Refugee Status Appeals Authority
REFUGEE APPEAL NO. 474/92
RE KA
AT AUCKLAND
Before: R.P.G. Haines (Chairman)
J.M. Priestley (Member)
G.W. Lombard (Non-voting Member)Counsel for the Appellant: R.J. McKee
Appearing for the NZIS: No appearance
Date of Hearing: 26 July 1993
Date of Decision: 12 May 1994
DECISION
This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of Ghana.
BRIEF POLITICAL HISTORY OF GHANA
In order to understand the appellant’s case, a brief review of recent political history in Ghana is necessary. We have been greatly assisted by the resumé by T.C. McCaskie, “Ghana: Recent History”, Africa South of the Sahara 1993 (22nd ed) Europa Publications Ltd, 386, 387-391. For the purpose of recording our decision, however, we intend to quote only from the more condensed account found in Keesing’s Record of World Events Volume 39 Reference Supplement R11-R12:“Political System
The Republic of Ghana achieved independence within the Commonwealth in March 1957. Since the overthrow of the country’s first President, Kwame Nkrumah, in a coup in February 1966, Ghana has experienced long periods of military rule interspersed with short-lived civilian governments. The Provisional National Defence Council (PNDC) took power in December 1981 under the leadership of Flt.-Lt. Jerry Rawlings (who had also staged a successful coup in June 1979 against the then military rulers). The 1979 Constitution was suspended, parliamentary institutions abolished and political parties banned. Executive power was vested in the PNDC, which ruled by decree. However, in April 1992 a new Constitution, allowing for multiparty politics and a directly-elected executive president and legislature, was given popular approval in a referendum. As a result the ban on political parties was lifted on May 17, 1992 and preparations were made for the inauguration of the Fourth Republic on Jan. 7, 1993....1992 Overview
On March 6, the 35th anniversary of independence, Flt.-Lt Rawlings, then chair of the ruling PNDC set out a timetable for returning Ghana to civilian rule culminating in the inauguration of a Fourth Republic in January 1993. The process got underway in April when popular approval by referendum for a new multiparty constitution was sought and won. As a result the ban imposed in 1981 on party politics was lifted on May 17. The registration process was, however, boycotted by a number of opposition groups which took Court action to challenge legislation regarding the formation and conduct of political parties. They unsuccessfully argued in the High Court that prohibitions on the use of names, symbols or slogans of the 21 parties which had existed before the 1981 ban were intended to hinder the organization of opposition parties.Following months of intense speculation, Rawlings announced on Sept. 19 that he would be standing in the presidential elections as the candidate for the NDC [National Democratic Congress, the party in government]. Rawlings had on Sept. 14 resigned from the army and was thus constitutionally eligible to contest the election. Despite subsequent efforts to disqualify him by the opposition (who questioned his allegiance to Ghana), Rawlings was elected President on Nov. 3 with 58.3 per cent of votes cast. However, the outcome, which gave Rawlings victory without the need for a second round of voting, was immediately disputed by the four opposition parties which had entered candidates in the election. The NPP [New Patriotic Party], PNC [People’s National Convention], NIP [National Independence Party] and PHP [People’s Heritage Party] alleged fraud, serious flaws in the electoral register, intimidation of voters by the NDC and ballot-stuffing. Foreign observers declared the elections to have been free and fair.Following the failure of their demand for a new voters’ register, the four parties announced their withdrawal from the December parliamentary elections, effectively awarding victory to the NDC. A large proportion of the electorate heeded the boycott call - official figures revealed a turn-out of only 29 per cent.”Against this general background, some specific detail is required.In March 1982, a few months after Rawlings and the PNDC came to power, city and district councils were replaced by People’s Defence Committees (PDC), in an attempt to create mass participation at the local level in the “revolution” (as the PNDC described the coup), and to create and foster public awareness and vigilance. The PDC were to form the basic structure of the new government. In December 1984 the PDC were redesignated Committees for the Defence of the Revolution (CDR). In July 1990, in response to pressure from Western donors to increase democracy in return for a continuation in aid, the PNDC announced that a National Commission for Democracy (NCD) under the chairmanship of Justice Annah, a member of the PNDC, would organize a series of regional debates, which would review the decentralization process, and consider Ghana’s political and economic future. In August 1990, a newly-formed political association, the Movement for Freedom and Justice (MFJ), criticized the NCD, claiming that it was too closely associated with the PNDC. In addition, the MFJ demanded the abolition of a number of laws, the release of political prisoners, the end of press censorship, and the imminent restoration of a multi-party system. The PNDC, however, advocated a national consensus rather than a return to the discredited political system. In September the MFJ accused the PNDC of intimidation, after security forces suppressed its inaugural meeting. Both students and trade unions voiced support for the MFJ’s general objectives. However, the PNDC maintained that it would not permit the emergence of political associations, despite toleration of more generalized political activities: T.C. McCaskie, “Ghana: Recent History”, Africa South of the Sahara 1993 (22nd ed) Europa Publications Ltd, 388-390.
