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MIGRATION - RRT decision - Ghanaian fearing harm from members of clan - past incident showing refusal of police protection - whether Tribunal considered whether State authorities were both able and willing to give effective protection - no error found.

SZEBD v Minister for Immigration [2004] FMCA 902 (18 November 2004)

SZEBD v Minister for Immigration [2004] FMCA 902 (18 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBD v MINISTER FOR IMMIGRATION
[2004] FMCA 902




MIGRATION - RRT decision - Ghanaian fearing harm from members of clan - past incident showing refusal of police protection - whether Tribunal considered whether State authorities were both able and willing to give effective protection - no error found.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.483A, Part 8

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 FCR 242

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, 78 ALJR 678

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:
SZEBD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2354 of 2004




Delivered on:


18 November 2004




Delivered at:


Sydney




Hearing date:


18 November 2004




Judgment of:


Smith FM



REPRESENTATION

Counsel for the Applicant:


Ms J Kinslor




Solicitors for the Applicant:


Christopher Levington & Associates




Counsel for the Respondent:


Ms S Kaur-Bains




Solicitors for the Respondent:


Phillips Fox




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2354 of 2004

SZEBD



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") which challenges a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 28 June 2004. The application for a protection visa was made on 21 July 2003.

2. The Court's jurisdiction under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". In cases such as the present, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The limitations preclude this Court giving any relief unless the Tribunal's decision was vitiated by jurisdictional error in accordance with the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. Both counsel have addressed the present application to me on that basis and I need not explore the Court's jurisdiction further.

3. The applicant put forward, in effect, one ground in support of the orders sought in arguments ably presented by counsel for the applicant. This was that the Tribunal failed to address an essential issue when applying the Refugee Convention definition of refugee to the claim put forward by the applicant. It was argued that this omission appears from the reasoning of the Tribunal in paragraphs 50 and 51 of its reasons which I shall set out below after explaining the history of the matter and the nature of the claim.

4. The applicant, in a statement attached to his application for a protection visa, said:

I left Ghana because of fear of persecution by the people and royal members of "XX (a local village and clan)" in the Western region of Ghana, because of my ethnicity in relation to a Chieftaincy succession.

5. He then narrated a history in which he was the son of a woman who married the current chieftain of XX and was born after their marriage. He was raised as the chief's son and heir to his clan, which appears from other evidence to have been located in a small village in Ghana but to have had rights of considerable wealth. He was raised in the village and given capital by the chief to set up a business in Accra. The applicant was told in recent years that he was not the biological father of the chief, but that his biological father had died when his mother was five month's pregnant and had been in fact from the northern region of Ghana and of different ethnicity. He said that after the current chief was diagnosed as having a heart attack illness the question of his successor became a matter of concern to other members of the clan. His biological parentage was then revealed to clan members by his uncle who was acquainted with his history and had become a rival in the affairs of the clan.

6. The applicant's narrative continued:

My uncle then revealed the secret to the other royals and members by complaining that my father is using the wealth of the throne to look after and assist people who are not from the "A" clan but the "M" clan. He referred openly to me and made people know that I am an adopted child of Chief .... Meanwhile, the conflict and accusation continued but my parents and I continued to live our normal lives. A week before the scheduled day for the swearing in 1 February 2002, some royals and members of the community forced their way into the palace in an attempt to capture and kill me. They threatened that I am not a member of the "A" clan but a "M" and therefore cannot inherit the throne. Any attempt to give me such role would result in the killing of my entire family and me. I was lucky not to be at home at that time. However, they destroyed the family's property and beat my father unconsciously. They were told that I had gone to Accra. However, I had at that time taken refuge in one of my friend's house in the village. The royals and some of the community members then boarded a car carrying clubs, and knifes to my residence in Accra. At Accra, my landlord told them that I had travelled to the village. Not trusting what they heard from my landlord in Accra, they forced their way into my apartment and found no one in. My life was at risk so I could not come out of my friend's room in the outskirts of the village of XX. My friend then told only my parents about my whereabouts.

7. The Tribunal summarised this part of the applicant's claims in paragraphs 22 and 23 of its reasons as follows:

22. In February 2002 some royals and members of the community forced their way into the palace in an attempt to capture and kill the applicant. They said he was not a member of the "A" clan, but of the "M", and therefore could not inherit the throne. The applicant was lucky enough not be at home at the time, but these people destroyed the family's property and beat his father unconscious.

23. The applicant had taken refuge in a friend's house in the village, but the attackers were told that he was in Accra and they then went to Accra carrying clubs and knives with the intention of attacking him. They forced their way into his apartment. The applicant's family reported the incident to the nearest police station. They were told by the police that this was a chieftaincy dispute and should be dealt with by the elders and chiefs of the village.

