Kyeremaa, M.A. v Minister of State for Immigration & Ethnic Affairs

[1993] FCA 959

JUDGMENT No. ........ ........ .. ........ .... 959 ,93

IN THE-FEDERAL COURT O F AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 720 of 1993
GENERAL DIVISION	1

BETWEEN:  MARGARET AFAR1 KYEREMAA

Applicant

AND:	MINISTER	O F STATE	FOR
-

IMMIGRATION	AND	ETHNIC
AFFAIRS

Respondent

m:	Davies J.
Date:	6 December 1993
Place:	Sydney

REASONS FOR JUDGMENT

EX TEMPORE

This is an unusual case. The applicant, a young lady, arnved in Australia

as could be obtalned from her arrival in Australia and her malung of the clam. It would

at the end of 1992 apparently on her own and wthout connections in Australia and with a false passport. She claimed refugee status and claimed in substance that her father had been murdered in her home country, Ghana, because of hls political actiwtles, and that

she had feared that she was at risk if she remalned in Ghana and had left Ghana

accordingly.

The apphcant's story, however, lacked confirmahon, save such confirmation

have been open to a decision-maker to accept her version of the events and, if so, clearly

the applicant would have been accepted as a refugee. But none of the decision-makers who considered her case appear to have accepted the applicant's version of events. In a case such as this, where the primary facts are very much at issue, it is difficult for a person challengmg a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to point to a question of law. The limitations of the Court's junsdlction to revlew findings of fact were discussed by Mason CJ m Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 355-360.

I should deal first w th the matter of the father's death, although

Mr Beech-Jones , who appeared for the apphcant, conceded that he could not attack the

finding in that respect for error of law. I deal w~th it because it seems to me to be such

a significant issue. Apart from any ~nference that could be drawn from the apphcant's arrival in Australia in the circumstances I have mentioned, there does not seem to have been any corroborative matenal with respect to the clrcurnstances of the death. There

was before the dec~sion-makers a copy of a death certificate signed by the Registrar of the Births and Deaths Reglstry in Ghana dated 18 October 1992 which certified that the father had died on 17 October 1992. But that death certificate would be entirely consistent with a death from natural causes.

The members of the Refugee Status Revlew Committee who considered

the matter all rejected the applicant's claim.	The representative of the
Attorney-General's Department said, for example:-

"I am not wnnnced wth the applicant's story There are too many

co~nc~dences m the appl~cant's story . . the appl~cant's pol~t~cal profile

IS not senous enough to attract the attentron of the Ghanian

authorities."

The representatwe expressed the vlew that the applicant was not a refugee. The

representatlve of the Department of Foreign Affairs and Trade expressed the same mew.

He expressed views such as:-

"The apphcant's fear of persecution would therefore appear to be

cnntrary to the current polihcal cl~mate prevad~ng m Ghana "

He held that he did not believe that the applicant had established a case for holding an

objectively-based fear of persecution on return to Ghana. The community representatlve

"Had the murder occurrcd, I believe that the applrrant would have a well-founded fear that shc could not he protected in Ghana However.

I f~nd the lack of any evrdence apart from hcr own statemcnts maka it

difficult 10 decide rn her favour "

The final representatne, from the Department of Immigration, Local Government and

Ethnlc Affairs, sa~d inter a11a:-

"She has not presented any ewdcnce of her father's death nor ha\ hrs

death been cunf~rmed tbrough sourw ava~lable to thc Department"

The representatlve referred to a newspaper, The Statesman, and said:-

"It would not be unreasonable to expcct t h ~ s papcr to have reported the

death of her father Thc very exlstcnce of 1h1s paper does not accord wlth the apphcant's contention that news of her father's death was suppressed by the authorities."

The members of the committee therefore dld not accept the substance of the applicant's

claims, hav~ng regard in particular to the lack of any reporting of the death of the father

in the newspapers which were clrculatlng at the tlme and which were reporting on

political affairs in Ghana.

The Delegate of the Mlnlster took a slmilar vlew in relatlon to that, and

In hls reasons for decision, sald that he dld not accept the apphcant's claims about the

circumstances of her father's death. He did not accept that the father was murdered by agents of the Rawlings' government. The Delegate referred to the existence of an Independent free press and sald that, given that incldents of lesser vlolence and

significance were reported, a polltlcal murder would probably have been reported somewhere. The Delegate said that extenslve inquirres by the Department had not yielded any report of the death of a parliamentary candidate. The Delegate further said

that the Rawlings' government had no motrve for murdering a parliamentary candidate, and that both the presidential and parliamentary elections were generally run treely and fairly.

