Sunarso v Minister for Immigration & Multicultural Affairs [2000] FCA 57 (7 February 2000)

Last Updated: 9 February 2000

FEDERAL COURT OF AUSTRALIA

Sunarso v Minister for Immigration & Multicultural Affairs [2000] FCA 57

MIGRATION - application for refugee status - review of decision of the Refugee Review Tribunal - whether Court to construe reasons for decision of the Tribunal minutely and finely with an eye keenly attuned to the perception of error - whether material before Tribunal required it to deal with issue of employment discrimination - whether Tribunal under duty to deal with daughter's claims of educational difficulties when daughter did not make specific claims under Convention - whether, by virtue of transitional legislation, regulations apply to application for refugee status.

WORDS AND PHRASES - "provisions of the ... Act" - whether includes delegated legislation made under Act.

Australian Citizenship Act 1948 (Cth), s 10(2)(b)

Migration Act 1958 (Cth), ss 5(1), 36, 475(1)(b), 486

Migration Legislation Amendment Act 1994 (Cth), s 84, Sch 2

Migration Reform Act 1992 (Cth), s 39

Migration Regulations, Sch 2 , cl 866.22

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, applied

A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545, followed

Kahloo v Minister for Immigration and Multicultural Affairs (FCA: Davies J; unreported; 1 December 1997), cited

Kahloo v Minister for Immigration and Multicultural Affairs (FCA: Wilcox, Foster and Lindgren JJ; unreported; 9 November 1998), cited

Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 588, cited

Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 (Branson J; unreported; 25 June 1999), cited

Commissioner for Railways (Queensland) v Peters (1991) 24 NSWLR 407, cited

Willingale v Norris [1909] 1 KB 57, followed

Wicks v Director of Public Prosecutions [1947] AC 362, cited

The Queen v Kirby; Ex Parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, cited Re Seaview Lord Howe Pty Ltd and Civil Aviation Authority (1995) 38 ALD 422, cited

ARIEF SUNARSO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1343 of 1998

KATZ J

7 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1343 of 1998

BETWEEN:	ARIEF SUNARSO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KATZ J
DATE OF ORDER:	7 FEBRUARY 2000
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the proceeding.

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	NG 1343 of 1998

BETWEEN:	ARIEF SUNARSO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KATZ J
DATE:	7 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Section 486 of the Migration Act 1958 (Cth) ("the Act") confers on this Court jurisdiction with respect to "judicially-reviewable decisions". Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal ("the Tribunal"): see par 475(1)(b) of the Act.

2 In this proceeding, review of a decision of the Tribunal is sought.

3 I begin by setting out the background to that decision.

4 Mr Arief Sunarso was born in Jakarta, Indonesia in 1959 with the name Souw Giok Long, which name was changed to Arief Sunarso in 1965. In 1984, Mr Sunarso and his wife, Ms Siu Yen Yong, both of them being persons of Chinese ethnicity and Indonesian citizenship, arrived in Australia from Indonesia. On 23 August 1987, their daughter, Ms Melissa Sunarso, was born (in Australia). On 21 March 1990, their daughter, Ms Michaela Sunarso, was born (also in Australia).

5 On 28 April 1994, after having been in Australia for almost ten years, Mr Sunarso made application for refugee status in Australia to the Minister for Immigration and Ethnic Affairs (as the office was then called; now, "Ethnic" is replaced by "Multicultural") ("the Minister"). As he was permitted to do at the time, Mr Sunarso included in his application his wife and their two daughters.

6 It appears that, shortly after making the application to which I have just referred, Mr Sunarso also applied to the Minister to remain in Australia on two other bases, but that that second application failed, both at the primary level and before the Immigration Review Tribunal. It appears further that the Minister postponed dealing with Mr Sunarso's application for refugee status in Australia until his second application had been finally dealt with administratively, which did not occur until 21 November 1997.

7 On 18 December 1997, a delegate of the Minister ("the delegate") determined Mr Sunarso's application for refugee status in Australia. As a result of changes which had been made to Australian migration legislation shortly after the making by Mr Sunarso of that application, the delegate was obliged to treat Mr Sunarso's application as if it had been an application by him for protection visas for himself, his wife and their two daughters. The delegate's decision on that deemed application was to refuse to grant those visas.

