Mensah v Minister for Immigration and Ethnic Affairs
[1997] FCA 1156
•31 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - review of decision of Refugee Review Tribunal which affirmed decision to refuse protection visas - whether Tribunal erred in law (s 476(1)(e)) - whether Tribunal failed to observe procedures required to be observed (ss 420, 425, 427, 429, 476) - whether no evidence to justify decision (s 476(1)(g)) - whether decision authorised by Act and Regulations (s 476(1)(c)) - first applicant Ghanaian citizen and mother of the second applicant (nine year old girl) - first applicant previously in de facto relationship with Ghanaian soldier (the father of the second applicant) - whether real chance of persecution on the basis of previous de facto husband’s involvement in attempted coup, and her own political activity - change in circumstances - late claim of well-founded fear of daughter being subjected to circumcision at instigation of father’s family, upon return to Ghana - whether real chance of daughter’s subjection to circumcision upon return to Ghana - adverse finding by Tribunal as to credibility of first applicant.
Migration Act 1958 (Cth), ss 420, 425, 427, 429, 476
Migration Regulations
Mahboob v Minister for Immigration and Ethnic Affairs (1996) 65 FCR 248 (Lehane J) - followed
Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 (FCA/Sackville J) - followed
CONSTANCE KONADU MENSAH & ANOR v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOR
NG 770 of 1995
LINDGREN J
SYDNEY
31 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 770 of 1995
BETWEEN:
CONSTANCE KONADU MENSAH
FIRST APPLICANTVICENCIA MENSAH by her next friend RICHARD SANDILANDS
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTROSLYN SMIDT, sitting as the REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
31 OCTOBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
The first applicant pay the costs of the respondents.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 770 of 1995
BETWEEN:
CONSTANCE KONADU MENSAH
FIRST APPLICANTVICENCIA MENSAH by her next friend RICHARD SANDILANDS
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTROSLYN SMIDT, sitting as the REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
LINDGREN J
DATE:
31 OCTOBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
LINDGREN J:
INTRODUCTION
The second applicant, Vicencia Mensah (“Vicencia”) is the daughter of the first applicant, Constance Konadu Mensah (“Ms Mensah”). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) and s 39B of the Judiciary Act 1903 (Cth). Counsel for the applicants made it clear, however, that she expected to rely only on the former provision and did not, in the course of the hearing, indicate any departure from that position. Accordingly, I shall not refer further to the latter provision.
The application is made for review of a decision of the Refugee Review Tribunal (“RRT”) on 8 September 1995 finding that Ms Mensah was not a refugee and affirming a decision of a delegate of the first respondent (“the Minister”) not to grant to Ms Mensah or her daughter protection visas. The RRT was constituted for the purpose by the second respondent, who has appeared only to submit to such order as the Court might make, save as to costs.
Ms Mensah is a citizen of Ghana. Her daughter, Vicencia, was born in February 1988 and therefore had her ninth birthday in February of this year. Richard Sandilands of the Refugee Advice and Casework Service has filed a notice of consent to act as next friend of Vicencia. Vicencia lives with her mother in Australia. The application for a protection visa arises in part out of an alleged threat and fear that if Vicencia returns to Ghana, she will be circumcised at the instigation of her father’s family.
GENERAL FACTUAL BACKGROUND
The following account of the general factual background is based on the RRT’s Reasons for Decision, Ms Mensah’s claims and uncontroversial facts established by the evidence adduced on the hearing of the present application.
In her application for refugee status dated 4 June 1993, Ms Mensah gave her date and place of birth as 24 January 1964 and Kumasi. On this basis she was nearly thirty-one years old at the date of the RRT’s decision on 8 September 1995.
Ms Mensah is a citizen of Ghana who entered Australia in November 1988. She claims that prior to her departure from Ghana she was a self-employed hairdresser; that her parents died when she was five years old after which she was raised by an aunt; and that she has two daughters, Vicencia, born in February 1988, and Paulina Aniwaa, who remains in Ghana, born in 1979.
