High Court Cases

High Court Christchurch M29/01; [2002] NZAR 552
27 March 2002; 29 April 2002
Chisholm J

Judicial review - failure to consider evidence - whether RSAA failed to take evidence into account

Judicial review - expert evidence - whether RSAA obliged to accept evidence of expert

Evidence - expert evidence - whether RSAA obliged to accept evidence of expert

Procedure of RSAA - expert evidence - whether RSAA obliged to accept evidence of expert

The applicant, who lived in northern Ghana and was a citizen of Ghana, was unsuccessful in his claim to be recognised as a refugee.  On an application for review the sole question was whether the Refugee Status Appeals Authority (RSAA) erred in law by failing to give consideration to a brief facsimile from an academic employed at the African Studies Centre at Cambridge University stating (inter alia) that the applicant could not find safety in southern Ghana and had "an ironclad case to be granted asylum".  It was submitted to the RSAA that the facsimile demonstrated that it would be unreasonable to expect the applicant to relocate in southern Ghana.  The RSAA found that despite the unequivocal opinion of the academic, there was nothing more than a remote chance of the applicant coming to harm should he relocate himself in southern Ghana.  As he could access genuine domestic protection it was reasonable for him to relocate to the south.

Held:

1    The RSAA is not obliged to accept the report of a qualified expert without more.  It is fully entitled to evaluate and assess that evidence, to consider it in the context of the totality of the evidence, and to reach its own objective and reasonable assessment of it (see para [10]).

Butler v Removal Review Authority [1998] NZAR 409, 424 (Giles J) applied.

2    This was not a situation where the RSAA had rejected evidence without explaining its reasoning process.  On the face of the decision it could be seen that the Authority had weighed the evidence from the witness against all the other information legitimately before it and had reached its own conclusions in a reasoned, objective and judicial manner (see para [13]).

Application dismissed.

Other cases mentioned in judgment:

Butler v Attorney-General [1999] NZAR 205 (CA)

Counsel
R E Neave for the applicant
I C Carter for Crown Law Office

[Editorial note: It will be noted from the judgment that the appeal was heard by the RSAA on 23 February 1999.  Subsequently, in Refugee Appeal No. 71684/99 (29 October 1999); [2000] INLR 165 the Authority reviewed what had until then been called the "relocation" jurisprudence.  That review was necessitated by Butler v Attorney-General [1999] NZAR 205 (CA).  The Authority in Refugee Appeal No. 71684/99 determined that the term "internal protection alternative" was to be preferred to "relocation".  Reasonableness is no longer an element of the internal protection inquiry.  Instead the issues to be addressed are those presaged in Butler and more fully articulated in the Michigan Guidelines on the Internal Protection Alternative.  The significance of this change was further considered by the Authority in Refugee Appeal No. 71729/99 (22 June 2000); [2001] NZAR 183.]

CHISHOLM J [1] As a result of tribal conflict in northern Ghana during which his parents were killed Abdul Razak, a Ghanaian national, fled to South Africa.  Approximately three years later he made his way to New Zealand where he sought refugee status.  His application was declined by the New Zealand Immigration Service and his appeal to the Refugee Status Appeals Authority failed.

[2] This application for judicial review seeks review of the Refugee Status Appeals Authority decision.  The short point raised by the applicant is whether the Authority erred in law by failing to give consideration to the evidence of Dr Quayson, a Ghanaian and the director of the African Studies Centre at Cambridge University, England.

Background

[3] Having arrived in New Zealand on 30 January 1999 the applicant immediately made application for refugee status.  Pending resolution of his application he was detained at Addington Prison.  When his application for refugee status was declined by the Immigration Service on 9 February 1999 he immediately appealed to the Refugee Status Appeals Authority.  Upon receiving notification that the appeal would be heard on 23 February counsel for Mr Razak (not Mr Neave) sought further time to prepare the applicant's case suggesting that a three month adjournment would be appropriate.  This was refused and the appeal was heard on 23 February 1999.

[4] The key issue was whether Mr Razak could safely relocate in Southern Ghana.  He argued that he would not be safe anywhere in Ghana and that if he went to southern Ghana he would probably have to live in a "zongo" which was described as an area in every city or town of significance where the northern tribes live, work and worship.  He had been told that when tribal conflicts break out in the north similar violence will erupt in the zongos between the same tribes and he feared that the Dagomba tribe that had killed his parents would track him down in a zongo in the south and kill him to prevent him from reclaiming his father's land.  The applicant claimed that he would be easily identified by the opposing tribe due to his tribal markings.  He showed the Authority a long scar running from his nose and across his left cheek and it was confirmed by the Authority's interpreter that the scar was a tribal marking from the north although the interpreter was not able to specify the tribe.

