Stephen Osei Yaw Okyere v Minister for Immigration & Ethnic Affairs [1997] FCA 137 (28 February 1997)

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G222 of 1995

)

GENERAL DIVISION )

BETWEEN: STEPHEN OSEI YAW OKYERE

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

JUDGE MAKING ORDER: LOCKHART J.

WHERE ORDER MADE: SYDNEY

DATE ORDER MADE: 28 FEBRUARY 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the costs of the respondent of the proceeding.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

CATCHWORDS

IMMIGRATION - application to review decision not to grant a protection visa - whether applicant faces a real chance of persecution - whether there was a failure to take into account a relevant consideration

Migration Act 1958 : ss 476(1)(e),(3)(e)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Wu Sian Liang [1996] HCA 6; (1996) 70 ALJR 568

Turner v The Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388

STEPHEN OSEI YAW OKYERE v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

G 222 of 1995

LOCKHART J.

SYDNEY

28 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G222 of 1995

)

GENERAL DIVISION )

BETWEEN: STEPHEN OSEI YAW OKYERE

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

28 February 1997

REASONS FOR JUDGMENT

LOCKHART J.

This is an application by Stephen Osei Yaw Okyere to review the decision of the Refugee Review Tribunal (constituted by Roslyn Smidt) dated 10 March 1995 whereby the Tribunal found that the applicant is not a refugee and affirmed the decision made by a delegate of the Minister for Immigration and Ethnic Affairs under the Migration Act 1958 (`the Act') that the applicant, a citizen of Ghana, is not eligible for grant of a protection visa.

The application of the applicant for a protection visa was lodged with the Department of Immigration and Ethnic Affairs.

The applicant attacked the Tribunal's decision on the ground that it involved an error of law. Specifically, the applicant argued in his written submissions that:

(a) the Tribunal failed to take a relevant consideration into account in the exercise of its power (s. 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 ); and

(b) in the course of the Tribunal's conduct it failed to take a relevant consideration into account in the exercise of its power (Administrative Decisions (Judicial Review) Act 1958 : s. 6(2)(b)).

However, at the hearing the applicant sought to review the decision under s. 476(1)(e) of the Migration Act. That section allows an application to be made for review by the Federal Court of a judicially-reviewable decision on the basis:

`that the decision involved an error of law, being an error involving an incorrect interpretation 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.'

The applicant argued here that the applicable law requires that the decision-maker, in determining whether the applicant has a real chance of persecution, must consider all relevant evidence placed before it. Cases that were relied upon include Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 70 ALJR 568.

For either argument to succeed it must first be shown that the Tribunal failed to take a relevant consideration into account.

The Tribunal's decision set out at some length the material before it relating to the applicant's application for a protection visa and stated the claims made by him. The Tribunal then assessed the applicant's claims and the evidence which it regarded as relevant and concluded that it did not accept that the applicant faces a real chance of persecution for a Convention reason (the 1951 Convention relating to the status of refugees, as amended by the 1967 Protocol relating to the Status of Refugees (`the Convention')) on return to Ghana. The Tribunal found that the applicant was not therefore someone towards whom Australia had protection obligations under the Convention and was thus not eligible for the grant of a protection visa. A brief summary of the facts as found by the Tribunal is helpful.

In 1988 the applicant `was contracted' by the Ghanaian government to work in a flour mill complex in Tobruk, Libya for two years. His claim is that in March 1989 whilst working in Libya under that contract with the Ghanaian government he was forcibly conscripted by the Libyan army for military training. He claimed that he feared he would be forced to fight for Libya and to become a terrorist for the Libyan government on completion of his military training; and that he was warned that if he refused to become involved in military training he would be returned to Ghana and punished by imprisonment. The applicant asserted that he contrived his own arrest and detention in Libya for the purpose of facilitating his escape from that country. He said that he was helped to escape from Libya by a Libyan army officer who had befriended him. He escaped first to Turkey and then, with the aid of a false passport, to Belgium where he applied for refugee status. His application was initially rejected and the applicant left Belgium before it had been finally determined. He then travelled to the Netherlands, arriving in late 1991 or early 1992, but did not apply for refugee status there.

