Ntiamoah, Seth Kwadwo v Minister for Immigration & Multicultural Affairs

[1997] FCA 1207

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Appeal from Refugee Review Tribunal decision refusing refugee status - procedural fairness - whether Tribunal should have volunteered Departmental file to applicant - whether sufficient disclosure of material to which Tribunal had regard - no evidence - error of law - whether error alleged of law or of fact.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 420, 476(1)(a), 476(1)(e), 476(1)(g), 476(4), 485

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, appl
Che Guang Xiang v Minister for Immigration, Local Government & Ethnic Affairs (unreported, Carr J, 22 April 1994), appr
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, refd
Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621, refd
Kioa v West (1985) 159 CLR 550, refd
Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 557, refd
Szelagowicz v Stocker (1994) 35 ALD 16, appl

SETH KWADWO NTIAMOAH v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
VG 433 of 1996

DAVIES J
SYDNEY
10 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VG 433  of   1996

BETWEEN:	SETH KWADWO NTIAMOAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
CORAM:	DAVIES J
DATE OF ORDER:	10 NOVEMBER 1997
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

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	VG 433 of 1996
BETWEEN:	SETH KWADWO NTIAMOAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	7 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application seeks orders of review with respect to a decision of the Refugee Review Tribunal ("the Tribunal") made on 19 June 1996. The application was brought under Part 8 of the Migration Act 1958 (Cth), under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B of the Judiciary Act 1903 (Cth). By reason of s 485 of the Migration Act, the Court has no jurisdiction to deal with this matter under the Administrative Decisions (Judicial Review) Act or the Judiciary Act.  Many of the grounds raised in the application lodged in the Court were not pursued and I need not refer to them.

Relevant grounds of review under s 476 of the Migration Act are:

“476.   (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(g)that there was no evidence or other material to justify the making of the decision.

(4)  The ground specified in paragraph (1)(g) 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 Tribunal found that Mr Ntiamoah was a 50 year old married man who had been employed as a diplomat by the Ghanaian Government from 1963 to 1985.  He came to Australia with his wife and four children in 1980 to take up a position at the Ghanaian High Commission.  The Commission closed in 1985.  Mr Ntiamoah flew out of Australia in August that year, leaving his family in Canberra.  He returned to Ghana for a month and was granted 56 days leave.  However, instead of returning to his job in the Ghanaian Ministry of Foreign Affairs, Mr Ntiamoah sent in a letter of resignation.  He arrived back in Australia on 28 September 1985.  On 3 March 1986, Mr Ntiamoah applied for Australian residency on compassionate grounds.  That application was refused and an appeal to the Immigration Review Panel  was dismissed on 5 August 1988.

On 11 August 1988, Mr Ntiamoah was charged with several offences relating to an alleged misappropriation of over $20,000 from the Ghanaian High Commission while he was employed there.  Mr Ntiamoah was accused of having drawn cheques without approval and of thus defrauding the Commonwealth Bank which had made good the loss of  the funds to the Ghanaian Government.  The matter was heard in the Supreme Court of the Australian Capital Territory in October 1990.  After several witnesses had given their evidence, the charges were dismissed.

One of the witnesses in the Supreme Court proceedings was Mr A, who had been the Acting Ghanaian High Commissioner during much of the time whilst Mr Ntiamoah was at the Commission.  In the course of his evidence, Mr A said that he had been about to return to Ghana following the closure of the High Commission when he had been warned by a diplomat that returning to Ghana would pose problems for him as diplomats with whom he had been associated in Canberra had been involved with intelligence officers of other countries and this could result in his being alleged to have been working with or for a foreign power.  Mr A said that he thereafter sought permission from the Australian authorities to remain in Australia and was granted that permission.  As to Mr Ntiamoah, Mr A gave this evidence in the Supreme Court proceedings:

“Now, ... - if I can just ask your opinion as a person familiar with the vagaries and the possible dangers of residing in Ghana - Mr Ntiamoah, if he was involved in a major fraud on the Ghanaian Embassy, he would also be in a very difficult situation if he was forced to return to Ghana, would he not?---I must confess that the regime, as it is actually known in the world at the moment, that does not have a good record of human rights.  It is no secret about that.