8. The Tribunal also described at paragraphs 41 to 44 of its reasons how it had questioned the applicant:

41. Asked whether he would maintain his own claim to the succession if he returned to Ghana, given the dangers he claimed this created for him; he said that he would like to be Chief. He referred to the gold and land he would have as Chief and to his adoptive father's continuing wish for the applicant to succeed him. Asked if he believed the same struggle over the issue would continue now as had been the case more than two years ago when he had left Ghana, he said he was in contact with his family and that his father continued to wish him to succeed and that other senior family members continued in their claim to the succession. In order to succeed to the Chieftaincy, he would need to gather supporters and undertake a struggle with the contenders for the succession. He said that if his father's wishes changed, or if an acceptable alternative successor emerged, he would be less likely to maintain his claim.

42. The Tribunal referred to independent country information (see below) that the Ghanaian authorities do not tolerate outmoded and violent tribal or traditional practices, and suggested that the applicant would have recourse to those authorities against the harm he feared on return. The applicant responded by referring to continuing inter-tribal violence in northern Ghana which remained unresolved despite the efforts of the government, but acknowledged that the situation was not like that in the southern areas of the country including his own region in the south west.

43. The applicant said that most of the laws applied in the cities and there was nothing to stop a small group of villagers travelling to Accra armed with cutlasses, machetes and knives, or acquiring these on arrival in Accra, and carrying out an attack on him like the one they had attempted before his departure (when fortunately, and unknown to them, he had in fact been in the village). On this basis he claimed that, even if he decided to forget about the Chieftaincy, he would not be able to remain safely in Accra.

44. Asked whether he would in fact return to XX or would resume his life and business in Accra if he returned, the applicant responded to the effect that the business was no longer available to him: its resources and assets had been dispersed. At best he would be reduced to being a street person or a "truck pusher" (employed to manually push non-motorised trucks transporting heavy goods). He would not be able to live in the village. He therefore could not go back to Ghana.

9. Under the heading, "FINDINGS AND REASONS", the Tribunal reached a conclusion in which it accepted the applicant's narrative, and in particular that he remained the favourite candidate of the current chief for succession and that the chief had continued to delay a decision on the matter. The Tribunal then said:

50. I further accept, in the light of the applicant's testimony about the wealth and assets of the Chieftaincy as well as its traditional standing, that the applicant faces serious competition in relation to this succession. I accept that violence surrounds this competition, and that the attempted attack on the applicant described in paras 22 and 23 above, including an intention to kill him, occurred. I am not satisfied that this provides a basis for finding that the applicant faces serious harm or mistreatment on his return given that the applicant confirmed at hearing that only one such incident had occurred and, as discussed with him at hearing, that the independent country information cited above on the measures taken by the Ghanaian government to combat violence and other unacceptable practices associated with traditional institutions in Ghana, and the material drawn on by the Departmental delegate in his decision from the US State Department's human rights report on Ghana (see page 7 above), indicates that the authorities would be able to provide effective protection against any further such attempts.

51. I accept on the basis of the applicant's oral testimony that he will continue to pursue the Chieftaincy on his return so long as he believes that to be his adoptive father's wish. The applicant is aware of the strength of feeling still surrounding this issue and I consider that, in the continuing succession struggle, he will take the necessary precautions to avoid serious harm from his antagonists, including seeking the assistance of the authorities. He has referred to assembling groups of supporters if he proceeds with his succession claims, indicating that he is aware of the need to take account of the strength of possible opposition to his succession.

52. Taking account of this evidence I am not satisfied that the applicant has suffered Convention-related harm in the past arising from his adoptive father's wish for him to inherit the XX chieftaincy position and the opposition to that wish, or that this evidence establishes that he faces a real chance of suffering such harm in the conditions applying now and in the reasonably-foreseeable future. I therefore find that he does not have a well-founded fear of Convention persecution in Ghana and is not a refugee as defined in Australian law. (emphasis added)

10. Counsel for the applicant contended that the Tribunal when making the finding: "the authorities would be able to provide effective protection against any further such attempts" has overlooked a legal requirement on a Tribunal assessing a claim of the present nature against the Convention definition of "refugee". It was submitted, and this is common ground, that when the authors of the feared violence would be non-governmental groups or people, a decision-maker must consider whether there would be a failure of effective State protection against the feared harms.

11. It was submitted, and accepted by counsel for the Minister, that this encompasses a consideration of not only whether State authorities have a capacity to provide protection but also whether they would or would not be motivated to extend it to protect the claimant against the feared persecutory actions. There would then be further issues as to whether the motivations of the persecutors and the authorities in withholding effective protection were based on grounds covered by the Convention, but these issues do not arise for consideration in the present case. In support of these propositions, counsel referred me to Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ("Khawar"), and in particular to the judgments of Gleeson CJ at [30-31] and Kirby J at [87]. In a more recent case, Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, 78 ALJR 678 ("Respondents S152"), the majority judgment of Gleeson CJ, Hayne and Heydon JJ considered what was said in Khawar's case concerning State protection against harm inflicted by third parties for reasons covered by the Refugee Convention. At [19] their Honours refer, with apparent approval, to a statement of Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233:

The definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality.

12. At several points, their Honours refer to the test of lack of State protection as encompassing an examination of "the willingness and ability of the state to discharge its obligation to protect its citizens&qu;
ot; (see for example at [21] and [24]).