He arrived in Australia on 26 October 1994 on a false Netherlands passport. He initially claimed to be a citizen of the Netherlands. After it was discovered that his passport was false, he applied for refugee status.

The applicant claims that he will be persecuted if he returns to Ghana because of his refusal to participate in military training in Libya. He says that whilst he was in the Netherlands his brother wrote to him telling him that he should not return to Ghana as the Ghanaian government was looking for him; and that other people who had returned to Ghana in similar circumstances had been imprisoned.

The Tribunal expressed considerable doubts about the applicant's case and concluded that the applicant's claim that he is wanted throughout Libya and that the authorities had sent `secret people' to Turkey to look for him and other escapers is implausible. It expressed `considerable doubts' about the applicant's claim that he was forced to participate in military training in Libya without his prior knowledge or agreement and it said that it did not accept that he was at risk of being forced to serve in a Libyan combat unit or that he would have been punished by the Ghanaian authorities for refusing to undergo military training. I shall return to the findings of the Tribunal later.

The primary submission made by the applicant was that certain material was placed before the Tribunal by the Department but not considered by the Tribunal in the course of making its decision. The applicant submitted that, had the Tribunal considered the material, it could have decided that the applicant had a real chance of being persecuted. The four items of material are as follows:

1. Article from the publication `New African' of 30 June 1990;

2. Telex from the Immigration and Refugee Board Documentation Centre, Ottawa, Canada dated 7 November 1991 annexing an article from `New Africa' dated 30 June 1990;

3. Article from the publication `New Africa' of April 1990.

4 The US State Department's Report dated February 1994.

In these circumstances it was submitted on behalf of the applicant that the Tribunal had misdirected itself in law or had otherwise failed to consider relevant matters. Reliance was placed upon the judgment of Gibbs J. in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118- 119, a passage cited with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 70 ALJR 568.

The reasons for decision of the Tribunal covered more than nine pages. They commence with stating the decision under review before it and certain relevant background. There follows a section titled `Mr Okyere's claims and evidence' in which the Tribunal states facts about the applicant himself, where he has been and what he has done. In particular, the Tribunal referred to what the applicant claims he did in Libya: being befriended by a Libyan army officer called Captain Salam; being told by Captain Salam that when his training was completed he would be sent to fight for Libya and forced to become a terrorist for the Libyan government; and the attempts by Captain Salam to enable the applicant to escape from Libya and travel to Turkey. Reference is made to the applicant's fears that he will be tortured by the Ghanaian government if he returns to Ghana, in particular reference is made to certain correspondence in relation to that matter. Other matters are referred to in that section including the events surrounding the applicant's application for a Dutch passport.

The next section of the Tribunal's reasons is titled `Assessment of Applicant's claims and evidence'. Here the Tribunal sets out the issues for determination and poses the question `Does Mr Okyere face a real chance of persecution?'

I do not propose to set out in detail what the Tribunal said under this heading, it speaks for itself and is annexure `A' to the affidavit of Lisa Doust sworn 29 March 1996.

I mentioned earlier that the applicant submitted that four documents were not considered by the Tribunal and that failure to consider them was a failure to take relevant considerations into account leading to the vitiation of the decision.

At pages 6 and 7 of the Tribunal's reasons the Tribunal referred to certain of the material before it concerning the question whether Ghanaian citizens were being forced to undertake military training in Libya.

