Jaja, Iddrisu Salifu v Minister for Immigration and Multicultural Affairs

[1997] FCA 1234

FEDERAL COURT OF AUSTRALIA

IMMIGRATION  - judicial review of decision of Refugee Review Tribunal - reasonable access to internal refuge in refugee’s own country - reasonableness of access a question of fact.

COSTS - circumstances in which the fudging of issues in the Tribunal’s decision contributed to the appeal and justified the making of no order as to costs.

Migration Act 1958, ss 475(1)(b), 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 applied

IDDRISU SALIFU JAJA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 168 of 1997

Burchett J
Melbourne
13 November 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 168  of   1997

BETWEEN:	IDDRISU SALIFU JAJA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		BURCHETT J
DATE OF ORDER:		13 NOVEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to 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 168 of 1997

BETWEEN:	IDDRISU SALIFU JAJA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BURCHETT J
DATE:	13 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This application seeks a review of a decision of the Refugee Review Tribunal pursuant to s 475(1)(b) and s 476 of the Migration Act 1958.

The applicant comes from Yendi in the north of Ghana, a town which has for some years been at the centre of tribal fighting, ambushes, murders and the destruction of villages.  The conflict has its source in tribal rivalries, and in the migration into the area from the neighbouring state of Togo of a tribe known as the Konkombas.  The Konkombas, according to reports emanating out of Ghana, have committed a number of atrocities against other tribes in the northern region, particularly the Nanumbas and the Dagombas.  The applicant is the son of a sub-chief of the Dagomba tribe.

In February 1994, the applicant’s father was killed in fighting near Yendi.  The applicant held, at that time, a position as revenue collector in a large district around Yendi for the Ghana Water and Sewerage Corporation.  Apparently, the Dagombas decided to force the Konkombas to retreat from the vicinity of Yendi by cutting off their water supply.  It was the applicant who was instructed to shut down the appropriate valves controlling the flow of water to the Konkomba villages.  He claims that he had no choice about obeying the instruction, but the Konkombas threatened him with death for doing so.  After some time, the pipes were physically cut by others, but that did not divert the Konkombas’ anger from the applicant.  However, his job at the Ghana Water and Sewerage Corporation was apparently regarded as important, and he was provided by the Government with constant military protection.  He lived in the Army barracks, and was escorted by soldiers wherever he went.  But that protection came at a price.  The Army was corrupt, and he had to disgorge virtually all his wages to pay for his protection.  He was not able to live with his wife and child, who resided with her family.

After escaping an ambush when required to visit an outlying village, the applicant determined to flee, using money which he and his father had put aside for a planned pilgrimage to Mecca.  He left Ghana on 6 November 1995, arriving in Malaysia ten days later.  He stayed in Malaysia for about eleven months illegally, earning money from employment as a construction worker, and then travelled to Australia, where he made his claim to be a refugee.

The applicant gave his evidence to the Tribunal through a Dagbani interpreter.  His need of assistance in that way does not appear to have been questioned, and his case before the Court was also advanced in the same way.  The Tribunal accepted “the applicant’s general consistency and credibility” in his account of the events which led to his flight. Given the nature of those events, it might have been thought that there would have been no question of the applicant’s “subjective fear of persecution should he be returned [to Ghana]”, death being a severe form of persecution.  However, the Tribunal said merely that it would “assume” this fear.  After a long discussion, the Tribunal concluded “that given the continuing uncertainty in the north, there is a chance that is not remote that he would still be at risk of persecution from the Konkomba if he returned to the north.”

The ground on which the applicant nevertheless failed before the Tribunal was that what is known as “internal flight” was open to him.  In the Tribunal’s view, he could escape the violence in the north by living in Accra, the capital of Ghana, which has been free of tribal conflicts.  The Tribunal did not accept suggestions that he might be pursued there because of the animosity aroused by his part in cutting off the Konkombas’ water supply.  There is no doubt that abundant evidence enabled the Tribunal to regard the conflict as substantially confined to the poorer region in the north of the country, well away from Accra.  What was more questionable was whether the evidence enabled the Tribunal to find that the applicant could reasonably avail himself of the security offered by residence in Accra.  His evidence was that his lack of any resources, poor command of English, and northern tribal background would make it impossible for him to sustain himself by employment there, let alone to support his family there.