THE APPELLANT’S CASE
The appellant is a thirty-six year old married man with two children, a son and a daughter. He was born in Kumasi, Ghana and is a member of the Ashanti tribal group. The PNDC and the political leadership are dominated by the Ewe ethnic group from eastern Ghana. Rawlings and a number of his close advisors are Ewe.In 1981, after graduating from polytechnic with a diploma in Automobile Engineering, the appellant worked in an automobile business. He remained in employment there until he fled from Ghana in March 1991.
The appellant strongly opposed the PNDC and was politically active at a senior level in his region. In particular, from 1984 to 1986 he was the Ashanti Regional President of the Campaign for Democracy in Ghana (CDG) which he had joined in October 1982. However, he left the CDG in April 1989 as he disagreed with the views of the leader of the CDG who was advocating a coup d’état as the only means of unseating the PNDC. The appellant subsequently joined the Movement for Freedom and Justice and became its organizing secretary for his particular district in Kumasi. He described his activities in both organizations as raising the awareness of people of their political and civil rights. He also assisted in the organization of student and worker demonstrations and strikes. In addition, he gathered information at the local level for forwarding to the overseas offices of the organization where members were able to operate without the constraints which prevailed inside Ghana where, as mentioned, the formation of all political associations had been banned in 1981. In addition, the appellant carried out routine tasks such as the clandestine printing and distribution of leaflets and the scheduling of dates and places for political meetings. For security reasons meetings were frequently rescheduled to avoid interference by the PNDC and the CDRs.
The appellant experienced no adverse consequences for participating in these illegal activities.
He first began to experience difficulties in May 1990. The circumstances were as follows. A person called [AB], who ran an automobile spare part shop in Accra with his two brothers, had purchased from the appellant two Bedford engines which the appellant had imported, at some expense, from Lagos in Nigeria. Unfortunately the appellant allowed [AB] to take possession of both engines when only part-payment had been made.
By way of background, it should be mentioned that [AB] is an Ewe and also a member of the pro-PNDC June 4 Movement.
When the appellant made demand of the balance due on the engines and threatened [AB] with legal action, [AB] responded that the appellant could do what he liked but the fact of the matter was that Ghana was run by the Ewe. The clear inference was that [AB] believed that his tribal origins coupled with his membership of a pro- government organization gave him immunity from his civil liability to pay the debt owing to the appellant.
Acting on the advice of a friend the appellant laid a complaint at the Railway Police Station in Accra in August 1990. He explained that headquartered at this locality was a “strike force” of police officers who had been given power to discipline government organs found to be abusing their power for private ends. At the relevant time such abuses were widely reported and are remarked upon in the United States Department of State Country Reports on Human Rights Practices for 1992 - Ghana (February 1993) 103, 105.
The appellant’s complaint was made in May 1990. In August 1990, while in Accra, the appellant went to [AB’s] shop hoping to locate [AB] for the police. He was unsuccessful. The following day he was contacted by the police and advised that [AB] had been arrested. The appellant proceeded immediately to the Railway Police Station where he was able to speak to [AB]. He learnt that [AB’s] relatives had been asked to bring money to the police station in order to pay part of the debt and/or to obtain [AB’s] release on bail.
A short time later, [AB’s] two brothers arrived in the company of a man in Commando uniform. The appellant explained that the Commandos are Rawlings’ body guards. The Commando asked the appellant his name and told him that he was wanted at Osu Castle, the headquarters of the Commandos. A police officer present at this exchange required the Commando to explain why the appellant was needed. The Commando replied that the appellant had been wanted for a long time. He grabbed the appellant by the hand and upon the appellant resisting, produced a dagger. The Commando was overpowered by three officers of the strike force, disarmed and handcuffed. The appellant was told to return to the police station the following morning. When he returned he was handed money left there by [AB’s] relatives in part-payment of the debt. The appellant returned to Kumasi.
In November 1990, the appellant was telephoned by an inspector in the strike force and advised that Commandos from the Castle had uplifted the relevant file in which the appellant’s full name and address were recorded. The appellant was warned to be careful as the uplifting of the file by the Commandos indicated that the case had become “political”.
The appellant immediately left his home to stay in another house and did not return to Accra. He made no further attempt to collect the balance of the monies owing by [AB].
The following three months were uneventful. However, in March 1991 the appellant in the company of four friends (it is unnecessary to repeat here their names) travelled to the appellant’s home village in order to attend a funeral. After the funeral they decided to stay on to witness a public forum being organized by the local branch of the NCD. While waiting for the commencement of the forum, the appellant and his four friends went to a drinking bar at the local community centre for softdrinks. While there they discussed many issues relating to the political, social and economic life of Ghana. The appellant and his companions had attended two other meetings organized by the NCD and remained unconvinced as to the genuineness of the debates being encouraged by that body. The appellant and his companions, in the course of their discussion, made a number of statements severely critical of the PNDC and its various satellite political organizations. They were also critical of Ghana’s involvement in the West African Peace-keeping Force (Ecomog) which had been sent by Ghana to Liberia in August 1990 at some expense.