It would be your opinion, as a person experienced in the affairs of Ghana, that a person such as Mr Ntiamoah, perhaps even simply charged with this offence, would have severe problems with his human rights should he return to Ghana?---It is possible.”

The Tribunal expressed Mr Ntiamoah’s claim in this way:

“In this application and an accompanying submission from his lawyers, Hill and Rummery, Mr Ntiamoah claimed that he feared returning to Ghana because he would be re-tried on the fraud charges as a result of allegations made against him by Mr A.  He said that as the regime in power at the time did not observe the rule of law, his case would not be dealt with in a proper manner.  He also said that he believed he would be at risk of interrogation and detention because he been the code and cypher clerk at the Ghanaian Consulate during the time in which Mr A was believed to have been employed by a foreign government, probably the British Government.  Mr Ntiamoah also stated that he had been a member of the People’s National Party from its inception and that his brother-in-law had been jailed by the military regime in Ghana between 1981 and 1983.  He pointed out that Ghana was ruled by a military regime with a questionable human rights record and legal system.

Mr Ntiamoah was interviewed by an officer from the Department on 7 August 1992.  He said that he believed that he would be arrested at the airport, interrogated by the authorities, brought before a Public Tribunal and detained indefinitely.  He believed he would face this treatment because of the security breach at the Consulate and the missing funds.”

The application for refugee status was rejected and the matter went to the Refugee Review Tribunal.  After a hearing, the Tribunal dismissed the application.  The Tribunal said, inter alia,

“I accept that Mr Ntiamoah may face further investigations relating to the misappropriation of these funds if he returned to Ghana today.  He may even be charged with offences relating to the incident.  However, these would be criminal charges and prosecution in these circumstances is part of the normal operation of the law and does not constitute persecution for a Convention reason.  As noted above, the Ghanaian judiciary operates in an independent manner and in these circumstances there is no reason to suppose that, should he be charged, Mr Ntiamoah would not receive a fair trial.

I find the chance that Mr Ntiamoah would be suspected of involvement in espionage because of his association with Mr A who was accused, apparently falsely, of some form of association with the ... to be remote.  There is no suggestion that he was ever named as somebody associated with ... or any other intelligence organisation while employed by the Ghanaian Foreign Service.  As noted above, the evidence before the Tribunal indicates that the ... network ... was exposed in July 1985 and eight Ghanaian nationals were later denationalised and expelled from the country in exchange for the return of a Ghanaian charged with espionage against ...  Mr Ntiamoah spent a month in Ghana following this without experiencing any problems.  During this time he resigned from the Foreign Service.  I do not accept that the Ghanaian authorities would have taken no action against him and allowed him to leave Ghana at this time if they suspected him of involvement in espionage.”

The Tribunal concluded:

“I do not accept that Mr Ntiamoah has been implicated in his former colleague’s alleged intelligence activities.  It follows that I do not accept that any case pending against him in Ghana is related in any way to the accusations of espionage against Mr A.”

Procedural Fairness

Section 420 of the Migration Act 1958 (Cth) provides, inter alia:

“(1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal, in reviewing a decision:
(a)      is not bound by technicalities, legal forms or rules of evidence; and
(b)      must act according to substantial justice and the merits of the case.”

This provision and its relationship to s 476 of the Migration Act were explained in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.

