FEDERAL COURT OF AUSTRALIA

SBBK v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 565

MIGRATION – application for review of RRT decision – whether RRT erred in concluding that applicant will not suffer persecution if returned to Iran – whether RRT considered applicant was part of a social group – whether “women in Iran” or “divorced women in Iran” may constitute a social group for Convention reason – whether applicant would be afforded State protection if returned – whether RRT erred in concluding that the applicant’s conversion to Christianity was not genuine – whether privative clause protects error by RRT in not considering whether applicant was part of a social group – breach of an essential precondition by decision-maker

WORDS and PHRASES – “membership of a social group”

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36, 65, 415, 474,

Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 applied

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 cited

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 cited

SBBK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

S17 of 2002

TAMBERLIN J

10 MAY 2002

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.         The application is allowed. 

2.         The decision of the Refuge Review Tribunal is set aside. 

3.         The matter to be remitted to the Refugee Review Tribunal for reconsideration in accordance with these reasons. 

4.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) for review of a decision of the Refugee Review Tribunal (“the RRT”) given on 3 January 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2                     The application for protection visa claims that the applicants, a mother and son, were “refugees” within the meaning of the Convention Relating to the Status of Refugees Done at Geneva on 28 July 1951 as Amended by the Protocol Relating to the Status of Refugees Done at New York on 31 January 1967 (“the Convention”).  Article 1A(2) of the Convention defines a refugee 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 … 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 …” (Emphasis added)

3                     In these reasons I will refer to the position of the mother, who is the applicant in these proceedings, but I also bear in mind the position of the child.  The applicant is an Iranian citizen and on her behalf it is submitted that that there is a real chance that she will be persecuted if returned to Iran for reasons of her membership of a particular social group, namely women or divorced women in Iran, or women in such a grouping who are exposed to violence in circumstances where effective protection from State authorities or other agencies will not be available to her or the child.  She submits that violence to women in Iran is condoned or tolerated by the State or State authorities.  The application for a protection visa was rejected by the RRT having regard to the following findings:

·        the applicant was not a member of any social group within the meaning of the Convention definition;

·        the applicant fabricated parts of her story to advance her claims;

·        the claims of family problems in relation to her treatment by her mother and sisters did not amount to persecution;

·        legal and social restrictions on women in Iran did not amount to persecution;

·        even if her ex-husband harmed her if she returned, this would not constitute persecution for a Convention reason;

·        possible prosecution for the crime of kidnapping of her child when leaving Iran would not amount to persecution for a Convention reason;

·        the child’s alleged conversion to Christianity was not accepted as genuine;

·        the applicant’s claim to have converted to Christianity was opportunistic and not genuine; and

·        evidence by a psychologist in relation to the applicant travelled beyond the range of professional expertise.

background

4                     The applicant was born in 1968 in Teheran.  She is divorced from her husband, whom she married in 1992 and she later came to Australia with their son who was born in September 1994.  Her parents are divorced and her father re-married.  She was educated at university level and completed a Bachelor of Science Degree in 1992 at Teheran University.  She worked as a nurse while she was studying.  She and her husband lived in Teheran during the marriage.  In 1996 she started to work as a nurse for the National Oil Company and left that employment in December 2000.  She travelled to Australia via Singapore, Malaysia and Indonesia, arriving in Australia on 13 April 2001.

5                     She claimed that in her marriage she was often beaten, sometimes two or three times a day, commencing about two months after her marriage.  Her husband became more aggressive about six months before the divorce in July 1999.  She says she was beaten because her husband disagreed with her views on equality of the sexes.  She says she was sometimes beaten in front of her son.  The child was also sometimes beaten.  On many occasions she claims to have been sexually assaulted by her husband and says this was so common in Iran that she could not complain to anyone.  She strongly objected to the situation in which women were placed in Iran where they could be beaten by their husbands and disagreed with aspects of the Koran in relation to a man having more than one wife.  In 1999 she and her husband agreed to divorce and custody of the son was given to the husband.  The husband prevented her from seeing the son.  She was looked down upon by her peers because she was divorced and she referred to numerous incidents in relation to the psychological withdrawal of her son.  Her husband visited her, expressed regret and wanted her back.  She refused and he threatened to kill himself and her and to take the son and to kill the three of them.  He was suicidal and threatened to throw acid in her face.  She later agreed to a temporary re-marriage for a one year period with her husband known as “segheh” which she said was in order to obtain custody of her son.  During this temporary further marriage while her husband was away with his work for a period of three months she decided to leave the country.  She obtained a false passport and had her son’s name placed in it.  She then flew to Singapore with him.  She said that she was informed by her family that her husband had threatened to complain to the authorities and take their son from her.  She feared return to Iran as he may kill her and her son.  She claims the authorities will not protect her and so she cannot go anywhere in Iran.

