VWFG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 611

FEDERAL COURT OF AUSTRALIA

VWFG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 611

VWFG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO V 483 OF 2004

HEEREY J
6 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	V483 OF 2004

BETWEEN:	VWFG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	6 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application is 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
VICTORIAN DISTRICT REGISTRY	V483 OF 2004

BETWEEN:	VWFG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	6 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister to refuse the applicant a protection visa.  The applicant is a Ghanaian national and a Christian.  She was born in 1980 and arrived in Australia on 14 April 2002.

2. Her claims for refugee status essentially rested on two matters.  She said that her parents had arranged for her to be married by a wealthy man from the north of Ghana who would insist, as part of the culture of that part of the country, on her undergoing female circumcision.  This was something she feared greatly because her elder sister had died from a similar operation.  The second aspect of the claim was that she had, while at the university, taken part in a group that protested against female circumcision.  That second claim is not relevant for present purposes. 

3. The jurisdictional error alleged in the amended application for review is that the Tribunal ignored or failed to deal with the claim that the applicant’s intended husband was from Bawku in the northern region of Ghana, which was integral to her claim of forced marriage and the risk of being involuntarily subjected to female genital mutilation (FGM).

4. The Tribunal extensively reviewed country information from a number of sources, including the United States Department of State, the United Kingdom Home Office and the Australian Department of Foreign Affairs and Trade, about FGM in Ghana.  The Tribunal said:

   “The above information makes it clear that forced marriage and female circumcision are illegal in Ghana and that the government, with the assistance of government and non-government organisations, works actively and publicly to eliminate these practices.  Nevertheless, in some parts of the country, particularly in rural areas and remote communities, the practices have not yet been eradicated.” 

5. That seems to me a fair summary of the detailed country information.  The contrary was not suggested by counsel for the applicant.  Part of the country information did indicate that there was or had been, at least in comparatively recent times, a high level of FGM in the northern part of Ghana.  For example the US State Department state report of June 2001 quoted a 1996 Amnesty International report which estimated that 76 per cent of all women in the upper east, upper west and northern regions had been subjected to such treatment.  That report cited several cities in these regions where FGM was still widely practised, including “Bawku East and Bawku West in the upper east region”.

6. In dealing with this aspect of the claim the Tribunal said:

   “The Tribunal does not accept the applicant’s claims that if she had remained in Ghana she was at risk of being forced into a marriage she did not want and as a result would have been circumcised against her will, and that the authorities would not have protected her.  As discussed with the applicant at the hearing, she is an educated young woman from an urban community.  She comes from a tribe, the Ashanti, which does not practise female circumcision (the DFAT report cited above refers).  She was unable to identify correctly the ethnic group or tribe from which her intended husband came – a fact she could reasonably be expected to know.  She said that her intended husband belonged to the Tamale ethnic group.  Tamale is the capital city of the Northern Region of Ghana; it is not the name of an ethnic group.”

   After dealing with some information about the city of Tamale, the Tribunal said:

   “Noting the country information discussed above, the Tribunal finds that the applicant’s claims of being forced into marriage and therefore at risk of being involuntarily circumcised are not consistent with her background as an urban, educated Ashanti woman, and nor are her claims consistent with the country information about the position of the Ghanaian authorities on these matters.  The Tribunal has formed an adverse view of the applicant’s credibility and is of the opinion that here claims about her forced marriage are fabricated, as is her claim made at the hearing that she went to the authorities and reported her situation after she finished school in 2000, but they did nothing to help her.  Nor is the Tribunal satisfied that the applicant’s claims about her sister’s death are true, given that her sister was also a university-educated urban Ashanti woman.  The Tribunal finds that if the applicant were to return to Ghana she would not be forced by her parents into marriage with an older man from the north and she would not be required to undergo female circumcision.  The Ghanaian authorities would be able and willing to protect the applicant against any harm of this nature.”

7. Bawku is in the furthest north-east corner of Ghana.  It is about 200 kilometres to the north of Tamale, which in turn appears to be roughly about 400 kilometres north of Kumasi, where the applicant comes from.  It is the second largest city in the country after the capital, Accra.

