FEDERAL COURT OF AUSTRALIA

Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313

MIGRATION – application for a protection visa – well-founded fear of persecution for reason of actual or imputed political opinion –the appellant is an infant –the infant’s claims are derivative in that they rely on the parents’ feared persecution – whether the Tribunal’s decision involved an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) – whether the Tribunal erred in law in failing to consider inferences said to be available from certain evidence before it - the Tribunal not bound to express all its factual deliberations – whether a child can be a visa applicant – whether a child can be a refugee.

Migration Act 1958 (Cth) s 36(2), s 45, s 46 s 65, s 427(1)(d), s 430(1), s 476(1)(a),                s 476(1)(e)

Immigration (Guardianship of Children) Act 1946 (Cth) s 6

Migration Regulations 1994, Division 2.2, regs 2.07, 208, 208A

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed

Peniche v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 485 referred to

Haines v Leves (1987) 8 NSWLR 443 referred to

X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524 referred to

Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820 considered

Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, French J, 5 June 1998, unreported) referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJ 775 referred to

ABDUL RAHMAN AHMED AL RAIED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1075 of 2000

MOORE, MATHEWS AND MANSFIELD JJ

29 MARCH 2001

SYDNEY

AN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1)      The appeal is dismissed.

2)      The appellant is to pay the respondent’s costs.

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

AN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                     This is an appeal from a Judge of this Court who affirmed a decision of the Refugee Review Tribunal (“the Tribunal”) which in turn affirmed a decision of the respondent’s delegate that the appellant is not entitled to a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2                     As the trial judge observed, there are some unusual features in this case, most notably the age of the appellant.  The appellant is an infant who was born in Australia on 12 August 1999 and was less than one year old at the time of the hearing before her Honour.  His parents and two older siblings arrived in Australia in March 1999.  Shortly afterwards the appellant’s parents applied for a protection visa on behalf of themselves and their two children.  They claimed that they had a well-founded fear of persecution in their country of nationality, Libya, on the grounds of their actual or imputed political opinion.  On 13 May 2000 their application was refused by the Minister’s delegate.  The appellant’s parents sought to have this decision reviewed by the Tribunal.  In October 1999 the Tribunal affirmed the delegate’s decision.  In the meantime, the appellant was born on 12 August 1999. 

3                     The appellant’s parents did not seek to challenge the Tribunal’s decision of October 1999.  On 1 December 1999 an attempt was made to deport the family to Libya.  At Sydney airport, the appellant’s parents put up such a strong resistance to their removal that the pilot of the aeroplane refused to carry Mr Al Raied as a passenger.  This incident features prominently in the appeal to this court and we shall return to it later.

4                     No further attempt has been made to deport the appellant or his family.  Since the airport incident they have remained in immigration detention.  A medical report dated 3 March 2000 indicated that the appellant’s mother, Mrs Bushaiba, was suffering from a number of psychiatric disorders which were said to be attributable to the “traumatic life events” she had suffered.  This report also featured in the appeal, and will be mentioned later.

RELEVANT CRITERIA

5                     Section 65 of the Act provides that if after considering an application for a visa the Minister is satisfied that, inter alia, criteria prescribed by the Act or Migration Regulations 1994 have been satisfied, the Minister is to grant the visa.

6                     Under s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant be a person to whom Australia has protection obligations under the Refugees Convention dated 28 July 1951 as amended by the Refugees Protocol dated 31 January 1967, referred to compendiously as “the Convention”.  An applicant will meet this criterion if he or she is a 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.”

THE APPELLANT’S visa APPLICATION

7                     On 8 December 1999, a week after the airport incident, an adviser acting on the appellant’s behalf lodged his application for a protection visa.  It was supported by a document which purported to be a statutory declaration of the appellant who was then less than four months old.  His claims were derivative in that they rested upon the proposition that his family faced persecution by the Libyan authorities because of the actual or imputed political opinions of his parents, Ahmed Al Raied and Mouna Bushaiba.

8                     On 14 January 2000 the respondent’s delegate refused the appellant’s application for a protection visa.  The appellant sought review of this decision by the Tribunal.  In dealing with his application the Tribunal had access to the departmental and Tribunal files relating to the appellant’s parents’ earlier application.  The Tribunal also took evidence from the appellant’s father and from another witness who deposed to the callousness of the Gaddafi regime in Libya.  The appellant’s mother was unavailable to give evidence.