In her application for refugee status dated 4 June 1993, Ms Mensah claimed that from 1982 to 1987 she had been in a de facto relationship with a man named Akwasi Manu who was a member of the Ghanaian Armed Forces stationed at the Udarrack Barracks in Kumasi. She claimed that on or about 15 November 1987, Mr Manu was implicated in a coup plot to overthrow the regime of Flt Lt J J Rawlings, that after being detained, beaten, tortured and interrogated, he, so she later learned, had escaped; that on a number of occasions she was interrogated by military officers at her house about her boyfriend’s whereabouts; that she became interested in politics, attended rallies organised by university students in Kumasi and on one occasion addressed a rally; and that after being manhandled by four members of the security forces who instructed her to stop attending the political rallies, she left Ghana for Belgium in late 1988 pursuant to arrangements made by a friend of her de facto husband.
According to her application, she applied for refugee status in Belgium and was granted a temporary entry permit; she established a de facto relationship with an Australian man who assisted her to stow-away on the ship on which he worked and to come to Australia; and in Australia, he told her that he had organised permission for her to stay in Australia and gave her what he claimed was a temporary entry permit. The document turned out to be bogus. Ms Mensah’s relationship with this man ended and contact between the two ceased. On 29 November 1993, a delegate of the Minister found that Ms Mensah was not a refugee. On 10 December 1993, she applied to the RRT for a review of that decision. In that written application, she stated that she was afraid to return to Ghana because her former boyfriend, Mr Manu, was still in exile and the Rawlings regime remained in power. On 30 December 1993, she provided an additional four page statement which outlined in some detail her objections to the primary decision and provided a newspaper clipping dated 28 December 1992 which contained allegations of government intimidation of opposition groups in Ghana.
On 11 April 1994, Ms Mensah attended a hearing before the RRT. At the hearing, Ms Mensah repeated the substance of the claims which she had previously made. Significantly, in view of later developments, she said in response to questions about her relationship with Mr Manu’s family, that his family had recognised that the couple had a relationship; that she had seen them regularly in Ghana; that since leaving Ghana she had not been in contact with them; and that she sometimes asked after them in letters to her friends.
Mr Rickard, solicitor, apparently commenced to act for Ms Mensah in late 1993 or early 1994. After the hearing on 11 April, a decision by the RRT was delayed for some time while Mr Rickard sought copies of her files and other material under the Freedom of Information Act 1982 (Cth). On 13 July, the RRT forwarded some additional information on the political and human rights situation in Ghana to Ms Mensah for comment.
On 15 August 1994, events took a surprising new turn. In a letter of that date from Mr Rickard to the RRT, he advised that he would be making submissions in relation to the practice of female genital mutilation (“FGM” - I will also refer to “female circumcision” without, for the purposes of this case, intending any difference of meaning) in Ghana as it related to Ms Mensah’s then six year old daughter, Vicencia. That is all that the letter said on the matter. It was the first occasion on which the matter had been raised with the RRT. No submission was forwarded to the RRT by or on behalf of Ms Mensah. On 9 March 1995, it wrote to Ms Mensah noting the advice which it had received from Mr Rickard in his letter dated 15 August 1994 and that no submission on FGM had been received. The letter continued:
“To ensure that you have had every opportunity to provide all your claims to the Tribunal, a second hearing has been arranged”
A second hearing was appointed for Friday 17 March 1995. At the beginning of the hearing, Ms Mensah provided to the RRT a statement signed by her and a copy of an article entitled “The Female Eunuchs” from “West Africa” dated 8-14 August 1994. She told the Member that she had written the statement with the assistance of a friend named “Reno” to whom she had explained her circumstances. In her statement, Ms Mensah claimed that Vicencia’s father, Mr Manu, came from a northern Ghanaian tribe called “Wangara” which was notorious in its practice of FGM in respect of girls aged between one and ten years. The statement said that amidst military harassment, Mr Manu left Ghana before she gave birth to Vicencia and that when Vicencia was born, Mr Manu’s mother and other members of his family came to see the baby and told her that Vicencia had to be circumcised. Ms Mensah was of the Ashanti people who do not practise circumcision. She claimed that she asked Mr Manu’s family to wait until Vicencia was older. She left Ghana shortly afterwards.
At the hearing before the RRT on 17 March 1995, Ms Mensah said that she feared that if she returned to Ghana, Mr Manu’s family would seek her out and take Vicencia to be circumcised. She claimed that it is the Ghanaian custom that the father’s family have access to his children and that even if she tries, by moving to another city, to prevent them from taking Vicencia, they will find out her whereabouts and take her to be circumcised.