The relevant legal principles were examined by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. See also Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 570. In Randhawa (at 442), Black CJ said that “if, in all the circumstances, it would be reasonable to expect someone to return to another part of the country of nationality then that is a matter that can properly found an adverse decision on a claim for refugee status.” His Honour went on to state:

“[N]otwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

Quoting a well known work by Professor Hathaway, Black CJ referred to situations where “financial, logistical, or other barriers prevent the claimant from reaching internal safety”, and “where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable”.  He summarised the position (at 443) as follows:

“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.”

Beaumont J took the same view when he said (at 451):

“[I]f relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”

Thus the question on which the case turned was whether it was a reasonable option for the applicant to take refuge in Accra, or in one of the limited number of similar urban areas of Ghana.  That was a question of fact for the Tribunal.  It was its duty, as Black CJ made clear, to weigh up carefully the “practical realities”.  There are some indications that it did so in a less than wholly satisfactory manner.  It commenced its brief discussion of what might be thought to be obviously very real problems which a man of limited ability, coming from perhaps the most backward region of the country, would be likely to encounter in trying to establish himself in the capital, by saying:

“The applicant is well-educated with 15 years’ education and speaks English as well as Dagbani.”

Of course, one’s conception of “well-educated” will vary with one’s own standpoint, experience, and the circumstances to which the compound adjective is to be applied.  But Ghana was the first black African British dependency to be granted independence, at least ostensibly because of the advances it was thought to have made, so that, without evidence, one would not readily think of its capital as a place where the applicant’s school certificate would enable him to be regarded as “well-educated”.  The uncontradicted evidence was that his fifteen years of education had included repeated years because of his “lots of difficulties”, that he had passed no subjects at advanced level, and that he had not been able to manage to pass in English, the official language, even at “O” level.  His certificate bears this out, showing that he had achieved very limited success at a business secondary school only in mathematics, economics, Islamic religious knowledge and commerce, plus results below university entrance requirements in principles of accounts, general science and additional mathematics.  The certificate is dated June 1988, when the applicant would have been twenty-two years of age, having been born on 6 March 1966.  Plainly, his fifteen years of education had indeed included repeated years.  As for his speaking English, it is true that he indicated some classes were taught in English, and his application form filed with the Department of Immigration states he can speak, read and write English as well as Dagbani.

However, the Tribunal, which held the applicant “could access effective protection” in a place “such as Accra”, made some further findings about his capacity to do so.  It said:

“Although the applicant asserts that he had difficulty learning English and that he speaks very little English, his education was conducted in English as well as Dagbani, with some subjects being taught in English.  He lived and worked in Malaysia for nearly a year and spoke English during that period.  Although he has not worked anywhere other than [in the north] and has no family or other contacts in Accra upon whom he could rely to get work and accommodation, he has a stable employment record with the water corporation and was a school teacher for a year.  He is in his thirties and thus a person of some maturity.”

While I have some misgivings because of the Tribunal’s failure to make any reasonable acknowledgment of the limitations of the applicant’s education, the fact is that he, for his part, had provided little more than generalisations to justify his claim of inability to move to Accra.  It would be difficult not to infer that a large urban centre, such as the capital, would be likely to provide employment opportunities for some Ghanaians of limited education.  If only in the statement of his ability to speak, read and write English in his application to the Department, there was some slight evidence before the Tribunal of the applicant’s ability in this regard.  That being so, unsatisfactory though its treatment of some issues is, there was a basis sufficient in law for the decision the Tribunal reached, upon the evidence, that the applicant could access effective protection.   It was also open to it, as a finding of fact, to conclude that he could do so reasonably.

There was no arguable error of law on any other basis.

Accordingly, the application must be dismissed.  However, the unsatisfactory features of the Tribunal’s decision were such as to tend to produce this appeal, and certainly provoked much of the argument that was put by the applicant, in person and through an interpreter, to the
Court.  The Tribunal should not misstate awkward facts, and if it does, or if it so fudges issues that some reasonably arguable basis for a review application appears, even if that application ultimately fails, the Court may exercise its discretion in respect of costs accordingly.  There will be no order as to costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 13 November 1997   

Applicant:	Appeared in person
Counsel for the Respondent:	Mr C Gunst
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 October 1997
Date of Judgment:	13 November 1997