THE TRIBUNAL’S DECISION

9                     The Tribunal rejected the appellant’s claim to be stateless and found that he was a Libyan citizen.  It accepted that, if the claims made on the appellant’s behalf were substantiated, he would fit the Convention category of a “member of a particular social group”, the group being the appellant’s family.  However the Tribunal did not accept that the appellant faced persecution in Libya on that ground.  In particular, the Tribunal found (as had the previous Tribunal) that the parents’ claims of facing persecution in Libya for reason of their political opinion lacked credibility.  The Tribunal accepted that the appellant’s father had some contact with people linked to the National Front for the Salvation of Libya (“the NFSL”) but was not satisfied that he had a role of any significance in that organisation.  Generally, the Tribunal was not satisfied that either of the appellant’s parents had a political profile in Libya or was a wanted person in that country.  Accordingly the Tribunal was not satisfied that the appellant would be persecuted in Libya for the reasons advanced by his parents and adviser.  It thus affirmed the delegate’s decision not to grant him a protection visa.

APPLICATION TO FEDERAL COURT

10                  The appellant then sought judicial review of the Tribunal’s decision.  The proceedings, which were brought in the name of the appellant, were treated as urgent and the hearing at first instance took place on 3 August 2000.  Her Honour’s judgment described the somewhat unusual course of the proceedings before her.  It is unnecessary to canvass those matters here, other than to say that they indicated a significant lack of preparedness on the part of the appellant’s advisers.  Nevertheless, the matters relied upon by the appellant were ultimately put before her Honour in a manner which enabled her to deal with them in a comprehensive and thorough judgment.

11                  The two grounds of review relied upon by the appellant before her Honour were:

·        That procedures required by the Act to be observed in connection with the making of the Tribunal’s decision were not observed (s 476(1)(a)).

·        That the Tribunal’s decision involved an error of law, being an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e)). 

12                  In support of these grounds, the appellant made the following contentions:

“(a)     that the Tribunal had not observed the procedures concerning the preparation of written reasons required by s430(1) of the act to be observed;

(b)               that the Tribunal had not observed procedures required by s427(1)(d) of the Act to be observed in that the Tribunal had not considered requiring the Secretary to arrange for a medical examination of the applicant’s mother; and

(c)               that the Tribunal had erred in law in failing to draw and consider inferences arising from the physical resistance put up by the applicant’s family when the respondent sought to remove the family from Australia on 1 December 1999.”

13                  In support of the appellant’s first contention (that the Tribunal’s decision contravened the requirements of s 430(1) of the Act) the appellant submitted that the Tribunal was obliged in its decision to deal with evidence of the trauma suffered by the appellant’s mother, as evidenced by a medical report furnished to the Tribunal, and was also obliged to advert to the incident at Sydney airport when the appellant’s parents refused to board a plane for Libya.  Her Honour rejected this contention.  She found that as the Tribunal was concerned with the objective fact of whether there was a real chance that the appellant’s family (and therefore the appellant) would be persecuted in Libya for a Convention reason, the Tribunal was not required to set out its findings concerning the psychiatric health of the appellant’s mother or the actions taken by the appellant’s parents in order to avoid being returned to Libya.  Her Honour accordingly treated these matters as going, if anything, to the parents’ subjective state of mind, and not to the objective likelihood of their being persecuted in Libya.

14                  In relation to the appellant’s second contention, her Honour found that a medical examination of the appellant’s mother could not have advanced the appellant’s case.  Therefore even if, contrary to her Honour’s tentative view, s 427(1)(d) of the Act did impose a duty on the Tribunal to consider requiring the Secretary to arrange for a medical examination, it was not a procedure which needed to be observed in the present case.  The appellant has not challenged her Honour’s findings on this issue.

15                  Finally, her Honour found, in relation to the third contention that it was open to the Tribunal to decide what, if any, inferences it was prepared to draw from the evidence before it.  She considered that the appellant, under this ground, was seeking merits review of the Tribunal’s decision.  Her Honour therefore affirmed the Tribunal’s decision.