After a little while one of the bar attendants who knew the appellant well confided that he (the bar attendant) suspected that two men who had been sitting near the appellant’s group, and who had just left, were government security agents. A few minutes later the CDR chairman of the village who had been the appellant’s classmate (and who had remained on friendly terms) sent his wife to tell the appellant to leave immediately because some militia from Accra were in the village to arrest the appellant on the grounds of his involvement in the MFJ. The appellant then observed that approaching the community centre were the two suspected security agents in the company of an armed militia man and one of [AB’s] brothers whom he recognized from the incident at the Railway Police Station in Accra when the Commando had attempted to take the appellant to the castle.
The appellant and his friends endeavoured to escape. Two were unsuccessful and were arrested. The appellant and his two other friends, however, were able to make good their escape and hid in a nearby farm. The authorities mounted a systematic search of the area forcing the appellant and his two friends to move some distance away to the farm of a relative. While in hiding the appellant learnt that his home had been searched, his passport seized, his vehicle taken away by the police and his wife maltreated and taken away for interrogation. Although she was released a short time later she was required to report every day to the Kumasi military barracks.
During this time the appellant was visited once by his father who reported that the appellant had been charged with dissident activities before a tribunal set up to try political cases.
There is no need for us to detail the method of the appellant’s escape from Ghana. It is sufficient to note that by a circuitous route he eventually arrived in Lagos, Nigeria in mid-March 1991. The appellant immediately made enquiries at the UNHCR office there in the hope of obtaining protection but while his application for refugee status was received, he was cautioned that Ghana and Nigeria had signed an extradition treaty and that his safety in Nigeria could not be guaranteed. It was in these circumstances that the appellant left Nigeria on 25 March 1991 and arrived in Bangkok the following day. Again he approached the local UNHCR office but learnt that the processing of his case would take some time. The appellant believed Thailand to be too similar to Ghana in that Thailand, in his opinion, is run by the military. He decided to find safety in a Commonwealth country and eventually arrived in New Zealand on 29 May 1991 travelling on a false passport. At the airport he applied for refugee status and was issued with a 30-day visitor permit. After obtaining legal assistance, his application for refugee status was received by the Immigration Service on 3 July 1991. The Refugee Status Section interview was conducted on 11 November 1991. Eventually, by letter dated 10 August 1992, the appellant was advised that his application had been declined. We will shortly address the Refugee Status Section decision in greater detail.
It is first necessary to note that in support of his case the appellant has produced a number of documents. We will deal with them in chronological order.
First, there is a letter from the appellant’s father dated 26 September 1991. In it he refers to an amnesty announced by the PNDC in June 1991. He also enclosed a letter from the MFJ to the Secretary for the Interior enquiring whether the amnesty applied to the appellant and his four companions. The appellant’s father reports in his letter that after the MFJ letter had been received by the government, he (the father) was invited to an interview at the Bureau of National Investigation in Accra on 25 September 1991. There he was told that a decision had been made that the amnesty did not apply to the appellant as he had taken part in “subversive activities” and that the government was in possession of evidence to substantiate this allegation and believed him to be a threat to national security. He was being excluded from the amnesty in the interests of the state. The appellant’s father was, however, able to report that submissions made on behalf of the appellant’s wife had led to a cancellation of the daily reporting requirement. The appellant’s vehicle had also been released into the custody of his father. The appellant is advised in this letter that while one of the friends arrested had been released, the authorities were denying all knowledge of the second man who had been arrested.
Second, following the Refugee Status Section interview, the appellant was invited to comment upon the Interview Report compiled by the interviewing officer. In his response the appellant requested that a number of amendments and corrections be made and also submitted a letter from his wife dated 14 November 1991 in which she reports that the local CDR was taking an interest in the family once again. In particular, the appellant’s child had been excluded from a kindergarten run by the December 31st Women’s Movement without reason, forcing enrolment at an alternative school where the fees were very high. In addition, the appellant’s wife was being asked to report once again to the authorities. In her letter, the appellant’s wife advises that in order to avoid further difficulties with the authorities she intended travelling to a neighbouring country to stay with relatives. We should add that at the appeal hearing the appellant advised that he had received news that his wife had left Ghana for Togo and that since then the couple had lost contact with each other and that he is not sure of the reason.
Third, under cover of a letter dated 11 May 1992, the appellant’s solicitors submitted a letter from the Campaign for Democracy in Ghana confirming the appellant’s involvement in the Kumasi branch of that organization in the years stated by the appellant.
