Mensa, M. v The Minister for Immigration, Local Government & Ethnic Affairs

Re: MONICA MENSA
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. VG3 of 1990, VG178 of 1991 and VG459 of 1992
FED No. 160
Number of pages - 38
Administrative Law
(1993) 31 ALD 301 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J(1)

CATCHWORDS

Administrative Law - migration - judicial review - application by applicant for entry permit - applicant claims to have "strong compassionate or humanitarian grounds" - whether decision refusing entry permit discloses reviewable error - whether decision maker omitted relevant considerations from account - whether decision manifestly unreasonable.

Migration Act 1958 (as in force prior to 19 December 1989), ss. 6, 6A.

Administrative Decisions (Judicial Review) Act 1977, s.5, paras. (1)(e) and (2)(b) and (g).

HEARING

SYDNEY, 1 March 1993

#DATE 25:3:1993

ORDER

Matter Nos. VG3 of 1990 and VG178 of 1991

The Court directs that:-

1. Counsel for the applicant on or before 1 April 1993 lodge with the Associate to Sheppard J and serve on the respondent written submissions not exceeding three pages in length stating the orders sought in each of these matters and the reasons why those orders should be made.

2. Counsel for the respondent on or before 8 April 1993 lodge with the Associate to Sheppard J written submissions not exceeding three pages in length setting out the orders which the respondent claims should be made in each of these matters and stating the reasons why those orders should be made.

3. The matters stand over to a date to be notified to the parties by the Associate to Sheppard J.

Matter No. VG459 of 1992

The Court orders that:-

1. The decision of the respondent made on 20 October 1992 to reject the applicant's application for the grant of an entry permit be set aside.

2. The matter be referred to the respondent to be determined by him in accordance with the reasons of this Court.

3. The respondent pay to the applicant her costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SHEPPARD J These are three applications made by the applicant, who was born in Ghana, for the review of decisions made by the respondent Minister. The first of them, VG3 of 1990, is no longer of relevance because it has been overtaken by the later applications. Outstanding, however, is the question of the costs of those proceedings. That is a matter which must now be decided.

