Munkayilar v Minister for Immigration and Multicultural Affairs

[1997] FCA 1333

FEDERAL COURT OF AUSTRALIA

Migration - application for judicial review of a decision refusing to grant a protection visa - whether Tribunal in error with respect to obligations flowing from the Convention on the Rights of the Child where the child was sixteen years of age - construction of cl 866 of the Migration (1994) Regulations.

Migration (1994) Regulations - cl 866

Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 cons.

HAJJ IMRANA MUNKAYILAR V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 119 OF 1997

JUDGE:        BEAUMONT J
PLACE:        MELBOURNE
DATE:          21 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 119  of   1997

BETWEEN:	HAJJ IMRANA MUNKAYILAR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J
DATE OF ORDER:		21 OCTOBER 1997
WHERE MADE:		MELBOURNE

ORDERS:

1. Application dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 119 of 1997

BETWEEN:	HAJJ IMRANA MUNKAYILAR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	21 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

The applicant seeks judicial review under the Migration Act 1958 ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal").  The Tribunal decided that the applicant is not a refugee under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol and consequently, that the applicant is not entitled to the grant of a protection visa. 

The applicant, a citizen of Ghana who was born on 2 February 1980, claims that he will be subject to adverse treatment in his homeland and will be persecuted there, within the meaning of the Refugees Convention and Protocol. 

In support of his claim for protection by this country, the applicant presented the following claims to the Department:

He is an ethnic Dagomban from the village of Zabzugu in northern Ghana.  His father is a farmer with substantial holdings of land and is well known.  His father has four wives and the applicant has 28 siblings and half-siblings.  In February 1994, the applicant was attending Zabzugu Junior High School when people came to the school and told him that his family home had been burnt down and that his family had fled.  They told him that this act had been done by members of the Konkomba tribe.  The applicant says that he climbed into a truck with others and fled to Yendi, about four hours drive away, where he stayed with an uncle.  His uncle was killed in June 1994 and the applicant was cared for by the Dagomba Youth Association in Yendi until his sister-in-law, Abriwa Munkayilar, found him in September 1994.  He and his sister-in-law obtained passports in Accra in October 1994 and left Ghana on 21 November 1994.  While he was in Accra (at the interview he said that he was in Tamale and at the hearing he said that he was in Yendi), the applicant was told that three of his brothers were killed.  The applicant spent over a year in Kuala Lumpur before arriving in Australia, where he has four brothers.  He has had no contact with his close relatives since he fled his village in February 1994 and fears that he may be physically attacked and killed, because he is a Dagomba, if he returns to Ghana.

THE TRIBUNAL'S REASONS
After reviewing the material before it, the Tribunal, constituted by Mr J.A. Glaros, said:

"To summarise, I do not believe that the applicant’s family home was burned down and that his entire family has disappeared following the events of February 1994 and that he and his brothers have been unable to make contact with them.  Nor do I believe that the three brothers named by him were killed in the fighting;  though I do not reject the possibility that some family members may have been killed in the course of the inter-tribal conflict as the casualties in northern Ghana numbered several thousands at the time.  Further, I do not believe that his father’s status was such that there is a real chance that the applicant would be at risk of persecution from the Konkomba if he were to return by virtue of being his father’s son."

The Tribunal went on to say that the question which must be addressed:

“... is whether, if he were to return to his home, there is a real chance of the applicant’s being persecuted now or in the foreseeable future because he is a Dagomba.”

After further analysing the material before it, the Tribunal said:

"However, even if it is accepted that the possibility of an outbreak of violence in the foreseeable future, while very unlikely, is not remote, all the available evidence indicates that in such an event the government is determined, and has provided the means, to quickly stamp it out, and I am satisfied that this is what would happen.  In its most recent cable, DFAT reports that:  ‘large numbers of police and military personnel remain deployed in the northern region in order to be able to respond promptly to any further disturbances...   Under the circumstances, and having regard to my finding that the applicant is not targeted because of his family, I am satisfied that the likelihood of ethnic fighting erupting in the foreseeable future and of the applicant’s being seriously harmed in (what I am satisfied would be) the brief period before the police and troops stamp it out is remote."