8 Protection visas are dealt with in s 36 of the Act, which provides as follows:

"36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

(The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. Subsequently in these reasons for judgment, I will refer to the Refugees Convention as amended by the Refugees Protocol simply as "the Convention".)

9 A necessary condition of Australia's having protection obligations under the Convention to a non-citizen in Australia within the meaning of subs 36(2) of the Act is that that non-citizen be a "refugee" within the meaning of Art 1A(2) of the Convention. That provision defines a "refugee" to include 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 both outside the country of that person's nationality and unwilling to avail him/herself of the protection of that country.

10 The delegate's decision to refuse to grant protection visas to Mr Sunarso, his wife and their two daughters was based: first, on the delegate's finding that Mr Sunarso did not have a well-founded fear of being persecuted for a Convention reason if he should return to Indonesia; and, secondly, on the delegate's conclusion that Mr Sunarso's wife and their two daughters were not entitled to protection visas because he was not.

11 I should mention now that there was a particular reason, not referred to by the delegate, why, at the date of the delegate's decision, Mr Sunarso's elder daughter was not entitled to (and, at the same time, had no need of) a protection visa. That was because, since 23 August 1997, she had been an Australian citizen, having satisfied the requirements of the Australian Citizenship Act 1948 (Cth), par 10(2)(b).

12 On 9 January 1998, Mr Sunarso, his wife and their two daughters each applied to the Tribunal for review of the delegate's decision.

13 It is not clear why Mr Sunarso's elder daughter made application to the Tribunal, given her status as an Australian citizen, of which status she (or, at least, Mr Sunarso) was then aware. (It is apparent that Mr Sunarso was then aware of her status, because, within days of her becoming an Australian citizen, he had applied on her behalf to the Minister's Department for, and had obtained from it, a certificate of evidence of her Australian citizenship.) However, the Tribunal, also being aware of her status, did not, because of that status, deal with her application to it and I will in almost all respects ignore her existence hereafter in these reasons for judgment.

14 On 12 November 1998, the Tribunal decided the application for review made to it by Mr Sunarso, his wife and their daughter.

15 Having dealt with the background to the Tribunal's decision, I come now to its substance.

16 Like the delegate, the Tribunal found that Mr Sunarso did not have a well-founded fear of being persecuted for a Convention reason if he should return to Indonesia and further concluded that his wife and their daughter were not entitled to protection visas because he was not. It therefore affirmed the delegate's decision.

17 It was the Tribunal's decision affirming the delegate's decision which led to the present proceeding.

18 (Although it does not appear to me to matter, it is not clear precisely by whom the present proceeding has been brought. In its style of cause, the initiating process names the "Applicant" as "Arief Sunarso Anors" [sic]. It then speaks usually of the "Applicant" in the singular, although sometimes it refers instead to the "Applicants". On one occasion, it even refers to the "Applicant children". However, even if Mr Sunarso were to be treated as the sole applicant in the proceeding, I see no reason why he would not have the standing necessary to take every point about the Tribunal's decision sought to be taken before me and, for the sake of convenience, I will treat Mr Sunarso hereafter as the sole applicant in the proceeding. I add that the Minister took no point before me about who had brought the proceeding.)

19 Of much (if not entire) significance to Mr Sunarso's application to the Tribunal were riots which had occurred in Indonesia in May 1998. In that part of its statement of findings and reasons headed "FINDINGS AND REASONS", the Tribunal accepted that those riots had contained "a specifically anti-Chinese element" and then continued,

"The applicant's claims are now based on the discrimination suffered generally by Chinese-Indonesians in Indonesia post May 1998 riots. [The Tribunal had said earlier that, for convenience, it referred to Mr Sunarso as the applicant.] The applicant now fears returning to Indonesia as he fears ... being punished for his Chinese ethnicity in view of the May 1998 riots. He claims the Chinese have become the targets of the Muslim riots which are government orchestrated. Independent evidence cited above states that the rioting and looting were directed at the Chinese and that the security forces were unable to properly protect the Chinese during those riots. I put to the applicant the independent evidence that President Habibie has pledged an independent commission to investigate the riots and pledged to safeguard the lives of the Chinese. The applicant responded to that independent evidence [by saying] that Australia and Indonesia have agreements and there is a coverup by the two countries. Whilst Australia does have agreements with Indonesia the independent evidence cited above is just that, independent and comes from a variety of international sources both written and visual. I accept that the Chinese Indonesians were targeted in the May 1998 riots and shops were burned and looted and there are reports of the rape of Chinese-Indonesian women. There were media reports (cited in the independent evidence above) of Chinese-Indonesians fleeing Jakarta for Singapore and Bali in advance of expected riots in Jakarta on the eve of the Independence Day celebrations but that day was without incident.