6                     In relation to the situation of women in Iran she said they were discriminated against.  They only inherit half of what a man would and the testimony of two women is equal to that of a man.  At her work, mistakes were usually blamed on the women.  She gave evidence at the hearing and said that her reason for fearing return to Iran is because she has run away from her husband and that there is a culture in Iran which allows men to be dominant.  She said that she thought her ex-husband would kill her because he has previously told her he will not allow her to remarry anyone and he believes she has destroyed his life and that she has taken his son as well.  She thought there was a one hundred per cent chance of her husband killing her.

Claims of lack of protection

7                     The material before the RRT discloses a number of claims by the applicant that she is unable to obtain protection by reason of being a divorced woman in Iran.  In her initial interview she referred in her reasons for leaving Iran to problems all Iranian single mothers have and to the fact that there is no support for women in Iran in her situation.  She fears her husband will take the son away and that she may face a goal sentence for taking her child illegally. 

8                     In a detailed Statutory Declaration in support of her application for a Protection Visa she said that there were many occasions on which her husband sexually assaulted her and raped her and that this was common among Iranian married women so she did not believe she could complain to anyone about the way her husband treated her.  There was not anyone she could seek help from in relation to the domestic violence she suffered from her husband or the violence anticipated if she returned.  She said that in Iran women are treated this way and such treatment was in accordance with Islamic law and culture.  Women cannot complain because to do so would be against Islamic law.  She said that on one occasion she was very concerned about the condition of her child and she went to the police station on a number of occasions, although she knew that the police were not likely to help.  She stated:

“31.     I am afraid to return to Iran because I spoke to my family when I was in Indonesia and they told me that my husband has threatened to complain to the authorities and take the child from me.  My husband has previously made threats to kill me and my child as well as himself and I am afraid he could still carry out this threat.  As a woman, I am unable to get any protection from my husband in Iran.  I can’t live anywhere else in Iran or get protection anywhere.  I am a single mother and in Iran it is extremely difficult for a woman in my situation to survive on her own.

32.       I am also afraid that if I moved somewhere else in Iran, my husband might still find me and I would not be able to get protection from him.  I also do not want to return to live in Iran and be forced to live in the very restrictive rules for women in Iran, and especially for divorced women.”

9                     Similar claims as to the lack of protection by the authorities are contained in the facts recounted as background to a psychologist for the purposes of a report dated 27 September 2001 which was provided to the RRT.  There was country material claiming that Iranian women have traditionally been deprived of many of their basic human rights and have suffered from male centered ideologies that treat women as irrational, child-like and immature.  Since the establishment of the Islamic Republic in 1979 the situation in relation to the treatment of women is said to have become much worse and the Government has successfully implemented a gross policy of unequal treatment of Iranian women under the law.  The claim as referred to in a United States Department Report of February 2001 is that inside marriage the man is given almost a free hand in controlling his wife and that rape is sanctioned and wife beating may be tolerated in the process.  It states that there is no proper provision in the law to prevent men from transgressing their rights and abusing the extensive power they have. 

10                  In a Department of Foreign Affairs and Trade report of March 1996, it is stated:

“On the domestic violence issue, if the victim can obtain written proof from a government health care centre that she has been beaten, and takes this to the police, she can have a civil action taken against her husband. However, the courts tend to discriminate heavily in favour of men in such cases.” (Emphasis added)

11                  There was also material before the RRT in the form of a US State Department Report on Iran, in respect of the year 2000, that the judiciary are subject to government and religious influence.  That report also records, that in general, the government does not discriminate on the basis of race, disability, language or social status but does discriminate on the basis of religion and sex.

