of the distinction between a social group comprising "young males without a protector; guardian or any other means of support" and a social group comprising "unaccompanied children". The RRT found the first group was not perceived as a distinct group within Afghan society and that was a finding not challenged by Dr Churches. The RRT did not address the existence of the second group. 99 At one point in the argument, Dr Churches suggested that the RRT had never made a finding that SHBB was a child and that therefore it may have interpreted the category of "young males" as including young adults. It is, however, clear that the RRT accepted that SHBB was born in 1986 and thus was a minor at the date of the decision. It is also clear enough that the RRT interpreted the particular social group advanced by SHBB's advisers as referring to children (albeit limited to males). The reference to a "protector" or "guardian" in the definition of the social group indicates that this was the adviser's intention and there is nothing to suggest that the RRT understood otherwise. 100 Dr Churches accepted that it was not open to the RRT to find that unaccompanied children in Afghanistan constituted a particular social group unless there is a "recognition within the society that the collection of individuals is a group that is set apart from the rest of the community": Minister v Zamora, at 464, per curiam. (In this respect his position may have been somewhat different from the stance taken by Ms Mortimer in Minister v VFAY.) It was because the RRT was not satisfied that this requirement was met that it rejected the contention that young males without a protector or guardian constituted a particular social group. 101 Obviously enough, a group consisting of "unaccompanied minors in Afghanistan" is broader than the group identified by SHBB's advisers, since it includes girls as well as boys. But Dr Churches did not identify any findings made by the RRT that could have led it to find that the unaccompanied minors, as distinct from young males without a guardian or protector, were recognised within Afghanistan as a group set apart from the rest of Afghani society. Nor did he identify any evidence before the RRT which, if accepted, could have led the RRT to make such a finding. 102 Dr Churches referred us to the letter from the Human Rights Commission to the RRT. The letter, however, merely pointed out that SHBB was a young child entitled to special protection under the CRC and that he would be vulnerable to deprivation through lack of food and injury or death due to ongoing conflict and landmines. These are important matters to take into account in assessing whether there are humanitarian grounds for not returning SHBB to Afghanistan, but the letter did not provide material suggesting that unaccompanied minors were recognised within Afghani society as a group set apart from the rest of the community. Similarly, the evidence of a witness who testified on SHBB's behalf did not address this issue. It will be recalled that Dr Churches accepted that this was the critical question that the RRT had to consider. 103 It follows that, having regard to the matters accepted by Dr Churches in argument, the RRT was not in error in failing to consider specifically whether unaccompanied minors constituted a particular social group in Afghanistan. The learned Magistrate erred in law in so holding.

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (4)

Cases Cited (13)