The Tribunal then expressed its conclusion thus:

"CONCLUSION

Having regard to all the evidence, separately and cumulatively, I am satisfied there is not a real chance as defined by the High Court in Chan that the applicant would face persecution if he returns to Ghana.  Accordingly, the criterion under s.36(2) of the Act for grant of a protection visa which requires an applicant to be a non-citizen in Australia to whom Australia has protection obligations under the Convention as amended by the Protocol is not satisfied."

THE APPLICANT'S SUBMISSIONS
Counsel for the applicant refined his submissions in his outline of argument by addressing three distinct areas.  First, some factual matters;  secondly, submissions grounded upon the Convention on the Rights of the Child;  and finally, an argument based upon a point of construction said to arise under the Migration (1994) Regulations (“the Regulations”). 

As to the factual matters, counsel noted that the Tribunal based its conclusions on its “findings”.  Those findings were first, that it did not accept the applicant's version of events;  and secondly, even if it be assumed that the applicant's claims should be accepted, there was, nonetheless, no present basis for a well-founded fear, due to the present response of the government in Ghana.  With respect to the first finding, it is submitted, on behalf of the applicant, that whilst this finding may be adequate for the rejection of an application made by an adult, the absence of conclusive findings as to the infant applicant's circumstances on his presumed return to Ghana, means that the decision does not adequately address all the applicant's claims.  It is then further submitted, on behalf of the applicant, that the second finding of the Tribunal also did not adequately address the applicant's status as a child. 

The next submission advanced on behalf of the applicant seeks to rely on the Convention on the Rights of the Child.  It is submitted that at common law, the presence of provisions such as articles 20(1), 22(1) and (2) of the Convention create an expectation that decisions will be made that are not inconsistent with the obligations that those articles impose.  Reliance is placed upon the reasoning in Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 (per Mason CJ and Deane J at 287, per Toohey J at 302, and per Gaudron J at 305).  It is contended that in the present case, the Tribunal proceeded on the basis that the applicant was an adult, and determined his application on the basis of a selective interpretation of inconsistent statements made by his adult relatives. 

Finally, it is submitted that cl 866 of the Regulations should be interpreted to give effect to the Refugees Convention, particularly in the light of s 36(2) of the Act, which specifically adopts that Convention.  Clause 866, dealing with protection visas, stipulates the criteria that need to be satisfied in this connection.  The interpretation section of cl 866 is in these terms:

“866.1 INTERPRETATION

866.111          In this Part:

‘Refugees Convention’ means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

866.112For the purposes of this Part, a person (‘A’) is a member of the same family unit as another person (‘B’) if:

(a)       A is a member of B’s family unit;  or
(b)       B is a member of A’s family unit;  or
(c)       A and B are members of the family unit of a third person.”

Clause 866 distinguishes between criteria to be satisfied at the time of application on the one hand, and criteria to be satisfied at the time of decision, on the other.  Clause 866.21 is as follows:

“866.21          Criteria to be satisfied at time of application

866.211The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a)       makes specific claims under the Refugees Convention;  or

(b)claims to be a member of the same family unit as a person who:

(i)has made specific claims under the Refugees Convention;  and

(ii)       is an applicant for a Protection (Class AZ) visa.”

Clause 866.22 provides as follows:

“866.22          Criteria to be satisfied at time of decision

866.221The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

866.222In the case of an applicant referred to in paragraph 866.211(b):

(a)the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a ‘claimant’);  and

(b)that claimant has been granted a Protection visa.

866.223The applicant has undergone a medical examination carried out by a Commonwealth medical officer.

866.224The applicant:

(a)has undergone a chest X-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia;  or

(b)is under 16 years of age and is not a person in respect of whom a Commonwealth medical officer has requested such an examination.