Fourth, the appellant has learnt that his father has approached a lawyer in Kumasi to act as an intermediary with the authorities (Bureau of National Investigation - BNI) in the hope that the appellant’s safe return to Ghana could be negotiated. He has produced in evidence letters from the lawyer concerned dated 22 September 1992 and 25 June 1993 respectively. The lawyer refers to the case in which the appellant has been charged, states that there is as yet no successful outcome, and that it is advisable for the appellant not to return to Ghana.
Addressing the political developments in Ghana since his departure, the appellant submits that the changes have been largely cosmetic. In particular, he argues that Rawlings still rules the country and there remains in place the security apparatus and organs of government set up by him under the PNDC and that as a known dissident the appellant will be arrested upon his return to Ghana. The fact that he is also an Ashanti will place him at risk. As an indicator of the absence of real change, the appellant draws attention to an indemnity law which has been passed. He has produced in evidence “Ghana: Indemnity Law”, West Africa, 8-14 March 1993. The relevant passage provides:
“A law on indemnity for acts connected with the erstwhile PNDC government has been published in Accra. It takes retrospective effect from December 31, 1981.Under the law, it is unlawful for any court to entertain any action whatsoever, take any order or grant any remedy or relief in proceedings against the Republic or PNDC. The law also covers any person acting under the authority of the PNDC on or after the commencement of the law, any member of the armed forces, police, CDRs, or any revolutionary organ of whatever name....The indemnity stretches to any act or omission in connection with or consequent upon the overthrow of the Third Republic and the suspension and abrogation of its Constitution and the establishment of the PNDC. The law also covers arrests, injury, detention or disposal of property of ministers and activists of the government of the Third Republic. ....”He also relies on “Ghana: Opposition Condemns Intimidation”, West Africa, December 1992-10 January 1993, 2249. This article reports the withdrawal of the NPP, PHP, PNC and NIP political parties from the Parliamentary elections and the fact that it is alleged that campaigners for these parties had fled into exile to escape being terrorized by armed men. It was claimed by the four parties that “a formidable and intimidating” military presence had been built up in the Upper East region and that Commandos and para-military personnel had been harassing innocent citizens. It continues:“The statement also drew attention to the harassment of the organizers in the Ashanti Region, especially the Kumasi metropolis.According to a joint statement 32 constituency officials of the NPP were arrested at gunpoint and flown to Accra by helicopter and their relatives have no idea about their whereabouts .... Earlier the People’s Daily Graphic had reported that its investigations had revealed that about 50 people had been arrested in the Kumasi metropolis. According to reports in the private press, some of the arrests were in reaction to the booing of Flt Lt Rawlings by a crowd in Ejisu when he passed through the town on his way to Ejura for the annual Farmers’ Day celebration.”It is the appellant’s submission that these reports and other material he has submitted in evidence support his contention that the same individuals and organs remain in power and that there has been no national reconciliation. He emphasized that he was of the firm resolve to return to Ghana and his family as soon as it was safe for him to do so and that his flight and subsequent search for asylum were events which he had not wished for.THE REFUGEE STATUS SECTION DECISION
In order to complete the narrative, it is necessary to return to the handling of the case by the Refugee Status Section.As mentioned, the appellant was interviewed on 11 November 1991. Subsequently, he was offered an opportunity to comment on an Interview Report in which his evidence at the interview was summarized. The interview report did not, of course, annex the appellant’s lengthy statement nor the various documents tendered to the officer at the interview. By letter dated 3 December 1991 the appellant, through his solicitors, requested that a number of additions and amendments be made to the interview report and as mentioned, enclosed further evidence in the form of a letter from his wife.
In a handwritten assessment of the case dated 28 October 1992, the interviewing officer concluded that the appellant met the subjective and objective components of the refugee definition and that the appellant was a refugee within the meaning of the Refugee Convention.
For reasons which are not clear from the file, this decision was not communicated to the appellant. It would appear, again for reasons which are not disclosed by the file, that the officer decided to seek the “comments” of the UNHCR Regional Office in Canberra on the case. By fax dated 26 February 1992, the Interview Report was sent to that office. It is important to emphasize that the UNHCR were not provided with the appellant’s full statement, the supporting documentation that had been produced at the interview or the additions and amendments to the report which had been requested by the appellant.
In a response dated 5 March 1992, a legal officer in the UNHCR Canberra office responded, commenting that:
“Drawing on the interview report, there appears to be some serious flaws in the applicant’s story.”[emphasis added]The significance of the qualification emphasized in this passage was subsequently overlooked by the Refugee Status Section.The UNHCR legal officer then made some general observations concerning the movement of freedom of justice [sic] and then offered the opinion that the appellant’s difficulties appeared to have emanated from:
“... a personal, non-political dispute in which some government functionaries are alleged to have involved themselves.”He offered the opinion that the appellant’s difficulties were non-political in nature. He concluded:“Unless the applicant can provide plausible answers for these questions, and a host of others including the circumstances of his financing of this elaborate journey across the world, we would not be in a positions [sic] to support his claim to refugee status.”Regrettably, the appellant was not made aware that the comment and opinion of the UNHCR had been sought. Nor was he made aware of what had been said about his case by the particular legal officer of the UNHCR, notwithstanding that that officer anticipated that disclosure would take place in order to afford the appellant the opportunity to “provide plausible answers for these questions”.For some time nothing further seems to have happened to the case.