One matter referred to was a telex dated 28 June 1991. In that telex the Canadian Immigration and Refugee Board Documentation Centre (`IBDC') asked Amnesty International, Middle East and Africa Watch, whether they had any information about allegations that Ghanaian civilians were being forced to undertake training in military camps in Libya. All three organizations stated that there was no information to substantiate these allegations. The reasons of the Tribunal state that the Tribunal also sought additional information on that question. The reasons go on to say (p. 6):

`UNHCR advised that Libyan national legislation foresees military service for Arabs permanently residing in Libya and thus enjoying all rights and obligations attached to Libyan citizenship, but stated that while they were aware of rumours of forcible conscription of non-Arab foreigners into the Libyan armed forces, they were not aware of any confirmed cases of this occurring. Dr Richard Jeffries of the School of Oriental and African Studies, University of London advised the Tribunal that he was unaware of any agreement between the Ghanaian and Libyan governments requiring Ghanaian civilians to undertake military service while working in Libya and believed it unlikely that such an agreement existed as forced military conscription would have created an absolute furore in Ghana had it become public knowledge.

The Tribunal also asked Mr Davies, who now works for West Africa magazine, if he could supply any additional information on the issue, including whether it is true that there is or was a secret arrangement between Ghana and Libya regarding military training for civilians and what was the likely fate of Ghanaians who refused to participate in military training. Mr Davies stated that while most Ghanaians who were sent to Libya went as technicians they were also required to undertake military training as this was a part of Libyan society and it may be possible that some of those who went to Libya were not aware of this before they went. He added that some of the Ghanaians who went to Libya were unco-operative and disruptive and were eventually sent home to Ghana, although some jumped ship before they could be repatriated. He added that those who had fled military training were caught and sent back to Ghana, but nothing happened to them on return.'

The information received by the Tribunal from UNHCR was in evidence and was plainly before the Tribunal when it made it decision. Information received from Dr Richard Jeffries (referred to in the passage extracted above) was also in evidence and was before the Tribunal.

The Tribunal did not specifically refer to the four documents which are the subject of the applicant's case; but it appears from the evidence before the Court that all of those documents were before the Tribunal with the possible exception of the article in the New African of April 1990. The other documents were referred to by an officer of the Department who interviewed the applicant on 29 November 1994; and that material was before the Tribunal before it made its decision.

The Tribunal did refer specifically to a fifth document, namely, an article entitled `Gadaffi's girations' [sic] published in the New African in July 1989 containing the allegations of the journalist Desmond Davies, which was initially relied on by the applicant as a document to which the Tribunal was said not to have specifically mentioned; but this was abandoned later in the hearing.

Importantly, the Tribunal referred specifically to the allegations that foreigners were being drafted into the Libyan military against their will, including Ghanaian citizens, and the Tribunal had before it documents which bore directly on that issue, including the information from UNHCR. Dr Richard Jeffries also gave information to the Tribunal on this question and the related question whether there was a secret arrangement between Ghana and Libya regarding military training for Ghanaian citizens in Libya. Material before the Tribunal did contain some unconfirmed reports of foreigners being forcibly drafted into the Libyan army and that fact was taken into account by the Tribunal. The Tribunal sought confirmation of the reports through bodies such as the UNHCR, Amnesty International and experts in this field. Information received from those bodies is specifically mentioned in the Tribunal's reasons for decision. It is not surprising that the material on which the applicant relies is referred to only in a general way by the Tribunal because, understandably, the Tribunal preferred to rely on information obtained by it or otherwise given to it from established bodies concerned with the maintenance of human rights.

Even if the Tribunal did not have all of the material before it on which the applicant relies to found its case, this would not be a matter of any consequence because the Tribunal did have before it relevant material from more authentic sources than those on which the applicant relies, dealing with the question of conscription of foreigners into the Libyan military forces against their will. The Tribunal, having considered the material before it, doubted whether the applicant's claims of forced participation in military training in Libya were true. It went on to say that, even if the Tribunal accepted that the applicant was required to undergo military training against his will and that he left the training camp in the manner described by him, the Tribunal did not accept that he was at risk of being forced to serve in a Libyan combat unit.