866.225The applicant satisfies public interest criteria 4001 to 4003.

866.226The Minister is satisfied that the grant of the visa is in the national interest.”

It is submitted that the Tribunal clearly found, as is the fact, that the applicant was and is a minor, but that the Tribunal's findings as to the "disposition" of the applicant's family in Ghana is not clear.  That is to say, it is clear what the Tribunal rejects but not what it accepts.  In particular, it is submitted that the Tribunal does not advert to whether the applicant should be included in the application made by each of his two brothers. 

It is further submitted, in relation to the Tribunal’s two findings previously mentioned, on which it bases its decision, that first, the Tribunal must accept the decisions previously made in respect of the two brothers, and that secondly, in dealing with a minor, the Tribunal must consider the totality of the minor's circumstances on his assumed return to Ghana. That is to say, the argument runs, whilst the Tribunal makes "negative" findings overall, the view of the Tribunal as to the specific question of the applicant's fate on return to his homeland is unknown. 

CONCLUSIONS
I have difficulty in accepting the applicant's first submission dealing with the factual matters mentioned.  It is true that the applicant is an adolescent, but the fact is that the Tribunal did note in its reasons, by way of explaining the background to the application, that the applicant was then 16 years of age.  There is no reason to suppose that the Tribunal did not take this consideration into account when assessing the weight of the evidence. 

In this connection, as I indicated in the course of argument, questions of degree are inevitably involved.  To speak of the applicant as an "infant" is hardly a fair description of a 16 year old.  True it is, that he is still, in the technical sense, a minor and, strictly speaking, he falls within the terms of the Convention on the Rights of the Child but, in my view, it is more accurate to describe the applicant as an adolescent.  That is not to say, of course, that the fact that he is not yet an adult should be ignored.  The point is, as I have said, that there is no indication in the approach taken by the Tribunal that it overlooked the fact that, at the time, the applicant was 16 years of age.  The Tribunal noted the point, and it must be taken from that circumstance, without any indicia to the contrary, that the Tribunal took that factor into account in its approach to the matter generally.

The applicant's second submission suffers, in my opinion, from a similar difficulty.  I simply cannot accept the contention advanced on his behalf that the Tribunal “proceeded on the basis that the applicant was an adult and determined his application on the basis of a selective interpretation of inconsistent statements made by his adult relatives”.

When the Tribunal's reasons are read as a whole, the basis now suggested as the way in which the Tribunal proceeded, does not reveal itself in any sense.  On the contrary, the reasons of the Tribunal indicate that it in fact gave careful consideration to a whole range of material in forming the view that it ultimately reached.  Nothing in its process of reasoning indicates that the Tribunal gave any weight to the supposed circumstance that the applicant was an adult.  It is true that the Tribunal, in forming its conclusion, did rely on the circumstance that there were inconsistencies in the material before it, but there is nothing in that approach which depended upon any view taken as to the relative ages of those involved.

Turning now to the point of construction, in accordance with the manner in which the argument was developed before me, it appears that there are really two distinct submissions.  The first appears to be based upon the meaning of "member of the same family unit" contained in cl 866.112, and in particular par (c) of that clause.  The suggestion is that par (c) is applicable here because, in the illustration given in that paragraph, "A" and "B" should be taken to be the applicant's two brothers who are now resident in Australia and so, the argument runs, are members of the same family unit of a third person, being one of their parents.

I have difficulty accepting the argument since it must be considered in the light of the extended definition of “member of the family unit” contained in cl 1.12 (1) of the Regulations as follows:

“1.12   (1)       Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called ‘the family head’) if the person is:

(a)a spouse of the family head;  or

(b)a dependent child of the family head or of a spouse of the family head;  or

(c)a dependent child of a dependent child of the family head or of a spouse of the family head;  or

(d)a relative of the family head or of a spouse of the family head who:

(i)does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country;  and

(ii)is usually resident in the family head’s household;  and

(ii)is dependent on the family head;  or

(e)a relative of the family head or of a spouse of the family head who:

(i)has never married or is widowed, divorced or separated;  and

(ii)is usually resident in the family head’s household;  and

(iii)is dependent on the family head.”