By letter dated 11 May 1992 the appellant’s solicitors presented to the Refugee Status Section the letter dated 28 April 1992 from the Campaign for Democracy in Ghana in which the appellant’s involvement in that organization is confirmed. This new information was not sent to the UNHCR officer who had commented on the case.
Eventually, on 3 August 1992, an officer in the Refugee Status Section who had not attended the interview with the appellant requested the General Manager’s Office in Wellington to fax “the latest information” available on Ghana. It is not clear whether such information was provided. What is clear is that if such information did come to hand it was not disclosed to the appellant.
It would rather appear that the officer who had conducted the interview and who had concluded that the appellant was a refugee ceased to have an involvement in the case after February 1992. On 8 August 1992, a new assessment of the appellant’s case was made in the Refugee Status Section. This time it was concluded that the appellant was not a refugee by reason of the fact that the changes in Ghana had removed the basis for the application. Neither the officer who drafted the second report nor the officer who endorsed it had attended the original interview with the appellant. Nor had the appellant been afforded an opportunity to comment on the country information received by the Refugee Status Section on which the conclusion had been reached that the changes in Ghana had removed the basis of the application.
Thus, some nine months after the interview, the Refugee Status Section by letter dated 10 August 1992 notified the appellant that his application had been unsuccessful on the principal ground already mentioned. The letter of decline gave no hint that:
(a) Comment and opinion had been received from the UNHCR.
(b) The interviewing officer had recommended the grant of refugee status in January 1992 but that a different officer had reached the opposite conclusion in August 1992.
It is important to emphasize that there is no suggestion of bad faith on anyone’s part. However, it is clear that the rules of procedural fairness have been breached. In these circumstances it might assist the Refugee Status Section were we to make some general observations concerning the content of the duty of fairness owed to applicants for refugee status.
A DUTY OF FAIRNESS TO ASYLUM SEEKERS
IN REFUGEE CASES ONLY THE HIGHEST STANDARDS OF FAIRNESS WILL SUFFICEIt is elementary law that decision-makers in the immigration context are under a duty to act fairly. See by way of example Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA); Chen v Minister of Immigration [1992] NZAR 261 (CA). This duty is explicitly recognized in the New Zealand Immigration Manual, Chapter 3, paras 3.36 and 3.37.
In the particular context of decisions on refugee status, Commonwealth jurisprudence has, without exception, emphasized that only the highest standards of fairness will suffice. The rationale, as explained by Lord Bridge in R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, 531G (HL) is that:
“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”This point has been emphasized in the New Zealand context by two decisions of the High Court. First, in Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, 29 November 1985, A993/83, Chilwell J) a decision refusing refugee status was set aside on the grounds that there had been a multiplicity of breaches of the rules of fairness including a failure to disclose information received from other sources (including the UNHCR), unfairness during the interview, the provision of an inaccurate and misleading report to the Ministers, bias and misdirections in law as to the definition and application of the term “refugee” in the Refugee Convention.Second, in Santokh Singh v Refugee Status Appeals Authority (High Court Auckland, M1224/93, 9 February 1994, Smellie J) a decision of the Authority was set aside on the grounds that an inadequate opportunity had been given to an appellant and his counsel to consider material on which the Authority intended to rely.
The leading case in Canadian jurisprudence is Singh v Minister of Employment and Immigration [1985] 1 SCR 177 (SC:Can) in which the Supreme Court of Canada held that a refugee determination procedure which did not allow for an oral hearing was in breach of the guarantee of “fundamental justice”. This decision led to the restructuring of the refugee determination system in 1988. In the Australian context, reference may be made to the related cases of Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 (FCA:FC) and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 367 (FCA:FC). Both cases emphasize the importance of procedural justice and the need to afford a fair opportunity to be heard on matters adverse to the asylum seeker’s interests, even if the “source” of concern is not information or materials provided by a third party, but rather what is seen to be the conduct of the asylum seeker.
English authority is to the same effect. In Gaima v Secretary of State for the Home Department [1989] Imm AR 205 (CA) May LJ at p 209 stressed that the decision- making process must be “wholly fair throughout”. The decision of the Secretary of State was set aside as Ms Gaima had not been given an opportunity to comment on two factors on which an adverse finding of credibility had been based, namely alleged delay in submitting the refugee application and the fact that she had sought help from the London High Commission of her country of origin. In R v Secretary of State for the Home Department, Ex parte Oran [1991] Imm AR 290 (QBD) a further decision of the Secretary of State was set aside on the grounds of failure to afford an opportunity to explain matters in Ms Oran’s submissions from which adverse inferences had been drawn. Finally, in Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402, 414 (CA) the following statement by Bingham LJ was expressly concurred with by Lord Donaldson MR at 409 and Mann LJ at 415:
“There was in these cases no oppression or over-reaching of the applicant and the procedure adopted had, as I infer, been regularly used without attracting criticism. It is, however, plain that asylum decisions are of such moment that only the highest standards of fairness will suffice. I am in the end persuaded.
