Minister for Immigration & Multicultural & Indigenous Affairs v WAIK

Federal Court of Australia (Full Court)|2003-12-19|Before: Emmett JJ

1 This is an appeal from a decision of the Federal Magistrates Court. The respondent to the appeal applied for a protection visa under the Migration Act 1958 (Cth) ('the Act'). It is convenient to refer to the respondent as 'the Applicant'. The appellant is the Minister of Immigration & Multicultural & Indigenous Affairs ('the Minister').

2 The Applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 22 August 2001. On 14 November 2001, he lodged an application for a protection (class XA) visa. On 11 April 2002, a delegate of the Minister refused to grant a protection visa and, on 19 April 2002, the Applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 31 July 2002, the Tribunal affirmed the decision not to grant a protection visa.

'The Court, noting the findings of the Tribunal upon the facts and noting that its reasons for judgment indicate only a failure by the Tribunal to consider those facts in the context of a claim for membership of a particular social group[,] refers the matter to the Tribunal to be dealt with in accordance with law.'

4 In the final version of the notice of appeal filed on behalf of the Minister, the Minister seeks orders setting aside the orders made by the Magistrate and, in lieu thereof, an order that the application be dismissed with costs. By notice of cross-appeal filed with the leave of the Full Court on the hearing of the appeal, the Applicant claims an order that the order made by the Magistrate on 21 March 2003 be set aside and, in lieu thereof, it be ordered that the application for review be remitted to the Tribunal to be determined according to law.

5 The Applicant entered Australia without a passport. In an interview held on 2 September 2001, shortly after his arrival, he said that he was born in 1983. Subsequently, the Applicant's advisor informed the Tribunal that the Applicant was 17 years of age.

6 The Applicant claimed that he is from a village in Nangarhar province in Afghanistan, which is located close to the border with Pakistan. The Tribunal had regard to a linguistic analysis that indicated that the Applicant speaks Pashtu, that his dialect is Pakistani and that he pronounces many words with a Pakistani accent. However, the Tribunal was not satisfied that the linguistic analysis of itself was sufficient to support a finding that the Applicant held a nationality of some country other than Afghanistan. The Tribunal therefore accepted the Applicant's claims that he comes from a village in Nangarhar province, that he is a member of the dominant Pashtun ethnic group and that he is a Sunni Muslim. The Tribunal assessed his claims to protection against Afghanistan as his country of nationality.

7 The Applicant claimed to fear harm in Afghanistan arising out of his relationship with a young woman who was betrothed to another man. The Applicant claimed that he continued to see the young woman after his own marriage and that, on the last occasion that he saw her, they were discovered by her father who fired a gun at the Applicant. The Applicant said that he managed to flee without injury but that the pursuit of the relationship with the young woman led to her death at the hands of her own family. He claimed to fear similar harm at the hands of the young woman's family.

8 A number of aspects of the Applicant's claims caused the Tribunal disquiet. The Tribunal considered that it was possible that the Applicant may not have been entirely frank about the real circumstances surrounding his conduct or his relationship with the young woman in question. However, even accepting the essence of the Applicant's claims, namely that he feared harm at the hands of the young woman's family arising out of his relationship with her, the Tribunal was not satisfied that such harm was likely to be for a Convention reason.

9 The Tribunal characterised the Applicant's evidence as being to the effect that he feared the wrath of the young woman's family, and possibly other members of their tribe, because of his conduct in pursuing a relationship with her that did not have the approval of her family. The Tribunal recorded that the Applicant did not claim that the harm that he feared was owing to one of the reasons referred to in the Convention. Indeed, the Applicant's adviser at the hearing before the Tribunal conceded that it was difficult to identify a relevant ground under the Convention.

10 The Tribunal concluded that the precise nature of the harm that the Applicant had experienced in the past, and that he fears in the future, arose because of his conduct as a married man in pursuing contact with a young woman against the wishes of her family. The Tribunal considered that the Applicant's fear derived from those circumstances and had nothing to do with any of the Convention reasons. The Tribunal considered that the young woman's family were not concerned with the Applicant's race, religion or nationality or with his membership of any social group or with his political opinion. Rather, they were concerned to exact some form of retribution from him for what had happened to their daughter. The Tribunal did not accept the Applicant's suggestion that the agents of harm, whether they were the young woman's family or others of the same tribal sub-group, had a tribal motive in inflicting harm on him.

11 The Applicant's evidence to the Tribunal was to the effect that the law that he breached applied to everyone. He did not claim, and did not suggest, that the law was enforced in a discriminatory way. His own evidence was to the effect that the reason for the harm he feared was the fact that he pursued contact with the young woman against the wishes of her family and was seen by the family to have disgraced and brought shame upon them.