Mr Beech-Jones has, however. placed weight on another aspect of the

apphcant's case, and that is her clalm that she was herself the subject ot attention from

was not made in her appllcation for refugee status in which she said:- the authorities and would be liable to persecution if she returned to Ghana. That claim "1 would be lulled."

The details given in the appllcation of suffering as a result of association with a

membership or assoclation wlth a political party referred to the fact. and I quote:-

"My father was killed - he was runnlng for parllamcnt agalnst Prcsrdsnt
Rawhngs' party."

In answer to the question, "Did the secunty forces ever come to your home or place of

work?" the answer was "No". In answer to the question, "Have you or a member of your close famlly ever been Interrogated or questioned by authontles in your country?" the answer was "No". In answer to the question, "Have you or any of your close family ever

been deta~ned or arrested or tned or imprisoned?", the answer was "No." Her answer

was "Yes" to question 67 wluch asked of torture or mistreatment and 68, which asked of discrimination or mistreatment, but the answers specifically referred back to the answer

gven to question 62, and that was the answer in respect to her father's death.

There was subsequently a statutory declaration by the appllcant whlch set

out in some detail that her father had stood as a candidate, that the appllcant assisted her father m the campalgn collecting donations, distributing leaflets and malung speeches.

She sald that she made about ten speeches in all to audiences of between 200 and 300

people. The applicant described how one evening when she arr~ved home she saw a car

parked in front of the house and noticed it had the NDC (National Democratic Convention) symbol on it. She h ~ d and subsequently saw two men run out of the house,

get Into the car and dnve away. She went lnslde the house and saw her father lylng m

a pool of blood on the floor, and he was dead. The declaration then sald that the appllcant considered it was not safe for her to remaln in Ghana as it was well known in the community that she was assisting her father in hls political activihes and she had

therefore decided to leave Ghana The statutory declaration said:-

"I . . . fear that if 1 return, I would be harassed because of my father's polit~cal profile and because of my suppon for h ~ m I feel that if 1 was

harassed, I would get no protection from the pol~ce "

Subsequently, m oral answers to questions which were put to her by an

officer of the Department of Immigration, h c a l Government and Ethnrc Affairs, the applicant said that she was known through her support of her father, that she had had confrontations with police before and did not expect protection if she returned. She said she had been threatened with treason tnals or charges for speaking against the government. Those matters were emphasised in correspondence from sohc~tors. For

example, on 4 February 1993, Messrs Craddock Murray & Neumann wrote:-

"The speeches she gave supporting her father's views and critlclslng the Government led to threats several times being made against her by the police These threats were that she would be tried for treason She thus obtalned a polit~cal profile in her own right in the e y a of the

authont~cs "

The principal case put by Mr Beech-Jones In this application was that the

decisron-maker did not deal wth the applicant's clalms so far as they related to the

harassment she had received, and that the decision-maker did not for himself consider

whether she had a fear of returning to Ghana or whether she had left Ghana because

of a fear of persecution and that thrs part of the applicant's claims was ignored.

However, it seems to me from a reading of the reasons of the Delegate

that he came to the vlew that he could not accept the substance of the applicant's claims.

In my opinlon it would be inappropnate to read the reasons for dec~slon

as not deallng with the applicant's claims insofar as she personally was concerned for the Delegate set those matters out at some length in his reasons for decis~on. Moreover, the

Delegate referred to the fact that the applicant had claimed that she would not have travelled all the way to Australia where she knew no-one unless she beheved it was unsafe for her to stay in Ghana. On thls point the Delegate said:-

T h e cla~m at paragraph 3.3(5) does not help me decide whethcr MISS Kycremaa 1s a

rcfugec. Lcanng one's home country 1s consistent w t h many motives I therefore

disregard 11 m my dension."

It seems to me that, having taken that wew with respect to the

circumstances of the arrival in Australia and the vlew that he did not accept the applicant's claims wth respect to the circumstances of her father's death, the Delegate m substance rejected the entirety of the applicant's claims. It would of course have been open to the Delegate to decide that her arnval as a single person in Australia without apparently hawng friends or relatives or contacts in this country and havlng done so after the death of her father who had been a candidate in parliamentary elections and at a time when the parliamentary elections were belng held or had been held, were matters which led to a probability that the applicant had left Ghana by reason of fear of political persecution. But whether or not the Delegate did so was a matter for the Delegate. He

was the dec~sion-maker of fact, and the facts were for him.