... As regards the willingness and ability of the Indonesian State to provide protection, independent evidence cited above indicates a willingness on behalf of President Habibie to protect the Chinese and I have found no independent reports to indicate that recently there has been harassment of the Chinese in Jakarta since the May riots.... Whilst I accept that further small-scale riots have occurred in parts of Java outside the Jakarta region, in Jakarta itself the general position appears to have remained quiet. Furthermore, the applicant has family who continue to reside in Indonesia [specifically, in Jakarta] without apparently any further problems, even though they continue to understandably remain fearful.

As regards repetition in the future, Chinese Indonesians have a fear that their property and physical safety would be threatened if rioting on the scale of the May riots were to re-occur. That possibility cannot be excluded having regard to the current economic situation in Indonesia. Sporadic disturbances involving attacks on Chinese property has re-occurred in certain parts of Indonesia since May, particularly in or near Medan in Sumatra, West Java where Jakarta is situated and East Java. On the other hand, other parts of Indonesia, such as Bali, have remained unaffected by any rioting. The fundamental issue is whether it can be said that should the applicants return to Indonesia they will have `no reasonable expectation that adequate national protection will be forthcoming': Hathaway, The Law of Refugee Status, at p. 124. The evidence of the country information cited above clearly supports the conclusion that the Indonesian government is determined to prevent the re-occurrence of riots such as occurred in May. This conclusion is supported by reports that the Independence Day celebrations held last month in Jakarta were, contrary to fears earlier expressed, unmarred by any incident. In my opinion, despite the distrust expressed by the applicant, the Indonesian State has so far shown that it is committed to protecting the Chinese should this situation occur again.

The Tribunal is not satisfied that the applicant has a well-founded fear of persecution based on his race, religion, nationality, political opinion or membership of a particular social group."

20 In substance, Mr Sunarso submitted before me that four reviewable errors were disclosed by the passage which I have just set out from the Tribunal's statement of findings and reasons.

21 Before, however, dealing with those four alleged reviewable errors, I consider it appropriate to repeat what was said by Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Their Honours there said that two propositions were well-settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours then said (footnote omitted) that those well- settled propositions,

"... recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."

22 In my view, three of the four reviewable errors which Mr Sunarso submitted before me were disclosed by the passage which I have set out above from the Tribunal's statement of findings and reasons amounted to nothing more than an attack on the Tribunal's decision of the type which was concerned with possible looseness in the language or unhappy phrasing of the Tribunal's statement of findings and reasons and which sought that I should engage in minute and fine construction of that statement of findings and reasons with an eye keenly attuned to the perception of error.

23 As to one of the three alleged reviewable errors to which I have referred in the preceding paragraph, the Tribunal having explicitly found that Mr Sunarso did not have a fear which was a well-founded one of being persecuted for a Convention reason if he should return to Indonesia, Mr Sunarso submitted, in effect, that the Tribunal had made two other findings of fact which had contradicted that explicit finding and which had therefore required the Tribunal to conclude that he was a refugee. (I should add that I was never told precisely how the two other findings of fact contradicted that explicit finding; the matter was rather dealt with by an assumption of inevitable contradiction.)

24 However, given the approach to the Tribunal's statement of findings and reasons dictated by the High Court in Wu Shan Liang, I would not strain to construe the language in which the Tribunal expressed itself, in making the two other findings of fact relied on by Mr Sunarso, as having contradicted its explicit finding that he did not have a well-founded fear of being persecuted for a Convention reason. If some other meaning is fairly open to the language in which those two other findings were expressed, I would, consistently with Wu Shan Liang, naturally give to that language that other, non-contradictory, meaning.

