Agyei v Minister for Immigration and Multicultural Affairs

the tribunal's reasons - first decision 7 The Tribunal found that the applicant was not telling the truth about his arrest and detention in 1989. It rejected his case that the local congregation would have a motive to provide false information to the Tribunal. 8 The Tribunal addressed a number of other issues which bore on the applicant's credit. It considered his evidence about the timing of seeking legal advice in Ghana in June 1994 and also analysed the evidence concerning the suggestion that he was sentenced in absentia by the Nkrankwanta Tribunal in September 1994. It observed that the timing of the sentence in September 1994, years after the ban on the Jehovah's Witnesses had been lifted, was not explained. It noted the timing of the letter from the applicant's brother, shortly after the delegate's adverse decision, and it observed that the term of imprisonment was excessive by reference to country information. 9 Finally, in the light of these considerations the Tribunal found the evidence of the local congregation to be conclusive.

argument on review - first decision 10 In respect of the first decision, the argument on behalf of the applicant before the Court was in effect restricted to one matter. A number of grounds pleaded in the application and elaborated in the applicant's contentions were not pursued by counsel for the applicant, Mr Kowalski. He contended that the Tribunal should have taken further steps to confirm the contents of the letter from the local congregation. This was, it was contended, because the letter was central to the Tribunal's reasoning and its contents raised matters for further investigation. The applicant relied upon s 427(1)(d) of the Migration Act 1958 (Cth) (the Act) which provides that: "(1) For the purpose of the review of a decision, the Tribunal may: … (d) require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and give to the Tribunal a report of that investigation or examination." 11 The grounds of review upon which the applicant relied for this argument were s 476(1)(a) and (1)(d) of the Act, which provide that a Tribunal decision is reviewable in this Court where: "476(1) … (a) … procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (d) the decision was an improper exercise of the power conferred by this Act or the regulations." 12 It is noted that the first decision, having been handed down in 1997, is subject to an earlier version of the Act than the second decision. The Act was significantly amended in 1998, with many amendments taking effect in 1999. However, for the purpose of the grounds argued in this application, the sections relied upon by the applicant are identical, and are identically numbered, to those found in the most current reprint of the Act. 13 In order to substantiate the ground of review provided in s 476(1)(a) the applicant must establish that there is a procedure which was required by the Act to be observed and which was not observed. Section 427(1)(d) of the Act does not prescribe such a procedure. It confers a power on the Tribunal to be exercised on a discretionary basis. There are various authorities to this effect, which were conveniently reviewed by Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at pars 43-44: "43 The applicant's submission proceeded on the basis that s 427(1)(d) imposes a duty on the Tribunal to adopt a procedure of having the medical examination carried out, and to follow up itself the reason why the name in the court decision was illegible. Section 427(1)(d) in its terms, creates no such obligation but rather empowers the Tribunal, by way of discretion, to make any necessary investigations. In Kulwant Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 1013, North J said: 'In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.' 44 A similar approach was taken by Emmett J in Gill v Minister for Immigration and Multicultural Affairs [2000] FCA 1057, where his Honour said at pars [10] and [11]: 'Section 427(1) confers a discretionary power on the Tribunal. It does not require that that power be exercised. The provisions of section 427 can be contrasted with provisions such as section 425 which requires that in certain circumstances a Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. It was contended, nevertheless, that in circumstances where the Tribunal was to make a decision concerning the authenticity of certain documents and Arshad insisted that the documents were genuine, a duty arose on the part of the Tribunal to exercise the power conferred by s 427(1) to arrange for an examination of the documents. The argument appears to me to have no substance. I do not consider the fact that Arshad maintained the authenticity of documents imposed any obligation on the Tribunal to exercise the power under s 427 to arrange for the making of any investigation in relation to the authenticity of the documents.' (Emphasis added) The reasoning of French J in Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 in relation to the obligation of the Migration Review Tribunal under s 359 of the Act also supports the proposition that s 427(1)(d) does not impose an obligation on the Tribunal to make enquiries of the nature claimed by the applicant, and that the failure to make any such enquiry does not give rise to any ground of review under s 476 of the Act: see also Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [13] and [14] per McHugh J." 14 In the result, the alleged failure of the Tribunal to investigate the letter from the Dhormaa Ahenkro congregation does not provide a ground of review under s 476(1)(a). 15 Neither does the alleged failure constitute an improper exercise of the power conferred by s 427(1)(d). The allegation is that the failure to exercise the discretion constitutes an improper exercise of power. Improper exercise of power is defined in s 476(3) as follows: "476 … (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as a reference to: (a) an exercise of power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of a particular case." 16 The only subsection of possible relevance is 3(a). Assuming that this subsection includes a failure to exercise a power, there is in this case no evidence that the Tribunal had any purpose other than the purpose of determining the case in accordance with the Act. It is for the applicant to demonstrate an improper purpose. He has not done so. This ground must also therefore fail.