The RRT tested, by questioning, Ms Mensah’s claim that she held the fear to which I have referred. One line of questioning concerned the fact that she had not raised the issue until her solicitor’s letter of 15 August 1994. She claimed to have mentioned the matter at her first interview at the Department, and to have sent the Department a letter in relation to it. The hearing concluded on the basis that the RRT would initiate some enquiries.
On her present application to this Court for review of the RRT’s decision given some three months later, Ms Mensah claims that she was, through Mr Rickard, led by the RRT to believe that it was satisfied in relation to the issue of the lateness of the raising of the issue of FGM. Counsel appearing for Ms Mensah before me referred to several passages, particularly towards the end of the transcript of the hearing before the RRT on 17 March 1995. The Member said that she did not have “any problem with the fears”, “with the seriousness of the harm” or “with finding a Convention link”. She said that the only problematical areas were the fact that the claim was not made until August 1994 and that the information in her possession suggested that the practice of FGM was not a general one in Ghana nor legally permissible there. She said that she was interested in pursuing the question whether there was “a real chance” that Vicencia would be subjected to FGM if she were to return to Ghana. The Member agreed with Mr Rickard that the only thing to be established was that there was “a real chance it’s going to actually happen to her.”
It is convenient to dispose of one matter at this stage. The Member’s statements that she did not have “any problem with the fears” and that the only thing to be established was that there was a real chance of the occurrence of FGM, are to be understood in a certain sense, as is made clear by her statement of her misgivings over the late raising of the claim and as to the generality of the practice of FGM in Ghana. The late raising of the claim, which the Member conceded might be capable of explanation, went to the question whether Ms Mensah’s account was true at all. What the Member meant was, clearly enough, that if the lateness of the raising of the claim, and, perhaps, the extent of the practice of FGM in Ghana, ceased to be issues, that is to say, ceased to militate against acceptance of Ms Mensah’s factual account, the Member would have no difficulty in accepting that actual fear would be the result.
It is useful to set out the last of the passages to which counsel for Ms Mensah referred me:
“RICKARD:I think the last thing I’d like to say if your concern about the delay in putting this - in her coming forward with this information, I think I’d just like to reiterate that I don’t think it’s unreasonable that she would have, as she said, not known that it was relevant. The - I don’t think - you know, most refugees don’t know much about refuge [sic - refugee law] at all, but ---
TRIBUNAL:I accept that as well, and I asked those questions because it surprised me even more when she said she had raised it but not re-raised it, but I recognise that people don’t always know what’s relevant and don’t always put the information, and all I’m concerned to do now is to investigate the country situation.
RICKARD:Okay. Well then, we can proceed on the basis that there’s no aspersions on her for not raising it till August?
TRIBUNAL:Well, I’m merely stating that I accept that there may well have been a reasonable explanation for that. Okay. Well, I’ll commence my inquiries and let you have, whether it’s adverse or not, the information that I obtain, and, as I say, if in the meantime you obtain anything or you come up with avenues of inquiry that you think I may be able to assist with, I’m willing to consider doing that if you let me know.
RICKARD: Yes, okay.
TRIBUNAL:But when I do have the information, unless you have some very strong reason why you need more time, I’m going to want responses within a week.
RICKARD: Right.
TRIBUNAL: Thank you very much. Thank you, Ms Mensah.
HEARING CONCLUDED” (at T 26-7 - emphasis supplied)
The RRT made extensive enquiries and obtained documentary information relating to the issue of FGM in Ghana raised by Ms Mensah. On 8 June 1995, it wrote to each of Mr Rickard and Ms Mensah a letter, the first three paragraphs which were as follows:
“Attached please find information received by the Tribunal regarding the Wangara people and the practice of female circumcision in Ghana.
The Member also wishes to take this opportunity to advise you that your client’s failure to mention the claims relating to her daughter prior to August 1994, despite being given ample opportunity to do so, continues to raise doubts as to the credibility of this claim. The Member also notes that her former boyfriend’s name is not a Wangara name, which raises questions regarding his ethnicity.