25 The two other findings of fact relied on by Mr Sunarso were: first, that members of Mr Sunarso's family who then resided in Indonesia (specifically, in Jakarta) "continue to understandably remain fearful" of anti-Chinese activity; and, secondly, "As regards repetition in the future, Chinese Indonesians have a fear that their property and physical safety would be threatened if rioting on the scale of the May [1998] riots were to re-occur. That possibility cannot be excluded...."

26 As to the first of those findings, I assume that the reasoning process which I am asked to engage in by Mr Sunarso is as follows: the Tribunal was explicitly satisfied that Mr Sunarso's relatives in Jakarta then had a fear of anti-Chinese activity, which fear was understandable; the Tribunal was therefore implicitly satisfied that Mr Sunarso had such a fear as well; and when the Tribunal spoke of a fear of anti-Chinese activity which was understandable, it was intending to convey that there existed on the part of Mr Sunarso a fear of being persecuted for a Convention reason if he should return to Indonesia, which fear was well-founded.

27 However, I reject the last step in the reasoning process which I have just set out. As I have already foreshadowed, I would not strain to conclude that the Tribunal meant to use the notion of understandableness as a synonym for the notion of well-foundedness. To say that a person's fear of something's coming to pass is understandable is usually to say that that fear's existence is capable of being understood by the speaker. Such a statement need not have been intended to convey on the part of the speaker a belief that there exists a real chance that the thing feared by the other person will actually come to pass, nor do I so construe it in the present case.

28 As to the second of those findings, I assume that the reasoning process which I am asked to engage in by Mr Sunarso is as follows: the Tribunal was satisfied that, Chinese Indonesians (including Mr Sunarso) then feared that, if rioting on the scale of the May 1998 riots were to recur, their property and physical safety would be threatened; the possibility of such threats could not be excluded; and when the Tribunal spoke of its inability to exclude the possibility of such threats, it was intending to convey that there existed on the part of Mr Sunarso a fear of being persecuted for a Convention reason if he should return to Indonesia, which fear was well-founded.

29 Again, I reject the process of reasoning. First, it is not at all clear to me that the Tribunal intended to convey by what it said that the possibility which could not be excluded was that of threats to the property and physical safety of Chinese Indonesians; it may well have been intending to convey instead that the possibility which could not be excluded was merely that of a recurrence of rioting on the scale of the May 1998 riots. Secondly, however, even if the Tribunal had been intending to convey by what it said an inability to exclude the possibility of threats to the property and physical safety of Chinese Indonesians, still, I see no necessary reason to construe what it said as having been intended to convey that it was satisfied that there existed a real chance of such threats occurring, nor do I so construe what it said. There may be a possibility of something's occurring which does not amount to a real chance that it will do so.

30 I turn now to another of the three reviewable errors alleged on the part of the Tribunal to which I referred in par 22 above.

31 In the passage from the Tribunal's statement of findings and reasons which I have quoted above, reference was made at one point to the question of "the willingness and ability of the Indonesian State to provide protection" and the Tribunal then expressly accepted that there was "a willingness on the part of President Habibie to protect the Chinese" in Indonesia. It was submitted on behalf of Mr Sunarso, however, that the Tribunal had committed reviewable error by making no finding on the question of the ability, as opposed to the willingness, of the Indonesian government to provide Chinese Indonesians with protection.

32 I accept that the Tribunal did not refer expressly to the existence of an "ability" in the Indonesian government to protect Chinese Indonesians, unlike its express reference to the existence of a "willingness" in the Indonesian government to do so. However, I do not regard it as necessary for the Tribunal to make express reference to the "ability" aspect of the national protection question, before it will be held to have dealt adequately with that question.

33 If more specific authority than Wu Shan Liang is needed for such a common sense proposition, it can be found in A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at 557, [54] (FCA: French, Merkel and Finkelstein JJ). There, in joint reasons for judgment, the Court accepted that an implied dealing by the Tribunal, not only with the "ability" aspect of the national protection question, but also with the "willingness" aspect thereof, was permissible.