The Tribunal obtained access to the file held by the Department of Immigration and Multicultural Affairs  with respect to Mr A.  During the course of the hearing before it, the Tribunal mentioned to Mr Ntiamoah some relevant information which the Tribunal had gleaned from that file.  For example, this evidence was given:

“THE CHAIR:   The information that I have, from his file, is that it is alleged that they [the allegations against Mr A] were made, or that they became known to Mr A in mid-1985.  You were back in Ghana in August/September 1985.  Nothing happened to you during that period?  It would seem to me that, in those circumstances, this might well be taken to indicate that whatever interest they may have had in Mr A, in relation to allegations of spying, they had no interest in you because they took no action against you, not even action to try and prevent you from leaving the country?

MR NTIAMOAH:  You would have to remember that when I went back to Ghana, I wanted amnesty once.  I went there, I applied for my permitted leave and they give it to me.  So, for all the time I was in Ghana, there was no way they could contact me.

...

MR NTIAMOAH:  Yes, but if they were interested in A, if they caught me, or harassed me there, why do they not get A, and A will not come back.  So, the best thing to do is leave me alone and then let A come home.

...

THE CHAIR:  From what I have today, it appears that the allegations were made against Mr A before you went back to Ghana, and from his evidence, that they were made on the basis of his membership of a committee which involved participation by agents of some foreign government.  Now, neither of those things suggest to me that the Ghanaian authorities suspected you of involvement.  I mean, you were not involved in this ad hoc committee, I take it?

MR NTIAMOAH:  No, I was not involved in the ad hoc committee, no, I was not because I was typing their letters, but I was not involved.”

The Tribunal sought other relevant information and requested the solicitor for Mr Ntiamoah  to provide a transcript of the trial.

There were two hearings before the Tribunal.  At the first hearing, there had been some discussion about Mr A but the name of the foreign intelligence agency and the country to which it belonged was not named.  At the second hearing, this information was given orally.

It is alleged that the procedure adopted by the Tribunal was not fair and did not comply with the provisions of s 420 of the Migration Act. Counsel for Mr Ntiamoah submitted that the Tribunal should have made Mr A's file available. I think there was no breach of s 420 of the Act in this regard. In the first place, access to the file was not requested. In the second place, if it had been requested, I would not have expected the file to made available. The file contained both information that related to Mr A’s personal affairs and information relating to a security organisation of a foreign power. In my opinion, sensitive material in such a file would not have been made available on request under the Freedom of Information Act 1982 (Cth). I would not have expected either the Department of Immigration and Multicultural Affairs or the Tribunal to have shown it to Mr Ntiamoah. However, the Tribunal did disclose orally to Mr Ntiamoah and to his solicitor, during the course of the second hearing, what was the substance of the complaint made against Mr A and other like details, insofar as they were recorded in the file.

Counsel for Mr Ntiamoah submitted that, because the relevant information was conveyed to Mr Ntiamoah at the second hearing, he and his solicitor did not have an opportunity to make inquiries from other sources, such as foreign securities organisations, as to whether that information was true.  Counsel submitted moreover that the Tribunal itself should have made such inquiries.  However, it was clearly not the function of the Tribunal to make inquiries of foreign intelligence agencies about a person who was the subject of proceedings before it and I cannot accept that the proceedings should have been delayed whilst Mr Ntiamoah made such enquiries.  It had been open to Mr Ntiamoah since 1990 to make enquiries if he wished to do so.  Of course, security agencies are secretive bodies and were unlikely to disclose any such information as Mr Ntiamoah may have sought.

Another issue raised with respect to procedure was that, at the second hearing, Mr Ntiamoah tendered a letter from his brother in Accra dated 20 May 1995 which read, inter alia:

“I was at the Ministries last Friday because we want Mr David Amankwah, the Honourable Minister of Works and Housing, to launch our real estate subsidiary for us.  I saw your old friend Kissi.  He told me that your case is still on file and pending and so you may have difficulties with the powers that be if you decide to come back home soon.  I have been disturbed since last Friday, because from what I gathered from him, the government will deal with you very sternly if you should show your face.