FAILURE TO DISCLOSE PREJUDICIAL INFORMATION1. that if an opportunity to make representations is to be meaningful the mind of the applicant must be directed to the considerations which will, as matters stand, defeat his application; and
2. that if an opportunity to supplement previous answers is to be meaningful the applicant must be reminded of or (preferably) shown the answers which he gave before: this is most obviously so where (as in two of these cases) a year had elapsed since the previous interview, but given the difficulties which can occur when questions are asked through an interpreter and the strain to which the applicant may well be subject at the time of the first interview I think it necessary even where the interval has been much shorter.
I am not intending to make any general statement about natural justice or procedural propriety but simply to indicate what, in the peculiar circumstances of cases such as these, fairness seems to me to require.”
There can be no doubt that the communication from the UNHCR Canberra office was prejudicial to the appellant’s case. There was a clear duty to disclose the memorandum: Daganayasi v Minister of Immigration [1980] 2 NZLR 130, 145 (CA); Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, 29 November 1985, A993/83, Chilwell J) 283-288. The latter case is directly on point. There, the (then) Inter-departmental Committee on Refugees failed to disclose (inter alia) the oral opinion of the Regional Representative of the UNHCR, Canberra and its UNHCR source. Chilwell J held that the duty of fairness required disclosure even if the information had been supplied in confidence, so high was the duty owed to the asylum seeker.
In the face of these two decisions, the failure in the present case to disclose the UNHCR communication is disappointing.
The failure to disclose the country information, and in particular the information on which the “changed circumstances” decision was based was equally a breach of this fundamental obligation.
DECIDING WITHOUT HEARING
The interviewing officer concluded that the appellant was a refugee. That decision was subsequently reversed, apparently by an officer or officers who had not attended the interview. The circumstances of this reversal not being entirely clear, our observations on this aspect of the case must necessarily be of a general nature only.
However, we do find it disquieting that a decision on refugee status can be made by someone other than the person who conducted the hearing.
The following statement of principle is taken from de Smith, Judicial Review of Administrative Action (4th ed 1980) 219:
“Must he who decides also hear? In general the answer is in the affirmative. It is a breach of natural justice for a member of a judicial tribunal or an arbitrator to participate in a decision if he has not heard all the oral evidence and the submissions. The same principle has been applied to members of administrative bodies who have taken part in decisions affecting individual rights made after oral hearings before those bodies at which they have not been present; “for bias and ignorance alike preclude fair judgment upon the merits of a case”.”Ultimately, it is a question of what procedural fairness requires. This in turn depends upon an analysis (inter alia) of the nature and function of the body to whom the particular power has been entrusted. In the present context, the determination of refugee status involves a consideration of the most fundamental of all human rights, namely the individual’s right to life and the right to a life free of persecution. The decision-maker shoulders a heavy burden indeed. The task is not made any easier by the fact that the essential issue for determination is not whether the applicant’s past experiences amount to persecution, but whether there is a real chance of persecution occurring in the future. Inherent in the uncertain nature of these issues is the difficulty of proof. For these reasons it is unhelpful to think in conventional legal terms such as the burden of proof and the rules governing the admissibility of evidence. Often an applicant may not be able to support his or her statements by documentary or other proof and as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status emphasizes at para 196, the cases in which an applicant can provide evidence of all his or her statements will be the exception rather than the rule. The requirement of evidence should thus not be too strictly applied.It is inevitable that in almost every case the decision will turn very much on the applicant’s credibility. Such an assessment cannot be made on a reading of the papers, as the decision in Singh v Minister of Employment and Immigration [1985] 1 SCR 177 (SC:Can) illustrates. A valid assessment can only be made by a decision- maker who has personally interviewed the applicant. It is this Authority’s frequent experience that cases which on a reading of the papers appear to be utterly hopeless turn out, after hearing, to be wholly compelling and that cases which appear strong crumble once an oral hearing permits a credibility determination to be made. One is reminded of the oft quoted dictum of Megarry J in John v Rees [1970] Ch 345, 402 which, while not directly on point, nevertheless underlines the importance of affording a proper opportunity to be heard:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow, were not; of unanswerable charges which, in the event, were completely answered; or inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”In addition to being able to make an informed decision on credibility issues, the interviewing officer unconsciously imbibes “the flavour” of the case and for this reason is far better placed to arrive at a fair and accurate determination of refugee status than someone who has not attended the interview. In this regard, the decision- maker’s function closely approximates a judicial function and the law insists more strictly that decisions of this kind cannot be made by a person who has not heard all the evidence and who has not participated in the hearing. That is, the greater the judicial element involved, the more likely it is that the decision-maker must also hear: Craig, Administrative Law (2nd ed 1989) 223.There are therefore compelling reasons why the course followed by the Refugee Status Section in the instant case was, to say the least, unwise.