Matter VG178 of 1991 was principally concerned with a decision that the applicant did not have the status of refugee within the meaning of the relevant Convention or Protocol. Although that application is unresolved, counsel for the applicant has said that his client is prepared to allow it to depend upon the outcome of the third application VG459 of 1992.
That leaves VG459 of 1992 which was the subject of the substantive argument which took place. In support of her application, the applicant relied upon two affidavits one sworn by the applicant and the other by Stephen Gregory, the applicant's solicitor. Mr. Gregory's affidavit annexed a copy of the submission made to the Minister's delegate on 20 October 1992. The delegate accepted the recommendation on 22 October 1992. The decision, which is the decision which is in question in these proceedings, was that the applicant did not satisfy criteria set out in para. 6A(1)(e) of the Migration Act 1958 as it was prior to 19 December 1989 (see now the Migration Legislation Amendment Act 1989 and other related Acts) when the applicant's application for resident status was made and that, accordingly, the applicant's application for the grant of resident status be refused.
The applicant exhibited to her affidavit a copy of submissions made by her legal adviser which she says were based on her instructions. She said that she fully agreed with the submissions as to the circumstances surrounding her situation in Ghana and her reasons for leaving Ghana. She also exhibited a further affidavit of Mr. Gregory sworn on 16 July 1991 in proceedings VG178 of 1991 but that affidavit was not relied upon at the hearing.
The submission made by the applicant's solicitor which is referred to in the applicant's affidavit refers to the fact that the material in it was solicited from the applicant during a lengthy interview conducted with the assistance of a Ghanaian named Kwadoo who, although not a professional interpreter, was said to be able to assist in ensuring that the applicant understood the questions put to her. There were 10 hours of conferences. The process was a most difficult one because the applicant can neither read nor write in her own language. She was said to be functionally illiterate and had difficulties with many of the concepts being put to her. Subject to those qualifications, the submission was said to be believed to be an account of the applicant's "true history".
The applicant was born in Ghana some 30 years ago but the applicant is not sure of her date of birth. She had obtained a birth certificate, a copy of which was given to both Spanish and Canadian authorities, but she could not vouch for the accuracy of it because it was obtained from a "passport contractor" for the purposes of her obtaining a passport. The submission said that the information relating to the applicant's father appearing on the birth certificate was incorrect and details are given of her parentage.
The applicant believes, so the submission says, that she was born in the Ashanti region of Ghana and had 10 brothers and sisters. The two oldest of these died leaving the applicant as the oldest surviving child. She had no schooling and started work at the age of 10 or 11 years as a housemaid living with various families. She spent seven or eight years doing that kind of work. She then went to live with her parents at Prestia, a mining town where her father was a gold miner and her mother was involved in subsistence farming on company owned land. The applicant assisted her mother in these farming activities. The family left the Prestia area because the applicant's father was suffering from tuberculosis.
The family then moved to another village and became involved in cocoa farming and subsistence farming on land that belonged to her "extended family".
Politically Ghana was under dictatorship. From 1972 to 1977 it was under military control. In June 1979 Flight Lieutenant Rawlings assumed power. For two years between 1979 and 1981 there was civilian rule but at the end of 1981 Flight Lieutenant Rawlings again overthrew the Government.
The political situation is said to be important because the applicant's father was at one stage a member of a farmers' organisation which permitted him to obtain farming implements, tools, chemicals, sprays and the like at Government controlled prices. This was during the period of civilian rule. When the civilian Government was overthrown, the farmers' organisation remained a wing of the Peoples' National Party. It became involved politically. This led to the applicant's father becoming imprisoned and tortured.
Earlier, some time during the mid 1970s, the applicant met a man named Salley at a port city close to Accra. He was then an unemployed school leaver. They had a relationship, she became pregnant and Salley left to take up a position as a seaman. He was away when the son, Stephen, was born. He did not return to Ghana for three years. At the time he was away the applicnt worked as a hairdresser and an orange seller.
In 1983 Nigeria returned about one million Ghanaians to Ghana which was suffering a major problem with a drought. Salley had not returned and the applicant left Stephen, who was then three or four years of age with her aunt in a city known as Tema. She travelled to Germany with a German national. He had given her money to obtain a passport. She had given the money to a passport contractor who had obtained both a birth certificate and a Ghanaian passport. The German, whose name was Windhold, told the applicant that he would provide a job for her in Germany on a farm. He wanted the applicant to become his mistress. He worked as a lift mechanic in Germany and when he left for work each day he locked the applicant in the house.
After three months in Germany, the applicant managed to return to Tema. Three months after her return Windhold sought her out again and asked her to go to Togo which used to be a German colony. He told her that there was a job waiting for her. The submission then says that, "consequently", the applicant travelled on a one way ticket to Hamburg. Nothing further is said about Togo. The applicant left Hamburg via East Berlin and returned to Ghana. She returned to Tema and recommenced work as a hairdresser and fruit seller looking after her son, Stephen.
Two months later Salley returned to Tema and they resumed their relationship. Some time after the second Rawlings coup, the applicant's father was arrested because of his association with the Peoples' National Party. Initially he was taken to gaol, questioned and released. He was re-arrested and remained in gaol for three years. The applicant visited him twice. On the second occasion when she was taking him food she and her sister were beaten. The applicant was grabbed by the ears and her earrings were pulled out, injuring her earlobes. She was told that this was to deter her from coming to visit her father. She understood that she was at some risk "being a Peoples' National Party sympathiser". I am not sure whether this is a reference to her sympathies or to those of her father.
The submission says that because of what had occurred, she feared for her life. Salley suggested that they should leave Ghana.
The applicant is unaware of what became of her sister who visited the prison with her. The sister is said to have disappeared. A brother and other sisters remain living in Ghana.
The submission goes on to say that because of her personal experience, the applicant became worried that the security forces would come and get her. She claimed that she feared for her life. Because her father was in prison and people were being tortured and shot, she felt it was not safe to stay in Ghana. She left with Salley hoping that one day she could return if the military government was not in power.
For a time they were in both Togo and Senegal. They then went to Las Palmas, a Spanish Island off the coast of Africa, where they stayed for about two years. Stephen was left behind in Ghana.
Salley apparently had brothers, one living in Paris and one in Australia. It was suggested that Salley should come to Australia but that the applicant stay behind for a time after which Salley would bring over the applicant and Stephen. There was said to be not enough money for two tickets. The applicant then went to Madrid with Salley where they were for about a month. Salley left for Australia.
Later on the applicant met a Patrick Mensah (Mensah being the name of the third born male child). He spoke to Salley in Australia because the applicant was concerned that she had not been sent for. Eventually Salley and Mensah decided that Mensah would inform the Spanish authorities that his, Mensah's wife, had arrived and the applicant's name was added to an application he had made for refugee status in Spain. Shortly afterwards Mensah disappeared.
She then formed a relationship with a Gambian national who agreed to take her to Canada. He organised a false passport for her and assisted to pay for her ticket. On arrival in Canada she claimed refugee status. The Canadian authorities took the passport and she has not seen it since. The applicant told lies to the Canadian authorities about her past. She lost touch with the Gambian man with whom she had travelled to Canada.
The applicant was given provisional refugee status in Canada. She was supported by the Canadian authorities and given medical benefits. She worked as a process worker in Canada and then made contact with a Spanish couple with whom she had stayed in Spain before going to Canada. In this way Salley must have learnt of her whereabouts. He contacted her and wanted to know why she left Spain because she was meant to wait there until sent for. Salley told her that he still wanted her. He told her to make arrangements to come to Australia.
After a number of letters from him, the applicant decided to come to Australia. She obtained a passport from someone named Manu for which she paid $1,400. The passport was apparently "rented" and was in the name of Manu. She travelled on a Canadian Pacific flight to Sydney and thence on a domestic flight to Melbourne. The submission does not make it clear whether she entered Australia without difficulty but it seems that she must have.
On her arrival in Australia, the applicant found that Salley had married an Australian citizen with a view to obtaining permanent residence. He arranged for his brother to look after the applicant although Salley took over the financial responsibility for her. He continued to see her as husband and wife and they shared blood to symbolise their marriage. Salley arranged accommodation for her. After two months she obtained work at Mistral Fans. She gave the money she earnt to Salley who looked after all the financial arrangements. The relationship between the applicant and Salley continued. He separated from his wife and obtained accommodation near the applicant, but the relationship deteriorated. Eventually the applicant was detained by immigration authorities and she remained in custody at the Immigration Detention Centre from September 1989. She was released consequent upon an interlocutory judgment delivered by Einfeld J on 1 May 1990 in matter VG3 of 1990.
The submission says that the applicant is fearful that if she is returned to Ghana she will suffer oppression at the hands of the authorities. She considers that she has been duped by Salley into coming to Australia and, although she has told lies about her situation, she has been forced to do so because of her fear of returning to Ghana. The submission makes the point that the applicant's fear is a genuine one because she was prepared to remain in detention and fight her case to remain in Australia rather than voluntarily return to Ghana. This is said to be "a powerful factor" in support of the claim made by the applicant that she is "indeed a refugee". It is also submitted that the applicant is uneducated and illiterate and that the Department should see her actions "in the light of her naivety and recognising that she has been duped and used by others to a large extent and subsequently dumped in the unhappy circumstances she now finds."
The submission says that, since coming to Australia the applicant has become involved in the Assembly of God Church in Keilor and has the support of that Church in her application.
The submission concludes by saying that the applicant is clearly a refugee and that there are compassionate and humanitarian grounds why she should be permitted to remain in Australia.
As earlier stated, the legislation which is in question is the Migration Act as it was up to December 1989. That is because her application for resident status was made before that day. There is no issue between the parties about this. The provisions of the Act which apply to the situation are principally contained in s.6A, the relevant parts of which are as follows:-