The Appeal to this Court

16                  We earlier noted that the proceedings in this Court were brought in the name of the appellant. However an application was made to have the appeal prosecuted by the appellant’s father. The Minister agreed and an order was made by consent that “Ahmed Abdullah Al-Raied be appointed as tutor to the appellant, Abdul Rahman Ahmed Al-Raied”.

17                  The appellant’s amended Notice of Appeal specified the following grounds:

“1.       Her Honour erred in law in finding (par 53) that

            ‘The material advanced in support of this contention (that there was an incorrect application of the law to the facts as found by the person who made the decision) shows clearly that what is sought thereby is merits review of the decision of the Tribunal.’

2.                  Her Honour erred in law in finding (par 49) that

‘As the decision of the Tribunal did not turn on whether the applicant’s parents are subjectively fearful of returning to Libya, it was not required to set out in its written statement its findings concerning the medical evidence as to the psychiatric health of the applicant’s mother or the ‘trauma’ apparently suffered by the applicant’s family “in contemplation of their immediate removal to Libya”.’

3.                  Her Honour erred in law in finding (par 51) that

‘The contention that the Tribunal did not comply with the procedural requirement of s430 of the Act cannot be sustained.’

4.                  Her Honour should have held that the fact of the trauma of the applicant’s parents was a fact material to the assessment of the objective criterion (as well as the subjective criterion) of whether there was a ‘real chance’ Chan Yee Kin v Minister (1989) 169 CLR 369) that the applicant would suffer persecution if returned to Libya.

5.                  Her Honour should have held that the Tribunal incorrectly applied the ‘real chance’ test (Chan Yee Kin v Minister ) to the fact of the trauma of the parents of the applicant.

6.                  Her Honour should have held that the Tribunal breached para.430(1)(c) in failing to set out its findings on that material question of fact (i.e. the trauma) in its reasons for decision.

7.                  Her Honour should have held that the Tribunal breached para.430(1)(c) in failing to set out its findings on that material question of fact.”

18                  Ground 6 was later abandoned by the appellant.  Although it is not immediately apparent, the remaining grounds raise essentially the same issues as were raised before her Honour under propositions (a) and (c) in paragraph [12] above. These are: first, that procedures required by the Act to be observed in connection with the making of the Tribunal’s decision were not observed (s 476(1)(a) of the Act); and secondly, that the Tribunal’s decision involved an error of law being an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e)).  Both grounds relate to the Tribunal’s failure to discuss the inferences which the appellant says were available to be drawn from the incident at Sydney airport on 1 December 1999 and the report relating to the psychological trauma suffered by the appellant’s mother. 

19                  The airport incident was described in a letter dated 2 December 1999 from the National Director of Amnesty International (Australia) to the respondent Minister.  The relevant portion is as follows:

“It has been reported to us that following Mr al-Raied’s resistance to the attempts to sedate him at the airport and the subsequent assaults inflicted upon him, the pilot of the plane refused to carry Mr al-Raied as a passenger.  We have had contact with Mr al-Raied this morning who advises that the 3 ACM, 2 DIMA and 1 airport officer involved in the assaults, then pushed his wife who was nursing a three month old baby and ripped off his wife’s head scarf all in front of the terrorised children who were reportedly vomiting with fear.  After the pilot refused to take Mr al-Raied as a passenger, it is reported to us that the family were then placed in a ‘cold room’ where they were held until they were returned to Villawood Detention Centre.”

20                  The Tribunal in its decision noted that the appellant’s parents had “physically resisted the Department’s attempt to deport them on December 1, 1999”.  It made no further reference to the airport incident. 

21                  The evidence as to the appellant’s mother’s psychiatric condition was contained in a report dated 3 March 2000.  It was on the letterhead of a Dr Karima Attia-Soliman of the Specialists Medical Centre at Campsie.  The report indicated that the writer, who “specialises in psychiatry” had been requested to visit the appellant’s mother at the Villawood Immigration Centre “as a friend” because of concern about her mental condition.  The report records that Mrs Bushaiba “had been subjected to a lot off trauma and grief in her life”, some of which the report proceeds to list.  It must be assumed that these details came from a source other than Mrs Bushaiba whom the doctor reported to be “a very suspicious, unco-operative lady” who was “not willing to talk much”.  In the doctor’s opinion Mrs Bushaiba suffered the following conditions:

“1.       Post traumatic stress disorder

2.                  Post natal depression

3.                  Major depression

4.                  Prolonged grief reaction

5.                  Psychotic episode i.e. early schizophrenia”

22                  The Tribunal referred to this report in the “Claims and Evidence” section of its decision, but not in its “Findings and Reasons”.

