Mohamed v Minister for Immigration & Multicultural Affairs [2002] FCA 4

FEDERAL COURT OF AUSTRALIA

Mohamed v Minister for Immigration & Multicultural Affairs [2002] FCA 4

MIGRATION – protection visa – review of decision of Refugee Review Tribunal ("Tribunal") – child of applicant not included in application – whether rights of child required to be considered in determining application – whether Convention on the Rights of the Child gives rise to justiciable controversy – legitimate expectations of child of applicant – no reviewable error demonstrated Migration Act 1958 (Cth) ss 36(2), 476(2) Dietrich v The Queen (1992) 177 CLR 292 referred to Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to Victoria v Commonwealth (1996) 187 CLR 416 referred to Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108 referred to Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 followed Minogue v Williams [2000] FCA 125 followed Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197 followed Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453 referred to MAHROUSSA MOHAMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1295 of 2001 STONE J 22 JANUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 2001

BETWEEN: MAHROUSSA MOHAMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 22 JANUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 2001

BETWEEN: MAHROUSSA MOHAMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 22 JANUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant is a citizen of Egypt who arrived in Australia on 30 September 2000 with her two infant children. On 14 November 2000 she lodged an application for protection visas for herself and the two children with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). A delegate of the respondent Minister ("Delegate") refused the application on 20 April 2001 and the Refugee Review Tribunal ("Tribunal") confirmed that decision on 24 July 2001. An application for a review of the Tribunal's decision was made on 10 September 2001. A third child was born in Australia on 18 June 2001. That child is not concerned in this application for an order of review.

Protection visa 2 Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant is a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("Convention"). References to provisions of the Act are to those provisions as they were before the amendments commencing on 1 October 2001. Article 1A(2) of the Convention defines a refugee as a person who has a "well-founded fear of being persecuted" for a reason specified in the Convention.

the applicant's claims 3 The applicant's children made no independent claims and their entitlement to protection visas is entirely dependent on the claims of their mother. The applicant is of the Nubian race from the south of Egypt. She was married in Alexandria, in the north of Egypt, in 1993. She claimed to have been harassed and discriminated against in Alexandria and the north of Egypt because of her Nubian ethnicity and her dark skin. After separating from her husband in 1997 the treatment was more severe because she lacked the protection of any male family member. She claimed to have left Egypt to seek refuge from this discrimination and harassment. 4 The applicant claimed that she could not return to the south of Egypt because the educational and economic circumstances there meant that her children would not have a future and she would also lose the financial support of her husband. She further claimed that she would be harmed if she returned to Alexandria because she is black, a single mother, away from her original home in south Egypt and without relatives to protect her. The applicant claimed she could expect no help from the police. Previously she had complained, but the police offered no help in response to those complaints beyond merely advising her to stay inside her house.

TRIBUNAL'S FINDINGS 5 In making its decision the Tribunal referred to the Department's file, the applicant's protection visa application, information from a departmental interview on 12 April 2001 and oral evidence given to the Tribunal on 17 July 2001. 6 The Tribunal accepted, on the basis of the independent country information and the applicant's evidence, that "she was discriminated against as a person of Nubian ethnicity in Alexandria". The applicant also stated that her husband's family, who disapproved of the marriage, encouraged the hostility she encountered. In reference to this statement the Tribunal noted that the hostility was therefore partly motivated by personal considerations. Nevertheless the Tribunal, while allowing for some exaggeration, accepted that, after her husband left her, the applicant was harassed "in part for reasons of her ethnicity, and also perhaps for reasons of her membership of a particular social group." 7 Despite generally believing the applicant's account the Tribunal dismissed the application for two reasons, namely: (a) the Tribunal was not satisfied that the harassment suffered by the applicant "was sufficiently serious as to amount to persecution in a Convention sense"; and (b) even if the harassment experienced by the applicant was able to constitute persecution in a Convention sense, the Tribunal was not satisfied that there was a real chance the applicant would be persecuted if she returned to Egypt. The Tribunal was satisfied that the applicant could return to the south of Egypt, the region from which the Nubian people come, and that there she would not be harassed "for reasons of her ethnicity or for any other reason." 8 The Tribunal also noted that in Australia the applicant had effected some sort of reunion with her husband and that his application for a protection visa had also been rejected. The Tribunal reasoned that, as a result, the applicant's husband was available to return with her to Egypt and she would thus be provided with male protection. Even if her husband failed to give her some protection, the Tribunal was satisfied that the applicant would not lack protection in the south of Egypt, in her own ethnic community, where her family was resident. For these reasons the Tribunal found that the applicant did not have a well-founded fear of persecution and therefore did not satisfy the criterion set out in s 36(2) of the Act. As a consequence the two children had also not established their entitlement to protection visas.