Should you wish to make any further submissions regarding this application they must be forwarded to reach the Tribunal no later than close of business on Friday 22 June 1995.” (emphasis supplied)
Ms Mensah herself wrote to the RRT a letter dated 15 June 1995 addressing the issue of the lateness of her raising the claim in question. The relevant part of that letter was worded as follows:
“1.On the question of not mentioning the claims relating to my daughter, it would be recalled that I explained the matter to you at my second meeting with you. I submitted my claim for refugee status at Villawood Centre and personally presented the claims regard the FGM of my daughter at Rockdale Immigration Centre.
My financial situation was getting worse as I was not allowed to work. I therefore approached Red Cross Society for an assistance. The Red Cross was willing to help on condition that they can get approval from Immigration in Canberra. When they consulted the Immigration Department they were told they couldn’t find my file. I was called by Immigration to bring the photocopy of my application, which I did and not including the claims of my daughter which I have sent at a later date.
During my interview with Immigration I was not asked any questions about the circumcision claim. At my next meeting (first with RRT) nothing too was asked. I thought it was to be considered separately and I would have a separate interview on that matter. I had a second thought and consulted my advisor. He made it known to me that it was not the case but wasn’t too late to let you known of it. My advisor was not willing to go ahead with the job because, according to him, the Legal Aid has disapproved my application and I was not able to settle the legal charges. As time was running out and the lawyer was not presenting my information to you because I couldn’t pay the legal charges, I had no alternative then to consult a friend who helped me to put the statement in writing and presented it to you at my second meeting with you.”
On 22 June 1995, Mr Rickard wrote to the RRT. With reference to the RRT’s letter to him dated 8 June, he said, inter alia, this:
“3. In relation to your letter of 8 June 1995 we submit as follows:
a) The issue of our client’s failure to mention the claims relating to her daughter prior to August 1994 has, we are instructed, been addressed by our client in a letter to the RRT dated 15 June 1995 at point one thereof.b) In your letter of 8 June you stated that ‘the Member also notes that her (our client’s) former boyfriend’s name is not a Wangara name, which raises questions regarding his ethnicity.’ In relation to this, we note that you have not established the basis upon which you make the claim that the former boyfriend, Akwasi Manu does not in fact have a Wangara name nor the specific questions which this raises for the RRT.” (emphasis supplied)
As noted earlier, the RRT gave its decision on 8 September 1995 to which it is now necessary to turn.
REASONS FOR DECISION OF THE RRT
In its Reasons for Decision, the RRT noted, successively, the decision under review, the criteria for the grant of a protection visa, and the applicant’s claims and evidence. The Reasons for Decision then gave an “Assessment of Ms Mensah’s claims and evidence” under certain sub-headings. In relation to the claim of fear of persecution for reasons of political opinion, the Member said:
“I accept that Ms Mensah may have been harassed and assaulted by soldiers seeking her former boyfriend and that she may have attended several demonstrations in 1987 or 1988. However, there have been significant changes in Ghana since that time and I find the chance that she would face serious harm amounting to persecution on return because of her association with her former boyfriend or her own limited participation in politics to be remote.”
The Member then gave a description of the political situation in Ghana prior to and since the elections in that country in 1992 and Ms Mensah’s prospects on return. No challenge is made to the RRT’s reasoning in these respects.
The material under the heading “Female circumcision” occupies some two and a half foolscap pages. The Member began by noting that she had no difficulty in accepting that female circumcision, such as that practised amongst some groups in Ghana, “is serious harm amounting to persecution under the Convention.” She also accepted that young Moslem women of Wangara ethnicity are a recognisable and cognisable group within Ghanaian society and therefore form a “particular social group” for the purposes of the United Nations Convention relating to the Status of Refugees. The Reasons for Decision then record:
“However, I find the claim the claim [sic] that Ms Mensah left Ghana because her former boyfriend’s family have threatened to circumcise her daughter to be lacking in credibility and thus do not accept that her daughter faces any chance of such treatment on return to Ghana.”
