ESK19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 704

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ESK19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 704   

File number(s):

SYG 3110 of 2019

Judgment of:

JUDGE ZIPSER

Date of judgment:

16 May 2025

Catchwords:

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in not accepting country information on which applicant relied or erred in preferring and relying on other country information – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 65, 422B, 424A, 477

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543

Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M61/2010E v Commonwealthof Australia [2010] HCA 41; 243 CLR 319

Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of hearing:

2 May 2025

Place:

Parramatta

Applicant:

Applicant in person

Counsel for the Respondents:

Mr T Reilly

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 3110 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ESK19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	16 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to make an application under s 476 is granted, and time for making the application is extended to 15 November 2019.

3.The application is dismissed.

4.The applicant pay the first respondent’s costs in the sum of $5,400.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 15 November 2019, the applicant lodged an application to extend time, pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 October 2019. The application was lodged one day after expiry of the 35-day limit in s 477(1) of the Act. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a protection (class XA, subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, I extend time to make the application, but dismiss the application.

   FACTUAL BACKGROUND

3. The applicant, a citizen of Ghana, first arrived in Australia in March 2012 on a Temporary Work (Skilled) (subclass 457) visa. In March 2013, he returned to Ghana for a few weeks, and then returned to Australia in April 2013 on the same visa.

4. On 22 June 2015, the applicant’s visa was cancelled.

5. On 27 January 2016, the applicant applied for a protection visa.

6. On 26 October 2016, a delegate of the first respondent refused to grant the visa.

7. On 18 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision.

8. On 22 August 2019, the Tribunal invited the applicant to attend a hearing on 1 October 2019.

9. On 1 October 2019, the applicant attended a hearing to give evidence and present arguments. The applicant had a representative, but the representative did not attend the hearing.

10. On 10 October 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

    TRIBUNAL’S DECISION

11. The applicant’s principal claim was that his relatives in Ghana asked him to become the next chief of his village, he rejected the offer and, because he rejected the offer, he will be killed or harmed if he returns to Ghana.

12. The Tribunal at [7]-[38] summarised the applicant’s evidence provided to the Department and to the Tribunal.

13. The Tribunal at [50] found that it was “not satisfied that the applicant was asked to be chief of his village or that he suffered any adverse consequences from refusing to do so”. The Tribunal at [51]-[65] provided reasons in support of this finding.

14. The Tribunal at [72] found that it was “not satisfied that there is a real chance of persecution if the applicant returned to Ghana”. The Tribunal at [73]-[79] provided reasons in support of this finding. It followed that the applicant did not meet the refugee criterion for a protection visa.

15. The Tribunal at [81]-[85] found that the applicant did not meet the complementary protection criterion for a protection visa.

    PROCEDURAL HISTORY

    Judicial review application and steps up to hearing on 2 May 2025

16. On 15 November 2019, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. Since the application was lodged one day outside the 35-day limit in s 477(1) of the Act, the applicant required an extension of time.

17. On 7 May 2020, the applicant filed an amended application (Amended Application). The Amended Application, which was prepared by the applicant’s solicitor on the record at the time, contains three grounds of review as follows (reproduced as written):

    Ground 1 – Unreasonableness

    10.The AAT’s conclusion that [the applicant] is not a person in respect of whom Australia has protection obligation under section s36(2)(a) because he does not meet the refugee criterion under s36(2)(a) or complementary criterion under s 36(2)(aa) was unreasonable

    Particulars

    (a)The AAT ignore key evidence supporting [the applicant’s] case and distort other evidence by omission in order to achieve an outcome whereby [the applicant’s] protection visa application was rejected by failing to lawfully consider and ignore relevant parts of the RRT Research Responses provided to it and which are relevant to establish that there is a real chance of harm if the Applicant returns to Ghana and that:

    (i)        At paragraphs 74 and 75 of its decision, the AAT states

    “74. Secondly, the country sources indicate that persons are not forcibly enstooled as set out in the country sources referred to earlier in this decision.

    “75.Thirdly, a number of sources, referred to earlier in this decision, suggest that persons who refuse to take up the role of chief when requested to do are not subjected to violence or other forms of persecution. At most, there may be some ostracism, which would not reach the level of serious harm required by the Act.

    There is no references in the sources cited of curses which result from taking up the chieftaincy.

    However, such statement in paragraph 74 and 75 ignored the earlier report a major and parliamentary candidate was abducted in order to force him to occupy a chieftancy of the Teshie Traditional Area and a broadcaster dying in mysterious circumstances in a bid to install him on a stool.