"6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

........ ........ ........ ........ ........ ........ ....

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

........ ........ ........ ........ ........ ........ ....

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

Paragraph (c) is the provision upon which the applicant relied in the application made by her in matter VG178 of 1991. Paragraph (e) is the provision upon which she relies in application VG459 of 1992.

The applicant is not the holder of a temporary entry permit. Temporary entry permits are provided for in subsec.6(6) of the Act. Section 6 provides generally for entry permits. Subsection 6 thereof provides that an entry permit that is intended to operate as a temporary entry permit shall be expressed to authorise the person to whom it relates to remain in Australia for a specified period only. Such a permit may be granted subject to conditions. The requirement in paras. (c) and (e) of subsec.6A(1) that a person making an application pursuant to those provisions for the grant of an entry permit be the holder of a temporary entry permit and the fact that the applicant is not the holder of such a permit does not pose any problem for her. That is common ground. A number of authorities establish this. I do not refer to them except to mention that the position is made clear by the High Court in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
I next refer to the submission made to the State Manager, Residence, New South Wales, of the Department of Immigration. It was agreed by the parties that this was to be treated as if it were a statement setting out the findings on material questions of fact and giving reasons for the decision in question pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").
The submission first of all sets out the history of the matter as known to the Department. It says that the applicant travelled to Australia as a visitor on a "photosubstituted" Canadian passport in the name of Rose Miranda Manu. The applicant arrived on 1 May 1987. The applicant was taken into custody on 5 September 1989 as a prohibited non-citizen. On 29 September 1989 the applicant lodged an application for refugee status. This was refused on 6 December 1989. On 20 November 1989 the applicant lodged an application for resident status claiming strong compassionate or humanitarian grounds. This was an application made pursuant to para.6A(1)(e) of the Act. The application was refused on 24 November 1989 and a deportation order signed on 5 December 1989.
On 10 January 1990 an application for judicial review was filed in this Court (VG3 of 1990). On 1 May 1990 Einfeld J of this Court, as earlier mentioned, ordered the release of the applicant pending a final hearing of the application. The applicant was released "on reporting conditions" on 2 May 1990. In the meantime the Department agreed to reconsider all the decisions so far made in relation to the applicant.
On 3 December 1990 the applicant's application for refugee status was again refused. On 5 March 1991 her application for resident status was also refused and the decision in respect of the deportation order was affirmed.
On 5 August 1991 orders were made by this Court in VG3 of 1990. By consent it was ordered that the Department was to reconsider the applicant's application for resident status. The Departmental submission says that that reconsideration is the subject of the submission.
I should mention in passing that the consent orders made on 5 August 1991 effectively put an end to the proceedings VG3 of 1990 except insofar as the question of costs was left outstanding.

The Departmental submission then proceeds under the heading "Claims" to refer to the applicant's submissions. It is said that the applicant has at different times submitted different and sometimes inconsistent claims to the authorities in Australia, Canada and Spain. The applicant had acknowledged that she had not told the truth in the past but said that the inconsistencies in her story were a consequence of her illiteracy and her fear of returning to Ghana. The submission continues, "In the circumstances it is recommended that you assess the most recent version of her claims (that which she now stands by), as well as those of her previous claims that are consistent with that version, against the legislative requirement of "strong compassionate or humanitarian grounds".
It appears to me, and counsel for the Minister did not dissent from this suggestion, that thereafter the submission proceeds on the basis that what has been said on behalf of the applicant in the submission made by her solicitor to which I have earlier referred is to be treated as or assumed to be substantially correct. The case is plainly one in which the Department could have taken the stand that it could not safely regard any of the history recounted in the submission as reliable. As the first paragraph of the submission foreshadows, it provides a far from satisfactory account of the applicant's history. A reading of it discloses that it lacks continuity and cohesiveness. Many questions are left unresolved. Furthermore, on her own admissions the applicant has engaged in a course of conduct which has involved her in obtaining and using false birth certificates and false passports or borrowed passports. As the submission says, the applicant has, in effect, deceived the authorities in Australia, Canada and Spain. Even before this Court, it would have been open to counsel for the Department to cross-examine the applicant about her various statements. That was not done and the statement to which I have just referred from the Departmental recommendation seems to me to make it clear that, whatever has been the position in the past, the Department is prepared, subject to some qualifications, at least for the purposes of dealing with the application for resident status, to treat the submission at its face value. The Department's adoption of that course means that that is the way I must also treat the submission.
The submission then summarises the Department's understanding of the applicant's claims. In short these are said to be:-

(a) A fear of persecution by the authorities in Ghana should the applicant be required to return. These fears are said to flow from the alleged persecution and imprisonment of the applicant's father because of his political activities. There is then reference to the occasion of the applicant's visit to her father in prison when she claims to have been assaulted by prison guards. The submission says that the applicant's ears bear scars consistent with her claim.