12                  A report from the Research Directorate Immigration and Refugee Board, Ottawa, Canada, dated 29 June 1998, highlights the particular disadvantages of a divorced woman in Iran and points out that if a woman lives on her own it will be assumed that she does not have a male “protector” and therefore there will be intense social disapproval.  Many divorced women have entered into “temporary marriages” solely to be able to live on their own and work outside their home without being subject to social stigma and pressure.  More relevantly, the report indicates that temporary marriage also carries serious social stigma and “temporary” wives do not have the same legal protection as “permanent” wives and that further, entry into a temporary marriage significantly reduces a woman’s chances of entering into a permanent marriage.  There is strong indication in the material of discrimination on the basis of gender.

13                  The above material indicates that in addition to the claims made by the applicant there is substantial independent country information to the effect that women in Iran are subject to violence in respect of which they cannot obtain protection from the State and that there is discrimination against their assertion of rights based on culture, inaction by the authorities and that the Courts are not free from this discrimination.  This information is of course not conclusive, in any sense, but it indicates that there was some factual basis before the RRT to support the applicant’s claims.

The RRt reasons

14                  The RRT found that the applicant and her son were citizens of Iran.  It accepted that the independent material was an accurate reflection of the position of women in Iran but it concluded that having considered the evidence it did not accept that the social differences and inequalities which women in Iran suffered were of sufficient seriousness as to be classed as persecution within the meaning of the Convention.

15                  The RRT did not accept that there was a particular social group as meant by the Convention which would apply to the applicant.  It considered that a relevant social group could not be defined if it requires the harm feared to define it.

16                  The RRT found that the applicant had not been “totally truthful” about aspects of her claims and that she had fabricated parts of her history to enhance her claims. The decision then enumerates a number of matters which were not accepted.  These included the rejection of the claim that she remarried her husband in a temporary marriage and that she did not have legal custody of the applicant son.  The RRT accepted that from what she had said about the history of her husband that he was a violent and cruel person and that others had complained to her of his inability to care for the child. 

17                  There was no finding as to the husband having engaged in the specific conduct as to beatings and violence claimed by the applicant.  The RRT determined that the applicant is a divorced woman and that she obtained legal custody of her son as a result of the husband’s inability to care for him.  It concluded that she wished to take the child out of Iran and her husband had objected and that the independent evidence indicated that the father retained guardianship.  It accepted that she left Iran without the consent of her husband and added the son’s name to the passport illegally.  The RRT found that the applicant claimed to have family problems in the nature of criticism and harassment by her mother and sisters if she returned to Iran but did not consider this of sufficient seriousness to be regarded as persecution.  It was also accepted that there are legal and social restrictions placed on women but noted that she had been educated to university level and obtained a degree.  The RRT found she had been continually employed when her husband was unemployed during times of high unemployment.  It accepted that she had obtained the assistance of police when her husband would not allow her access to her son. It noted that she had been able to divorce her violent husband through the court system and was later able to obtain sole custody of her son.  It considered that the social restrictions and type of problems faced by her did not extend to the level of harm which could be considered as persecution within the meaning of the Convention.  However, although the finding was that her husband was violent, there was no consideration of the degree of violence or the detailed incidence of such violence.

18                  The RRT found that if she returns to Iran her ex-husband “will be angry with her” and may inform the authorities.  It considered that even if the ex-husband were to report her to the authorities or harm her this would not give rise to a Convention ground.  The motivation would be revenge for illegally taking the son.  It noted that independent evidence indicated there were no instances known of an ex-husband harming a former divorced spouse and that assistance could be sought from the police in such circumstances.  However, there is no specific finding on the question of State protection.

19                  On the question as to possible danger arising from prosecution by the authorities the RRT found that she could be charged with kidnapping but concluded that would simply be the prosecution of a crime.  The RRT rejected the claim that the applicant’s son had converted to Christianity and that the claims in this respect were not genuine.  It also rejected the applicant’s claim that she had converted to Christianity and it considered her claim on this aspect somewhat confused.

20                  In relation to a report from a consultant psychologist the RRT found that the report was of no assistance to the applicant because it travelled beyond the expertise of the psychologist and therefore the report was “inappropriate”.