Brother, I wouldn’t want you to be put in prison for no fault of yours, so try and regularise your stay in Australia.  I always remember you in my prayers.  I trust the Lord Almighty will deliver you from the hardships.”

In its decision the Tribunal said:

“I find this letter to be a self serving document written to assist Mr Ntiamoah obtain residency in Australia.”

It has been submitted that the Tribunal ought not to have come to this conclusion without informing Mr Ntiamoah that it had doubts about the letter. 

Had the letter been a crucial document, this may have been the case, for on its face the document did not suggest a sham.  This letter was not however a crucial document.  The reference to “his case” in the letter could easily have referred to the defalcation from the Ghanaian embassy.  The Tribunal would have assumed that there was such a file.  The Tribunal pointed out that, despite the fact that the letter had been written twelve months previously and that the issues for consideration had been discussed during the first hearing in August 1995, Mr Ntiamoah provided no further evidence as to the nature of the matters which were on the file.  Thus, the letter did not assist in the determination of the principal issue on which Mr Ntiamoah’s application for refugee status turned, that is whether or not Mr Ntiamoah would be suspected of involvement with a security organisation of a foreign power.

A challenge was also made to the decision on the ground that there was a breach of the requirement for fair and just procedures in that the Tribunal did not make available to Mr Ntiamoah the cable reports and other documents to which the Tribunal referred in its decision. Procedural fairness is sufficiently discussed in Kioa v West (1985) 159 CLR 550 at 628-9, per Brennan J, and in Aronson & Dyer on Judical Review of Administrative Action at 532-8.  I need not add to the general principles there mentioned.

There have been many cases in which it has been alleged that there has been a breach of fair procedure arising from the fact a Refugee Review Tribunal has not disclosed to the applicant the precise material to which it has had regard in assessing the chance of persecution in the country to which the applicant is to be returned. Most of the cases were decided under the law as it stood prior to the amendments which introduced the present s 420 into the Act. I agree with the comment of Carr J in Che Guang Xiang v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 22 April 1994) that it is important for a Tribunal to disclose to an applicant information on the personal position of the applicant.  However, I do not consider that the obligation to provide a fair and just  procedure necessarily finishes at that point.  Every case differs and must be determined having regard to its own circumstances.  There will be some cases in which there is a real need to disclose other material of which an applicant is not aware.

Nevertheless, the requirement of s 420(1) of the Act is that the procedures be “fair, just, economical, informal and quick”. In my opinion, it would be inconsistent with the procedure which the Parliament has prescribed in s 420 for a Refugee Review Tribunal ordinarily to identify and disclose to an applicant all those pieces of general evidence which might be available to the Tribunal in its library or from other sources to which the Tribunal may have regard. The Refugee Review Tribunal is an expert tribunal. Its members have special expertise in this field, much of which they gain through the handling of cases which come before them. It would be impracticable for a Refugee Review Tribunal to make known to an applicant all the reading and information which may play a part in the formation by the Tribunal of its view of the state of affairs of a particular country at a nominated time or even to disclose all the information which may be available to the Tribunal and which may throw light upon that matter. Drummond J rejected an analogous contention in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 577. Moreover, it would generally be misleading for a Tribunal to isolate certain passages from reports and other information and to produce that material for comment in the absence of the context in which the passages are found.

Many of the sources referred to by the Tribunal in the present decision, such as the US Department of State Country Reports on Human Rights Practices, are public documents.  Applicants who have an interest in researching the matter can make their own inquiries through the public library system.  The cables received by the Department of Foreign Affairs and Trade are not so available but in general, as in this case, they express views to the same general effect of those of the US Department of State Country Reports.

What is desirable, however, is that a Refugee Review Tribunal should make known to an applicant, in the course of the hearing before it, the Tribunal’s general impression of conditions in the country to which the applicant will be returned, drawing attention to matters having an adverse effect on the applicant’s claim.