(b) The history of her leaving Ghana for the first time to which I have earlier referred. All this is relied upon.

(c) The fact that the applicant was prepared to remain in custody for nine months rather than depart voluntarily. This was said to be strong evidence that her fears of returning to Ghana were genuine.

(d) The claim by the applicant that the Church to which she belonged in Ghana has been closed down by the authorities and an assertion that she would not be able to worship freely should she return to Ghana.

(e) Both the applicant's parents being dead and the applicant being the eldest surviving child, she will be responsible for the support of her five brothers and sisters. This was claimed to be a matter which would cause the applicant hardship.

(f) Reference is made to Salley and his claimed mistreatment of the applicant since she arrived in Australia.

(g) Finally it is said that, rather than having her life disrupted again, the applicant wishes to rebuild her broken life in Australia. She is said to have lived in Australia for more than five years and in that time to have settled into the community. It would be difficult for her to adjust to life in Ghana having left seven or eight years ago, particularly as she is an uneducated and illiterate woman with little prospect of employment.

The submission goes on to say that the material upon which an assessment of the applicant's claims should be based is contained in seven departmental files each of which is referred to by number. These files are not in evidence in this application.
Next is referred to the relevant legislation particularly s.6A of the Act and to relevant policies. I have not been referred to any aspect of the policy statements which are mentioned in the submission.
There then follows the assessment of the applicant's claims. In relation to the applicant's fear of returning to Ghana because of possible maltreatment of her by the Ghanaian authorities, the submission says:-

"10. Ms Mensa's fear of returning to Ghana is based primarily on her father's detention and alleged mistreatment at the hands of the military authorities, as well as the occasion upon which she was assaulted by guards when visiting her father. It is recommended that you accept that her father was detained and that she was assaulted on the occasion and in the manner described.

11. However, neither the 1991 country report from Amnesty International nor the 1991 US State Department report for Ghana describe the families of political detainees as being subjected to detention. Similar advice from the Department of Foreign Affairs and Trade has also been put to Ms Mensa. She does not claim to have engaged in any political activities nor has she publicly expressed any political views while she was in Ghana. She relies solely on her relationship with her father. Particularly given that Ms Mensa's father is now deceased it is recommended that you conclude that the authorities are unlikely to express any interest in Ms Mensa as a result of her father's political profile.

12. The assault suffered by Ms Mensa appears to have been an isolated incident which occurred as a result of her visiting a person who was being held in detention. It was not associated with a systematic campaign of harassment, and accordingly it is suggested that it is unlikely to be repeated. With respect to the claim that her sister may have been killed or imprisoned following this incident, from the evidence it appears far more likely that the two became separated and since that time the applicant has lost contact with her sister.

13. The US State Department Report at page 151 states: 'The Movement for Freedom and Justice (MFJ), a movement organised to provide a forum for the banned political parties to present their views on the return to Constitutional rule and human rights issues, and several international human rights groups published lists during 1991. The MFJ claims that there are others in detention whose names it does not know. The PNDC often detains for several months Ghanaians who have been repatriated to Ghana after having been denied political asylum in Western countries. In addition, persons are regularly detained for a few days to a few weeks for a variety of reasons and then released.'

Note that these are assertions made by the MFJ. The Report does not go on to make a finding in respect of the claims. In particular, it does not adopt in any way the claim related to repatriated Ghanaians. It is submitted that you should consider these claims in the broader context of the reports of the US State Department and Amnesty International, neither of which makes a finding that the families of political detainees are subjected to harassment or persecution, and in addition the advice from the Department of Foreign Affairs and Trade that no such persecution occurs. You may also consider relevant the fact that her father is now deceased. In these circumstances it is recommended that you find that the authorities are unlikely to express any interest in Ms Mensa.

14. In respect to the second claim that the 'persons are regularly detained for a few days to a few weeks for a variety of reasons', the US State Department Report notes at page 150 'Ghanaian security forces occasionally take persons into custody, with or without warrants, and hold them incommunicado for extended periods of time, with no legal recourse available to the detainee. The threat of such treatment serves as a deterrent to political or other opposition activities.' On the basis of this finding it is recommended that you accept that it is possible that Ms Mensa could be taken into custody (as could any other Ghanaian citizen in Ghana) at any time after her return to Ghana. In addition, the risk that Ms Mensa may be detained as a result of the identity of her father can not be completely ruled out. However, it is recommended that you come to the conclusion that this possibility that Ms Mensa may be detained briefly by the authorities is not such as to amount to compassionate or humanitarian grounds that are strong."