21                  I now turn to the issues raised on the hearing of the application.

membership of a social group

22                  In relation to the question whether the applicant is a member of a particular social group the decision-maker said:

“I also do not accept that there is a particular social group, as meant by the Convention, which would apply to the applicant.  It has been suggested that the particular social group may be women in Iran, or divorced women in Iran, or either of these groups with the added [sic] who are subject to domestic violence.  It is established case law in Australia that a particular social group as meant by the Convention cannot be defined as such if it requires the harm feared to define it.  In the current situation the inclusion of defining terms such as who suffer domestic violence, or who are subject to inappropriate remarks results in a finding that such groups are not particular social groups in the Convention sense.”

23                  The decision-maker then went on to say:

“It is apparent, having considered all of the evidence that the applicant’s problems and fears in Iran are primarily personal and specifically relate to her violent and unhappy marriage.”

24                  The applicant contends that there is a fundamental error of law in this approach.  This is said to be because the RRT did not make any determination as to which social group the applicant belonged among those raised as the appropriate groups.  The reasons reject that any group could exist if described by reference to the added requirement of being subject to domestic violence.  However, no determination is made as to whether “women in Iran” or “divorced women in Iran” in the circumstances constituted an appropriate or particular social group.  On my reading of the above quoted passage the RRT rejects outright the possibility that a social group classified as “women in Iran” or “divorced women in Iran” could constitute a particular social group within the meaning of the Convention.

25                  It is clear from the claims before the RRT, that the applicant’s principal claim was that she had been unable to obtain protection from the authorities or State agencies from physical abuse and rape by her husband.  Furthermore, she claimed she was unable to obtain the protection of the law against anticipated violence from her husband and from her husband’s denial of her rights.  She feared that her son was at serious risk of harm and neglect.  She said that because of cultural influences, including religion, the laws, and the court system discriminated against women in her position to such an extent that she was without State protection.  This can properly be described as a claim of discriminatory inactivity on the part of the State or State authorities.

26                  Similar issues and, in particular, the question whether women in society can constitute a particular social group within the meaning of the Convention, were recently ventilated before the High Court in Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14.  In that case at [32] and [35] Gleeson CJ, when referring to the expression “a particular social group” in the context of circumstances in Pakistan said:

“In my view, it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group.

…

Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.  Neither the conduct of those who perpetrate domestic violence, or of those who withhold the protection of the law from victims of domestic violence, identifies woman as a group.  Women would still constitute a social group if such violence were to disappear entirely.  The alleged persecution does not define the group.”

27                  McHugh and Gummow JJ said at [81] on this question:

“The case put here is that Mrs Khawar was a member of a particular social group in Pakistan.  Again, the Tribunal failed to make the necessary finding.  It failed to determine whether Mrs Khawar was a member of such a group.  It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the members of the household.  Other formulations have been referred to earlier in these reasons and nothing said here is intended to foreclose a finding that a group so defined existed.  This is a matter for the Tribunal on reconsideration of the case.”

28                  Kirby J at [101] and [102] found that the Tribunal had committed an error of law in failing to make findings of fact on the respondent’s allegation that she was unable to secure protection of the law and agencies in Pakistan against the serious harm perpetrated against her and that she was a member of a “particular social group” of, at least, one of the kind propounded before the Tribunal.  His Honour considered that until such factual findings were made it was impossible for the Tribunal to apply accurately to the facts, the Convention definition which the respondent had invoked.  He also considered that the Tribunal had failed to address itself to the essential features of the case which the respondent had presented to establish persecution and to identify herself with a particular social group “in Pakistan”.  Such a failure represented an impermissible attempt, in his Honour’s view, to over-simplify the matter by ignoring essential factual determinations which if decided in particular ways would have brought the respondent within the Convention definition of a refugee. 

29                  In my view these observations by Kirby J in Khawar apply in the present case.  In this case the RRT member, as in Khawar, dismissed, without any consideration, the possibility that the applicant could be a member of a particular social group which may be either women in Iran or divorced women in Iran.  The reasons for decision focus only on the question whether the added references to possible harm could define a social group.  In so doing the decision fails to come to terms with the central issue of group identity.  Until this issue has been addressed and determined it is not possible for the decision-maker to determine whether there is a real chance of persecution as a consequence of being a member of that group.  Furthermore, the RRT decision does not make a determination as to the availability of protection by the State or State agencies against violence or threatened violence to women in Iran.