The difficulty is, as counsel for the respondent pointed out, that neither of the brothers of the applicant is a dependent child within the meaning of this definition.

The second step in the applicant’s argument depends upon a particular implication being read into par (b) of cl 866.211.  In order to explain the argument it should be recalled that, as has been noted, cl 866.21 deals with criteria to be satisfied at the time of application, whereas cl 866.22 addresses the criteria to be satisfied at the time of decision.

When cl 866 is read as a whole, it emerges clearly, in my opinion, that not only are these two criteria cumulative, but that the reference in cl 866.211(b)(ii) to a person who "is" an applicant for a protection visa, should be taken literally.  The contrary argument now sought to be advanced on behalf of the applicant is that a construction should be available, by way of the implication, as an alternative, of the expression "(or was)" into cl 866.211(b).

The reason for the need for the applicant to advance this argument is that each of his brothers no longer qualifies as a person who "is" an applicant for a protection visa.  They were applicants and were granted visas.  In my opinion, there is no basis for the making of the implication suggested.  On the contrary, the need for the present tense in the description of the applicant in cl 866.211(b)(ii) is manifest. 

As I have said, the criteria in cll 866.21 and 866.22 are cumulative.  When cl 866 is read as a whole, it envisages the undertaking of a two stage process.  First, the making of the application, and, secondly, the making of a decision.  At the first stage, where a member of the same family unit is an applicant for a protection visa, the assumption must be that the application is not being dealt with at that point.  It could not be a possible construction of this provision that its criteria could be satisfied if a person had been an applicant for such a visa as a member of the family unit, and had been refused that application.

It is equally clear, in my view, upon a reading of cl 866 as a whole, that its provisions may be satisfied in two alternative ways.  Either the applicant makes a specific claim, in effect as a “free-standing” claim under cl 866.211(a) or, pursuant to cl 866.22, the applicant proceeds in a derivative fashion, as it were, by claiming to be a member of the same family unit as a person who is making a specific claim under the Refugees Convention and who is also an applicant for a protection (class AZ) visa.

In the second kind of case, the derivative claim may succeed, provided that the member of the family unit has applied for a protection visa (see cl 866.211(b)) and, subsequently, that visa has been granted (see cl 866.222(b)).  In the present case, the applicant elected to make a claim of the former “free-standing” kind, rather than that of the latter “derivative” kind.  It is, therefore, not open to the applicant to suggest that the Tribunal should have treated his application as being one made of the derivative kind.

It is then submitted, on behalf of the applicant, that proceedings before the Tribunal are of an inquisitorial kind and that the Tribunal did mention the circumstance that two of the applicant's brothers had been granted protection visas.  So much may be accepted, but it does not follow, in my view, that the Tribunal erred in its approach.  As I have said, cl 866 envisages two kinds of application, the one free-standing, as it were, the other derivative.  It may be accepted, of course, that alternative applications can be made, but there was no suggestion in the present case of any alternative application in the document lodged with the Department, after the applicant had received advice.  The claim that was made was a specific one which was made under the Refugees Convention.  I was taken to the forms of application lodged and, in my view, it is not possible to interpret the claims there made to be claims to be a member of the same family unit within the meaning of cl 866.211(b) or cl 866.222.

It follows, in my opinion, that there is no substance in the application for judicial review.  The constraints on the jurisdiction of this Court in these matters are well-known and need not be restated here.  I can see no warrant or basis for judicial intervention in this matter.

ORDERS
The application is dismissed, with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            21 October 1997

Counsel for the Applicant:	Mr T Hurley
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 October 1997
Date of Judgment:	21 October 1997