Martin Oduro Ntiedu v Minister of State for Immigration & Multicultural Affairs [1997] FCA 1499 (24 December 1997)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 767 of 1996

BETWEEN:	martin oduro ntiedu Applicant
AND:	minister of state for immigration and multicultural affairs respondent

JUDGE:	whitlam j
DATE:	24 december 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of the respondent's delegate not to grant a protection visa to the applicant. The Tribunal was not satisfied that the applicant was a refugee under the Refugees Convention as amended by the Refugees Protocol.

The applicant is a citizen of Ghana. He arrived in Australia on 13 August 1994 and applied for the grant of refugee status on 31 August 1994.

The Tribunal's statement under s 430 of the Migration Act 1958 ("the Act") commenced with a discussion of the criteria for the grant of a protection visa. Then it summarized the applicant's claim and evidence, beginning as follows:

"Mr Ntiedu is a 42 year old man from Kumasi in the Ashanti region of Ghana. He has three children, all of whom remain in Ghana. He was a self employed fashion designer from 1979 until his departure from Ghana in September 1993. From October 1993 until June 1994 he lived in Lebanon where he worked as a tailor.

Mr Ntiedu fears that he will be detained for a prolonged period without trial if he returns to Ghana as a result of his religious beliefs and political opinion. He claims that he was the leader of a Christian movement called the Hour of Faith Ministry which was formed in 1990. There were originally about five members of this movement and they built up a following of about 30 people. Mr Ntiedu claims that he was detained by soldiers after preaching to a crowd of about 60 people at the Adehyeman Gardens in Kumasi in July 1993. He had preached that all Christian associations should unite and fight boldly for human rights. He claims that he was taken first to the local army barracks and then sent to Accra where he was held at the Burma Army Camp. He was accused of speaking against the government of Ghana and beaten and cut while in detention. After a month he convinced the authorities that his preaching had nothing to do with the government and was released on bail. Two weeks later he attended a funeral celebration at his village. When he returned home after three days his children told him that some unknown army men in a van had come to his house looking for him at midnight. He realised that he was in great danger and went to stay with some friends. He remained with his friends for about a month while he organised a passport, which he obtained within a matter of days after paying a bribe. He also paid a bribe at the airport to avoid any problems. Mr Ntiedu claimed that the army had previously mistreated other church leaders. He named two priests who were killed in the early 1980s and also stated that a priest had been detained in 1991. He added that the government imposes taxes on churches, which he believes indicates their opposition to Christian groups.

During his interview with the Department, the interviewing officer pointed out that information from a number of sources indicated that neither preaching the Christian religion nor criticising the government caused serious consequences to those concerned in Ghana today. Mr Ntiedu maintained that he was at risk of persecution because he was believed to have criticised the government.

At the hearing Mr Ntiedu reiterated that he had fled Ghana after being detained for speaking about human rights during a rally organised by the religious group he had formed in 1990. He believed the soldiers had wanted to kill him, but had not been able to do so because too many people had seen his arrest. He said that killings by soldiers were regular occurrences in Ghana at that time. He said that he said that most of the 30 members of the religious organisation he founded went into hiding when he was arrested and he believes had left Ghana since his departure. He believes they left because soldiers were going to their homes to harass them. He said that the person who had moved into his room in Kumasi had also been harassed by the police.

Mr Ntiedu provided copies of two letters from Daniel K Apeadu, barrister-at-law and solicitor from Kumasi. The first letter is dated 13 June 1995. It states that Mr Apeadu was engaged by Mr Ntiedu's family to handle his case "even though it is not in any court of law". Mr Apeadu advises that he has investigated the soldiers terrorising Mr Ntiedu and his family because Mr Ntiedu had spoken his mind. He states that group in power will stop at nothing to maintain their position and adds that "they have intensified killing of those who do not side them", particularly people who are not well known internationally. He states that the government recently sent its agents to a demonstration and they killed five people. Mr Apeadu states that as an Ashanti minister who spoke out against government, Mr Ntiedu will certainly be killed if he returns to Ghana. The second letter states that the current tenant in Mr Ntiedu's room has been visited twice by three military men (commandos) looking for Mr Ntiedu. On the first visit he was tortured. Mr Apeadu goes on to say that he hired one of the commandos, who are all corrupt, to provide him with the names of people involved in Mr Ntiedu's case. He was advised that an elite group called the "Macho group" was handling the case and warned to cease his investigations or both his career and his life would be ended. Mr Apeadu states that Mr Ntiedu's children are fine and hiding in a very safe place, but warns that he must not return. The letters are on different letter head. The earlier one misspells the word "Chambers" in its letterhead."

After referring to information in publications provided by the applicant about anti-government demonstrations in Accra in May 1995, the Tribunal continued:

"I advised Mr Ntiedu that I had considerable difficulty accepting that he had been forced to flee Ghana in 1993 because he had preached that people should speak out on human rights as this was completely out of keeping with the independent evidence before the Tribunal regarding the situation in Ghana at that time. Mr Ntiedu maintained that his claims were true.

Following the hearing Mr Ntiedu forwarded a copy of a letter signed "Youris". This letter is dated 22 December 1994, but apparently was not sent until April 1995. It states that the writer was "dumbfounded" when he heard of Mr Ntiedu's problems and that he had been told that authorities were still searching for Mr Ntiedu. The writer states that Mr Ntiedu's situation reminds him of problems faced by Pastor Amoako, also from Kumasi and warns him not to return."

