Mensa, M. v The Minister of Immigration Local Government and Ethnic Affairs
[1990] FCA 209
•2 May 1990
JUDGMENT No. &G.?%-&
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||
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| VICTORIA DISTRICT REGISTRY |
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| GENERAL DIVISION | ) |
BETWEEN: HONICA MENSA
Applicant
AND: THE HINISTER OF IHHIGRATION LOCAL
GOVERNHENT h ETHNIC AFFAIRS
Respondent
'CORAM: Einfeld J
DATE : 2 May 1990
| PLACE: Melbourne | RECEIVED \ \ | |
| 2 5 MAY 1990 | ||
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AUSTRALIA PRINCIPAL
EX TEHPORE JUDGHENT
| The applicant was born in Ghana. Her date of blrth is apparently not known although 4 June 1957 appears in some material provided by Spanish authorities. The applicant has told Australian authorities that she does not know her date of blrth. She arrived in Australia on 1 May 1987. The name in her passport was Rose Miranda Manu. It is not at all clear whether she is entltled to be known by that name, by the name in which this application | temporary entry permit for 5 months. Ghana is, and has for some | is brought or by some other name. On arrival she was given a | |
| years been, governed by a military dictatorship with a reputation for sometimes ruthless oppression of its own citizens, especially political opponents of the regime. | |||
| The primary application before the Court dated 9 January 1990 seeks a revlew of the decisions of the respondent Minister on 6 November 1989 and 5 December 1989 to refuse her permanent residence, a temporary entry permlt, refugee status, and voluntary departure, and orderlng her deportation. This application was fixed for hearing on 1 May 1990. The applicant has been in the custody of the Department of Immigration, Local Government and Ethnic Affairs (the department) since 5 September 1989. The case appears to have been listed for hearing on previous occasions, but for various reasons, has not been able to proceed. On at least one such occasion, this appears to have been because of a failure in the Court's own processes. In the circumstances, this is most regrettable and should not have occurred. | |||
| On the day before the case was called on for hearing, counsel for the respondent most commendably drew to the attention of the | |||
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1. In August 1985 her husband Patrick Essel Mensah had a grave problem when he helped friends of his who were servicemen, by giving them a lift in his car. This action forced him to escape from the country in a hurry. As a result of that, military men constantly harassed her by going to her house and interrogating her about her husband's whereabouts. On 9th November, she was summoned to the police station together with the wives of other implicated persons, but was later released while they continued with the investigations.
2. However, on 6th March, security agents violently entered her house, they went to the garage and burned her husband's car. This action terrorized her, as she thought they could have also burnt the house down, so she took her children to the grandmother's house. The only document which she took along was her birth certificate; and then escaped to Togo the following day.
3. While on a beach in Togo, she met a couple of white people who had a yacht; as they learned her problem, they offered to help her saying that they could bring her to Las Palmas. They were German tourists. They arrlved in Las Palmas on 1st April, and the woman gave her some money to continue the trip to Barcelona to find her husband.
If true, these grounds would form a strong basis for a grant of refugee status in Australia. However, they conflict in material respects with the case for refugee status hitherto sought to be made in Australia. One thing appears to be common to all the
| material, viz. that the applicant's father and family have | suffered persecution and even death as a result of actual or | |
| perceived political opposition to the Ghanaian regime. | ||
| The circumstances of the late disclosure of these documents have not been made clear, but they do not appear to bring credit on the department. The evidence establishes, sufficiently for present purposes, that although the department knew that the applicant had been in Spain at some time, and possibly that she had made application for permission to reside there, and that it had been in possession of these documents slnce 4 January 1990, the decisions now under review did not take this material Into account. It was agreed, when they were flrst drawn to the attention of the applicant's counsel and later to mlne on the evening before the hearing was due to start, that they would or may be materlal and relevant to the decisions. As a result, counsel jointly proposed, or at least raised the possibility, that this hearing be adjourned to permlt a further consideration of the applicant's circumstances. | ||
| There was also mentioned in this connection that after her sojourn in Spain, the applicant had travelled to Canada where an application for residence was also made. Whereas the department had again known of thls basic fact, nothlng was known of the nature and grounds of the application or the evidence submitted to support it. ~ h l s is apparently due to the reluctance or refusal of the Canadian authorities to release the information in their possession. The parties agreed that, if possible, material in this regard should also be considered before any further | ||
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| The foreshadowed consequence of an adjournment of the hearing was an application by the applicant for release from custody to awalt the further consideration by the Minister, which would take some time, and if adverse to her, to abide any application to the Court to review the new determination. It would follow that the present decision under review would be superseded by one or more | ||
| new decisions and therefore that the present application for review, whatever its formal fate, would never in fact be heard. | ||
