Nyarko, Eric Akwasi v Minister for Immigration and Multicultural Affairs

[1998] FCA 307

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 832 of 1997

BETWEEN:

ERIC AKWASI NYARKO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL (ROSLYN SMIDT)
SECOND RESPONDENT

JUDGE:	LOCKHART
DATE:	3 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 3 October 1997 that it was not satisfied that the applicant is a refugee and affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. 

The applicant is a citizen of Ghana.  He arrived in Australia in April 1997 on a false Costa Rican passport.  He made a number of claims to the Department and reiterated them before the Tribunal.  I need not refer to the facts in depth as they are fully mentioned in the reasons for decision of the Tribunal itself, but I shall mention some of them.

The applicant's case was that he was the eldest son of the late chief of the Abrafo tribe in the central region of Ghana.  The word “Abrafo” in the local language means “executioner” and he claimed that the Abrafo tribe is responsible for ritual executions for the relevant chief which form part of the traditional practices in the area.  It would seem that once the chief has died, according to the traditions of the area, it is perceived to be not fitting that he should depart this world into his next world unaccompanied by human beings, so that they are killed in the performance of religious rituals as an offering to the late chief.

According to the applicant, the traditional custom that applied was that since he was the eldest son of the late chief of the Abrafo tribe it would be his duty to assume his father’s role and perform ritual killings.  This, he said, would conflict with his religious and moral convictions, the applicant having become a converted Christian.   The applicant's case was that he refused the post of chief executioner shortly after his father's death and that in the result he was summoned before the tribe’s elders at the chief's palace to explain his decision. He was detained there for something of about 3 hours and was subjected to forms of physical torture, including the cutting of his arm.  His mother's intervention prevented anything further happening to him.  He then decided to flee to Accra.

The details surrounding the applicant's claim that he would be liable to persecution if he were to be sent back to Ghana are fully set out in the Tribunal's reasons.  A submission prepared by the applicant's representative was sent to the Tribunal and considered by it, as was a great deal of other material which was in the departmental file or was otherwise placed before the Tribunal from different sources.  There was an amount of material before the Tribunal which the Tribunal found suggested to it that the applicant's claim that ritual killings were not uncommon today in Ghana was not the case and that ritual killings ceased many years ago.

The Tribunal said that it had considerable difficulty accepting the claims of the applicant for reasons which the Tribunal outlined in its decision and which I need not mention except to say that I have taken them into account. In particular, the Tribunal did not accept the applicant's case that there were ritual killings which occurred relatively frequently, albeit that nobody reported the facts to the authorities, presumably because of fear of reprisals.  The Tribunal did not accept, on the material before it, that the practice of executioners being required to execute people continued in modern times and did not accept his assertion that the courts of his country would require him to take up a chieftaincy against his will.

Two members of the local Ghanaian community appeared on the applicant's behalf before the Tribunal and their evidence and submissions were referred to by the Tribunal in its reasons.  A request was made to the Tribunal at the end of the oral hearing before it, on behalf of the applicant, that further investigations be conducted into his claims.  The Tribunal advised that it would consider this request but indicated that even if it accepted the applicant's claims, it did not appear that his fear of harm inflicted on him fell within any of the reasons expressed in the relevant Convention and invited the applicant's representative to provide written submissions on that question.

The Tribunal subsequently did obtain quite a deal of additional material, including some additional information from a Mr Joe Ghartey, a lawyer and Secretary of the Ghana Committee on Human and People’s Rights based in Accra, Ghana.  It seems that Mr Ghartey had indicated that he would furnish his view to the Tribunal in written form.  This he did not do and though it is not entirely clear why this was so, the Tribunal said that it was probably because he did not seek to be further involved in a particular case, that is, the case of the applicant.

However, Mr Ghartey give information orally to the Tribunal which tended to strongly deny material assertions of the applicant in relation to the current carrying out of ritual executions and other matters.  The Tribunal accepted the material provided to it by Mr Ghartey and said that it considered Mr Ghartey to be an honest and reliable source of information on the situation in Ghana.   I mention this because this is one of the principal grounds of attack made by counsel for the applicant, namely, that there was a solemn undertaking by Mr Ghartey to give this information which did not arrive.  I see nothing in the reasons of the Tribunal to indicate that in this respect it fell into any error.

The Tribunal stated the relevant principles of law that apply in this area and no error was adverted to by counsel for the applicant.  Indeed, I see no error in law in the tests which the Tribunal propounded for itself.  The Tribunal did carefully consider, it seems to me, all the material before it, subject to one matter to which I shall refer in a moment.  It concluded that on the whole of the evidence it was not satisfied that the applicant was someone to whom  Australia had protection obligations under the Refugees Convention and was therefore not entitled to a protection visa.  The Tribunal based its finding in a material part on the view that it found the applicant not to be a credible witness and the Tribunal expressed its reasons for that conclusion.