That is what the Tribunal did in the present case.  The Tribunal asked Mr Ntiamoah whether he had had any fear because he was of a different ethnic group from the leader of Ghana or because he had a different philosophy from that espoused by the government of Ghana.  The answer to that was no.  In relation to the possible criminal charges that might be brought against him in Ghana the Tribunal pointed out that Mr Ntiamoah could engage a lawyer in Ghana and said that the Tribunal’s understanding was that “there is a fairly active bar in Ghana of very well qualified lawyers”.  The Tribunal said that: “Ghana Bar Association seems to be a fairly prestigious organisation.  It has been quite outspoken in a number of ways.” 

At the second hearing, the Tribunal dealt with conditions in Ghana as follows:

“MS SMIDT:  ...  But certainly the indications that I have from the information that I have read is that during the early 1980s when the government of Ghana was engaging in a lot of statements against imperialism, against the United States, and the United States on the other hand was engaging in covert operations to destabilise the government of Ghana, that relations between the two countries were at a very low ebb.  But the information that I have read more recently, the impression that I get from reading for example United States State Department reports on the situation in Ghana, indicates that the US no longer has particular concerns about the leanings of the government of Ghana, and the government of Ghana likewise is keen to be incorporated into the Western alliance to have economic relations, good relations with the West.

...

MS SMIDT:  But all of the reports that I have read on Ghana recently, none of them have suggested that there have been any politically motivated killings in Ghana in recent years, nor indeed any politically motivated detentions.

MR NTIAMOAH:  I do not know the situation in Ghana now.  I do not know the situation.”

In the present case, where the application was based principally upon the personal circumstances of the applicant, there was I think no obligation on the Tribunal to do more than disclose to the applicant in the course of the hearing the general thrust of the Tribunal’s understanding of the conditions in Ghana, so as to give the applicant an opportunity to bring forward information to the contrary, if that were available.  The procedure adopted by the Tribunal appears to me to have been appropriate and to have been a procedure adequately described by the terms “fair, just, economical, informal and quick”.

No Evidence
The decision is also challenged on the ground specified in ss 476(1)(g) & (4)(b) of the Migration Act.  The equivalent provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) were discussed by Davies and Einfeld JJ in Szelagowicz v Stocker (1994) 35 ALD 16 at 22 where it was said:

“[The sections] provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist.  On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist.  They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.”

Thus, this ground requires findings that there was no evidence or other material to justify the conclusion as to a particular fact that the existence of that fact was relied on by the decision-maker that the fact did not exist.  See also Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.

In the present case, the first finding of fact challenged was that the Tribunal did not accept that the Ghanaian authorities would have taken no action against Mr Ntiamoah and would have allowed him to leave Ghana in August and September 1985 if they had suspected him of involvement in espionage.  This finding impliedly involved a finding of fact that the Ghanaian authorities would have taken action against Mr Ntiamoah if they had then suspected him of involvement in espionage.  This was a matter on which there was no direct evidence one way or the other but the Tribunal drew an inference from the fact that the allegations with respect to a foreign intelligence agency and Mr A’s alleged involvement with that organisation had surfaced prior to Mr Ntiamoah’s return to Ghana and that no allegation of espionage had been made against him.  The challenge on this ground fails because this was not a case of "no evidence"  as explained by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-8 and also because evidence has not been called to show that the finding of fact was wrong.

A challenge on the basis of no evidence was also made with respect to the finding that the brother’s letter of  20 May 1995 was a self-serving document.  However I need not discuss this matter further.  The decision was not based on it.  See Curragh Queensland Mining Ltd v Daniel (1992) at 220-224.