Application for an order of review 9 The application for an order of review alleges the following grounds (transcribed without correction): (a) The applicants Protection visa was not considered according to a proper interpretation of the law in that the Respondent misconstrued the criteria for such a visa under the Migration Act and Regulations. (b) The Respondent misconstrued the meaning of "well founded fear of persecution" in the 1951 Refugee Convention and the 1967 Protocol. (c) The Respondent erred in failing to determine the refugee status at the time of determination of the Applicants status. (d) The Respondent erred in making that decision which was an improper exercise of power and did not have regard to relevant considerations and took into account irrelevant considerations (e) The Respondent did not take into consideration all of the relevant material in the possession of the Applicant and the Respondent. (f) The procedures required by the Act the Regulations the Convention and the protocol and the Declaration of the Rights of a child were not observed. (g) The decision was not authorised by the Act or the Regulations (h) The decision involved an error of law being a an error involving the correct interpretation of applicable law or an incorrect application of that law to the facts as found by the decisionmaker whether or not the decision appears on the record. (i) There was no evidence to justify the making of the decision. (j) The decision maker erred in making a decision without taking into account the legitimate expectations of [the third child of the applicant] as to his claims for refugee status and the separation from his parents and siblings. 10 The orders sought by the applicant included the following (also transcribed without correction): (a) An order that the application be remitted to the Tribunal to consider grant of refugee protection visas to the applicant and all of her three children. (b) An order that in reconsidering the applicants claim for Protection visa it be done so with natural justice and procedural fairness and have due regard to the three children of the applicant. (c) An order that the Respondent take no action to order the deportation of the Applicant or otherwise require her departure or those of her children departure from Australia. 11 Surprisingly this application, which appears to have been prepared with little if any understanding of the requirements of the Act or the jurisdiction of this Court, was filed by (and presumably prepared by) a solicitor. No particulars are given to support the alleged grounds of review. Some of the orders sought are clearly beyond the power of the Court. For instance the proposed order (a) (see [10] above) makes reference to the grant of a protection visa to all three children of the applicant. The third child, however, was not included in the application considered by the Delegate and the Tribunal and cannot be considered by this Court in reviewing the Tribunal's decision. 12 At the hearing the applicant's solicitor did not press the grounds of review set out in the application, except to submit that the entitlement to protection visas of the applicant and the two children included in the application should not have been decided without consideration of the rights of the third child. This submission is clearly without legal merit. The third child was born in Sydney on 18 June 2001, after the Delegate's decision on 20 April 2001. He was not included in the application and the Tribunal, in a letter dated 17 July 2001 to the applicant's solicitor, confirmed that it had no jurisdiction in relation to him as he was not the subject of a decision by the Delegate. 13 The reliance in the application on the Convention on the Rights of the Child is misconceived. The fact that Australia is a party to an international convention does not per se give rise to any rights or obligations under Australian law. Only such terms as are incorporated into the municipal law of Australia can create rights and obligations in Australia; Dietrich v The Queen (1992) 177 CLR 292 at 304 - 306, per Mason CJ and McHugh J; at 321, per Brennan J; at 348, per Dawson J; at 359 - 360, per Toohey J; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286 - 7 per Mason CJ and Deane J; at 298, per Toohey J; at 304, per Gaudron J; Victoria v Commonwealth (1996) 187 CLR 416 at 480 - 482, per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108 at 113, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; at 128, per Kirby J. For this reason there is considerable authority to the effect that the Convention on the Rights of the Child does not give rise to any justiciable controversy; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [35] - [36]; Minogue v Williams [2000] FCA 125 at [21] - [25]; Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197 at [14]. 14 Paragraph (j) of the grounds of relief set out in the application (see [9] above) refers to the legitimate expectations of the third child of the applicant. As counsel for the respondent, Mr Geoffrey Johnson, pointed out in his written submissions, this factor cannot be taken into account where, as here, the Tribunal has no discretion in determining whether the criteria for the grant of a protection visa have been met; Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453. Moreover, as Mr Johnson also submitted, the concept of legitimate expectation "is relevant only to questions of procedural fairness"; Minogue v Human Rights and Equal Opportunity Commission (above) at [37]. The Act is quite explicit that a breach of the rules of natural justice is not a reviewable error; s 476(2). 15 As no reviewable error of the Tribunal has been demonstrated the application must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 22 January 2002

Solicitor for the Applicant: John Sarroff & Company

Counsel for the Respondent: Mr G T Johnson

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 19 December 2001

Date of Judgment: 22 January 2002