| Upon being seised of this situation, I asked the applicant's advlsers to ascertain overnight from the applicant the facts about the Spanlsh application. When the case was called, the applicant's counsel advised the Court and the respondent that his client acknowledged responsibility for the application, but that the facts and grounds relied on were false. They were said to have been done under pressure and when she was suffering stress and distress. Nevertheless, the applicant seeks an opportunity to have these and the Canadian events taken into consideration. | ||
| The respondent strongly opposes the appllcantrs release from custody. It is therefore necessary for me to give some attention to the basic facts as presently evidenced. At this stage of the case, conclusions of fact are not appropriate or called for and I have only considered the evldence on an interlocutory basis. After a difficult and quite dangerous life in Ghana, including the forced closing of the particular Christian Church to which she was attached, the applicant says that she and a man named | ||
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| Spain, Grebio moved to Australla where he sald he had family, but he told the applicant that he would arrange for her to follow him to Australia in due course. The applicant made an application for refugee status in Spain. | ||
| After Grebio left Spain, the applicant went with 6ome other people to Canada where she says she appl~ed for refugee status. Her application for residence in Spain appears to have lapsed or failed because of her departure for Canada. As previously noted, the details of the Canad~an application have not been obtained from the Canadian authorities, but the applicant's solicitor ascertained from the United Natlons High Commissioner for Refugees in Canberra that the applicant's application in Canada was rejected in September 1987. | ||
| The applicant says that Grebio persuaded her to come to Australia from Canada and that his brother met her at the airport. Soon after she arrived in Australia, she discovered that Grebio had married an Australian citizen, effectively, she says, to obtain a right of residence here. In the Initial stages, Grebio arranged the applicant's accommodation, found her a job and handled her affairs but any relationship between them has since ended. Her case is that she was apprehended when police came to protect her from violence at the hands of Grebio. Grebio has denied to the department that he is the applicant's customary/tribal husband and that he is the father of her son. | ||
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| acceptance that if she returns to Ghana, she may face considerable danger, even to the polnt of her life being at rlsk. The rest of her account, if true, would also support a case for consideration of residence in Australia on other statutory bases. There are a number of matters that will be argued in favour of her deportation. They include that she entered Australia on a false passport and thus gave false information to Australian authorities on entry to this country, that she has worked in Australia without authority and that she has committed the offence of being a prohibited non cltizen, or as it is now known, an illegal entrant. Upon apprehension, she is said to have given inconsistent accounts, some of them at least being untruthful, and to have attempted to cover up her true history. It will be argued, in short, that she cannot be believed or trusted. | ||
| Although the respondent believes that by these arguments and others, he can sustain the relevant decisions, it is not seriously contested that the applicant has arguable chances of success in this application for review. | ||
| With all that, both parties are equivocal about actually applying for an adjournment of the hearing, and in express terms neither party has actually taken responsibility for such an application. The applicant's reluctance is because she is concerned about a further prolonged detention in custody; the respondent's attitude | ||
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| applicant's position. However, it is agreed that not to reconsider all the relevant material now may mean that a present decision to order a review may merely produce a determination on new material which may then be subject to a further application for review. This would be wasteful in many respects; the fact that the applicant's case is presently funded by legal aid merely adds to the problems in this regard. | ||
| The applicant cannot make an application for adjournment condrtronal on her release from custody as these involve completely different legal and drscretlonary consideratrons. The respondent cannot tie the question of reconsideration to a pre-determination of its result. Because it seems to me that the present application for review would merely be an academic exercise, and that an order for review on the present material, while quite arguable and wlth admitted prospects of success, would do little to determine the real issues Involved in the applicant's desire to remaln in Australia, I think that the present application for review should be adjourned. In due course it should perhaps be formally upheld because the current decisions will presumably have to be set aside to allow others to take their place. | ||
| With an adjournment thus in contemplatlon, the applicant embarked on her application for release from custody pending the new determination. A previous application for release to Mr Justice Keely was refused on 26 March 1990 but very largely on the basis that the hearing was then immrnent. Her applicatron is supported | ||
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| belonging and personal succour to the applrcant. Several members of the Church have most generously subscribed $500 to provide for the appllcantrs support if she is released and, together with the Whrtbys, have undertaken to assist her wlth any reporting conditions and with small domestic and church tasks to keep her active and sane. Pastor Whitby's evidence before me to these effects was persuasive, manifestly genuine, and warm and compassionate for the applicant. | ||