the tribunal's reasons - second decision 17 It is now necessary to turn attention to the second decision, the decision of Ms Wood given 23 May 2000. The first decision was given on 4 February 1997. On 13 June 1997 the applicant came into possession of some further documents concerning his conviction and sentence in Ghana. As a result, on 15 October 1997 he applied to the respondent for a determination under s 48B of the Act that the applicant was not prevented from making a second application for a protection visa. 18 On 27 March 1998 the respondent determined to allow the applicant to make a second application for a protection visa. On 30 March 1998 the applicant made the second application. In due course the application was refused by a delegate of the respondent. On 8 July 1998 the applicant instituted a review of that refusal in the Tribunal. 19 The hearing of this second review application took place on three separate days. On the first day, 28 October 1998, the further documents obtained by the applicant were produced. These were set out in the Tribunal's reasons in the second decision as follows: "1. Original charge: This document purports to be from the Brong Ahafo Regional Public Tribunal, Nkrankwanta, Case No.6/79. It is in the matter of the Republic vs Daniel Kwasi Agyei and states the latter's offense as 'doing an act to sabotage the Republic of Ghana and to disrupt the peace in the Republic of Ghana - contrary to PNDCLAW 78/84'. It described the offence as that on 20 June 1989 he 'did an act to disrupt peace by illegally worshipping in unauthorized premises and further engaged in worshipping a banned religion.' It was unsigned but had the name of Insp. E.K. Agologo typed in. 2. Nkrankwata [sic] Tribunal: These documents consisted of two sheets of paper containing four matters heard at four different times. Each of them is headed 'In the Public Tribunal Holden at Tribunal Hall' followed by the date and 'at Nkrankwanta'. The names of three men who formed a panel then are listed. These are named as Mr. Eshoun Timothy, a chairman and Mr. Samuel Oko and Mr Hayward Issifu. (a) The first is dated 16 June 1994. It states that the Applicant is charged with 'an act to sabotage the economy of the Republic of Ghana and to disrupt the peace in the Republic of Ghana contrary to PNDCL 78.' The particulars of the charge were that the Applicant 'committed an act to disrupt the peace by illegally worshipping in unauthorized premises and futher (sic) engage in worshipping a banned religion.' As the Applicant was not present the case was adjourned to 19 July 1994. The prosecutor was named as Inspector E.K. Agologo. (b) The second has the same heading as the first and the same list of panel members. On this occasion the prosecutor announced that 'it is rather unfourtunate (sic) that I have still not been able to trace the accused person'. An adjournment was requested and granted with the Court's declaration that it would hear the matter on the next adjourned date whether the accused was present or not. (c) This refers to a meeting of the same panel on 23 August 1994. The prosecutor reported that the 'accused person has absconded from the jurisdiction of this Tribunal and he is now in exile.' A fuller description of the offence was given, that the Applicant was a farmer living at Dormaa Ahenkro and that on 20 June 1989 'he was found organizing religious ceremony (sic) and preaching the teachings and doctrines of the Jehovah Witness Church which as banned by the Government of Ghana' (sic). He was detected distributing literature on the 'topics of freedom of religion and freedom of association. The accused person was detected and arrested by the soldiers.' (d) This reads 'Once the accused person could not be traced for some years. The court will advise itself about what to do. The accused person is convicted in absentia.' There follows a sentence of 25 years imprisonment with hard labour and a fine of two million cedis 'without that 30 years imprisonment.' The sentence apparently took in two matters, that of the original offences and of escaping from custody. 3. This document had the date of 14 September 1994 and purported to be official notice of the sentence handed down by the Nkrankwanta Tribunal. It was signed by the registrar of the Regional Tribunal at Sunyani. The signature was illegible and no name was printed below it. 4. This consists of a typewritten sheet of paper under the heading 'In the Superior Court of Judicature of Ghana'. The case number is given as 6/79 and it concerns the matter between a 'Daniel Kwasi Adjei: Eppellant vrs the Republic (sic)". It noted that Asante Poku has withdrawn from the case and was replaced by D.A. Boayke as the solicitor for the appellant. Mr. Boakye's postal address is given and the document was dated 21 January 1997. 