13. In the present case counsel for the applicant points to the use of the word "able" at the end of paragraph 50 of the Tribunal's reasons and submits that I should read that paragraph as revealing a failure by the Tribunal to address not only the potential ability of Ghanaian authorities to provide protection against the harm feared by the applicant from members of his adopted clan, but also the practical likelihood or willingness of Ghanaian authorities to exercise that ability in his case. In short, it was argued that the Tribunal did not make a finding going to the willingness of the authorities to provide the protection which the Tribunal found they were able to provide.

14. Counsel for the respondent accepted that if the reasons were read as not containing a finding addressing willingness of the Ghanaian authorities, then the Tribunal would have erred and have failed to address an essential issue in the case. I did not understand her to contest that, if there was such a failure, it would reveal a serious misconception of the issues needing to be addressed by the Tribunal and a jurisdictional error, but I do not need to explore that question further.

15. I do not accept the applicant's foundation submission that I should read the Tribunal as having overlooked the need to consider not only the potential ability of Ghanaian authorities to protect the applicant but also the likelihood that in reality it would extend or exercise that ability if he returned to Ghana.

16. I consider that the Tribunal showed itself well aware of the issues arising when assessing a claim that there would be a failure of State protection against third party persecution. At paragraph 5 of its reasons it refers to Khawar's case, and at paragraph 8 says in a passage which in my opinion is consistent with the current authorities:

The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. In my opinion, the Tribunal was alive to the need to assess both the ability of the State to protect and the likelihood of that ability being exercised, when assessing the present applicant's claim. It has identified by setting out in paragraphs 22 and 23 (see above) that the significant incident relied upon by the applicant for his claimed fear included an episode where there was a failure by local police to give protection. This was an obvious part of the claim put forward. The Tribunal has then questioned the applicant about the incident, and has recited in its reasons its questioning of the applicant about the likelihood that he would or would not "have recourse to those authorities against the harm he feared on return". It has not been submitted the Tribunal overlooked the need to assess this likelihood when questioning the applicant at the hearing.

18. The Tribunal's reasoning at 50 and 51 must be read in the above context. Although I might have liked a more extensive examination of the evidence in more precise language, it is an error for this Court to expect this to happen. I must not forget the strong warning approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that "the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".

19. I think the applicant's arguments to me require such an approach to make out the error that has been contended and I decline to take it. In ordinary English, it is quite common to say somebody is "able" to do something and to be implying that they would be both able and willing to do it. It does not strain English language at all to read the Tribunal's finding in the last sentence at paragraph 50 as encompassing such a finding in relation to the present claim.

20. Confirmation that the Tribunal has been addressing both ability and willingness in paragraph 50 comes from reading the last sentence in its immediate context. The Tribunal refers back to the description of the attempted attack on the applicant in paragraphs 22 and 23, and finds that that attack occurred. It is thus reminding itself that there was a State failure of protection in that one incident. It then immediately makes the finding that "I am not satisfied that this provides the basis for finding that the applicant faces serious harm or mistreatment ...". In my opinion, this finding about the future must be read as showing a considering of what the applicant had faced in the past, including the disinterest of the local police. The Tribunal explains why it did not conclude that this pointed to future indifference by State authorities, when saying that it was "only one such incident" and that there was "independent country information ... on the measures taken by the Ghanaian government to combat violence and other unacceptable practices associated with traditional institutions in Ghana".

21. The conclusion that "the authorities would be able to provide effective protection against any further such attempts" (emphasis added) confirms that the Tribunal had firmly in mind that the previous attempt included an unwillingness to give protection by local agents of the State. I, therefore, read the Tribunal's reasons as stating that it was satisfied that this would not recur in a manner which would deprive the applicant of effective protection if he returned to Ghana. Whether as a matter of fact that conclusion was the correct conclusion on the material is not something that I need to address. In my opinion, it is enough that I consider that it was an assessment open to the Tribunal on the evidence.

22. In my opinion, further confirmation that the Tribunal has properly addressed issues of State protection appears in paragraph 51, where the Tribunal concludes that if the applicant returned he would take "necessary precautions to avoid serious harm from his antagonists, including seeking the assistance of the authorities". I consider that the Tribunal must be read as implying that it thought the assistance of the authorities would be available as a matter of reality, not just theory.

23. I am, therefore, unable to read the Tribunal's reasons so as to find the legal error submitted to me. I do not accept that the absence of more detailed discussion, and in particular an express finding that the failure of protection shown in the previous incident was not likely to be repeated in the future in a manner that would show lack of effective protection, shows that the Tribunal has overlooked or misunderstood the issue. I am not prepared to draw the inference permitted by Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], and [75], and which is referred to in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47], to which I was referred.

24. For the same reasons, I also do not accept the submission of counsel for the applicant that the Tribunal's reasons can be read as showing a failure to address a component or integer of a claim within the error found in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 FCR 242 at [42].

25. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

26. I order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 December 2004
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