There are a number of grounds of review that are stated in the application for an order of review. They are in very general form and it is the submissions of counsel on the applicant’s behalf which have narrowed them today. The grounds of review are essentially those which are sought to be brought within the context of sections 420 and 476 of the Migration Act 1958. I am content to deal with the matter in the way in which it was argued before me, which was essentially to examine the question whether the Tribunal could be said to have made an error in its decision-making process in its review of the facts before it.

The matter on which primary significance was placed by counsel for the applicant was that in quoting its reasons the Tribunal referred to the applicant's evidence concerning the events that occurred at the chief's palace not long after his father's death and stated that according to the applicant's evidence he was only detained there for 3 hours and that "at no time has he mentioned of any other harm prior to his departure from Ghana" (page 18 of the Tribunal's reasons).  Although this reference is somewhat ambiguous, I am prepared to approach the matter on the footing that the Tribunal was asserting there that during the 3 hours detention he was subjected to no physical harm.

This would not be in accord with other materials to which the Tribunal made reference in its reasons, where the applicant asserted that he had been mutilated in the arm and still bore the scars from that occasion.  The applicant's claim was before the Tribunal at all material times, but even if the Tribunal did overlook that point when making the finding which it did at page 18 of its reasons, I am not persuaded that it had any material effect on the conclusions of the Tribunal in rejecting the applicant as a person of credibility.

Overall I am not persuaded that the Tribunal committed any error of law in reaching its conclusion that it was not satisfied that the applicant is a refugee and, therefore, not entitled to the grant of a protection visa. 

Before leaving the matter I should say that at an earlier directions hearing, when the applicant appeared in person, the Court made a request to the Registrar to inquire of the New South Wales Bar Association and the Law Society of New South Wales if representation could be afforded to the applicant, as he could not obtain it otherwise.  The applicant, as I recall it, was quite fluent in the English language and understood what was said to him in English, so that obstacle did not provide a problem.  However, the Bar has responded as it customarily does and counsel who appeared at short notice for him has put every point that, in my view, could legitimately be put on the applicant's behalf.  The Court wishes to indicate its gratitude to the New South Wales Bar Association and its members for taking the attitude which it does in matters of this kind, and in particular, to counsel who appeared this morning for the applicant.

In the circumstances, the application for review is dismissed. 

The respondent seeks an order for costs in the usual way.  It is true, as counsel for the applicant says that this is not a frivolous or vexatious application and that the matter is of great importance to the applicant.  Nevertheless, I am not persuaded that the usual course should not be followed.  Accordingly, the applicant is ordered to pay the respondent's costs of the application for review.

One final matter remains. It is necessary to deal with an application by counsel for the applicant that an order be made which would have the effect of preserving the applicant's position of not being subjected to deportation from this country. Counsel has informed me that an application has been made to the Minister pursuant to s 48B of the Migration Act 1958 for a determination that s 48A does to apply to the applicant. The essence of s 48A is that where a person who is a non-citizen has been refused a protection visa, he is prohibited from making a further application for such a visa. Section 48B provides, in essence, an exemption from that provision.

The application to the Minister under s 48B was by letter of 9 February 1998, a copy of which is in evidence and marked exhibit 3. This application is said to be based on fresh evidence from Ghana. I understand from what I have been told by Mr Peek on behalf of the Minister that it is the practice of the Minister and the Department of Immigration and Multicultural Affairs not to deport people whilst applications before the Court are pending.

I have some doubt as to what jurisdiction the Court would have to make an order of the kind sought by the applicant.  Certainly there is no specific statutory power vested in this Court although it may be that there is some form of implied power.  I do not propose to determine that.  I do not think in all the circumstances it would be appropriate for the Court to exercise its discretion in favour of the making of such an order. 

However, I would simply say that without in any way detracting from the decision of the Tribunal which I have already upheld, that I did have a slight feeling of unease in relation to the matter.  This stems from the fact that it may well be that local practices of the kind which the applicant asserts exist in his home country do so exist, although unknown to the authorities of the country, and indeed, despite being actively discouraged by the governments of the countries concerned.  The applicant may have evidence of this general kind which he seeks to assert which was not before the Tribunal.  It is entirely a matter, in my view, for the Minister and the Department to decide whether there should be a deportation order made and I do not seek to enter into the field of discretion vested by the Parliament of this country in the executive and not the judiciary.  I emphasise again, I did have that slight feeling of unease, but I say no more.  That is all I can do. 

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate:

Dated:             3 March 1998

Counsel for the Applicant:	Mr P M Gwozdecky
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	3 March 1998
Date of Judgment:	3 March 1998