23                  The appellant’s contention on appeal was that the airport incident, in which the appellant's parents strongly resisted being deported to Libya, was capable of supporting not only the fact that they subjectively feared persecution in Libya, but also that there was an objective basis for their fears.  The Tribunal, it was urged, was obliged to consider this material in order to determine whether it was prepared to draw the favourable factual inferences which counsel said were available to be drawn from it.  The Tribunal’s failure to discuss this material in its decision, counsel submitted, indicates that the Tribunal wrongly failed to consider whether these favourable inferences might be drawn from this evidence.  In other words, the Tribunal wrongly treated this material as being irrelevant to the objective aspects of the appellant’s case.  Similarly, it was urged, the trial judge erred in treating this material as relevant only to the parents’ subjective state of mind and not going to the objective fact of whether there was a real chance that the appellant’s family would be persecuted in Libya for a Convention reason.

24                  In similar vein it was urged that the evidence relating to the appellant’s mother’s psychological condition “manifested the reality of persecution” and was therefore available to prove that she had suffered past persecution in Libya and had a well-founded fear of future persecution.

25                  Counsel for the appellant conceded at the hearing that, in the light of the earlier Tribunal’s rejection of the parents’ claim for a protection visa, the Tribunal dealing with the appellant’s claim would have been bound to reject his application if no additional evidence had been forthcoming in support of the proposition that his parents had a well-founded fear of persecution in Libya on the ground of their political opinion.  This additional evidence, counsel urged, was to be found in the material relating to the airport incident and the appellant’s mother’s psychological condition.  It was incumbent upon the Tribunal to discuss these pieces of evidence, and the inferences which might be drawn from them, during the course of its decision.  Its failure to do so, it was submitted, must mean that the Tribunal did not consider that this material was capable of supporting the objective aspects of the appellant’s case, this being an error of law under s 476(1)(e).

DISCUSSION OF ISSUES

26                  Section 430(1) of the Act provides as follows:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)                sets out the decision of the Tribunal on the review; and

(b)                sets out the reasons for the decision; and

(c)                sets out the findings on any material questions of fact; and

(d)                refers to the evidence or any other material on which the findings of fact were based.”

27                  It is now well established that a contravention of s 430(1) constitutes a failure to observe procedures required under the Act so as to constitute a ground of review under s 476(1)(a).  See Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469.

28                  In order for us to find that the Tribunal’s decision in this case did not comply with s 430(1) we would need to be satisfied of each of the following propositions:

·        First, that either the airport incident or the evidence relating to the appellant’s mother’s health was capable of supporting the objective aspects of the appellant’s claim.  In other words, this evidence must be capable of establishing that there was a real chance that the appellant’s parents would be persecuted in Libya for reason of their political opinion. 

·        Second, that the Tribunal was obliged under s 430(1) to set out its findings in relation to these pieces of evidence.

29                  As to the first of these propositions, counsel for the appellant submitted that the airport incident was evidence not only of the fact that the appellant’s parents subjectively feared returning to Libya, but also that their fears were well-founded and that they related to a Convention reason.

30                  We cannot agree with this submission.

31                  It is trite to say that circumstances can vary greatly, and we are not prepared to say that incidents such as occurred at the airport on 1 December 1999 can never be relevant to something other than the participants’ subjective state of mind.  There might well be circumstances in which such incidents can be called in aid of other aspects of a person’s claim.  But we do not consider that to be the case here.  The appellant’s father, as the Tribunal accepted, had had some slight contact with the NFSL. However in general the Tribunal considered that most of the father’s claims were not credible.  It rejected his assertion that he had a political profile in Libya or was a wanted person in that country.  In this context, the fact that the appellant’s father resisted attempts to have the family returned to Libya is incapable, in our view, of bolstering either his general credibility or the veracity of his claims as to his political background.