There are next dealt with claims based on the fact that the applicant was prepared to remain in custody for nine months rather than return voluntarily to Ghana and that the applicant's religious freedom would be curtailed should she return. These claims are discounted, the first because it is said that the applicant's fears were not in fact supported by the evidence and the second because of a United States State Department report which said that in Ghana there were no apparent advantages or disadvantages attached to membership in any particular sect or religion. Eventually the submission says that by far the majority of Christian members in Ghana were not subject to interference or persecution of any sort. Nevertheless, particular sects had engaged in activities of which the government disapproved. They had been banned. It is further said that the applicant had successfuly made the transition from worshipping in the church where she worshipped in Ghana to the Assembly of God at Keilor. It was submitted that there were available to the applicant in Ghana alternative Christian churches which "are pentecostal in nature". The submission says that the distress caused by having to worship in one of these churches were not such as to constitute strong compassionate or humanitarian grounds.
Paragraph 19 of the submission deals with the claim that the applicant would be responsible for the care and support of her younger siblings. It is said that the ages of the siblings should be considered. Paragraph 19 continues:-

"According to her application of 27 September 1989 her siblilngs would now be 31, 22, 20, 18, 17 and 13 years of age respectively. Given their respective ages and the length of time Ms Mensa has been absent from Ghana it is submitted that they will have by now alternative means of support (it is probable that the youngest siblings would already be supported by the older). Indeed, it is possible that until Ms Mensa resettled she would receive support from them. Even if Ms Mensa did become responsible for supporting the remaining members of her family in Ghana, it is recommended that any hardship so caused would not be such as to constitute strong compassionate or humanitarian grounds."

As to the applicant's relationship with Salley, the submission makes reference to an interview with Salley which took place on 2 June 1992. He asserted that he strongly discouraged the applicant from coming to Australia and made it clear to her that the relationship was over. When she arrived against his wishes, he could not ignore her, "given their common past and nationality". He felt impelled to be friendly towards her and to try to help her. He claimed that he had not re-established a de facto relationship with her and also that he was not the father of Stephen. He has no intention of leaving his wife. He also said that the applicant's feelings towards him had changed and that their relationship was more like that of brother and sister. He said that he hoped that the applicant would be allowed to stay because of the difficulty in Africa for a woman such as the applicant who was uneducated and illiterate. It would be very difficult for her to find work in Africa.
Reference is then made to an interview with another Ghanaian, Mr. Owoo, who said that Salley had told him that the applicant was coming to Australia at Salley's request.
The ultimate recommendations made concerning the applicant's relationship with Salley are contained in paras. 22 and 23 which are as follows:-

"22. On balance it is recommended that you make the following findings:

(a) Accept that Ms Mensa and Mr Salley lived together in a close relationship for several years before Mr Salley travelled to Australia. It is possible that Mr Salley is the father of her son. Some time later, Ms Mensa was encouraged to come to Australia by Mr Salley leaving a reasonably settled life in Canada.

(b) On her arrival Mr Salley did feel

obliged to help her to some extent, and prior to her period of detention it appears likely that sexual relations were re-established.

(c) However, since Ms Mensa's release from custody the relationship has been one of friendship.

(d) At present, Mr Salley has no intention of leaving his wife and returning to a relationship with the applicant.

23. On the basis of these findings it is submitted that although the present relationship between the applicant and Mr Salley is a compassionate factor which ought to be taken into account, the relationship is not of sufficient proximity to constitute strong compassionate or humanitarian grounds."

The submission then says that it is recommended that the fact that the applicant sees a better future for herself in Australia should be accepted as should also be accepted the fact that the applicant would face some initial difficulties adjusting back to life in Ghana. It is said, on the other hand, that the applicant could reasonably be expected to receive initial support from her siblings to re-establish herself. Accordingly, so it was submitted, these particular circumstances did not to constitute strong compassionate or humanitarian grounds.
Paragraph 25 of the submission is as follows:-

"Ms Mensa has been in Australia for over five years, and as result claims to have settled into the community. She has not presented any strong ties to Australia other than her relationship with Mr Salley discussed above, and the pastor at the Assembly of God in Keilor. Naturally these parties would be disappointed to see her depart, as would other members of the Ghanaian community but it is recommended that these feelings would not be sufficient to constitute strong compassionate or humanitarian grounds. It is also acknowledged that Ms Mensa will experience some disruption and hardship in being required to physically depart Australia, but it is submitted that this does not constitute strong compassionate or humanitarian grounds."

The submission concludes with paragraph 26 which says:-

"26. On the basis of this assessment of the claims Ms Mensa now presents to the Department it is submitted that although you may feel some sympathy for the applicant, nevertheless the compassionate or humanitarian grounds submitted are not strong, assessed individually or together. Thus, Ms Mensa does not satisfy the criteria set out in s.6A(1)(e). Ms Mensa has made no claims with respect to the other conditions precedent to the exercise of the discretion under s.6(2), which are set out in s.6A(1). In any case, from an examination of her file it is submitted that she does not satisfy any of them. Accordingly it is recommended that you reject Ms Mensa's application for grant of resident status."