Furthermore, because the interviewing officer’s favourable decision was not in fact acted upon, there was arguably a further breach of the rules of fairness in that there was a failure not only to disclose to the appellant the original report and decision, but also to give an opportunity to respond to the proposal that the decision not be acted upon: Aronson & Franklin, Review of Administrative Action (1987) 149:
“Thus it would appear that the final decision-maker may not escape the obligation to hear by appointing a delegate to conduct investigations. If, on the basis of the delegate’s report, the final decision-maker is persuaded to proceed, the substance of the report may have to be disclosed and an opportunity given to respond. The obligation to do so will be all the more apparent where the final decision-maker differs from the delegate’s report in any respect adverse to the person affected.”CONSTITUTION OF THE APPEAL AUTHORITY AT THE HEARING OF THE APPEALWe turn now to the issue of the Authority’s membership for the purpose of hearing this appeal. Mr Lombard is a legal officer in the UNHCR office in Canberra and a colleague of the legal officer who provided the March 1992 comments on the appellant’s case to the Refugee Status Section. Before the commencement of the hearing of this appeal the Authority was concerned to ensure that such unfairness as may have occurred at the Refugee Status Section level not be perpetuated on appeal. Accordingly, when the hearing of the appeal began, counsel for the appellant was asked whether the appellant had any objection to Mr Lombard’s participation in the hearing given the prima facie negative comments made about the case by Mr Lombard’s colleague. Counsel responded, without reservation, that there was no objection whatever to Mr Lombard’s participation and the Authority accordingly proceeded to hear the appeal with Mr Lombard participating as a non-voting observer member as prescribed by the then applicable Terms of Reference.
THE ISSUES
The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”In the context of this case the four principal issues are:1. Is the appellant genuinely in fear?
2. If so, is it a fear of persecution?
3. If so, is that fear well-founded?
4. If so, is the persecution he fears persecution for a Convention reason?
In this regard we refer to our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).
In the same decision this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.
ASSESSMENT OF THE APPELLANT’S CASE
We find that the appellant is a credible witness and his account is accepted. We therefore find that he has a bona fide subjective fear of persecution. We further accept that the punishment and imprisonment feared by him is of sufficient gravity to amount to persecution.We address next the fourth issue, namely whether there is a Convention reason for the feared persecution. Superficially, the appellant’s difficulties arise out of a civil dispute with [AB]. Ordinarily a dispute of this kind would not come within the Refugee Convention. However, inseparable from the case is [AB’s] connection with an organ of the pro-Rawlings party and the fact that he is a member of the Ewe ethnic group from which the Rawlings party draws its principal support. The appellant, on the other hand, is from the Ashanti tribe and is domiciled in Kumasi which, on the evidence placed before us, has been a centre of opposition to the Rawlings administration. The appellant’s account of the incident at the Railway Police Station neatly illustrates how an apparently straightforward civil debt became politicized with the intervention of the security forces on [AB’s] behalf.
In addition to the politicization of the civil dispute, there are the added elements that:
(a) The appellant has held strong political views, expressed through his membership and activity in the Movement for Freedom and Justice.
(b) The attempted arrest on 4 March 1991 occurred in an overtly political situation, namely the appellant’s public expression of opinions critical of the Rawlings administration.
(c) State agents, namely militia and security agents, actively participated in the unsuccessful arrest attempt.
(d) The merging of the civil dispute with these aspects of the case is underlined by the fact that on the occasion of the attempted arrest one of [AB’s] brothers was present.
Against this background we conclude that the appellant is sought by the Ghanaian authorities for reason of his political opinion. Even if we are wrong in this respect, and we see no basis for making any such concession, the politicization of the civil dispute with [AB] is sufficient to categorize this case as one involving an imputed political opinion. The fourth issue is therefore answered in the affirmative.
We turn now to the issue whether the appellant’s fear is well-founded.
THE INCLUSION CLAUSE AND CHANGED CIRCUMSTANCES
As to the changed circumstances in Ghana, we adopt and apply the well-established test explained in Refugee Appeal No. 81/91 Re VA (6 July 1992) at 5-9. There is no need to repeat what is said there. It is sufficient to record only that the appropriate date at which the well-foundedness of an refugee applicant’s fear is to be assessed is the date of determination of the refugee application.