32                  Similar comments can be made about the evidence relating to the mother’s mental health.  The first condition diagnosed in Dr Soliman’s report, namely post-traumatic stress disorder, would suggest that Mrs Bushaiba had been subjected to trauma and stress.  However it is an impermissible leap to extrapolate from this that the trauma related to persecution suffered by herself or family members.  In so far as Dr Soliman’s report contained a history of the factual background which was said to give rise to Mrs Bushaiba’s symptoms (and it did so only in very general terms) it is difficult to see how this could be used to advance the appellant’s case before the Tribunal, given that Mrs Bushaiba did not herself give evidence before the Tribunal and that the history taken by the doctor almost certainly came from a third person (see par [22] above).

33                  It follows in our view that the trial judge was correct in concluding that these pieces of evidence were relevant only to the parents’ subjective state of mind and not to any objective aspect of their claim.

34                  Even if, contrary to these findings, this material could be somehow treated as relevant to the objective aspects of the parents’ claim, this would still not avail the appellant here.  The most that could be said in that event would be that the Tribunal was entitled to use this evidence in that manner.  It was certainly not bound to do so.  And if it decided not to do so there was no obligation on the Tribunal to refer to this material in its decision.  Counsel for the appellant has submitted that the Tribunal’s failure to discuss this evidence in its “Findings and Reasons” must mean that the Tribunal did not consider whether these inferences could be drawn from the evidence.  This, he says, is an error of law.  But this is not correct.  Even if, contrary to our expressed views, favourable inferences were available to be drawn from this material, it cannot be assumed that the Tribunal’s silence on this issue meant that the Tribunal mistakenly assumed the evidence was irrelevant.  Its silence is equally consistent with the proposition that the Tribunal considered the material but declined, as a matter of fact, to draw any favourable inferences from it.  It was not obliged to lay bare every aspect of its fact finding process.  Indeed it is now established that s 430 does not require the Tribunal to give reasons for rejecting evidence which is inconsistent with its factual findings.  As the majority of the Court said in Singh (par 46):

“There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach.  There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached.”

35                  It follows that the trial judge was correct in affirming the Tribunal’s decision.  The Tribunal’s decision did not contravene s 430(1), nor has any error of law been demonstrated.

CAN A CHILD APPLY FOR A VISA?

36                  Before concluding however, we should discuss two related aspects of these proceedings that warrant comment although they do not concern issues directly raised in the appeal.  The first is whether the legislative regime created by the Act enables a child of three months to apply for a visa, and, in particular, a protection visa.  Section 45 provides that a non-citizen who wants a visa must apply for it.  “Non-citizen” is defined to mean a person who is not an Australian citizen.  Thus, in terms, any person (whether a child or not) can apply for a visa. Section 46 specifies what is a valid visa application.  That section does not, in terms, preclude the making of an application by an infant.  Similarly Division 2.2 of the Migration Regulations does not, in terms, limit who may make an application though reg 2.07 provides that the form is to be completed by the applicant. 

37                  Regulations 2.08 and 2.08A deal, expressly, with the circumstances of children.  Regulation 2.08A enables, but does not appear to require, an applicant to add to an application for a visa of the specified type as additional applicants, dependent children and a spouse. Regulation 2.08 deals with the circumstances of a newborn child who is born to an applicant for a visa between the time the application is made and the time it is decided.  That is, before the application is decided.  Such a child is taken to be combined with the parent’s application and the regulation does not appear to require that any steps be taken by the parent applicant for this to occur.  However, it may be that the expression "before the application is decided" is to be treated as a reference to the time the delegate of the Minister decides the application: see the discussion by Weinberg J in Peniche v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 485 concerning reg 2.08A and especially par 38.  However Weinberg J. did observe:

I note that an argument can be put that reg 2.08 which deals with applications by newborn children, operates in a different manner, and may be invoked even after the Minister has rendered the primary decision.  The language of reg 2.08 is, however, significantly different from that of reg 2.08A.  No reference is made in reg 2.08 to the Minister receiving any request in writing prior to "the decision" being made.  In any event, I am not persuaded that reg 2.08A should necessarily be construed in exactly the same manner as reg 2.08 in this regard. 

38                  Whether a child or infant can invoke a right, pursue a remedy or seek a benefit conferred or provided by a statue (and whether they can do so in their own name) is ultimately a matter of statutory construction: see Haines v Leves (1987) 8 NSWLR 443.  We note that in certain circumstances the Minister is the guardian of a child who is a non-citizen: see s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) and see also X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524.