30                  In my opinion the failure by the RRT to consider and determine the applicant’s claims in relation to membership of a particular social group is a fundamental error of law because it demonstrates that the essential issue for determination by the RRT has not been considered.  It was therefore in my view not possible for the RRT to achieve the state of satisfaction required by s 65 of the Act in refusing the visa application.

persecution

31                  I agree with the submissions made on behalf of the respondent that the problems and general disparagement of the applicant as a divorced woman in Iran by her family and others in society would not amount to persecution.  Nor does the claimed discrimination in employment amount to persecution.  Indeed, in the present case, the applicant appears to have been able to find suitable employment.

32                  However, in Khawar, the persecution in question, as in this case, resulted from the “discriminatory inactivity” of State authorities in not responding to the violence of non-State actors, to use the language of McHugh and Gummow JJ at [87].  Similar observations as to the importance of toleration or consideration of such conduct by the State or agents of the State in determining refugee protection status are made by Gleeson CJ at [31] and Kirby J at [117], [118] and [126].

33                  In the present case the applicant has claimed that she will not be able to obtain protection from the State, State agencies or the courts, from the physical abuse by her husband due to the discriminatory treatment of women under the law, cultural and religious constraints which prevail in Iran.

34                  In relation to the non-availability of protection from State agents, the RRT member noted that there are legal and social restrictions placed on women in Iran, but considered that the applicant had obtained assistance of the police when her husband would not allow her access to the son, that she has been able to divorce her “violent husband” through the court system, and that she was later to obtain sole custody of her son.  This falls short of determining that she could obtain effective protection from the State if threatened with violence by her husband.  No finding is made in relation to whether threats made by her ex-husband were of any substance or as to their likelihood of being carried out if returned.  Nor are any findings made as to the specific violent incidents claimed to have occurred.  The finding in the decision with respect to her fear of violence by her husband (it was accepted he was violent) is made in the context of custody of the child and not in relation to the infliction of harm to the mother.  In the RRT reasons there is a reference to her claims that her ex-husband “will be angry” with her for taking the son out of the country.  However, as in Khawar, if the ex-husband were determined to cause her harm and no protection was available from the State, this could amount to persecution for a Convention reason.  This is an issue which requires a finding to enable the RRT to perform its function.  The RRT considered that even if the ex-husband were to harm her, his motivation would be “revenge” and that therefore the harm was outside the ambit of the Convention definition.  The motivation to inflict harm is not conclusive, as Khawar indicates at [87], because the persecution lies in the discriminatory inactivity of State authorities to the fact of actual or threatened violence and not in the subjective motivation of the non-State actor.

35                  Having regard to the above considerations I consider that the determination of the RRT was contrary to the reasoning in Khawar and that the Tribunal erred in law in relation to the question of persecution by not making necessary findings in relation to the likely conduct of the husband to the wife if she returns to Iran or as to the possibility of her obtaining protection.  It is not sufficient to note that she has obtained the assistance of the police to gain access to the son from a violent husband and that she had divorced him.  This does not take into account the possibility that she may again be severely assaulted by her husband without the protection of the State or State agents if she and the child are returned to Iran.

the psychologist REPORT

36                  I can see no error of law in the way the RRT approached the report of the psychologist.  This report goes well beyond the apparent expertise of the psychologist into realms of complex legal opinion.

conversion to christianity

37                  The RRT finding in relation to this is that the claim that the son had converted to Christianity was not genuine.  This conclusion was on the basis that the claim was only made to enhance the protection claim.  I do not see any reviewable error in this conclusion.  It is a question of fact for the RRT.  The applicant herself claimed that she was considering another religion.  Again, the decision-maker did not accept that the applicant had converted to Christianity.  In fact her claim was she had been considering Christianity, and not that she had actually converted.  However, her evidence on this point was not clear and in my view, there is no reviewable error in relation this finding.  The heading to the discussion of this question in the RRT reasons refers to the circumstances that the applicant was still “looking at” another religion.  This reflects a correct understanding of her claim.  The substance of the rejection is that the conversion was made to enhance her claim.