    The above also ignored that the State is “unlikely to extend its protection to matters pertaining to traditional religious issues in families, communities, and/or villages (see page 83 and 84 of the Bundle of Record)

    ii)To lawfully consider the information that there is a real chance of harm that the Applicant, being a chiefly candidate, would like the Major would be abducted in order to force him to occupy chiefly position; and

    iii)To lawfully consider the information that suitable chiefly candidate like the Applicant, can be subjected to curse and be likely to die under mysterious circumstances in a bid to install him on a stool as in the case of a former Broadcaster

    iv)To lawfully consider that the Applicant would be required to offer sheep as sacrifice to appease annoyed ancestors if he refused to accept the chiefly title position thereby violating his Christian belief not to be involved in pagan rituals.

    v)To consider that by refusing to offer sheep sacrifices as a means to pacify annoyed ancestors would result in a curse that could lead to his death.

    vi)To consider that such curse is a form of punishment and that fear of death from such curse is real

    Ground 2

    11.Further, the AAT’s decision is unreasonable because it leads to an outcome which is not evident or transparent by reason of having regard to the source or information selectively and not to all of those comments – the particulars of which are outlined in paragraph 10 above.

    Ground 3

    12.The AAT’s decision is unreasonable because it failed to accord procedural fairness to the Applicant.

    Particulars

    i)Failure to ask or provide him with a Ghanian – Twi-speaking interpreter to assist him in the Tribunal proceedings particularly when he was provided with one in an interview with the Department of Immigration on 20 October 2016 (See page 12 of the Bundle)

    ii)Failure to ensure that the Applicant understood that the source or information from academic articles referred to and read out in the hearing is relevant and would be relied by AAT to affirm the decision of the Department in refusing the Applicant protection visa.

    iiI)Failure to ensure that the Applicant understood that the consequence of relying on the information would result in the affirming the department decision in refusing the Applicant protection visa

    iv)Failure to advise the Applicant that AAT could adjourn the proceedings to allow the Applicant time to comment on those information referred to and read out in the hearing.     

18. Following a period of inactivity, on 1 November 2024 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve a written submission at least 28 days prior to the hearing.

19. On 11 December 2024, the parties were notified by the registry of the Court that the matter was listed for hearing on 3 February 2025. The hearing date was then adjourned by consent to 2 May 2025.

20. On 17 April 2025, the first respondent filed a written submission. It is stated in paragraph 24 of the submission that, in relation to the applicant’s application to extend time under s 477 of the Act by one day, the first respondent “does not oppose an extension of time”.

21. On 23 April 2025, the applicant’s solicitor, having served on the applicant a notice of intention to withdraw as lawyer on about 10 April 2025, lodged with the Court a notice of withdrawal of lawyer.

22. The applicant did not file a written submission or any further materials prior to the hearing on 2 May 2025.

    Hearing on 2 May 2025 and adjournment application

23. At the hearing on 2 May 2025, the applicant appeared before the Court unrepresented. Tim Reilly of counsel appeared for the first respondent.

24. Prior to the hearing, the applicant did not take up an opportunity, offered to him in an email sent by my chambers on 28 April 2025, for the Court to arrange an interpreter for him. At the hearing, it appeared to me that the applicant understood communications in English and was able to communicate effectively in English. Although not determinative, as stated in the 28 April 2025 email:

    (a)the applicant’s protection visa application lodged in January 2016 recorded that the applicant spoke, read and wrote English (CB 15); and

    (b)documents in the Court Book indicate that the applicant did not require an interpreter when he gave evidence at the hearing before the Tribunal in October 2019 (CB 145).

25. As stated above, in the month before the hearing, the applicant’s former solicitor ceased to act for the applicant in the proceeding (Former Solicitor). Shortly after the hearing on 2 May 2025 commenced, the applicant requested an adjournment to obtain a new lawyer. He stated that he did not understand what is written in some documents associated with the Court proceeding, he has been sick for the last few months, and he has an appointment to see a specialist on 30 May 2025.

26. I explained to the applicant that it is desirable that he gives sworn evidence in support of the adjournment application. The applicant wished to give sworn evidence. The applicant’s evidence in the witness box was to the following effect:

    (a)In about early April 2025, the Former Solicitor told the applicant that the Former Solicitor would cease acting for the applicant because the applicant did not, or could not, pay the Former Solicitor’s fees.

    (b)In the following week, the applicant contacted about three other lawyers to enquire whether they could assist him with the proceeding but they charged too much. The amount each lawyer stated they would charge was too much for the applicant. The applicant did not contact any further lawyers after this.

    (c)Mr Reilly put to the applicant that, if the hearing was adjourned, the applicant would not have money to pay a lawyer. The applicant replied that he hoped to get some money, but he did not identify a source of funds from which he could pay a lawyer.

