Munkayilar, Hajj Imrana v The Minister for Immigration & 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."