The Reasons then note that the Member found aspects of Ms Mensah’s claim “difficult to accept”. The Member recorded that she had “considerable doubts about the claim that Vicencia’s father is a Wangara”. This was based on the fact that the name “Manu” is not Wangara but is common among the Ashanti and other Twi people. Next, the Member noted, giving reasons, that she had great difficulty accepting that Ms Mensah’s relatives would inform Mr Manu’s family of Vicencia’s whereabouts if she were to return to Ghana. Then she noted that the evidence showed that Mr Manu’s family did not have an automatic claim to Vicencia under Ghanaian law and that the likelihood of their gaining custody was extremely remote. The Member said:
“In these circumstances I find it difficult to understand why Ms Mensah would have believed that the only way to protect her daughter was to flee the country. Indeed, given the fact that female circumcision is now illegal in Ghana and even Wangara community leaders are working to end the practice it seems extremely unlikely that an individual would not be able to seek protection locally or at least by relocating to another part of the country.”
The Member also noted that Ms Mensah had given “contradictory evidence” regarding her contact with Mr Manu’s family since leaving Ghana.
There followed this passage which has assumed importance in the application to this Court for review:
“Despite these concerns, I might perhaps have been prepared to accept Ms Mensah’s claim that her daughter feared circumcision had it not been for the fact that she did not mention the issue of female circumcision until more than a year after she first lodged her application for refugee status. However, after carefully reviewing the evidence, I have reached the conclusion that this claim is a fabrication, raised late in the day to enhance Ms Mensah’s claim for refugee status.”
The Member elaborated on this statement. She noted that Ms Mensah had had the assistance of a solicitor and an interpreter when she had prepared her initial application dated 4 June 1993. The Member said that she did not accept that Ms Mensah would have failed to mention the danger faced by her daughter in her statement of refugee claims or a plea by her for humanitarian consideration which was also prepared at that time, if she had indeed left Ghana in order to protect her daughter from circumcision. The Member also noted that in her initial application Ms Mensah stated that she would have been prepared to go back to Ghana if the military were not in power. The Member said that she did not accept that Ms Mensah would have expressed this willingness, if she had feared the infliction of FGM upon her daughter.
The Member referred to further opportunities which Ms Mensah had had to mention the issue of FGM of which she had not taken advantage: a lengthy interview by a Departmental officer in October 1993; a lengthy written statement provided by Ms Mensah in December 1993 objecting to the rejection of her primary application; and the first hearing before the RRT on 11 April 1994 when she was asked questions about her relationship with Mr Manu’s family including questions about their attitude to her and her daughter.
The Member noted that at the second hearing on 17 March 1995, she had asked Ms Mensah about her failure to mention the claim of FGM prior to August 1994. The Member noted that Ms Mensah ultimately claimed that she had mentioned the matter earlier in a letter to the Department. Ms Mensah suggested that the letter, which was not on the Departmental file, must have been mislaid and said that she had not mentioned the matter again because she had not been asked about it and had believed that it would be “dealt with separately”. The Member acknowledged that papers do sometimes go astray, even in efficient bureaucracies, and that the possibility that a letter was written but not attached to the relevant file could not be totally discounted. However, she considered that even if the letter had in fact been written, it remained unexplained why Ms Mensah had failed to mention the claim in her initial application dated 4 June 1993 or her interview by the Departmental officer in October 1993, or to her new solicitor or to the RRT, for over a year (4 June 1993 to 15 August 1994). The Member said:
“I do not accept that, having raised the claim once, she would have failed to mention [it] again for such a long period during which she had many opportunities to do so.”
Of course, Ms Mensah had not been asked specific questions about this claim during the first RRT hearing but the Member noted that she had been asked specific questions during that hearing about her relationship with Mr Manu’s family and whether she wished to provide any additional information, yet she had failed to mention her fears about the prospect of circumcision of Vicencia. The Member considered that she would not have failed to do so if she had genuinely feared for Vicencia’s safety on return to Ghana.
The Member expressed her conclusions as follows:
“I do not accept that Ms Mensah or her daughter Vicencia face a real chance of persecution for a Convention reason on return to Ghana. They are therefore not people to whom Australia owes protection obligations and [sic - are] thus not entitled to protection visas.”
GROUNDS OF APPLICATION FOR REVIEW
Ms Mensah applies for review of the RRT’s decision on the following grounds:
That the decision involved an error of law by the Member involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the Member (cf s 476(1) (e) of the Act).
That procedures that were required by the Act or the Migration Regulations to be observed in connection with the making of the decision were not observed (cf ss 420, 476(1) (a) of the Act).
That there was no evidence or other material to justify the making of the decision (cf s 476(1) (g) of the Act).