27. The applicant added in a submission that he would find a pro bono or volunteer lawyer.

28. After the applicant gave evidence and made a short submission, I refused to adjourn the hearing. As I explained to the applicant, the main reason was that there was no utility in an adjournment. Although the applicant stated that he wants to retain a new lawyer, I was not satisfied that, if the hearing was adjourned, there was a real possibility that he could afford to retain a lawyer, or that he could find a pro bono or volunteer lawyer. In addition, I had carefully read the Tribunal’s decision and some other materials in the Court Book prior to the hearing. I did not consider that I required the assistance of a lawyer retained by the applicant to identify any jurisdictional errors in the Tribunal’s decision.

29. After I refused to grant an adjournment, the applicant handed up a letter from a medical practitioner dated 14 February 2025 stating that the applicant had a medical appointment on 30 May 2025 and a document from a medical centre dated 14 February 2025. The documents provide some evidence that the applicant is unwell and has a medical appointment on 30 May 2025. As I explained to the applicant, the two documents did not persuade me to change my ruling refusing to grant an adjournment.

30. I directed the applicant’s attention to the Tribunal’s decision. I explained to the applicant the limited role of the Court in a judicial review proceeding, and the need for the applicant to persuade the Court there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error.

31. I offered the applicant a 15-minute break to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.

32. After the 15-minute break, Mr Reilly tendered a Court Book (CB), filed and served by the first respondent in March 2020, which contained the Tribunal’s decision and documents before the Tribunal.

33. I invited the applicant to make oral submissions. He stated that it was hard for him to understand the Tribunal’s decision.

34. Mr Reilly, in his oral submissions, relied on his written submission filed on 22 April 2025.

    CONSIDERATION

    Application for extension of time

35. Since the application lodged on 15 November 2019 was lodged only one day out of time, the applicant provided an explanation for the delay in the application, and the first respondent does not oppose an extension of time, I consider it appropriate to extend time under s 477(2).

    Ground 1 in Amended Application

36. A preliminary observation concerning ground 1 is as follows. The Tribunal at [50] made an upfront finding that it was “not satisfied that the applicant was asked to be chief of his village or that he suffered any adverse consequences from refusing to do so”. The Tribunal at [51]-[65] set out reasons in support of this finding. The applicant does not challenge any findings in these paragraphs. The Tribunal, in addressing whether the applicant faced a real chance of persecution if he returned to Ghana, found at [73] that it was “not satisfied that the applicant has suffered any harm in the past as a result of being unwilling to take up his role as chief”. This finding appears to carry over the finding made at [50]. Again, the applicant does not challenge the finding at [73]. Ground 1 challenges a subsequent finding at [74]-[75] concerning the content of country information. However, in circumstances where the Tribunal did not accept the factual basis for the applicant’s claims (see at [50]), it is unclear how any error in the Tribunal’s consideration of country information at [74]-[75] could be material to the Tribunal’s decision.

37. In any event, for the following reasons, ground 1 does not identify an error in the Tribunal’s decision. Ground 1 refers to an RRT Research Response dated 3 August 2009 (RRT Response) which, as stated by the Tribunal at [59], the applicant provided to the Department. The document appears at CB 55-91. The applicant complains that the Tribunal, in making its findings at [74]-[75], ignored part of the RRT Response. Specifically, it is stated in section 13 of the RRT Response, under the heading “It is likely that the police would not wish to be involved/protect an individual who refused the chieftaincy or refused to perform rituals of traditional religion”: (CB 83-84)

    Expert advice contained in a 2002 IRBC report states that “it is unlikely that state protection would extend to matters pertaining to traditional religious issues in families, communities and/or villages” …

    …

    On 27 January 2006, The Ghanian Chronicle reported that Nii Armah Ashitey, a former mayor and parliamentary candidate was abducted in order to force him to occupy the Chieftaincy of the Teshie Traditional Area. According to the article at the time of reporting Ashitey was in hiding in Ghana. The report also states that a few months earlier a famous broadcaster had “died under mysterious circumstances, after he had been captured and taken through some rituals, in a bid to installing him on a tradition stool, he had declined, raising human concerns”. The report does not state that any police protection or assistance was provided to the individuals targeted in these incidents ...

38. The Tribunal at [74]-[75] stated:

    [74] Secondly, the country sources indicate that persons are not forcibly enstooled as set out in the country sources referred to earlier in this decision.

    [75] Thirdly, a number of sources, referred to earlier in this decision, suggest that persons who refuse to take up the role of chief when requested to do so are not subjected to violence or other forms of persecution. At most, there may be some ostracism, which would not reach the level of serious harm required by the Act. There is also no reference in the sources cited of curses which result from taking up the chieftaincy.