5. This was a notice of appeal in the Superior Court of Judicature of Ghana petitioning for the allowance of an appeal from the Applicant against the decision of the Public Tribunal held at Nkrankwanta on 14 September 1994. It gave the grounds of the appeal as that the judgement was against the weight of the evidence led at the trial and that the sentence was manifestly excessive. The appeal was dated 22 January 1997. 6. The cover page of this document was a declaration by Joseph Paa Kwesi Appiatse, personnel manager of the Judicial Service of Ghana, that Emmanuel Ashalley Ashley was a notary public of Ghana. This was dated 3 June 1997. It was attached to a statutory declaration in support of a set of documents in the Republic vrs. Daniel Kwasi Agyei' by Sgt. Koranteng. He declared that he was the registrar of the 'defunct PNDC Tribunals in the above mentioned case'. He stated that 'the said Daniel Kwasi Agyei was tried in absentia by the Regional Public Tribunal then held at Nkrankwanta in the Brong Ahafo Region'. This document was dated 28 February 1997 and signed by the notary public, Emmanuel Ashalley Ashley. It also had the signature of the said Sgt. Koranteng." These documents are hereinafter referred to as "the legal proceedings documents". 20 The decision of Ms Wood was made on 23 May 2000. Her reasoning was as follows: she examined the correspondence from the Jehovah's Witnesses' Church in Ghana and determined that this correspondence was fatal to the applicant's claim. The analysis of that correspondence was as follows: "The claims he has made have never been supported by officials of his claimed church. It is clear from the file of the first Member to hear this matter that every effort was made to contact officials of the Ghanaian sector of the Jehovah's Witnesses and to clarify their responses. The national office and the local congregation gave the same responses. There simply were no such arrests as alleged by the Applicant. No member of that congregation was detained and then escaped. There was no such body as the Nkrankwanta Tribunal. The last letter of the congregation has a note of exasperation. They clearly thought that answering no to the questions first put to them would be sufficient. At each stage the Applicant was unwilling for his name to be made known to the congregation. They had pointed out to the Tribunal that such a revelation could clear up the matter quickly. However the Tribunal places no weight on the Applicant's refusal to make his name available. It does not prove or disprove the Applicant's membership of that congregation. Even in the absence of an actual identification of the Applicant by the congregation, the Tribunal is eminently satisfied that the information supplied by the officers of the Ghanaian branch of the Jehovah's Witnesses is to be taken as correct and truthful. It does not accept the various explanations advanced by the Applicant that the local officials might be jealous or that the national officers of the church were unaware of what was happening in other parts of the country. The response from the national organisation was that there were frequent, weekly, contacts with their congregation at Dormaa Ahenkro. It is simply implausible that they would have been unaware of what was happening to members of their flock. It is implausible that the national office would not have known if sixty members of one congregation had been taken away by the military. The Tribunal does not accept the claim that the Jehovah's Witnesses failed to support his claims because they were scared of the Ghanaian authorities. One of the reasons the Jehovah's Witnesses get into trouble in a number of countries is precisely because they put their beliefs above the state. The Tribunal can find no independent information which supports the insinuation that they are jealous, can be bought off or are scared to tell the truth. They were willing to repeat their first response to the Tribunal that while their cause was 'frozen' for two years, and some members were detained, it was not true of this particular congregation and, in any case, all those charged had the charges dismissed by the courts. A letter from the Ghanaian Deputy Executive Committee Coordinator of the Bible and Tract Society, in response to questions from the Tribunal as previously constituted, stated firmly: 'We note in your letter that the Tribunal has information published by the United States Department of State which state that 'Jehovah's Witnesses are in fact free once again to practice their faith and are not subjected to government harassment and abuse'. We certify that this statement is true. Jehovah's Witnesses in Ghana have since October 31 1991, when the 'freeze' was lifted, been granted the freedom again to worship.' The church official notes also that no-one was, or was at the time the letter was written, in prison in Ghana for reasons of their identity as a Jehovah's Witness. 