The Tribunal then proceeded to assess the applicant's claims and evidence and said:

"I did not find Mr Ntiedu to be a credible witness. I find the claims that he was detained for a month in 1993 because he was the leader of a Christian group and urged Christians to unite and fight for human rights, that he was forced to flee the country because be was risk [sic] of further periods of detention or worse and that he continues to be of interest to the authorities in Ghana far-fetched as they are inconsistent with the independent evidence before the Tribunal regarding the general situation in Ghana both at the time of his departure and currently."

The Tribunal then referred in detail to what it described as the independent evidence and said:

"It is clear from the evidence before the Tribunal that those who opposed the government could express their views openly without risking serious harm at the time Mr Ntiedu left Ghana. In these circumstances, I find the claim that Mr Ntiedu was detained for a month because he is the leader of a church group and urged people attending a rally organized by the group to stand up for human rights to be unbelievable. It follows that I do not believe that the authorities continued to be interested in Mr Ntiedu's activities after his release nor that he fled the country to avoid detention or other serious harm at the hands of the Ghanaian authorities."

Next, it referred to "more recent evidence", again in some detail, and said:

"From the evidence before the Tribunal it is clear that, despite some isolated and random outbreaks of violence, opposition organisations, including church groups are free to operate and to criticise the government and that members of these organisations do not face a real chance of persecution as a result of legitimate and peaceful expression of their political opinion in Ghana today.

As noted above, I do not accept that Mr Ntiedu fled Ghana because he had been detained for a month for speaking out on human rights and continued to be of interest to the authorities following his release. Furthermore, I find the chance that he would be detained or face other serious harm amounting to persecution on his return to Ghana for speaking out on human rights or expressing other political or religious views in a peaceful and legitimate manner to be remote.

In reaching this conclusion, I have considered the documents provided by Mr Ntiedu at the hearing. I strongly doubt that the letters signed by Daniel K Apeadu, barrister-at-law and solicitor, are genuine documents from a lawyer engaged by Mr Ntiedu's family in Ghana. The letters have different letterheads, one of which misspells the work [sic] "Chambers". It seems to me extremely unlikely that a barrister would use a letterhead containing such a spelling mistake. However, even if I accept that the letters were written by Mr Ntiedu's legal representative in Ghana, I do not believe the claims made in these letters as they are completely at odds with the independent evidence before the Tribunal regarding the situation in Ghana since the 1992 elections, which is set out in detail above. I do not believe the claims made in the letter signed by "Youris" for similar reasons."

The applicant submits that the Tribunal's decision involved an incorrect interpretation of the applicable law. This ground is particularized as follows:

"2.1 The doctrine of presumptive truth requires a "positive state of disbelief" in relation to the version of events claimed by the Applicant. The Applicants [sic] claims were specific and related to his personal experience. The Second Respondent formed the view that the corroborative evidence offered by the Applicant was untrue because of the "Independent evidence" gathered by the Tribunal which related to the general situation in Ghana. That information was insufficient to engender a "positive state of disbelief".

2.2 The Second Respondent failed to advise the Applicant prior to determination of his application that she did not believe the evidence offered by Daniel K Apeadu because of the spelling mistake appearing on his letterhead, that determination ultimately leading to a inference that the document was created to support the Applicants claims [sic] and was also untrue."

The proposition in item 2.1 apparently rests on what Foster J said in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 191. However, that approach to credibility findings could not survive the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. By the time his case reached the High Court Mr Guo did not press the claim of an additional period of detention, with beatings and harassment, the rejection of which had apparently prompted Foster J's criticism of the fact-finding by the tribunal in that case. The High Court pointed out once more that a tribunal was entitled to weigh the material before it, in making findings as to what had occurred in the past: Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743 at 751-752. There is no such presumption as that contended for by the applicant. The Tribunal was properly conscious of the difficulties of proof confronting refugee claimants noted by Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451-452 and, indeed, reminded itself of what he said on that topic. The applicant's initial submission is rejected.

The proposition in item 2.2 is linked with a challenge on the ground specified in s 476(1)(a) of the Act, which is expressed as follows:

"1. That procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.

Particulars

1.1 The Respondent's failure to put the adverse inference arising out of her observations concerning the documents made by Daniel K Apeadu to the applicant was a breach of a procedure imported by Section 420(2)(b) of the Migration Act 1958."

At the outset two matters should be said about these grounds. First, the evidence before the Court does not include a record of the proceedings in the Tribunal, and I would not be prepared to assume as a fact that the Tribunal failed to "advise" the alleged state of belief or to "put" the alleged inference. Secondly, the Tribunal does not state as a finding the alleged inference.

In support of the ground numbered 1 set out above, the applicant does not locate any specific procedure required by the Act but relies on s 420(2)(b). In so doing, he calls in aid Kioa v West [1985] HCA 81; (1985) 159 CLR 550, a leading authority on the principles of natural justice and procedural fairness. Putting aside for the purposes of argument the plain purport of

s 476(2)(a) of the Act and assuming in the applicant's favour that the Tribunal said nothing about its doubts as to the authenticity of the relevant documents, the Tribunal's "doubt" was not the critical consideration in assuming the applicant's credibility. That issue had substantially been resolved against the applicant when the Tribunal rejected his account of his detention and torture.

For my part, I would regard as illogical a finding that a document allegedly authored by a barrister was a forgery simply because it contained a spelling mistake. But such a finding would not involve an error of law. There would be some basis for such an inference. In any event, in the present case, counsel for the respondent correctly contends that the main reason for rejecting the assertion in those documents was that they were "completely at odds with the independent evidence".

The application will be dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated: 24 December 1997

Mr C H Levingstone of Corby Levingstone, solicitors, appeared for the applicant.

Paul Roberts of counsel, instructed by the Australian Government Solicitor,

appeared for the respondent.

Date of hearing:	25 July 1997
Date of judgment:	24 December 1997