39. The applicant complains that the Tribunal, in making its findings at [74]-[75], ignored the parts of the RRT Response in paragraph 37 above. However:

    (a)The Tribunal at [59] expressly referred to the incidents concerning the abduction of the former mayor and a famous broadcaster dying under mysterious circumstances, and explained why the two incidents were inconsistent with other country information which “suggest that a person may turn down the offer of chieftancy if a person is a Christian and does not want to pour libations on the stool of dead chiefs or perform rituals that are perceived to be non-Christian” and “suggests that a person who refuses to become chief due to religious beliefs will not suffer adverse consequences”. It is clear that the Tribunal considered these parts of the RRT Response. That the Tribunal did not accept the applicant’s position concerning these incidents does not mean the Tribunal ignored them. The “weight that [the Tribunal] gives to [country] information is a matter for the Tribunal itself, as part of its fact-finding function” and “the question of the accuracy of the ‘country information’ is one for the Tribunal”: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

    (b)I do not accept that the Tribunal ignored the sentence in the RRT Response concerning state protection. The applicant has not explained why the Court should infer that the Tribunal ignored this sentence. That the Tribunal did not expressly quote the sentence does not mean the Tribunal ignored it, since “it is plainly not necessary for the Tribunal to refer to every piece of evidence … in its written reasons” (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]) , let alone every sentence in an item of documentary evidence.

1. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.

   Ground 2 in Amended Application

2. The meaning of ground 2 is not entirely clear. The applicant’s complaint appears to be that the Tribunal’s reasoning process at [59]-[63], in which it weighed country information concerning the two incidents in paragraph 37 above on which the applicant relied against other country information, was not “evident or transparent”. I disagree that the Tribunal’s reasoning process was not evident or transparent. The Tribunal at [74] concluded that “the country sources indicate that persons are not forcibly enstooled as set out in the country sources referred to earlier in this decision”. The Tribunal at [75] added that “a number of sources, referred to earlier in this decision, suggest that persons who refuse to take up the role of chief when requested to do so are not subjected to violence or other forms of persecution”. The “country sources referred to earlier” are set out by the Tribunal at [59] – [63]. I consider that the country information set out by the Tribunal at [59]-[63] supported the findings at [74] and [75], and provided “an evident and intelligible justification” (Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [61]) for the Tribunal’s findings at [74]-[75].

3. Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.

   Ground 3 in Amended Application

4. Ground 3 contains particulars numbered (i) to (iv). The following paragraphs address each particular.

5. Particular (i): The applicant complains that the Tribunal “fail[ed] to ask or provide him with a Ghanian -Twi-speaking interpreter”, but the applicant, through his representative, told the Tribunal about two weeks before the hearing that he did not require an interpreter: CB 145. Further, there is no evidence before the Court that the applicant requested an interpreter at the commencement of the hearing or had difficulties communicating with the Tribunal member because there was no interpreter. Particular (i) does not identify a jurisdictional error in the Tribunal’s decision.

6. Particulars (ii) and (iii): The applicant complains that the Tribunal failed to ensure that the applicant understood the relevance of some country information on which the Tribunal relied as a reason for affirming the delegate’s decision. Presumably, this particular refers to the country information summarised by the Tribunal at [59]-[63]. In light of s 424A(3)(a) of the Act, the Tribunal did not have an obligation to put country information to an applicant pursuant to s 424A(1): Plaintiff M61/2010E v Commonwealthof Australia [2010] HCA 41; 243 CLR 319 at [91]. Pursuant to s 422B(1), s 424A is an exhaustive statement of the Tribunal’s obligation to put information to an applicant and invite comment on it: Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173 at [40]. In any event, the Tribunal at [64] stated that it “asked [the applicant] to comment on these sources”, and thereby gave the applicant an opportunity to comment on the country information. Particulars (ii) and (iii) do not identify a jurisdictional error in the Tribunal’s decision.

7. Particular (iv): The applicant complains that the Tribunal failed to advise the applicant that the Tribunal could adjourn the proceeding. Pursuant to s 422B(1), the provisions in Part 7 Div 4 of the Act were “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Even if the common law obligations of procedural fairness applied, procedural fairness did not require the Tribunal to advise the applicant that the Tribunal could adjourn the hearing. Particular (iv) does not identify a jurisdictional error in the Tribunal’s decision.

8. For the above reasons, ground 3 does not identify a jurisdictional error in the Tribunal’s decision.

   Other grounds

9. Since the applicant was unrepresented, as stated in an earlier Federal Court decision cited in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 (Gomez) at [23], “I … scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error”. In Gomez at [23] the Full Court added that “when a mistake clearly appears in the Tribunal’s reasons, justice and fair play requires that it be addressed”. No mistake clearly appears in the Tribunal’s reasons in the present matter.

   COSTS

10. At the conclusion of the hearing, the parties made submissions on costs. Mr Reilly sought an order that the applicant pay the first respondent’s costs in the amount of $5,400, which amount was less than the first respondent’s solicitor/client costs. The applicant did not object to this amount. I consider the amount is reasonable. I will make this order.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       16 May 2025