34 In the present case, I am satisfied that the Tribunal did deal with the "ability" aspect of the national protection question, although without using that word in terms when doing so. In my view, it appears plainly from the Tribunal's statement of findings and reasons that it was satisfied that the Indonesian government was able to provide national protection to Chinese Indonesians, at least in Jakarta (which was sufficient for the purpose in Mr Sunarso's case), relying for that conclusion on the fact that there was no independent evidence before it of any anti-Chinese incidents in Jakarta since the May 1998 riots. In particular, it was influenced by the absence of any anti-Chinese incidents during the Independence Day celebrations which had taken place in Jakarta just a month before it made its decision.

35 The final reviewable error to which I have referred in par 22 above was said to have arisen from the Tribunal's statement in its statement of findings and reasons that "the fundamental issue" was whether it could be said that, if Mr Sunarso were to return to Indonesia, he would have "`no reasonable expectation that adequate national protection will be forthcoming'" (the latter words being, it will be recalled, a quotation of part of a sentence from Hathaway's textbook on refugee law).

36 It was argued, as I understood it, that, in so stating, the Tribunal had been intending impermissibly to substitute for the "well-founded fear of being persecuted for a Convention reason" test some different test.

37 However, as I understand the Tribunal's approach, it was not intending to substitute a different test for the "well-founded fear of being persecuted for a Convention reason" test. Instead, what it was intending to do, in effect, was to adopt proleptically the approach adopted by the Full Court in A, already mentioned above. In that case, the Court said (at 554, [38]),

"It can be accepted ... that the language of Art 1A[(2)] focuses upon the well-founded fear of persons claiming Convention protection and their ... unwillingness, owing to such fear, to avail themselves of the protection of the country of nationality. In that sense the willingness or ability of the country of nationality to provide protection is not the ultimate question. But it is a question which must be considered in the assessment of refugee status. The availability of protection in the country of ... nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests."

38 As the Full Court acknowledged in the passage which I have just quoted, although the existence of effective national protection is not the ultimate question when determining whether someone is a refugee, it is nevertheless an essential question when determining whether someone is a refugee. I do not understand the Tribunal to have been intending to say anything different in its words which are presently under discussion. My understanding in that respect is reinforced by my examination of the context in which the words quoted from Hathaway's book appear, a context which I see no good reason to assume was unfamiliar to the Tribunal.

39 (I note, incidentally, that in Kahloo v Minister for Immigration and Multicultural Affairs (FCA: Davies J; unreported; 1 December 1997; affirmed: FCA: Wilcox, Foster and Lindgren JJ; unreported; 9 November 1998), Davies J (at p 2) quoted with implied approval the words from Hathaway quoted by the Tribunal in the present case, together with some of the context in which those quoted words had appeared.)

40 Further, even if the Tribunal had been intending to say something different from what was later said by the Full Court in A, something which might be thought to have been erroneous in some respect, I find nothing in the Tribunal's statement of findings and reasons to suggest that it actually proceeded on any basis other than the basis mandated by the passage from A which I have quoted above. Accordingly, any hypothetical error by the Tribunal involved in its use of the words presently under discussion would in any event, it appears to me, have been an immaterial one.

41 I turn now to two further alleged reviewable errors on the Tribunal's part, which alleged reviewable errors are of a different character from those with which I have thus far dealt.

42 It will be recalled that the passage from the Tribunal's statement of findings and reasons which I quoted in par 19 above began by saying, "The applicant's claims are now based on the discrimination suffered generally by Chinese-Indonesians in Indonesia post May 1998 riots". As the first of the two alleged reviewable errors to which I have referred in the preceding paragraph (and the last of the four to which I referred in par 20 above), it was submitted by Mr Sunarso before me that the Tribunal had committed reviewable error by treating the basis of his claims as being so confined. According to him, he had based his claims also on employment discrimination which he would suffer if he should return to Indonesia, which employment discrimination would be independent of the occurrence of the May 1998 riots.

43 However, Mr Sunarso acknowledged in oral submissions before me that he could point to "very minimal evidence that was before the Tribunal" in support of such a basis for his claims and, in truth, the only evidentiary material before the Tribunal to which, in both his written and his oral submissions before me, he drew my attention as being in support of such a basis for his claims could not, in my view, be described fairly as being even of minimal persuasive force on the question. That evidentiary material had been directed specifically to employment difficulties in Indonesia of persons of Chinese, rather than Indonesian, citizenship, a category into which Mr Sunarso himself did not fall.

