Oteng, Kwame v Minister for Immigration & Multicultural Affairs

[1997] FCA 666

IN THE FEDERAL COURT OF AUSTRALIA          ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY        )  No NG 807 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:                KWAME OTENG   
  Applicant

AND:  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram:            Davies J.
Date:               26 June 1997
Place:              Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal.  The function of the Court is to ascertain whether there was any error of law in the decision of the Tribunal.  Decisions as to the facts are decisions for the Refugee Review Tribunal.  The Court has no power to make its own findings of fact.

In this case, Mr Oteng arrived in Australia on 27 April 1996.  He arrived on a false passport.  He did not claim to be a refugee until the story that he had told to officers was shown to be false.  A claim that he had fled from Ghana was then made and a number of detailed facts were recorded by an officer.  Subsequently, a formal application for a protection visa was lodged and a lengthy typed statement was provided.  The facts set out in that statement were not the same as those recorded in the interview at the airport.

In a case such as this, the task of the Refugee Review Tribunal can be a difficult one.  The Tribunal must assess the applicant's credit to determine why the applicant left his homeland.  The Tribunal made an adverse finding of credit against Mr Oteng.  There were three principal reasons for that.  One was that the story given in the written statement to the Tribunal differed from that recorded in the airport interview.  Another was that the factual details that Mr Oteng stated did not seem to come from a person having particular involvement in the political events of which he spoke.

The primary decision-maker, like the Refugee Review Tribunal, noted this point.  The primary decision-maker said:-

"[Mr Oteng] was unable to provide a detailed description of these activities or to convince me that he had any better knowledge of the political process than any peasant farmer without a connection to a political party."

The Refugee Review Tribunal took a similar approach.

Another matter that was of some importance is that Mr Oteng's story tended not to show persecution of the political party, the New Patriotic Party, to which he belonged.  Much of his written statement and of his evidence before the Tribunal spoke of the activities of a Mr Adom, whom Mr Oteng said he feared.  However, the Tribunal was not satisfied that the members of the New Patriotic Party or Mr Oteng would be singled out for persecution. 

Other specific matters were discussed by the Tribunal which, in the Tribunal's view showed inconsistencies in the information which Mr Oteng provided.

I do not see any incorrect approach by the Refugee Review Tribunal.  The Tribunal was entitled to have regard to what was recorded in the airport interview.  Obviously, a person who comes to Australia and immediately claims refugee status and who then gives a story which is persisted with and consistent with the evidence later given is much more likely to be believed than one who comes on a false passport and who does not immediately claim refugee status.  The Refugee Review Tribunal was entitled to have regard to that fact and it was entitled to have regard to the information it received as to the position in Ghana.

I think the Tribunal would have regarded this as a difficult case.  Its lengthy reasons show that the Tribunal took a great deal of care in coming to a view about the matter.  However, in the end it thought that it could not accept Mr Oteng's story.

As I have said, it is not for the Court to make up its own mind about the facts.  The Tribunal was the decision-maker of fact.  I have looked through the decision and through the files of the Department and of the Tribunal.  I cannot see any error of law in the decision.  It follows that the application must be dismissed.

The application will be dismissed with costs.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:    26 June 1997

The applicant appeared in person.        

Solicitor for the respondent:  Ms D. Watson

from the Australian Government Solicitor

Date of hearing:  26 June 1997

Date of judgment:  26 June 1997