That the decision was not authorised by the Act or by the Regulations (cf s 476(1) (c) of the Act).
OUTLINE OF PARTIES’ SUBMISSIONS ON THIS APPLICATION FOR REVIEW
Outline of submissions of Ms Mensah and Vicencia
The submissions of Ms Mensah and Vicencia proceeded along the following lines:
Error of law
1(a) The RRT failed to decide whether or not either applicant had a well-founded fear of persecution at the time of determination of the application. The RRT’s finding that when leaving Ghana, Ms Mensah did not fear persecution, did not constitute a finding that at the later time of determination of the application, neither applicant had such a fear. The RRT failed to interpret and apply the correct test as to what constitutes a “well-founded fear” of persecution; to consider each applicant’s case separately on its own merit; and to make findings which the RRT was required by law to make.
1(b) The RRT effectively imposed on Ms Mensah an obligation to raise all claims in her initial application and interview, and subsequently to repeat those claims at her own initiative. This approach was erroneous in law.
1(c) The RRT erred in law by failing to determine whether or not Vicencia, independently of Ms Mensah, had the requisite well-founded fear.
1(d) The RRT failed to consider the cumulative effect of the applicants’ claims. There was a link between the claims of persecution for reasons of political opinion and those for reasons of membership of a particular social group. Because Ms Mensah had no parents or siblings, if she were to be detained as a result of her relationship with her de facto husband and her perceived political views, it would be more likely that Mr Manu’s family would take Vicencia for circumcision. The RRT also failed to consider the whole of the material when assessing each applicant’s chance of persecution, and to apply the test in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293 (Kirby J).
1(e), (f) The RRT erred by failing to give Ms Mensah the benefit of the doubt in relation to her explanation for the late raising of the claim regarding FGM and failed to apply the correct standard of proof when assessing her credit and both applicants’ claims.
1(g) The RRT failed to consider whether it ought to make further enquiries or obtain further evidence regarding the risk of female circumcision in respect of Vicencia.
1(h) The RRT failed to make any evidentiary findings as to whether it was reasonable for the applicants to relocate to another part of Ghana.
Non-observance of procedures required to be observed
In contravention of s 420 of the Act, the RRT did not provide a fair or just mechanism of review because (a) it misled Mr Rickard by the Member’s statement on 17 March 1995 that she was satisfied with Ms Mensah’s explanation as to the lateness of the raising of the claim of FGM; and (b) the RRT failed to decide the issues and make the findings which it was required to decide and make, referred to in ground 1 above.
When conducting a review, the RRT is in the same position as the original decision-maker (s 415(1) of the Act), and is bound by the “code” provisions which bind the original decision-maker (these include ss 54-9 of the Act). The RRT breached the “code”, in particular, s 57.
Further, the RRT also did not comply with ss 425, 427(1) (b) and 429 of the Act. Particulars of the failure to comply with ss 425 and 427(1) (b) are the particulars of “error of law” given earlier. In relation to s 429, the RRT failed to maintain the privacy of the hearing by making an enquiry of a Ghanaian Member of Parliament without considering whether any of the material obtained by that person increased the chance of persecution of either applicant if either of them returned to Ghana.
No evidence or other material to justify decision
There was no evidence or other material to justify the making of the decision; there was no evidence that the applicants could seek protection locally; there was no evidence that it was reasonable for them to relocate to another part of Ghana in order to avoid persecution.
Decision not authorised
This ground is supported by the submissions made in support of the other grounds.
Outline of submissions of the Minister
The Minister’s submissions proceeded along the following lines:
Error of law
1(a) The applicants’ submissions misconstrue the RRT’s Reasons. The RRT rejected Ms Mensah’s claims in relation to the issue of a well-founded fear of FGM in their entirety. The only evidence in support of the claim that Vicencia, in particular, faced FGM was Ms Mensah’s claim that, prior to their departure from Ghana, Mr Manu’s family visited her when Vicencia was born and informed Ms Mensah that her daughter must be circumcised. The only other material said to support the claim that Vicencia, in particular, would be the subject of FGM was the fact that her father was of the Wangara tribe and that female circumcision was a practice of that tribe. But the RRT’s investigations suggested that “Manu” was not a Wangara name and that, in any event, it was unlikely that, as a matter of law of practice, Mr Manu’s family would have any claims or rights in relation to Vicencia. Accordingly, the RRT rejected the credibility of Ms Mensah’s claims in relation to this issue, and there then remained no evidentiary basis for a finding of a well-founded fear that Vicencia would be subjected to that procedure upon her return to Ghana.