On the question whether the applicant would be likely to be persecuted in Ghana for having refused to complete the military training, the Tribunal carefully reviewed the relevant facts which it had before it leading to the conclusion that the Tribunal did not accept that the applicant faced a real chance of persecution on return to Ghana.

In my opinion the assertion by the applicant that the Tribunal failed to take relevant matters into account cannot be supported. Even if certain of the documents upon which the applicant relies were not in fact taken into account by the Tribunal, other documents, from authentic and reliable sources, were considered by it touching the same issues as those to which the documents relied on by the applicant relate.

It was submitted by counsel for the Minister that, although the Tribunal referred to the material on which the applicant relied in a general way in the second paragraph on page 6 of its reasons under the heading `Does Mr Okyere face a real chance of persecution?', when considering the reasons as a whole the inference should be drawn that the specific material was taken into account. Reliance was placed on behalf of the applicant upon the following passage from the judgment of Toohey J. in Turner v The Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392:

`The omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for the decision and of the decision itself may justify the inference that it was.'

As mentioned earlier, the material on which the applicant relies, with the possible exception of the article in the New African of April 1990, was before the Tribunal before it made its decision and more likely than not was taken into account by it. But, as mentioned earlier, even if it was not all taken into account by the Tribunal, other information touching the same questions was before it and some of it from more authentic sources than those on which the applicant relied.

It is well established that, when courts are exercising their power of judicial review of the decisions of decision-makers under the ADJR Act, they should not engage in the exercise of reconsidering the merits of the decision. The task of the courts is to see whether any of the relevant grounds of review have been established: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason C.J. at 341 and Wu's Case at 575.

The complaints made by the applicant are essentially that the Tribunal should have given more weight to the material on which the applicant relies. It is for the decision-maker, not the Court, to determine the weight to be given to particular material before it unless a error of law is demonstrated, which it has not been in this case: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 per Mason J. at 41.

I am satisfied that, even if the Tribunal did not consider all four items of material on which the applicant relies, this did not materially affect the decision of the decision-maker for the reasons mentioned earlier.

Counsel for the Minister submitted that, even if the applicant establishes that there has been a failure to take into account relevant material, this is not a ground of review available under the Act.

Extensive amendments were made to the Act by the Migration Reform Act 1992 (No 184 of 1992), as amended by Act No 59 of 1993, which came into effect on 1 September 1994. The impugned decision in this case was made on 10 March 1995 in respect of an application for a protection visa lodged with the Department on 4 November 1994. Hence the relevant amendments made to the Act apply to this case. The amendments introduced Part 8 of the Act headed `Review of Decisions by Federal Court' (ss. 474-486).

It was argued on behalf of the Minister that it was clear from the structure of the Act and the history of the introduction of the Migration Reform Act that Part 8 was intended to provide a complete code of judicial review in the Federal Court for decisions and conduct engaged in preliminary to the making of decisions under the Act. Section 476 specifies the grounds upon which applications for review may be made. Section 476(3)(e) specifically states that failure to take a relevant consideration into account in the exercise of a power is excluded from the grounds of review otherwise available under s. 476(1)(d) of the Act. It was submitted that, as the applicant's case is based solely upon the alleged failure by the Tribunal to take into account relevant considerations, it could not succeed in this case.

I do not find it necessary to determine these questions. Generally they should be determined first because they go to the basic question of whether there is an available ground of review and whether the matter is properly before the Court. But in the light of the way the case was fashioned on behalf of the applicant, with particular reference to the facts of the case, I think it preferable that the resolution of these important questions of law are determined in another matter.

The application is dismissed with costs.

I hereby certify that this and

the preceding fifteen (15) pages

are a true copy of the reasons

for judgment herein of the

Honourable Justice Lockhart.

Associate

Dated: 28 February 1997

Counsel for the Applicant: Mr P Strain

Counsel for the Respondent: Miss E Wilkins

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 18 November 1996

Date of Judgment: 28 February 1997