There is some difficulty with an important paragraph of the Delegate's

reasons which reads:-

"As J d o not accept that the applicant's father was murdered by the

government 1 do not accept that the ai~pbcant faces a real chance ol

persecution because of h ~ s death or her knowledge of it I do not accept

the applicant's clalms in paragraphs 3 1(3), 3.1(5), 3.2(1)-3 2(3) and 3.3(3)-3.3(4) about the conscquenw she fears due to her father's death "

This paragraph does not contaln any clear statement that the Delegate did not accept

that the applicant had a fear of persecution if she returned to Ghana. Mr Beech-Jones emphasised the lack of any clear statement as to that and submitted that either the Delegate adopted the wrong test, or failed to have regard to the lssue as to whether the

apphcant dld have a fear of persecution anslng from her own involvement in political actlvlties m Ghana. However, it seems to me that having regard to the way in whch the clalms were put by the apphcant, the Delegate and the Refugee Status Revlew Committee must necessarily have thought that the matter turned very much on whether

or not the applicant's father was murdered in the circumstances which the applicant

described.

That was the pr~nclpal case whlch the appl~cant made in her application

for refugee status and it was obviously a matter of such importance that havlng been

rejected it is difficult to see that the applicant could have been accepted as a rellable

claimant w~th	respect to the other matters which she clalmed.
Mr Beech-Jones submitted that there was a posltlve findlng by the

Delegate that the applicant had been harassed while in Ghana. The Delegate said:-

"I also acccpt that she may have had some troublc wth the pollcc In the

past. However, shc was never arrested, phys~cally mlstreatcd or detalned by the pollce. The lcvel of attentlon she received from the police was not persecutlon w~thln thc meanlng of the Convent~on There 1s no reason to expect that were she to return to Ghana she would cxperiencc more serlous harassment from the pollcc for her pollt~cal oplnlon than

she exper~enced before shc left I thcrefore do not accept that she faus

persecutlon for her past polltlcal act~vlties."

Mr Beech-Jones submitted that the words "more serlous harassment" must refer to the

harassment described by the applicant when she s a ~ d in her oral answers to questions that

she had been threatened by treason trials or charges for spealung agalnst the government. Mr Beech-Jones subm~tted that if a person was threatened wlth treason tnals or charges for speaking against the government and she was known to be pohtlcally active, that was a sufficient ground to constitute a well-founded fear of persecution.

However, there 1s no express statement by the Delegate that he was

satlsfied that the appllcant personally had been threatened with treason trials or charges, and I do not read hls reasons for decision as so findlng. It seems to me that the Delegate concluded that the applicant may have suffered some interference from police

activity but it was not such as to glve rlse to a well-founded fear of persecution.

Read~ng the Delegate's reasons as a whole, it seems to me that the

Delegate did turn his mind to the circumstances in whlch the applicant left Ghana and

amved in Australia and that, in the end, he was not satlsfied that the clalms made by the applicant were correct. It does not seem to me that the Delegate Ignored those matters. Nor do I thlnk that he Ignored the questlon ot the clalm respecting the treason trial or

charges. In my opmlon, a readlng of the reasons suggests that that was a matter again

which the Delegate d ~ d not accept

The crux of the way in wh~ch the matter was approached by the Delegate

appears to me to be that he was not satlsfied that the father's death had occurred in the way the applicant had descnbed it, and he was not satlsfied that the Rawlings' government would have dealt with elther the father or wlth the appllcant as the appl~cant

claimed, nor was he satisfied that the appllcant left Ghana because she felt unsafe.	The
Delegate was not satisfied that the appllcant fled from persecution.

- l0 -

The Delegate's findings on these matters were matters of fact whlch were

for his dec~sion. It must have been a very difficult case to assess and I can see how other

decision-makers may have come to a different decision, but the facts were for the

dec~sion-maker appointed to find them and, on the facts as found, it appears to me that

the decislon was correct in law. For these reasons the appllcatlon wlll be dlsmlssed wth

costs.

I certify that thls and the 9 preceding pages
are a true copy of the reasons for judgment herein

of the Honourable Mr Justice Davles.

Assoclate: &4&--	6,-
Date: 6 December 1993
Counsel for the applicant:	R. Beech-Jones
Solicitors for the applicant:	Craddock Murray & Neumann
Counsel tor the respondent.	S. Gageler

Solicitor for the respondent:	Australian GovernmentSolicitor
Date of heanng:	6 December 1993
Date of judgment:	6 December 1993