12 The Tribunal expressly considered whether, on the material before it, a Convention ground was raised in view of the claim made on behalf of the Applicant that the local council would decide his punishment and whatever punishment was decided by that council, the Governor of the province, representing the provincial authorities, would condone. The Tribunal accepted that the refusal of, or failure of, state law enforcement officers to take steps to protect members of a particular social group from violence, where that refusal or failure was for reasons of membership of the group, is itself capable of amounting to persecution within the meaning of the Convention. However, the Tribunal found that, in the circumstances of this case, the Governor of the province would be obliged to condone the punishment imposed by the council because that is the system followed in tribal law. The Tribunal was not satisfied that the matter gave rise to a Convention ground.

13 The Applicant's fear was stated to be that he would be sentenced to death by the local council by reason of the presumption of adultery on his part. The Magistrate referred to the argument advanced on behalf of the Applicant that the Tribunal did not consider whether he was a member of a particular social group, being that section of his tribe which the Governor of the province would not seek 'to protect from extrajudicial killing' by persons such as the parents of the young girl, who are members of an opposing faction.

14 His Honour observed that the Tribunal accepted the possibility that the Applicant would be the subject of 'extrajudicial killing', on the basis of his association with the young girl, if he returned and that the Governor would be powerless to prevent that. However, his Honour found that the Tribunal did not address the question of the Applicant's membership of a social group defined by the differences between the Applicant's subgroup and that of the parents of the young girl. His Honour found that the Tribunal did not consider the Governor's expected failure to prevent the 'extrajudicial killing' of the Applicant in the light of the Applicant's membership of that social group. His Honour concluded that it would be possible for the Tribunal to find that the Applicant was a member of the social group so defined and that the Governor's inability to prevent what any civilised society would consider to be 'the imposition of a disproportionate punishment by way of an extrajudicial killing of a cruel and unusual nature' would bring the Applicant within the protection of the Convention and he would therefore be entitled to the grant of a protection visa.

15 Thus, the Magistrate concluded that there was a failure on the part of the Tribunal to address the question of whether the Applicant fell into a particular social group. His Honour considered that the failure to do so was jurisdictional error such that there was no decision by the Tribunal under the Act. Accordingly, the privative provisions of s 474 of the Act would not preclude the grant of relief in respect of such an error by the Tribunal.

16 On a fair reading of its reasons, there was no failure by the Tribunal to address the question of whether the Applicant was a member of a particular social group in respect of which discriminatory persecution was threatened. The Tribunal, in its reasons, noted written submissions made on behalf of the Applicant that a tribal system functions in much the same way as do different ethnicities. The submissions asserted that the Applicant belonged to a different sub-tribe to that of the family of the young girl, because the Applicant's family and the family of the young girl belonged to different minority factions of the Shinwari tribe. The Applicant belongs to the Ali Sherkhail group and the young girl's family belongs to the Adal Khail group. Originally, those two factions were one under the Shinwari tribe but the two factions were created when two brothers went to war against each other over land and became enemies.

17 The submission was that the Applicant would be reported to the local council who would hold a Jirga and decide his punishment according to Sharia law. It was said that, whatever punishment the Jirga decided, the Governor would be obliged to approve, since that is the system that is followed in tribal law. It was asserted that the present Governor is also a member of the Adal Khail group, although a new Governor would be appointed who would, in all likelihood, be a Pushtun and who would also consider himself obliged to approve the Jirga's decision, given that there is no other legal system with power to overturn tribal law in the province in question.

18 It is clear that the Tribunal had regard to that submission. It may well be that the Applicant belongs to a particular social group, being the Ali Sherkhail sub-tribe of the Shinwari tribe. However, there was simply no basis advanced before the Tribunal to support a conclusion that tribal law would be applied differently to the Applicant because he was a member of that sub-tribe rather than the sub-tribe to which the young girl's family belonged. There was no suggestion put to the Tribunal, and no basis for the Tribunal to conclude, that tribal law or Sharia law would be applied discriminately against the Applicant. More particularly, there is no basis for suggesting that the 'extrajudicial killing' of the Applicant was more likely because the Applicant was a member of the Ali Sherkhil group rather than the Adal Khail group. There was no failure by the Tribunal to deal with a claim of persecution based on the Applicant's membership of a particular social group.

19 The Applicant also contended before the Federal Magistrates Court, unsuccessfully, that there was a failure by the Tribunal to satisfy itself that there had been a valid application for a protection visa made by the Applicant. The contention was that, if the Applicant was not 18 years old at the time of signing his application, no valid application was made for a protection visa and, accordingly, the Tribunal should have set aside the decision of the delegate as being an invalid decision. The Magistrate rejected that contention.

20 Section 47(1) of the Act provides that the Minister is to consider a valid application for a visa. Section 47(3) provides that, to avoid doubt, the Minister is not to consider an application that is not a valid application. Section 47 is contained within subdiv AA of Div 3 of Pt 2 of the Act. Section 69(1) provides that '[N]on-compliance by the Minister' with subdiv AA in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. The Applicant contends that, notwithstanding the operation of s 69, if the Minister purports to consider an application that is not a valid application, the decision is a nullity and is not a valid decision.

21 In order to explain the contention that no valid application was submitted by the Applicant, it is necessary to explain the scheme of the Act and the Migration Regulations 1994 (Cth) ('the Regulations') in that regard. Under s 46(1), an application for a visa is valid if, and only if, it satisfies the matters in that subsection. Under s 46(2)(b), however, an application for a visa is valid if, under the Regulations, the application is taken to have been validly made.

