Seidu, Anas v Minister for Immigration & Multicultural Affairs
[1997] FCA 391
•9 MAY 1997
CATCHWORDS
MIGRATION - refugee status - judicial review of decision of Refugee Review Tribunal - whether tribunal misapplied well-founded fear of persecution test - whether tribunal applied wrong test in deciding whether reasonable to expect applicant to relocate within Ghana
Migration Act 1958 ss 36(2), 475, 476
Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Randhawa v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259
ANAS SEIDU V. THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. VG 225 of 1996
Judge:GRAY J.
Place:MELBOURNE
Date:9 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 225 of 1996
)
GENERAL DIVISION )
B E T W E E N :
ANAS SEIDU
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: Gray J.
PLACE: Melbourne
DATE: 9 May 1997
EX TEMPORE REASONS FOR JUDGMENT
The applicant in this proceeding is a citizen of Ghana. He was born on 20 January 1968. He is a member of the Konkomba Tribe, who comes from Tamale, in the north of that country. He fled Ghana on 13 February 1994 during an outbreak of intertribal warfare between the Konkomba and the Nanumba people. Members of his family were killed in that conflict and the farm that they worked on was burned. The incident included the burning of the house, with three members of the applicant's family within it, and the burning of the crop on that farm. The applicant is greatly deserving of sympathy
because of the unfortunate history of his life.
The Refugee Review Tribunal accepted:
"... that the danger faced by the applicant at the time he left Ghana was on account of his membership of the Konkomba group and the risk of persecution he faced was for the Convention reason of race".
The applicant initially fled to Togo and found his way on board a ship. Eventually, he arrived in Australia on 1 August 1994 as an illegal entrant. He made an application for refugee status on 31 August 1994. That application was refused by a delegate of the then Minister for Immigration and Ethnic Affairs. The delegate's decision was reviewed by the Refugee Review Tribunal, which gave a decision on 20 March 1996, affirming the delegate's decision.
The applicant seeks review of the tribunal's decision, which is judicially-reviewable, pursuant to s. 475 of the Migration Act 1958. The decision and reasons of the Refugee Review Tribunal cover some twenty-one pages of single spaced type and indicate a detailed consideration of the circumstances within Ghana at the time when the decision was made and of the way in which they might affect the applicant if he were to return there.
It is conceded by counsel for the applicant that the reasons reflect accurately the case made by the applicant to the tribunal. The decision is challenged on two grounds, both said to fall within s. 476(1)(e) of the Migration Act 1958. That provision provides for review by this Court of a judicially-reviewable decision, on the ground 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.
In summary, the two grounds raised by the applicant concern a suggestion that the tribunal erred in the way in which it applied the well-founded fear test as propounded by the High Court of Australia in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and in the way in which it applied the test laid down in Randhawa v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, in considering whether the applicant could relocate within Ghana.
With respect to the first error of law suggested, counsel for the applicant also conceded that the tribunal stated correctly the test required for determination under s. 36(2) of the Migration Act 1958, in the case of an applicant for a protection visa who claims to be a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. It is in the application of that test that counsel for the applicant sought to identify error.
He pointed to a finding of the tribunal which was expressed in the following terms:
"While I accept that it is unlikely that inter-tribal fighting will again break out in Northern Ghana, having regard to all the facts I cannot dismiss such a possibility as `far-fetched' or, in the words of Toohey J in Chan (at 407) as `remote or insubstantial'. Clearly, until the root cause of the problem is resolved that possibility remains."
Counsel for the applicant argued that there was no need for the tribunal to go beyond that conclusion. It was because of intertribal fighting that the applicant left Ghana in February of 1994. The tribunal found, as I have said, that the applicant at that time had a well-founded fear of persecution, by reason of his race, which caused him to leave Ghana. Counsel for the applicant argued that the fact that there was a real chance that such intertribal fighting would again break out was sufficient to demonstrate that there was a real chance of the applicant's current fear being a reality.
The problem with that argument is that it overlooks the fact that the finding is in general terms. It is really a finding that the resumption of intertribal fighting is a real possibility, not a finding that the applicant will suffer persecution by reason of the resumption of such fighting. Indeed, that is the very question which the tribunal immediately went on to deal with. In the words following those which I have last quoted, the tribunal said:
"The question which must then be addressed is whether, in the eventuality of a reoccurrence of fighting, there is a real chance of the applicant's being killed or harmed to an extent which constitutes persecution".
The tribunal then discussed steps taken by the government of Ghana to keep the peace in the northern area of Ghana, and reached certain conclusions in relation to those. It also discussed a submission made on behalf of the applicant that he would be targeted because his father was a Konkomba elder, recognised that this may have some relevance in a situation in which fighting was resumed between the Konkomba and other groups, but pointed out that there was no evidence that people were targets of organised harassment because of their family connections.
In the end, the tribunal reached the conclusion:
"Having regard to all the evidence I am satisfied that the government is willing and able to provide `meaningful protection' to the applicant and that there is not a real chance of his being persecuted if he returns to the north of Ghana."