39                  The Act and regulations do not appear to provide a cohesive and comprehensive scheme which makes clear the position of children, and an infant in particular, to apply for a protection visa in their own right or be added to an application of a parent and the position of the child at the various stages of administrative decision making and review.  Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820 illustrates the problems that may arise in relation to the position of children.  It is possible that a relevant provision has been overlooked by us given that these comments are made about a matter that was not in issue in this appeal and was not the subject of detailed submissions.  However if a relevant provision has not been overlooked then it may be desirable for the statutory scheme to be reviewed and the position clarified.

CAN A CHILD BE A REFUGEE?

40                  The second matter concerns whether a child of three months can be a refugee.  A broadly similar situation arose in Chen Shi Hai (an infant) by his next friend Chen Ren Bing v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, French J, 5 June 1998, unreported).  In that matter a child born on 11 July 1996 had made an application (lodged by his father) on 20 February 1997 for a protection visa.  French J said:

“I should add that a contention was advanced for the respondent that the applicant would not qualify for refugee status because being a young child it lacked the awareness to have a well founded fear of persecution.  In my opinion that very literal construction of the words of the Convention should be rejected.  Although a well founded fear in a subjective sense is necessary, it can, in the case of a child, in my opinion, be derived from the fear held for the child by his or her parents.  To conclude otherwise is to exclude from the protection of the Convention those who might in some cases be most in need of its protection including young children and the intellectually disabled.”

41                  On appeal, the members of the Full Court were divided on this question.  O’Loughlin and Carr JJ said:

“There remains one further matter which, in our opinion, proffers some support for the view that we have taken.  The appellant is a child who, because of his tender years, would have no knowledge of, or comprehension of ‘the one child policy’.  This did not stop the learned judge in the Court below from holding that such a person could have the necessary subjective fear by virtue of the subjective fear of one or other of his parents.  This is a very obvious attitude to adopt; to limit oneself to the fears of the individual child would otherwise deny children of tenders years the benefits of the Convention: see the remarks of Guy S Goodwin-Gill in his work ‘The Refugee in International Law’ 2^nd Ed p 357:

            ‘If the head of the family is recognised as a refugee then, all things being equal, the dependants are normally granted refugee status according to the principle of family unity:  UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1978) paras 181.8, 184’

However, in this particular case, both parents sought, but were refused, refugee status.  Hence, it must follow as a matter of logic, that if the parents cannot claim refugee status, then their child (who, in this particular case, is dependent upon their fears for his status) cannot succeed in a claim for refugee status.”

However Nicholson J, who dissented on this and other issues, said on this question:

“French J held that in the case of a child a well-founded fear could be derived from the fear held for the child by his or her parents.  The appellant does not challenge that conclusion.  That approach is consistent with par 185 of the UNHCR Handbook on Procedures, Ch V1.  See Goodwin-Gill, The Refugee and International Law (Clarendon 2^nd ed 1996) at 356-358.”

42                  The matter was ultimately heard by the High Court: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJ 775.  It is apparent that there was then no issue about the question of the child holding a subjective fear.  In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ , their Honours said:

“No point has been taken that, by reason of his age and circumstances, the appellant, himself, lacks the fear necessary to bring him within the Convention definition of ‘refugee’.  Rather, it is accepted that his parents’ fears on his behalf are sufficient.

43                  Nonetheless this question was addressed by Kirby J at pp 789 and 790.  His Honour made it plain that, in his view, a child such as the applicant in that matter could be a refugee.  His Honour does not expressly address the question of how one goes about dealing with the subjective element of the "well-founded fear of persecution" though observations in par 77 suggest that the subjective fear of the parents is to be imputed to the child.  This was a question that appears to have troubled the primary judge in the matter we are presently dealing with in this appeal.  It probably has to be treated as an open question that may have to be determined on some future occasion.  However, it must be acknowledged that in Chen Shi Hai v Minister for Immigration and Multicultural Affairs the High Court set aside the orders of the Full Court of this Court and, in lieu, ordered that the appeal to the Full Court be dismissed.  These orders reinstated the order of French J remitting the matter to the Tribunal to be dealt with on the basis that the applicant was entitled to refugee status.

CONCLUSION

44                  For the reasons given earlier we dismiss the appeal. The appellant is to pay the respondent’s costs.

Associate:

Dated:              29 March 2001