22 Regulation 2.07(1)(a) provides that, for the purposes of s 46 of the Act, if an application is required for a particular class of visa, the approved form (if any) to be completed by an applicant is set out in the relevant part of Sch 1. Under reg 2.07(3), an applicant must complete an approved form in accordance with any directions on it.

23 Item 1401 of Pt 4 of Sch 1, which deals with protection (class XA) visas, sets out Form 866 as the approved form for that class of visa. Under reg 1.03 the term 'approved form' means a form approved by the Minister under s 495 of the Act or reg 1.18, and the reference to an approved form by number is a reference to the form so approved and numbered. Under reg 1.18(a), the Minister may approve forms for use in making an application for a visa.

24 It is common ground that a Form 866 was completed in respect of the Applicant and lodged with the Minister. Form 866 is an application for a protection (class XA) visa. It contains, under the heading 'Applicant Declaration', the following:

'To be signed by all persons named in question 1. If any of the applicants who should answer this question and sign the declaration is under 18 years of ago or lacks legal authority on their own behalf, a parent or guardian must sign on their behalf.'

25 The Applicant contends that, if he was in fact under 18 years of age when Form 866 was signed by him, it was not completed in accordance with the directions on it, as provided for in reg 2.07(3), because it was not signed on his behalf by a parent or guardian. The Minister or a delegate of the Minister could act as guardian in that regard pursuant to s 5 and s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth).

26 Part A of Form 866 signed by the Applicant was not in evidence. A pro-forma copy of Part A was provided to the Court by the parties following the hearing of the appeal. Part A contains instructions for its completion and other information concerning the visa application process. However, there was no suggestion that the note set out above (at [24]) in relation to 'Application Declaration' is not a direction on the approved form within reg 2.07(3). Assuming that it is a direction, the question is whether the failure to comply with it has the consequence that the form that was signed by the Applicant was not a valid application within the meaning of s 46, such that the purported decision by the Minister's delegate to refuse a protection visa pursuant to the application was not a decision made under the Act.

27 The argument proceeded on the basis that, if the Applicant was under 18 at the time of signing the form, it was not a valid application. Since there was material before the Tribunal to indicate that the Applicant was under 18, it is arguable that the Tribunal should have had regard to that material and should have addressed the question of whether or not the Minister's delegate had considered a valid application.

28 The Act, in the form in which it stood for the purposes of this proceeding, is not a code as to the requirements of procedural fairness to which an Applicant was entitled in relation to the consideration of an application for a protection visa. Specifically, subdiv AA and subdiv AB were not exhaustive as to the requirements of procedural fairness. That is to say, there was an overriding requirement for the Minister, or the Tribunal standing in the Minister's shoes, to afford procedural fairness to an applicant for a protection visa. Section 69(1) would not preserve a decision made that involved a denial of procedural fairness. Such a decision would be infected by jurisdictional error and s 69(1) would have no effect as to that jurisdictional error. Accordingly, such a decision would be subject to review by prerogative writ, notwithstanding the privative effect of s 474(1) of the Act: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

29 However, s 69(1) is explicit so far as the requirements of subdiv AA and subdiv AB are concerned. In the light of s 69, it cannot be said that the application for a protection visa signed by the Applicant was a nullity simply because he did not complete it in accordance with the directions contained on it. No suggestion was made on behalf of the Applicant that he did not understand the nature of the application or that he did not have the capacity, even if he was under 18, to make an application for a protection visa. The only contention was that, because the application form was not completed in accordance with the directions contained on it, it was not a valid application by reason of the operation of reg 2.07(3) and that, accordingly, the Minister was prohibited, by s 47(2), from considering the application since it was not a valid application.

30 If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69. The decision of the Minister's delegate purporting to reject the application is a valid decision, even if it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1): see Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 at 33 [26] and Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at 593 [49].

31 The Tribunal had jurisdiction to review the decision of the Minister's delegate under s 411(1)(c) because it was a decision to refuse to grant a protection visa. The fact that the Minister was prohibited by s 47(2) from considering the application, assuming that it was not a valid application, does not mean there was no decision within the meaning of s 411(1)(c). Whether or not the Minister was prohibited from considering the application, the Minister's delegate did so and made a decision to refuse a protection visa. There was no jurisdictional error on the part of the Tribunal even if the Applicant was under 18 and the application was not a valid application within the meaning of s 46 of the Act.

32 The Minister's appeal should be upheld. The Applicant's cross appeal should be dismissed. The orders made by the Federal Magistrate's Court should be set aside. In lieu of those orders, there should be orders that the application be dismissed and that the Applicant pay the Minister's cost of the proceeding. The Applicant should pay the Minister's costs of the appeal and the cross-appeal.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, R D Nicholson & Emmett.

Solicitor for the Appellant: Australian Government Solicitor

Migration Act 1958(Cth)ss 46, 47, 69, 411, 495

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