44 In the circumstances which I have just outlined, I conclude that there was no duty on the Tribunal to deal with any issue regarding employment discrimination independent of the occurrence of the May 1998 riots which Mr Sunarso might suffer if he should return to Indonesia.

45 I come now to the last of the reviewable errors alleged to have been made by the Tribunal. That error was said to have arisen from the Tribunal's treatment, not of the situation of Mr Sunarso himself, but of the situation of his daughter. It was submitted before me that a claim had been made before the Tribunal, with which claim it had impermissibly failed to deal, that the daughter would suffer educational "difficulties" if she were forced to avail herself of Indonesian national protection and that she was therefore a refugee, even if Mr Sunarso was not.

46 As with Mr Sunarso's submission that the Tribunal had committed reviewable error regarding his own claim of employment discrimination, he also conceded before me in oral submissions that there was "very minimal evidence that was before the Tribunal" in support of the claim of educational difficulties on the part of the daughter. In fact, the only evidentiary material before the Tribunal to which I was taken as having related to that claim was the evidence of Mr Sunarso that the daughter was of Chinese ethnicity and that she spoke only the English language, matters which, of themselves, are a very long way indeed from establishing (whether in the daughter herself or in Mr Sunarso on her behalf) a fear which was well-founded of being persecuted for a Convention reason in Indonesia.

47 The Minister's response to the submission of reviewable error by the Tribunal in failing to deal with the claim regarding the daughter was twofold. First, he submitted that the Tribunal had been under no duty in the circumstances to deal with any specific claim under the Convention regarding the daughter; and, secondly and alternatively, he said that, if there was a duty in the Tribunal in principle to deal with specific claims under the Convention regarding the daughter, the claim the subject of the submission before me had been so faintly made before the Tribunal that it had committed no reviewable error by not dealing with that claim.

48 I should immediately say about the alleged reviewable error presently under discussion that my firm prediction is that any conclusion which I reach about it will be of no practical significance whatever. I say that because I have every reason to assume that, no matter what I decide about it, the daughter will, as of 21 March 2000 (her tenth birthday), have been ordinarily resident in Australia since her birth. In that case, she will (like her elder sister before her) become an Australian citizen by birth pursuant to par 10(2)(b) of the Australian Citizenship Act and any question of her entitlement to a protection visa then remaining outstanding (as I am confident it will be one way or another, regardless of how I decide this point) will become moot. However, I am unable to see how my prediction in that respect presently excuses me from dealing with the alleged error and so I do so below.

49 As to the Minister's submission that the Tribunal had been under no obligation to deal with any specific claim made under the Convention regarding the daughter, he relied in that respect on cl 866.211 of Sch 2 to the Migration Regulations (Cth), dealing with the criteria which must be satisfied at the time of application for a protection visa, and on Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 588 (FCA: Beaumont J) and Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 (Branson J; unreported; 25 June 1999), both of those cases having construed cl 866.211. In substance, the submission was that the effect of cl 866.211 is that a person who applies for a protection visa must choose between doing so by making specific claims under the Convention respecting him/herself and doing so by claiming to be a member of the same family unit as another person who has made specific claims under the Convention respecting him/herself and who is him/herself applying for a protection visa. The daughter, it was said, had fallen into the second of the two categories, so that no question arose of the Tribunal's being obliged to deal with any specific claims under the Convention respecting her.

50 Although I do not know the reason for it, it is the fact that Mr Sunarso made no submission in response to the Minister's submission to which I have just referred. That failure cannot be attributed to his being taken by surprise by the submission, since he had been given advance notice of it in the Minister's written submissions. In the circumstances, I consider that it would be open to me to infer that he conceded the correctness of the submission and then to act on that concession: compare Commissioner for Railways (Queensland) v Peters (1991) 24 NSWLR 407 at 445 (Priestley JA).