8. Counsel for the applicant argued that the Tribunal had overlooked the fact that the proposed husband of the applicant came from the northern part of the country where the practice of FGM was prevalent and that, he said, was a highly significant fact.  I think the short answer is that the Tribunal formed a clearly adverse view of the applicant’s credibility and specifically found that her claims about forced marriage were fabricated.  In the passage already quoted the Tribunal gave rational reasons for that conclusion.  This was a question of fact for the Tribunal and not for this Court. 

9. If the Tribunal was satisfied that the forced marriage story was fabricated, it followed that the whole of the story was fabricated and the Tribunal did not have to independently disprove every element of that story, including the fact that the proposed husband came from the north.

10. There was some criticism of the Tribunal’s inclusion, as one of its reasons for finding fabrication, that the applicant could not correctly identify the ethnic group or tribe from which her intended husband came.  The following passage appears from the transcript of the proceeding before the Tribunal:

    “MS GOULD:  Well, Ashanti people are not – they – female circumcision is not something which Ashantis traditionally do.

    APPLICANT:  That’s it.  That’s not ---

    MS GOULD:  So why would you – you’re from the Ashanti tribe.

    APPLICANT:  I’m from the Ashanti tribe.  But if you are going to get married to the (indistinct) money then you have to, that’s our custom, when the man was very rich in the community.

    MS GOULD:  So what tribe was he from?  I’ve got a list of tribes here.

    APPLICANT:    He was from the northern region of Ghana.

    MS GOULD:  What tribe was he from?  I mean, not every tribe in the northern region practises female circumcision.

    APPLICANT:  From Tamale they do.  From Bawku they do.

    MS GOULD: But what was his tribe?  What ethnic group did he come from?

    APPLICANT:  From near Tamale.

    MS GOULD:  Can you just spell that for me, please?

    APPLICANT:  T-a-m-a-l-e.

    MS GOULD:  I don’t see that on the list.  No, it doesn’t seem to be one of the ethnic groups that practise female circumcision.

    APPLICANT:  They do it and the – all those from the Tamale, Bawku and then the ---

    MS GOULD:  No, not Bawku either.

    APPLICANT:  They do it in all that. 

    MS GOULD:  No.  There are some cities where it’s practiced, but not from that particular tribe.

    APPLICANT:  They do, that tribe also do it.

    MS GOULD:  Well, which – now, which actual ethnic group does this man come from?

    APPLICANT:  He comes from the northern region of Ghana, a tribe called Tamale, Tamale ethnic.  Like, I come from Ashanti region, a tribe, they are (indistinct) tribe.

    MS GOULD:  And what – well, what town in the northern region does he come from?

    APPLICANT:  He comes from a place call Bauku.

    MS GOULD:  B-a-w-k-u?

    APPLICANT:  B-a-u-k-u. [sic]

    MS GOULD:  But he lives in Kumasi, is what you told the delegate.

    APPLICANT:  He doesn’t live in Kumasi.  He doesn’t live there.  He trades there.  He’s a very rich man who trades with yam, and those trading in yam are very rich in their country because yam, it’s very expensive food to buy in Kumasi.  Those bringing their yam from the north in to trade, and he’s got buses trading in for him with the yams.  So he lives in the northern region, but when he comes to our place, he’s got friends there because he’s rich, he look after lots of people there.”

11. The applicant apparently gave evidence without an interpreter and, as far as one can ascertain from the transcript, her command of English seems quite adequate.  Reading that passage as a whole, it is clear that the Tribunal was asking about the ethnic group that the proposed husband came from and that the applicant would have understood this.  I must say the sense of the passage that appears to me from the transcript is that the applicant did not know the ethnic group the man came from (if indeed there was such a man at all) but tried to hedge by turning the question into one about the town which he came from.

12. I do not see that passage as providing any support for a contention that the Tribunal fell into error, let alone jurisdictional error.  The application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            13 May 2005

Counsel for the Applicant:	J A Gibson
Solicitors for the Applicant:	Erskine Rodan and Associates
Counsel for the Respondent:	J K McDonnell
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	6 May 2005
Date of Judgment:	6 May 2005