'We assure you that presently there is no Jehovah's Witness in detention for practicing his religion. It is true that during the period of proscription some Jehovah's Witnesses were hurled before the law courts but none of such suffered a prison sentence or a fine. In all of such cases the accused were acquitted and discharged. We wish to reaffirm that there is no Jehovah's Witness still liable to any penalties or having pending charges against him for reasons of practicing [sic] his religion. All who left the country during the period of the 'freeze', for fear of being persecuted, are free to return.' The Tribunal accepts these responses by the relevant Jehovah's Witnesses groups in Ghana to be reliable. They undermine the Applicant's claim that he was a member of a particular Jehovah's Witnesses congregation and that he was arrested and jailed for two years for this reason." 21 The Tribunal then considered other issues which gave cause to reject the applicant's evidence. The Tribunal found it was implausible that the applicant would not know the fate of the other 60 congregants said to have been arrested with him. The Tribunal then addressed the correspondence said to have been written by the applicant's brother and rejected that correspondence as being unreliable and not convincing. Similarly the Tribunal rejected the information in a letter said to be written by Mr Kusi who claimed to have been another member of the Jehovah's Witnesses' Church arrested at the same time as the applicant. 22 The Tribunal then accepted information from the Department of Foreign Affairs and Trade (DFAT) prepared in August 1991 to the effect that there had been no reports of individuals being harshly treated in Ghana because of their religious beliefs. The Tribunal noted that this information corresponded with advice from the Church itself. 23 The Tribunal examined the evidence as to the escape of the applicant from detention and found the account itself and the manner of its telling unconvincing. It then referred to the two letters from the Dhormaa Ahenkro East congregation and stated: "Again the Tribunal has a preference for this evidence over that given by the applicant." 24 Then the Tribunal concluded that the severity of the alleged sentence imposed upon the applicant was out of character with the general severity of sentences in Ghana. At this point in the reasoning the Tribunal turned to the question of the legal proceedings documents and said: "The Tribunal has been asked to accept that the various legal-looking documents submitted to it provided corroborative evidence for the Applicant's claims. In the contemporary world, it has become a truism that almost any document can be either forged or fraudulently obtained. It is no longer possible to accept a document as by itself being able to establish the matter in question. In this case, there is also the fact, advised by DFAT and accepted by this Tribunal, that documents from Ghana have a dubious reputation. The Document Examiner could not confirm nor deny the authenticity of the documents submitted by the Applicant. However, he noted that 'Documents of this standard could be produced anywhere and by anyone.' In particular, as noted in information supplied to the Applicant's lawyer, documents from Ghana are notoriously unreliable. The Tribunal did attempt to enlist the help of Canadian officials to inquire into the provenance of these documents but no response was received by the Canadian High Commission in Australia from its own headquarters to permit such an investigation. No conclusion can be reached on these actual documents from the sources named in this paragraph. Therefore the Tribunal has turned to looking at the documents individually, checking for consistency with the Applicant's story and other evidence, and noting the way they came into the Applicant's hands. The immediate matter concerns the status of the so-called Nkrankwanta Tribunal. Certainly there were special tribunals set up. The letter purportedly from Mr. Poku, dated 23 December 1996, stated that the Tribunal was set up in 1979 and dealt with a criminal jurisdiction and dealt with political matters. A first question then could be why such a tribunal would deal with a matter of religion. However, conceding that non-compliance with the banning order could have been deemed a criminal or political offence, the key problem