This, of course, was a conclusion of fact. Even if it could be demonstrated to be an incorrect conclusion of fact, it is not open to the applicant to challenge a conclusion of fact, other than on the grounds referred to in s. 476 of the Migration Act 1958. The applicant has not been able to do so.
Counsel for the applicant also argued that the use of the phrase "being killed or harmed to an extent which constitutes persecution", in the passage which I have earlier quoted, indicated that the tribunal was misdirecting itself, or addressing itself to a wrong test. He suggested that the phrase should be read by the application of the maxim ejusdem generis, so that the reference to harm was a reference to some form of violent harm, and therefore excluded from the consideration of the tribunal other forms of persecution. Counsel even went so far as to argue that, in some way, the tribunal was applying a surreptitious balance of probabilities test.
In my view the argument is not well-founded. The tribunal made clear earlier in its reasons for decision its understanding of the meaning of the word persecution. It said:
"Thirdly, an applicant must fear `persecution'. The word `persecution' is not defined in the Convention. It is clear from the judgments in Chan's case that the concept of persecution involves selective or discriminatory treatment and that deprivation of life or liberty, the infliction of torture or the denial of fundamental human rights for a Convention reason may constitute persecution. At 430-1 of Chan, McHugh J observed:
... persecution ... has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.
These remarks, which largely accord with views expressed by Mason CJ in the same case, reflect a considerable liberalization of the concept of persecution. Dawson, Toohey and Gaudron JJ found it unnecessary to canvass this issue. However, as Mason CJ observed at 388:
some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution ... The Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns ... The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason."
In the light of this, I cannot accept that the tribunal, in using the phrase, "killed or harmed" intended to limit the concept of persecution with which it was dealing. It must be remembered that the applicant's case was that he would be in danger in Ghana from intertribal conflict. In that context, it was appropriate for the tribunal to express the risk as a risk of the applicant being killed or harmed to an extent which constitutes persecution. The word "harmed" is quite capable of including various forms of persecution other than violent ones. There is nothing to suggest that, in using it in conjunction with the word "killed", the tribunal intended to limit it.
It is salutary to recall the warnings which are to be found in the judgment of the Full Court of the Federal Court of Australia in Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, where the Court warned against being concerned with "looseness in the language", or with "unhappy phrasing" of the reasons of an administrative decision-maker. Those warnings were adopted
and echoed by Brennan CJ and Toohey, McHugh and Gummow JJ, in the High Court of Australia, in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259, at p. 271.
The attempt to read down the meaning of the word "harmed" because the decision-maker used the word "killed" in conjunction with it, would be an example of excessive concern with unhappy phrasing, even if I were incorrect in what I have said about it.
I turn now to the applicant's second ground. The tribunal, having reached the conclusion that there was not a real chance of the applicant being persecuted if he returned to the north of Ghana, nevertheless then turned its attention to the possible fate of the applicant if he were to return to another part of Ghana, and specifically to Accra, its capital.
Counsel for the applicant conceded that the tribunal correctly stated the test to be applied in such a case, which was enunciated by the Full Court in Randhawa v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR at 437. Essentially, the test is whether it could be regarded as reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to one part of a country to relocate to another part of the same country. The tribunal came to the conclusion that it would not be unreasonable to expect the applicant to live in Accra.
Again, this was a conclusion of fact, which resulted from various findings of fact made by the tribunal. The complaint put by counsel for the applicant is again one which is based on the use of a particular word. In the sentence in which it expressed its finding, the tribunal said:
"While I would not wish to make light of the problems he would undoubtedly experience in relocating I do not regard them as insurmountable and I do not accept that it would be unreasonable for the applicant to live in Accra".
It is the use of the word "insurmountable" of which the counsel for the applicant complains. He puts it that, in assessing the problems which the applicant would face in relocating by reference to their surmountability, the tribunal was, in fact, applying too high a test. Again, this approach would be one which falls foul of the warning issued by the Full Court in Pozzolanic. In any event I do not think that there is substance in it. It should be noted that the word "insurmountable" occurs in the same sentence as the word "unreasonable", an indication that the tribunal was in fact applying the correct test.
It is to be noted that the tribunal, in referring to the problems that would be experienced, was dealing with matters such as liability to danger from violence, prospective employment, linguistic ability and so forth. It was not improper to describe the problems which the applicant said he would face in terms of their insurmountability, as a step towards the conclusion that it would not be unreasonable to expect him to live in Accra.
For these reasons it is necessary for me to dismiss the application for review of the decision of the Refugee Review Tribunal.
The orders I make are as follows:
The application for an order of review is dismissed.
The applicant pay the respondent's costs of the application.
Counsel for the applicant: Mr T Hurley
Solicitor for the applicant: Barlow & Co
Counsel for the respondent: Mr A Cavanough QC
Solicitors for the respondent: Australian Government Solicitor
Date of Hearing: 9 May 1997
Date of Judgment: 9 May 1997
I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of his Honour Justice Gray
Associate:
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