51 At the same time, however, I am conscious that the Minister's submission did omit at least one essential step in its reasoning, given that cl 866.211 applies in terms to applications for protection visas and that no such application was in fact made in the present case. In those circumstances, I should, it appears to me, give some consideration to the matter before accepting the Minister's submission, in spite of the absence of any contrary submission on the matter from Mr Sunarso.

52 I have already mentioned that Mr Sunarso's application made on 28 April 1994 was for refugee status in Australia and that it was as a result of changes which were made to Australian migration legislation shortly after the making by Mr Sunarso of that application that the delegate was obliged to treat Mr Sunarso's application as if it had been an application by him for protection visas for himself, his wife and their daughter.

53 Those changes to Australian migration legislation had been made by s 39 of the Migration Reform Act 1992 (Cth), in the form which that section took as a result of s 84 of, and Sch 2 to, the Migration Legislation Amendment Act 1994 (Cth). The effect of s 39 in that form on Mr Sunarso's application for refugee status in Australia was that, after 1 September 1994, "the provisions of the Principal Act [that is, the Act] apply as if the application was an application for a protection visa".

54 Given that s 39 made the provisions of the "Act" apply to Mr Sunarso's application as if that application had been an application for a protection visa, a question arises whether cl 866.211, which is not, in terms, a provision of the Act, was made by s 39 to apply to Mr Sunarso's application.

55 In my view it was.

56 A case which throws light on the matter is Willingale v Norris [1909] 1 KB 57. In that case, s 19 of the London Hackney Carriage Act, 1853 (which Act provided that it was to be construed as one Act with the London Hackney Carriage Act, 1850), provided that "For every offence against the provisions of this Act for which no special penalty is hereinbefore appointed, the offender shall be liable to a penalty not exceeding forty shillings" (emphasis added). It was held unanimously by a Divisional Court of the King's Bench Division that an offence against a regulation which had been made under the 1850 Act was an offence against the provisions of the 1853 Act within the meaning of s 19 of the latter Act, given that the latter Act was to construed as one with the former Act. Lord Alverstone CJ said (at 64),

"If it be said that a regulation is not a provision of an Act, I am of opinion that Rex v. Walker (1875) L.R. 10 Q.B. 355 is an authority against that proposition. I should certainly have been prepared to hold apart from authority that, where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done."

Bigham J expressed himself similarly, saying (at 66), "In my opinion, to break the regulations made under the authority of a statute is to break the statute itself".

57 Willingale was afterwards said by Viscount Simons, speaking for a unanimous House of Lords, to be "perfectly correct": see Wicks v Director of Public Prosecutions [1947] AC 362 at 365. His Lordship also said (at the same page) that there was no doubt that when a statute enables the making of regulations, a regulation so made "should be regarded as though it were itself an enactment". Subsequently to Wicks, Willingale was referred to with implied approval by the High Court of Australia: see The Queen v Kirby; Ex Parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 280 (Dixon CJ and McTiernan, Fullagar and Kitto JJ). Even more recently, Willingale was applied by Mathews J, a Judge of this Court, while sitting as President of the Administrative Appeals Tribunal, in Re Seaview Lord Howe Pty Ltd and Civil Aviation Authority (1995) 38 ALD 422 at 425, [22].

58 No good reason appears to me why the Willingale approach should not be applied to s 39 of the Migration Reform Act, with the effect that (relevantly) cl 866.211 applies to Mr Sunarso's application for refugee status in Australia as if it had been an application for protection visas.

59 Applying cl 866.211 to Mr Sunarso's application for refugee status in Australia, it appears to me to be appropriate to treat that application, not as an application made by him alone (as it was, strictly speaking), but as though it were one made by him in which he made specific claims under the Convention regarding himself and, in so far as he had included other members of his family in it, as though it were also applications made by each of those other family members themselves, applying by virtue of their family relationship to him.

60 In the circumstances which I have just outlined, I conclude that there was no duty on the Tribunal to deal with any specific claims under the Convention regarding the daughter, so that I need not deal with the Minister's alternative submission regarding the Tribunal's treatment of the daughter.

61 For the reasons which I have given above, the present application will be dismissed with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated: 7 February 2000

Counsel for the Applicant:	Mr RB Wilson
Solicitor for the Applicant:	Janice Vu & Associates
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 September 1999
Date of Judgment:	7 February 2000