The submissions made by counsel for the applicant fall into two compartments. The first is in a narrow compass. It complains that either the applicant was denied natural justice in the sense of procedural fairness or that irrelevant considerations were taken into account in relation to what was said in para. 19 of the recommendation concerning the applicant's fears that, if she returned to Ghana, she would be responsible for the care and support of her younger siblings. It is said that the Departmental statement that it was possible that until the applicant resettled in Ghana, she would herself receive support from her siblings was not based upon any material which was before the Department. A similar statement was made in para. 24 of the submission where it is said that the applicant could reasonably be expected to receive at least initial support from her siblings to re-establish herself. As I understand the submission, it is based on failure by the Department to make enquiries of the applicant herself or of other Ghanaians in the Australian community about what the position was likely to be. It is said that the decision maker, accepting as he did the recommendations made in the submission, had unthinkingly applied Australian community standards and notions to the situation without any real knowledge whether those standards or notions applied in Ghana.
I have given this submission due consideration. In my opinion it should be rejected. Notwithstanding the underlying basis upon which the submission is founded, I think that it was open to the decision maker to take into account the ages of the siblings. All, except one who is 13 years of age, are over the age of 16 years and have been living in Ghana, so far as one can tell, since the applicant's departure in the mid 1980s. What the decision maker is saying is that in those circumstances it would seem most unlikely that the applicant would be called upon to support members of her family. The applicant's submission emphasises the difficulties the applicant will have in re-establishing herself in Ghana if she has to maintain her family. It is said that employment would be difficult to maintain. If that be so, it seems unlikely that the applicant would have the means to support her family even if she were called upon to do so.
Another aspect of this matter concerns the statements made in the Departmental recommendation that the applicant, if she returns, may be supported, at least for a time, by her family. Again this is said to indicate an application to the applicant's circumstances of standards of behaviour which Australians may apply without taking into account the possibility that in Ghana local customs may be quite different.
The submission contends that it was incumbent on the Department to make further inquiries of the applicant herself or her advisers or of members of the Ghanaian community in Australia before making assumptions as to the likelihood or possibility of the applicant receiving support from her family on her return to Ghana. In any event, the statement made in para. 24 of the recommendation that it could resonably be expected that the applicant would receive at least initial support from her siblings was no more than speculation. In counsel's submission it was relied upon by the decision maker as a probability. There was absolutely no warrant for the taking of so optimistic a view.

I do not think that this is an aspect of the matter which should be dealt with separately from other matters which must be considered in relation to the second submission relied upon by the applicant to which I now turn.
Fundamentally that submission is that the decision involves an improper exercise of power (para. 5(1)(e)) of the Judicial Review Act because it reflects an exercise of a power that is so unreasonable that no reasonable person could have so exercised it (para. 5(2)(g) of the Judicial Review Act). It is also said that the matters upon which this submission is based, which I shall summarise in a moment, disclose a failure to take relevant considerations into account (para. 5(2)(b)) not in the sense that they were completely overlooked but in the sense that insufficient weight was given to them. The case is said to be one where the considerations relied upon were so compelling that the decision maker was required to accord substantial weight to them. His failure to accord them adequate weight was reviewable error.
The matters relied upon by counsel, which he emphasises are to be considered together and not separately, are:-

(a) The applicant's genuine fears of imprisonment, violence and persecution if she is returned to her homeland.

(b) The reality of those fears was established by the applicant's willingness to endure nine months of imprisonment rather than voluntarily return to Ghana.

(c) The difficulty of re-establishing herself both economically and otherwise in Ghana after over six years absence. In this respect she would find it difficult to find employment. The suggestion that her brothers and sisters would care for her was no more than speculation.

(d) The fact that she was induced by Salley to leave a settled life in Canada for life in Australia only to find on her arrival here that he was married to someone else thus putting the applicant in the position of having to fend for herself in a strange and new country.

(e) The fact that the applicant, as the recommendation acknowledges, would experience some disruption and hardship in being required to depart from Australia where, despite initial difficulty, she had been able to establish herself especially with the aid and comfort she had received from the church at Keilor.

It is important that the Court does not assume the role of decision maker in this case. Its only task is to endeavour to see to it that the decision which is made is one which is made according to law. The decision is not for the Court; it is the Minister (or his delegate) who is entrusted with that task. Although that is trite law, I need to refer to some authorities. There are numerous authorities which bear on the problem but the principal ones are the decisions of the High Court in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 particularly per Mason J (as he then was) at 40-42, Chan's case earlier referred to, and Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321.
In the first of these cases Mason J emphasised (162 CLR at 40-41) that the role of a court reviewing the exercise of an administrative discretion is limited. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. It is thus usually a matter for the decision maker to determine the weight to be given to matters which are taken into account in exercising the statutory power. It is not for the court to make that assessment but Mason J was careful to point out that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance. He said that the preferred ground on which this was done was not the failure to take into account relevant considerations, but that the decision was manifestly unreasonable. After discussing a number of authorities he said (at 42):-

"... guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v. Lovell (1950) 81 CLR 513, at p 519; Gronow v. Gronow (1979) 144 CLR 513, at pp 519-520, 534, 537-538; Mallet v. Mallet (1984) 156 CLR 605, at pp 614-615,

622. So too in the context of administrative law, a court should proceed with caution when reviewing an administrataive decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."

In his judgment in Mallet's case Gibbs CJ referred (156 CLR at 614 to what was said by Latham CJ in Lovell, namely, (81 CLR at 519):-

"If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court."