I should not close this aspect of the matter without commenting that it was undesirable that these findings of the Tribunal were expressed in such a positive way.  There was no substantial evidence supporting either conclusion.  The view of the Ghanaian authorities with respect to Mr Ntiamoah was unknown, save that they considered him responsible for or involved in the defalcation from Ghana’s High Commission.  The letter from the brother might have been written to assist Mr Ntiamoah in his application for refugee status but, on the other hand, it could just as easily have referred to the fact that authorities in Ghana continued to hold Mr Ntiamoah responsible for the misappropriations.  The Tribunal’s findings appear to me to have involved a degree of  guess work.  However, that does not suggest that there was any reviewable error in the decision of the Tribunal.

Error of Law
A further submission was that the decision was reviewable under s 476(1)(e) of the Migration Act on the ground that the Tribunal had erred in its interpretation of the applicable law or in its application of the law to the facts as found by the Tribunal.  However, I have not identified any error in the approach of the Tribunal.  Its decision appears to have turned on its view of the facts of the matter.

The crux of the matter as put on behalf of Mr Ntiamoah was that, if he were returned to Ghana, he would be likely to be charged with offences relating to the misappropriation from Ghana’s High Commission and that such charges would be politically motivated and politically prosecuted because the Ghanaian authorities suspected Mr Ntiamoah to have had some involvement with Mr A in the affairs of the foreign security organisation.  The case put for Mr Ntiamoah was that the chance of his coming to the attention of the Ghanaian authorities was high, and that, because of the coincidence of the steps taken by the foreign security agency in relation to Ghanaian affairs in 1985, Mr Ntiamoah’s sudden resignation, his return to Australia and Mr A’s later seeking political asylum in Australia, the Ghanaian authorities would suspect him of espionage and would conduct a trial on fraud charges accordingly.

The Tribunal took the view, however, that the judiciary in Ghana operated in an independent fashion and that the Public Tribunals which had been established in Ghana in the early 1980s had been phased out.  The Tribunal accepted the opinion of a 1995 US Department of State Country Report that the Ghanaian Constitution provided for an independent judiciary and that the government of Ghana posed no serious challenge to judicial independence.  The report stated that, although the integrity of the legal system was compromised by a lack of financial, human and material resources, legal safeguards were based on British legal procedures and that defendants were presumed innocent, trials were public and defendants had a right to be represented by an attorney.  The Tribunal further noted that the Ghana Bar Association was a strong and independent bar and that political exiles could return to Ghana with the assurance that the association would offer such legal assistance as might be required.

The Tribunal therefore considered that, if Mr Ntiamoah were returned to Ghana, he might be tried on fraud charges but he would receive a fair trial.  The Tribunal found that the chance that Mr Ntiamoah would be suspected of involvement in espionage was remote.

The Tribunal was correct in giving substantial attention to the status of the legal system in Ghana and to the likelihood that Mr Ntiamoah would be politically prosecuted or detained illegally or abducted or even killed if he returned there, as Mr Ntiamoah said he feared.  The Tribunal said that none of the information before it indicated that there had been politically motivated killings in recent years in Ghana and said that the Government and its opposition supported an independent judiciary.  The Tribunal cited a cable from overseas by the Department of Foreign Affairs and Trade that:

“... since 1992 Ghana had become a multi-party democracy with a constitution which guarantees all basic freedoms.  The rule of law had been reinstated and the judiciary operated completely independently of the executive and legislative arms of government.”

I am satisfied that the Tribunal’s approach to the issue before it was correct. 

I should perhaps add that Mr Ntiamoah's case before the Tribunal was an arguable but not a strong one for he had a fear of returning to Ghana which had its basis in a matter which was not a Convention reason, that is, the view of the Ghanaian authorities that he had been involved in misappropriation from its High Commission.  In the end, the Tribunal's decision turned on its view of the facts.  That view was adverse to Mr Ntiamoah's case.

Order
For these reasons the application will be dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:  10 November 1997       

Counsel for the Applicant:	M.L. Brabazon
Solicitors for the Applicant:	Bernard Collaery & Associates
Counsel for the Respondent:	G.T. Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 July 1997
Date of Judgment:	10 November 1997