in accepting the documents' contents is the denial that there ever was a Nkrankwanta Tribunal by what the Tribunal regards as a reliable source. This information was placed before the Tribunal in two letters from the Dormaa Ahenkro East Congregation. There is no apparent reason why that congregation would deny the existence of such a tribunal if there had been one. They could have denied that any of their people had appeared before it without denying its existence if in fact there had been such a tribunal. The allegation that the Applicant was tried in his absence some four years after the alleged arrest and three years after the 'freeze' was lifted also begs some questions. It is not at all clear why the authorities would pursue the Applicant on such a matter. It is noteworthy that he was not charged with escaping from custody. The offence as stated in the original docket was that he disrupted the peace by illegally worshipping as part of a banned religion. The charge appeared to be different in the document of 16 June 1994. Then it was stated that he was charged with an act to sabotage the economy of the Republic of Ghana, a very strange charge if the original charge was about religious matters. The Applicant was unable to throw any light on why he would be charged with economic sabotage although it notes that he has submitted evidence that his coca trees were knocked down by authorities. The Applicant has never claimed that his argument with the authorities was over this matter but rather that it was a consequence of his arrest on the religion charge. Therefore the Tribunal has no evidence as to what form this economic sabotage might have taken." 25 The Tribunal accepted the correspondence from the Jehovah's Witnesses' Church in preference to the documents produced after the first Tribunal proceeding. It found that the legal proceedings documents were false.

argument on review - second decision 26 In the end the applicant pursued only two grounds of review in respect of the second decision. Once again, many of the grounds pleaded in the application were abandoned during the hearing, and thus will not be addressed. The first ground which was pursued was described in par (2)(i) of the application in terms that the Tribunal, on the totality of the evidence, could not conclude other than that the legal proceedings documents were genuine and authentic. 27 At first Mr Kowalski relied upon s 476(1)(e) of the Act in contending that the second decision of the Tribunal involved an error of law, being an incorrect application of the law to the facts. He explained that the argument was that the evidence constituted by the legal proceedings documents was so compelling that it was not open to the Tribunal to reject it. 28 In truth the Tribunal was faced with conflicting evidence as to whether the applicant was detained, convicted and sentenced. On the one hand there was evidence from the Jehovah's Witnesses' Church, including the local congregation, together with the country information from DFAT and on the other hand there was the applicant's evidence and the legal proceedings documents. 29 The Tribunal assessed all of the evidence. Its analysis is set out in its reasons extracted in par 23 above. Ultimately, the Tribunal preferred the evidence from the church to the evidence contained in the legal proceedings documents. This approach involved no error of law. 30 In essence, the applicant's attack is a challenge to the Tribunal's findings on the merits of the case. It is trite law that s 476(1) does not permit merits review. Faced with these insurmountable difficulties Mr Kowalski contended that this aspect of the case fell within s 476(1)(g) of the Act which provides that a decision of the Tribunal may be reviewed on the grounds: "476(1) … (g) … that there was no evidence or other material to justify the making of the decision." 31 The meaning of "no evidence" is defined in s 476(4) of the Act. 32 This argument is also doomed to fail. As is apparent from my conclusions on the previous argument, there was evidence that the applicant had not been convicted and sentenced as alleged. The Tribunal preferred this evidence to the evidence constituted by the legal proceedings documents. It was open to the Tribunal to do so. Consequently the "no evidence" ground is not made out. 33 The second ground of review was that the Tribunal's reliance on the first decision involved an error of law under s 476(1)(e) being an error involving an incorrect application of the law to the facts. The error is said to be found in two passages in the second decision as follows: "The Tribunal has considered the Applicant's claim that he was sentenced in 1994 in his absence to 25 years