Chan's case (supra) was another case under s.6A of the Act but it concerned para.(1)(c) rather than para. (1)(e). Paragraph (1)(c) requires the Minister to determine whether a person applying for an entry permit has the status of refugee within the meaning of the Convention referred to in the paragraph. The Convention as modified by the Protocol to it applied the term "refugee" to any person who, "owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country..." It was held that an applicant claiming to have the status of refugee would satisfy the definition if he showed a genuine fear founded on a real chance that he would be persecuted for one of the stipulated reasons if he returned to the country of his nationality. In the course of his judgment, Mason CJ, who agreed with McHugh J, said (at 389) that a fear of persecution was "well-founded" if there was a real chance that the refugee will be persecuted if he returns to his country of nationality. Mason CJ said that he preferred the expression "a real chance" to some others because it clearly conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring. I refer also to the judgment of McHugh J at 428-431.
Earlier in his judgment Mason CJ referred (at 388) to Peko-Wallsend and said that, although it was not the function of the Federal Court to review the delegate's decision on the merits, the Court was bound to set aside the decision if it was thought so unreasonable that no reasonable person could have come to it. All members of the Court thought that the decision in question fell into that category. It was ordered that Mr. Chan's application be referred to the Minister for determination in accordance with the Court's reasons for judgment.
Bond was not a case in which para. 5(2)(g) of the Judicial Review Act was relied upon. It was a case where there was said to be an error of law. However, in the course of his judgment in that case Mason CJ said (at 342) that in Chan it was possible to review the decision of the delegate for error of law. Thus he seems to suggest that error of law and the making of a decision which is manifestly unreasonable, if not two sides of the one coin, at least substantially overlap.
For present purposes I propose to approach this matter in the way propounded by Mason CJ in Peko-Wallsend. In taking that course I propose to adopt the view that guidance is to be found in the close analogy between judicial review of administrative decisions and appellate review of a judicial discretion.
The critical words of para. 6A(1)(e) of the Act are "... there are strong compassionate or humanitarian grounds ...". The expression itself and each of the words which make it up, "compassionate", "humanitarian" and "strong" call for the evaluation of the circumstances of each case which arises for consideration. I do not disagree with the approach adopted by the decision maker here which, in some respects, seems to have involved determining first of all whether there were compassionate or humanitarian grounds and, if there were, then determining whether those grounds were strong. In relation to a number of matters, the decision maker found compassionate or humanitarian grounds established but concluded that, although that was so, the grounds were not strong. That was his evaluation of the matter. In other words he decided, in relation to some of the matters dealt with, that although the grounds he found established were compassionate or humanitarian grounds, they lacked the requisite degree of strength to bring them within the applicable paragraph.
It is to be observed that the specific words of that paragraph make this case different from a more usual case where the legislation has not used words which are as specific. In those cases the question whether matters are to be taken into account and what weight is to be given them is at large. I think that this is a case which is in a more confined area. Really the question is whether reviewable error is disclosed by the delegate's failure either to characterise grounds which he found to be compassionate or humanitarian as strong or his failure to characterise others as compassionate or humanitarian as well as strong.
A summary of the delegate's more significant findings (I have not included them all) discloses the following:-

(a) It is possible that the applicant could be taken into custody at any time after her return to Ghana. The risk that the applicant may be detained as the result of the identity of her father cannot be ruled out. "... this possibility that Ms. Mensa may be detained briefly by the authorities is not such as to amount to compassionate or humanitarian grounds that are strong." (Para. 14).

(b) The applicant was prepared to remain in custody for some months rather than return voluntarily to Ghana. This demonstrated that she felt strongly that she did not wish to return. "... this view is to some extent a result of her fears of what may happen to her should she return", but that her fears were not supported by the evidence "and the likely consequence of her return to Ghana were not such as to constitute strong compassionate or humanitarian grounds". (My emphasis) (Para. 15).

(c) The present relationship between the applicant and Salley was a compassionate factor which ought to be taken into account, but the relationship was not of sufficient proximity to constitute strong compassionate or humanitarian grounds. (Para. 23).

(d) The applicant will face some initial difficulties adjusting back to life in Ghana. These difficulties will be greater because she is uneducated and illiterate and will find it difficult to gain employment. But she could reasonably expect to receive at least initial support from her siblings to re-establish herself and over time will adjust back to life in Ghana. "... these circumstances do not constitute compassionate claims that are strong." (Para. 24).

(e) The applicant will experience some disruption and hardship in being required physically to depart from Australia but "this does not constitute strong compassionate or humanitarian grounds." (Para. 25).