POSITION OF THE CHILD

38                  I consider that the RRT has addressed the position of the child and that there has been no error of law in relation to its approach on this aspect.

PRIVATIVE PROVISION – OPERATION OF s 474

39                  In my opinion the errors in the present case are not protected by s 474 of the Act.

40                  Section 36 of the Act is concerned with protection visas.  Relevantly, it provides:

“(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

            …”

41                  Section 65 of the Act provides:

“65      Decision to grant or refuse to grant visa

(1)       After considering a valid application for a visa, the Minister:

            (a)        if satisfied that:

(i)         the health criteria for it (if any) have been satisfied; and

(ii)        the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)       the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)       any amount of visa application charge payable in relation to the application has been paid;

            is to grant the visa; or

            (b)        if not so satisfied, is to refuse to grant the visa.” 

42                  Section 474 of the Act provides as follows:

“474  Decisions under Act are final

(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.

(2)       In this section:

            privative clause decision means 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).

…”

43                  I have come to the conclusion that there has been a fundamental error of principle in relation to the applicant’s claim as disclosed in the RRT reasons for decision.  This is the failure to address the central question whether the applicant was a member of a particular social group, namely, whether she was a member of a social group comprised by “women in Iran” or “divorced women in Iran”. Although some descriptions of groups were raised in the material before the RRT no consideration was given to the applicant as a member of either of these groups.  In the absence of such a consideration, the RRT could not decide whether as a member of a social group there was any real chance that if returned to Iran, she would be persecuted for reasons of membership of that group.

44                  In my view, the failure to address these essential questions comes within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 ff.  See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602.  It is clear from these and other authorities that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms.  These principles underpin the enactment of s 474 so that, in my view, the protection afforded by s 474 of the Act does not apply in the present case.

45                  The RRT by s 415, for the purposes of the review exercise carried out by it, can exercise all the powers and duties that are conferred by the Act on the Minister.

46                  One essential precondition, (among others), to the performance by the Minister of the duty under s 65 is to consider the matters set out in s 65(1)(a)(i)-(iv).  If the Minister is not satisfied of the existence of any of these matters then the visa must be refused.  Before a decision can be made under this section, it is necessary that the Minister should consider whether the applicant is a “refugee” as defined by the Convention.  This in turn requires a consideration of whether the applicant is a member of a particular social group who is liable, by reason of that membership, to be persecuted.  Unless this is considered and a determination is made whether an applicant is a member of a relevant particular social group, it is not possible for the Minister to determine the central question of possible persecution by reason of such membership. 

47                  The members of the High Court in Khawar at pars [31], [88] and [101] emphasise that a finding as to membership of the social group was a necessary basic finding because it provided the framework for consideration of the question before the RRT.  The failure to determine this question is fundamental because it is an essential precondition to the operation of s 65 and therefore the protection afforded by s 474 is not available because the question was not addressed.  If such a consideration is not undertaken then the Minister has not acted within the provisions of the Act.  Consideration of the criterion as to whether the applicant is a “refugee” is an essential criterion to the exercise of the power conferred by the Act.  The determination of this question calls for a consideration of which, if any, group the present applicant falls within in order to determine if there is a well-founded fear of persecution.  If no finding is made in relation to the existence or otherwise of a particular social group, then the criterion has not been considered.  It is not a question of correctly deciding the issue, but rather it is a matter of whether it has been considered at all.  It is not sufficient, in my view, simply to show that the Minister has erred in the classification.  But in this case there is a failure to embark on the consideration as required by the Act as required by the Convention definition and this is a failure to address the principal issue for determination by the Minister, with the consequence that the decision is outside the Act.

Conclusion

48                  For the above reasons I am satisfied that in the present case there has been an error of law in that there has been a failure to comply with an essential precondition to the exercise of the power to grant a visa and that therefore the review application should be granted.  The decision of the RRT should be set aside.  The matter should be remitted to the RRT for reconsideration in accordance with these reasons.  The Minister should pay the applicant’s costs.

Associate:

Dated:              10 May 2002