1(b) The RRT merely considered that Ms Mensah’s failure to mention the claim earlier was relevant to her credibility.
1(c) The RRT did consider Vicencia’s claims independently of those made by Ms Mensah. The claims in relation to FGM could not support a finding that Ms Mensah had a well-founded fear of persecution. The only evidence that Vicencia, in particular (as opposed to young women of the Wangara tribe generally), would be the subject of FGM were the claims made by Ms Mensah. The fact that the RRT considered and made findings in relation to those claims indicates that it did consider whether Vicencia, in her own right, satisfied the definition of a “refugee”. But once the credibility of Ms Mensah’s claims was rejected, there was no evidentiary basis for a finding of a well-founded fear on the part of Vicencia.
1(d) Once the Member rejected the credibility of Ms Mensah’s claims in relation to possible circumcision of Vicencia, there remained no basis on which she could have undertaken a consideration of the cumulative effect of the “political” and “circumcision” claims.
1(e), 1(f) It is not required that the RRT accept any factual claim in respect of which there is no rebutting evidence.
1(g) Close analysis of the steps taken by the RRT upon and after the making of the claim by Ms Mensah in relation to FGM demonstrate that the RRT did consider whether further evidence was necessary in relation to that claim in so far as it affected Vicencia: it received a short reference to FGM in August 1994; waited for submissions which did not arrive; reconvened a hearing; and then made numerous enquiries. Not only did it “consider” making enquiries, it made them.
1(h) It was not necessary for the RRT to make findings as to whether relocation was possible.
Non observance of procedures required to be observed
It is part of the ratio decidendi of Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 (“Eshetu”) that s 420 lays down procedures that the RRT is required to observe for the purpose of s 476(1) (a). If I should think otherwise, I am not bound to follow the view of the majority (Davies and Burchett JJ) in that case which has, according to this alternative submission, no greater authority than that of an opinion expressed by two single justices, and, for the reasons which I gave in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs, 6 May 1997, unreported, which apparently received the support of Whitlam J in Eshetu, s 420 does not establish such procedures.
The correspondence which followed the second hearing on 17 March 1995 makes it clear that Ms Mensah, through her solicitor Mr Rickard, became aware that the RRT was still concerned over her lateness in raising the female circumcision issue.
Nothing in s 415(1) of the Act imposes upon the RRT the requirements of ss 54-9 of the Act (see Mahboob v Minister for Immigration and Ethnic Affairs (1996) 65 FCR 248 (Lehane J)). In the event that the RRT was bound by ss 54-9 of the Act, it did not breach them.
No evidence or other material to justify decision
The applicants’ submissions are in the nature of bald assertion. The “no evidence” ground has no application in relation to the ultimate conclusion of the RRT that a person does not have a well-founded fear of persecution for a Convention reason: Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 (FCA/Sackville J).
Decision not authorised
No independent submissions in reply are called for.
REASONING ON THE PRESENT APPLICATION
I do not find it necessary to discuss whether the view of the majority in Eshetu is part of the ratio decidendi of that case, or whether, even if it is not, I am bound to follow it, or whether, even if I am not, I should do so. Making the strongest assumption possible in favour of Ms Mensah and Vicencia, namely, that it is part of the ratio decidendi and therefore binds me, I nonetheless think that the Minister’s submission that there was no contravention of s 420 should be accepted.
I will address the grounds of review relied on by the applicants in the sequence in which they were addressed by the parties.