I should make these comments about those findings. Firstly, they do not deal with the applicant's fears of persecution if she returns. These appear to have been discounted but not completely. There is a clear acknowledgement, however, that she may face imprisonment, like any other Ghanaian citizen. But, if she does not go back, she will not be subject to this risk.
Secondly, I have omitted reference to the applicant's loss of her church in Ghana. This has gone anyway; it no longer exists. I do not find legal error in the way the delegate has dealt with this matter. It is true that the applicant's deportation would deprive her of the ability to attend the church at Keilor, but that is one of the factors taken generally into account in relation to the overall effect on the applicant which her enforced departure would have.
My next comment concerns the applicant's relationship with Salley. The way that the delegate has dealt with it is not the way the matter was put to the Court by the applicant's counsel. His submission was that the applicant had been lured away from Canada by Salley's deceitful conduct. That is not a matter dealt with in the recommendation. I think it is something that could have been taken into account if the matter had been specifically drawn to the Minister's attention in the submission. But the matter is not spelt out and I do not think it appropriate to permit the applicant now to rely on it.
My last comment relates to the matter earlier mentioned concerning the speculataive conclusion that the applicant, if she returned to Ghana, could expect support from her siblings. That is a matter to be considered, but in the overall task which confronts me I do not think it can have any conclusive place.
What then is left? In summary I think that the applicant's case rests on the possibility, not illusory or fanciful, of a period of imprisonment and also the more remote possibility of persecution if she returns. Although imprisonment and persecution are possibilities, I think that the delegate's findings accept that in the applicant's mind there is a real and distinct fear that it is likely that she will in fact be imprisoned and persecuted. The fact of her earlier persecution was supported by the permanent damage to her earlobes referred to in the recommendation. Coupled with these two matters is the disruption which will be caused the applicant firstly by her enforced departure from Australia and then by the difficulties she is likely to experience (apart altogether from possible imprisonment or persecution) in re-establishing herself in Ghana. Do these circumstances looked at together compel the conclusion, applying the principles earlier referred to, that the delegate's decision involves reviewable error?
Before reaching a conclusion on what I regard as quite a difficult question, I should refer to a little more of what was decided in Chan. The Court there was concerned with the application of the Convention relating to the Status of Refugees and the Protocol thereto. As mentioned, it referred to a person being unable or unwilling to avail himself of the protection of his homeland because of a "well founded fear" of being persecuted for one or more of a number of reasons. The Court was concerned with the meaning to be given to the expression "well-founded fear". Mason CJ expressed (at 389) his agreement with McHugh J that a fear of persecution is well founded if there is "a real chance" that the refugee will be persecuted if he returns to his country of nationality. His Honour said that this interpretation accorded with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran (1988) AC 958 where Lord Keith spoke (at 994) of the need for an applicant to demonstrate a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" and Lord Goff spoke (at 1000) of "a real and substantial risk of persecution." After referring to Boughey v. The Queen (1986) 161 CLR 10, Mason CJ said (at 389) that if "an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring." This interpretation, his Honour said, fulfilled the objects of the Convention in securing recognition of refugee status for those persons who had the legitimate or justified fear of persecution on a relevant ground if they were returned to their country of origin. The discussion of this matter by McHugh J (at 426-431) is more elaborate and contains a great many references to authorities and texts, but for present purposes it is unnecessary to refer to the detail of it.
The words of para. 6A(1)(c) of the Migration Act which concerned the High Court in Chan's case are not the same words as apply here. The words of para. 6(1)(e) are more comprehensive. It may be that they would embrace circumstances which would bring an applicant also within para. (1)(c), but their field of operation is far wider. Direct assistance is not therefore to be obtained from Chan's case. Nevertheless, the approach adopted by the Judges in that case provides general guidance to a court confronted with a problem of the kind that arises for determination here.
The difficulty in the case is to assess the strength of the applicant's claim to have established strong compassionate or humanitarian grounds. For the various reasons given by the delegate, he did not regard the case as being in that category. Does his decision involve the manifest error which is required before the Court will interfere? Or, is this a matter in which the decision maker, having taken a variety of matters into account, was entitled to reach the conclusion which he did? He acknowledges that there is a real risk of imprisonment if the applicant returns but, in his opinion, no greater risk than would have existed if she had remained in Ghana all along. In the applicant's mind the risk is greater. And the fact is that she has not remained in Ghana. Assuming, as the recommendation does, the substantial correctness of the account given in the applicant's solicitor's submission, she left because of a fear, not so much of imprisonment, but of persecution. It was for this reason that she fled her country to which she had returned voluntarily after her first absence, that is her visit to Germany. She has remained away ever since notwithstanding difficulties she has encountered in Spain, Canada and Australia. The recommendation acknowledges that she was prepared to endure nine months of imprisonment here rather than return voluntarily to her homeland as she could have done. Even if the delegate be right in assuming that, if she returns, she will be at no greater risk of imprisonment than would any other Ghanaian citizen, she would return, having experienced all the difficulties and adversities she has suffered in the last seven or so years to an admitted risk of imprisonment. And the fact is that she would not be exposed to that risk if she were not forced to return. She would be free of it.
Then there is the question of possible persecution. The delegate appears to have accepted that the applicant was persecuted on a previous occasion in the circumstances which have been mentioned. The condition of her earlobes provides support for this conclusion. There is the fact that, whatever the actual risks of imprisonment and persecution may or may not be, the applicant has a genuine fear of both. Her fears are not groundless, but they may be overstated or exaggerated. No-one can tell unless she goes back. If one adds into the equation the disruption to her life which will be caused by a return, both from the point of view of departure from Australia and re-establishment in Ghana, it becomes, I think, difficult to take the view that the applicant has not established strong compassionate or humanitarian grounds. Whether this is put on the basis of a failure by the delegate to take relevant considerations into account in the sense of not according adequate weight to matters of substantial significance, whether one regards the decision as manifestly unreasonable or whether one takes the view that it was erroneous in point of law because of a failure to give these matters sufficient weight, is not something which need be decided. My evaluation of the strength of the applicant's case, as accepted by the delegate, is that it is difficult to reach any conclusion other than that strong compassionate or humanitarian grounds have been made out. I am accordingly of opinion that the delegate's decision does disclose reviewable error with the consequence that the matter should be referred to the Minister to be determined by him in accordance with these reasons.

There remains the question of costs. Plainly the applicant should have her costs of matter VG459 of 1992. But I have misgivings about giving her her costs in relation to VG3 of 1990 and I am uncertain what orders are appropriate in VG178 of 1991. I propose therefore to give the parties an opportunity of putting short submissions in writing about the orders to be made in VG3 of 1990 and VG178 of 1991. No submissions in relation to the orders in VG459 of 1992 will be necessary.

[1993] FCA 160

25 MARCH 1993