| The applicant herself gave evidence, partly in English and partly wlth the assistance of an Ashanti Interpreter. I thought her evidence to be truthful and genuine. She says that she cannot read or write English or any other language and cannot even sign her own name. It is pefectly clear that she is not verbally fluent in English in anything other than the most basic conversation. Interviews conducted in English or forms completed in English or without a competent interpreter (and I stress "competent") would in my view be useless and in danger of producing erroneous or inadequate conclusions of fact. International law and natural justlce entltle people with rlghts to be granted the opportunity to exercise these rights in a language they understand. There is reason to belleve that this facility was not always allowed in this case. | ||
| Similarly, interviews conducted without compassion or understanding for the type of personal life, social, polltlcal and economic background, and the human consequences for a person | ||
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| dependence on others for human survival and basic decision-maklng do not provide even a semblance of the entitlements of persons living in or vislting Australla, even illegally. I know of nothing more Important for nations in today's complex and difficult society than the protection of the deprived and the maintenance of the integrity of every human person to the maximum extent possible. | ||
| The respondent argues that there is a real rlsk of the applicant absconding if she is released. Yet although In answer to my repeated questioning of the applicant on the fact and consequences of, as she called it, "running away", and her repeated denials that she would do so, not a single question was directed in cross-examination to challenge this assertion. This is not a Browne v Dunn question; it is that no evidence was tendered to support the assertion that the applicant is likely to what is, in these immigration cases, so delicately called, "merge into the Australian community". It is true that the evidence may establish that this applicant has had, even possibly engineered, up to two false passports, but this 1s at least as equally demonstrative of her desperate plight and need to stay out of Ghana as it is Indicative of a penchant for cheating governments or living a lie. | ||
| In fact, the evidence is to the contrary. The applicant is a black Ghanaian female. There is a very tiny black Ghanaian community in Australia. She speaks little English of the kind needed to survive in secret over the long term. Her language | ||
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| passport and little access to a facility for a false passport. | ||
| In any event, a passport, false or true, would merely facilitate departure which is what the respondent seeks but the applicant is fighting so stoutly to resist. Her work skills are extremely limited. It is not suggested that she represents a danger to anyone or anything, and it is agreed that she does not. She impressed me in the wltness box as a deeply distressed and lonely Christian woman who has found with the Assembly of G-d at Keilor what must be for her a rare haven of peace in a life of turmoil, hostility, neglect and rejection. | ||
| Although it was said that she had an incentive to abscond, none was identified or particularised and I cannot think of a single incentive. Her incentive to 1s try to win permission to reside in Australia through the operation of law. I am sure that she has been and will again be told that there is no other way for her to succeed in our country. | ||
| There is always a risk that a person released from custody will abscond. If the facts of a particular case give rise to a belief that the risk is real or significantly above average, release must or will normally be refused on that ground alone. But if, despite the existence of the ordinary risk, the evidence points everywhere else than abscondlng, or demonstrates that abscondlng would create a merely temporary situation to be visited by likely early and easy apprehension and a consequential disaster for the | ||
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| This is not a matter for legalistic semantics, political grandstanding or bureaucratic obfuscation. It is a matter of basic humanity and the fundamental rights of living belngs to be entitled to as much liberty as the overall community interest can sustain. Our country and our legal system can easily handle the balancing of such concepts with natlonal needs. It seems to me ironic that we are apparently able to afford keeping and wholly sustaining this applicant in a taxpayer-funded institution for eight months, to produce an abundance of paper reflective of many hours of bureaucratic work and to fund a significant number of appearances in a court case and apparently a sizeable number of officers to attend here yesterday and today, but recoil with horror at the unlikely prospect of having to go looking for a Ghanaian woman w~thout means, who might go wandering in the streets of Melbourne looking for somewhere to live or someone to belong to. This lrony is compounded by the fact that the applicant is officially charged rent for her stay in custody at an arbitrary rate of what used to be some $50 per day, as a result of which a debt is incurred by a person who by administrative decision-making is refused the opportunity of working even on release to help to pay the debt and to be self supportive. One is left to ponder how much money is spent to keep records of the debt and to uphold the refusal of permission to work. | ||
| The respondent asked me to refuse release on the ground that I | ||
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| this turns out to be true, I wonder if the reasons for her havlng done so are worth considering, before the derogatory and demeaning conclus~on is drawn that she is what was called "a proven liar", as if she was some type of unprincipled crim~nal | ||
| who would be an affront as an Australian citizen or resident. release is granted, there be imposed a condition that the | ||
| applicant report in person on all five working days to its office | ||