Error of law (s 476(1) (e) of the Act)
In my respectful opinion, the errors of law propounded are not made out. It is fatal to them that the RRT did not accept Ms Mensah as a witness of truth. The Member found that Ms Mensah had fabricated the only evidence before the RRT of a threat that Vicencia would be circumcised if she returned to Ghana. The Member concluded that Ms Mensah lied when she said that Mr Manu’s family had informed her that Vicencia must be circumcised; when she said that she feared that Vicencia would be circumcised if she were to return to Ghana; and when she said that she and Vicencia had left Ghana because of that fear. Once grounds 1(a) to (h) are considered against the background of these unchallengeable findings of fact adverse to the applicants, the ground of error of law and the various ways in which it is put are seen to be without substance. The finding of fabrication converted the case into one in which there was no evidence whatever of threat, fear, or conduct prompted by threat and fear in relation to FGM, and no evidence of a real chance of persecution due to Ms Mensah’s association with her former boyfriend or her political “activity”. In so far as it may be desirable to say something about grounds 1(a) to (h), individually, it suffices to say that I accept the Minister’s submissions in relation to them.
Non-observance of procedures required to be observed (s 476(1) (a) of the Act)
I set out earlier certain extracts from the transcript of the hearing on 17 March 1995. In the first place, the Member was careful not to embrace Mr Rickard’s suggestion that Ms Mensah and he could proceed on the basis that no aspersions were to be cast on Ms Mensah for her not having raising the circumcision issue until August 1994. Rather the Member said:
“I’m merely stating that I accept that there may well have been a reasonable explanation for that.”
Moreover, even if Mr Rickard gained the impression that the Member had closed the door on the issue of the lateness of the raising of the threat of circumcision, that impression must have been removed by the RRT’s letter dated 8 June 1995, the relevant passage from which was also set out earlier. Seven days after the RRT’s letter to her solicitor dated 8 June, Ms Mensah herself wrote to the RRT dealing with the issue of the lateness of the raising of the issue and her letter was referred to by Mr Rickard in his letter to the RRT dated 22 June. The issue was clearly a live one, and known to be a live one, by the time the RRT gave its decision on 8 September 1995. It is not, in my opinion, shown that in the respect mentioned the RRT failed to provide a mechanism of review that was fair or just or that it failed to act according to substantial justice and the merits of the case as required by s 420.
Section 415 of the Act provides, relevantly, that the RRT “may”, for the purposes of the review of an RRT-reviewable decision (such as the decision of the delegate of the Minister in the present case) “exercise all the powers and discretions that are conferred by [the] Act on the person who made the decision”. The section is permissive and does not require the RRT to observe a procedure, for the purposes of s 476(1) (a). The obligations created by ss 54-8 (s 59 referred to by counsel for the applicants does not impose an obligation) are imposed on the original decision-maker, not on the RRT: Mahboob v Minister for Immigration and Ethnic Affairs (1996) 65 FCR 248 at 251 (Lehane J).
According to the copy of the RRT’s file which was in evidence before me, none of the enquiries made by the RRT relating to the question of the practice of female circumcision in Ghana identified Ms Mensah or Vicencia. It is not shown that the RRT failed to consider whether material obtained by the Ghanaian Member of Parliament or the obtaining of it was apt to increase the chance of persecution of either applicant if either should return to Ghana. Even if it were shown that the RRT had not considered that possibility, its not having considered it would not constitute a failure by the RRT to observe the requirement of s 429 that “[t]he hearing of an application for review by the Tribunal must be in private”. For the sake of completeness, I should add that its not having done so would not have constituted a failure to observe the requirements of s 420 either.
No evidence or other material to justify the decision (s 476(1) (g) of the Act)
I do not think that this ground is made out. It is provided in s 476(4) that this ground is not to be taken to have been made out unless:
“(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
The Member did not accept the truthfulness of Ms Mensah’s factual account in relation to FGM and did not accept that either she or her daughter faced a real chance of persecution for a Convention reason if they returned to Ghana. The ground of review provided for in s 476(1)(g) has no application in these circumstances; cf Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 (FCA/Sackville J) at 203-204.
Decision not authorised (s 476(1)(c) of the Act)
For the reasons identified above in relation to the other grounds, I do not think that the RRT’s decision was one which was not authorised by the Act or the Regulations.
CONCLUSION
Ms Wilkins of counsel for the applicants has put every submission that could reasonably be put on their behalf but, for the reasons given above, in my opinion the application should be dismissed with costs.
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren
Associate:
Dated: 31 October 1997
Counsel for the Applicants: Ms E A Wilkins Solicitor for the Applicants: Justin Rickard & Associates Counsel for the First Respondent: Mr R T Beech-Jones Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 1 May, 10 October 1997 Date of Judgment: 31 October 1997
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