hard labour and to a heavy fine. The severity of such a sentence led the Tribunal as previously constituted to seek information as to whether such a sentence fitted the 'norm' in Ghana. Member Gilbert noted that 'when one analyses the actual term of imprisonment supposedly imposed, leaving aside whether such a Tribunal exists, it is totally contrary to other sentences imposed at around the same time.' He refers specifically to p.139 of the Amnesty International Report of 1994. He found that this alleged sentence was so much in excess of what could be expected that it could not be believed. This Tribunal concurs with that finding. While it accepts the Applicant's submission that the court system in Ghana is imperfect, this does not mean that it is irrational. By the time the Ghanaian Tribunal allegedly heard the case, the ban on Jehovah's Witnesses had been lifted. There was no obvious reason why then a tribunal would impose such a severe sentence on a person who had offended against the ban while it was in place. … There is evidence, as noted by Member Gilbert, that Ghana has sentenced people in their absence. He also noted the differences between the cases cited by Amnesty International and that of the Applicant. This Tribunal is persuaded by Member Gilbert's finding that the Applicant is not to be believed. The charge is in fact too slight compared with those cited by Amnesty." 34 The applicant submitted that in each of those passages the Tribunal was acting under s 416 of the Act which relevantly provides: "If a non citizen who has made: (a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; … makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application: (c) is not required to consider any information considered in the earlier application; and (d) may have regard, to and take to be correct, any decision that the Tribunal made about or because of that information." 35 Mr Kowalski contended that the Tribunal fell into legal error by adopting the findings in the second decision in certain respects, in circumstances where the member constituting the Tribunal in the first decision did not have the legal proceedings documents before him, and where those documents might have changed his view on the particular issue. 36 In my view, on a proper reading of the two passages in question, in the context of the decision as a whole, the Tribunal did not act under s 416 of the Act but rather formed an independent assessment of the evidence for itself. 37 At the commencement of that part of the second decision entitled "Claims and Evidence" the Tribunal set out s 416 of the Act and then said: "In this matter, the Tribunal, as now constituted, has re-visited information provided in the earlier application as it relates to the new information which was the ground for the Minister acceding to the Applicant lodging a second application. In particular, the relationship between the applicant's alleged arrest and the documents he later submitted has been the subject of examination." 38 Then, in the first passage set out in par 32 above, the Tribunal set out the evidence relied upon by Mr Gilbert in the first decision and said that it "concurs with that finding." Then followed some independent reasoning by the Tribunal. Section 416 allows the Tribunal to adopt the conclusion made by an earlier Tribunal without itself considering the information considered in the earlier application. That is not what happened in this case. Ms Wood considered for herself the information which was before Mr Gilbert and came to the same conclusion. This process can also be seen in relation to the second passage set out in par 32 above. 39 Even if the Tribunal had been acting under s 416 in these two passages, no error of law is disclosed. Mr Kowalski accepted that the decision to act under s 416 is a discretionary decision. No grounds have been made out which demonstrate that the discretion miscarried. In particular, the questions being considered in each of the two passages did not depend upon and could not have been influenced by the legal proceedings documents. They dealt with the alleged sentence imposed on the applicant. The two passages in par 32 above dealt with the general range of sentences in Ghana on the one hand and with the type of cases in which sentences in absentia had been imposed on others. The legal proceedings documents did not bear on either of these issues. Consequently this ground of review must also fail.

conclusion 40 In the result both applications are dismissed. The applicant is to pay the respondent's costs of and incidental to each application. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Solicitor for the Respondent: Australian Government Solicitor