| in Melbourne clty, because that is the place where the attendance register is kept, necessitating some hours of travelling by public transport each day by a person without income, or requiring other people to provide private transport, appeals to me as astonishingly punitive. How else can be explained the failure to request that she report on weekends as well, other than that it would cause administrative inconvenience to the department or personal sacrifice by its officers? The department's further request for a condition that some $5000 be lodged by way of security bond was in the exigent circumstances of this applicant, tantamount to and a cover for a submission that she not be released at all. In my view, this was unworthy of one of Australia's great departments of state. | ||
| There is one other matter I should like to add. The department, as is its complete right, has refused thls woman the right to work. Of course, as I have earlier pointed out, the consequence is that she has been up to now only legally supportable by the | ||
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| supported herself in Australia. If tax was pald on her earnings, ~t would also mean that she has at least made a contribution to her upkeep in the institution of detention for the last 8 months. | ||
| The papers involved in the decision-maklng proce,ss up to now make reference to a Ministerial statement in Parliament some years ago | ||
| that the Government does not condone persons with no legal status in the country working in Australia wlthout permlssion, even when exerclsing their legal rights to obtain permlssion to remain here. That is a very proper policy. It was quoted by the respondent's counsel in this case, as it has been in many other cases, as being a demerit for the applicant which should be taken lnto account and given weight in relation to her release from custody as well as on the general merits of her case. I wonder whether fairness might not dictate that the many Government statements and policy documents in the last 50 years stating Australia's humanity and caring for people who need a haven from countries of persecution and llves of horror ought also to be taken Into account when decisions relating to such people are in contemplation. On the material before me, such considerations may well have resulted in different decisions in this case. | ||
| I reserve for later delivery a statement of the legal basis for | ||
| this judgment. However, on the applicable principles, it is in my vlew proper that I dlrect that the applicant be released from the respondent's custody on the following conditions: |
Whitby at their home 8 Barcelona Avenue Keilor and That the applicant reside with Pastor and Mrs David subject herself to their reasonable supervision and
direction.That the applicant report in person to the Officer-in-Charge of the Department of Immigration, Local Government and Ethnic Affairs or his/her nominee at Sunshine, during office hours each Monday.
That on the applicant's behalf and in her presence Nr or Nrs Whltby or thelr nominee report by telephone to the said officer or his/her nomlnee or any other offlcer of the department in the melbourne area appointed or nominated for this purpose between 9 am and 12 noon each Wednesday and Frlday.
That through Mr or Nrs Whitby or thelr nominee, the appllcant notify the officer of the department nominated or appointed for this purpose of any intention to spend more than 2 4 hours away from that address.
That through Mr or Nrs Whltby, the appllcant notify the department of any proposed permanent change of address not less than 4 8 hours before such change is contemplated.
That the applicant attend all hearings of this or any other application to consider her status in Australia not including mentions or directions hearings.
That the applicant undertake to deliver herself lnto the custody of the department when ordered by the Court to do so and to abide any order of the Court in these
regards.That the appplicant slgn an authority for the department and her own solicitor to obtain the Canadian and Spanish documents related to her appl~cations to remain in those countries.
That the applicant undertake to the Court at the first available opportunity today, and undertake to sign within 7 days, a written undertaking competently translated into Ashanti to comply with these conditions. The translator is to certify that he/she has fully communicated these condit~ons to the applicant and belleves that the applicant understands the terms.
10. That MC and Mrs Whitby undertake to inform the department immediately if one of them becomes aware of any breach of the conditions.
11. That Mr and Mrs Whitby give to the Court today, and sign within 7 days, an acknowledgment of these conditions and an undertaking to use their best endeavours to procure and facilitate compliance with them. I will accept Mr Whitbyfs acknowledgment and undertaking today as being on behalf of himself and his wife.
| The following direct~ons and orders w ~ l l | apply in the terms of |
the proposed reconsideration by the Minister:
| 1. The applicant and her sol~citors | are to make submissions for |
the reconsideration by not later than Wednesday 23 May 1990.
2. The respondent is to conduct any further interviews with the applicant with the assistance of a competent Ashanti interpreter and, if deslred, in the presence of the applicant's solicitor. All interviews are to be conducted by
6 June 1990.
3. The DORS Committee is to conduct its interviews and make its recommendations within its own time-frame but with regard to the time-frame set out in these directions as far as possible.
4. Not later than 21 days from the DORS Committee making its recommendations, the Minister is to make and advise the applicant of hls decision. The Minister is to provlde reasons for that decislon to the applicant within 14 days of its making.
5. The Minister is not to take any steps to deport the applicant for 14 days after making available the statement of reasons or in accordance with further orders of the Court.
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| on 23 July 1990 or such other date as the partles arrange with the Court. |
7. Costs reserved.
I certlfy that thss
and the -TV- r, preceding pages are a true copy of the
Reasons for Judgment herein of his Honour
Justice Einfeld
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