Special considerations, however, apply where the fear of persecution was well- founded at an earlier date, such as the date of departure from the country of origin or entry to New Zealand. In that situation, before a finding can be made that the individual is not a refugee, there needs to be “compelling evidence” establishing that the grounds for the previously well-founded fear have dissipated. Evidence of a “material change” in the state of affairs in the country is required: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 391 (Mason CJ), 399 (Dawson J), 408 (Toohey J), 414-415 (Gaudron J). The relevant passage from the decision of Mason J reads:
“The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr Chan’s fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear had dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a Court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure.”The reference to “compelling evidence” and “material change” highlights the magnitude of change which should exist before the dissipation of a well-founded fear is to be inferred. In the analogous context of the cessation provisions of Article 1C(5) and (6) of the Refugee Convention, Professor Hathaway in The Law of Refugee Status (1991) 199 emphasizes the following factors:(a) The change must be of substantial political significance.
(b) There must be reason to believe that the substantial political change is truly effective.
(c) The change of circumstances must be shown to be durable.
We see no reason why these factors should not also be taken into account when considering the issue of changed circumstances in the context of the Inclusion Clause, namely Article 1A(2).
Given the long delays in this case and the unfortunate manner in which the decision at first instance was reached, it is proper that we address the issue whether the appellant’s fear of persecution was well-founded as at the end of 1991 following the conclusion of the Refugee Status Section interview. For the following reasons we find that it was:
(a) There was evidence that the appellant had been charged before a public tribunal with dissident activity. The authorities have not withdrawn or abandoned that charge.
(b) Following the announcement of the amnesty in July 1991, the appellant’s father specifically enquired of the authorities whether the amnesty applied to the appellant. He was told that it did not as his son was accused of subversive activities. It is significant in this context that in T.C. McCaskie, “Ghana: Recent History”, Africa South of the Sahara 1993 (22nd ed) Europa Publications Ltd at 390 it is reported that:
“In June 1991 the government reiterated denials that a number of political prisoners were detained in Ghana and announced that it had invited Amnesty International to investigate the allegations. In the same month the PNDC announced an amnesty for political exiles, excepting those implicated in acts of subversions against the government.”[emphasis added]Thus, from this independent source, there is confirmation that the amnesty announced by the Rawlings administration does not apply to persons such as the appellant.(c) The appellant’s wife was initially required to report to the authorities on a daily basis. The frequency of reporting was subsequently reduced after the appellant’s father interceded with the authorities and, it would seem, the reporting came to an end. But in her letter dated 14 November 1991 the appellant’s wife disclosed that she was once again required to report and it was largely on account of this fact that she decided to leave Ghana. This is hardly indicative of a lessening of interest in the appellant.
Addressing now the changing circumstances in Ghana, it must be accepted that the overall political picture in that country suggests some improvement in human rights. On the information provided to us, which we do not intend repeating, we are unable to say, in relation to the appellant’s particular circumstances, that there is compelling evidence that the changes in Ghana are material or substantial; nor are we able to say that there is no real chance that the appellant could be persecuted were he to return to Ghana. We have been influenced by the following factors:
(a) The appellant has been charged with dissident activity before a public tribunal. In spite of the changes in Ghana, there is no evidence that those charges have been withdrawn.
(b) The amnesty for political exiles announced in June 1991 specifically excepts those implicated in acts of subversion against the government. The appellant’s father has been specifically advised that the amnesty does not apply to the appellant.
(c) The continuing interest of the authorities in the appellant is evidenced by their attempt to force his wife to resume reporting to them.
(d) According to the United States Department of State Country Reports on Human Rights Practices for 1993 - Ghana (February 1994) 112, notwithstanding the improvement in the human rights situation in 1993:
“... [it is] too early to judge whether the rule of law and democracy would flourish in Ghana after 11 years of authoritarian rule ....”Of particular concern is the fact that the withdrawal of the opposition parties from the 1992 elections effectively handed power to the Rawlings party which, while firmly in power, is faced with what the Country Reports on Human Rights Practices for 1993 - Ghana (February 1994) 112, 115 describes as “a large, bitter, extraparliamentary opposition”. This in turn has made more difficult the process of national reconciliation and the resumption of not only the democratic process, but also of democratic institutions.(e) There are credible reports that, following the disputed presidential election, supporters of opposition parties were arbitrarily arrested, primarily in the Kumasi area: Department of State County Reports on Human Rights Practices for 1992 - Ghana (February 1993) 103, 104; “Ghana: Opposition Condemns Intimidation”, West Africa, December 1992-10 January 1993, 2249.
By way of summary, in the face of this inconclusive information, we find that there is an absence of compelling evidence from which it can be inferred that the grounds for the appellant’s fear have dissipated. We accordingly conclude that his fear is well-founded.
CONCLUSION
In summary our conclusions are as follows:1. The appellant holds a bona fide subjective fear of returning to Ghana.
2. The harm feared by him is of sufficient gravity to constitute persecution.
3. His fear is well-founded and there is a real chance that the harm feared could occur were he to return to Ghana.
4. The harm feared by the appellant is connected with or related to one of the five Convention reasons, namely his political opinion (actual or imputed).
For these reasons we find that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.
“R P G Haines”
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[Chairman]