[5] At the conclusion of the hearing counsel for the applicant was given until 9 March 1999 to file submissions and any further evidence.  That time was subsequently extended by one month.  Further information provided to the Authority included the following facsimile from Dr Quayson to counsel:

"Thank you for your elaborate email about the application for asylum by the gentleman from Northern Ghana.

There are two main issues of relevance I can glean from what you said:

(a)  Whether the Zongos in Southern Ghana are communication networks for Northerners.  The answer is an unequivocal YES.  Anyone from Ghana can attest to the fact that the Zongos are historically the places where most Northerners relocate to in the first instance.  They are also predominantly Muslim.  These are facts that are taken largely for granted by most Ghanaians.  The Zongos are noted for being enclaves of Northern culture wherever they are found.  The languages, dress codes and foods are all distinctive and recognizably Northern.

(b)  Whether his life is in danger due to inhering (sic) his father's lands.  The answer is again an unequivocal yes.  Land litigation is no ordinary matter in Ghana and in fact there are numerous cases of entire households being destroyed due to such litigation.  The case of course is not to be overstated, but even if he were not a Kokomba but was involved in some land litigation he would have serious cause for concern about his own safety and that of those closest to him.

The final point, not directly related to the earlier two but still relevant, is whether he would have adequate peace of mind on returning to his homeland (any part of Ghana, as opposed to the Zongos as such).  Relocating is not that straightforward in Ghana.  As a rule, everyone has to be plugged into an elaborate set of kinship or village networks to be able to get a footing in any new location.  In fact, people would EXPECT you to have such networks and be able to call on them when relocating.  It would be thought very strange if you said you had no one from your tribal (sic) to turn to in a new place.  People would be likely to suspect you of being a criminal or of having done something dreadful in where you came from.  So the question of his peace of mind, not to count his safety, is not at all likely to be assured on returning to the country.

It seems to me from the issues as you present them that this gentleman has an ironclad case to be granted asylum.

I hope my opinions will be helpful in coming to a just and quick decision on the application.

Best of luck."

[6] In its decision of 29 April 1999 the Authority accepted that the core of the applicant's claim was truthful and that while the extensive violence and killings in northern Ghana which erupted in 1994 had virtually ceased in 1995, there was still potential for the violence to flare up again given the underlying problems with land tenure and a deep-seated hatred between northern tribes.  The Authority accepted that the applicant faced a real chance of persecution if he was to return to his home village in the north to reclaim his father's land.  It considered that the real issue was whether the applicant could safely relocate to southern Ghana.  In this regard it reasoned:

"The appellant accepted that it was possible that he could go back (presumably to the south) and nothing would happen but he fears that local Dagomba in the north will eventually be able to locate him in the south since news of his presence and identity will travel back to his local village at some stage, through his inevitable contact with a zongo.  Counsel produced a facsimile dated 11 March 1999) from Dr Quayson, a Ghanaian and Director of the African Studies Centre and lecturer in English at the University of Cambridge.  Dr Quayson states that zongos in southern Ghana are historically the places where most northerners relocate to in the first instance.  As a rule, everyone 'has to be plugged into an elaborate set of kinship or village networks to be able to get a footing in any new locations'.  He says that zongos also operate as communication networks for northerners.  Zongos are also described, in much the same terms, in the decision of the Australian Refugee Review Tribunal in RRTN97/17540 (27 January 1999).  In Dr Quayson's opinion, the appellant's life will be in danger due to inheriting his father's land and he 'has an ironclad case to be granted asylum'.

However, despite the unequivocal opinion of the learned academic, the Authority finds that there is nothing more than the remotest chance of the appellant being located in the south by rival villagers from his area.  The appellant comes from a small and remote village in the  north and the chance of Dagomba there being able to locate the appellant hundreds of kilometres away in a large city such as Accra (population of Greater Accra in 1995: 1.7M) is remote indeed, even if, as the appellant says, traders and herdsmen regularly move between the north and the south and the zongos operate as communication networks.  The appellant accepted his low profile.  He is not a Konkomba leader of any sort.  He is merely the eldest son and heir of a (now deceased) Konkomba farmer whose holding was substantial but, in the appellant's words, "average".  When he left Ghana, he was 26 years old and despite living in a predominantly Dagomba and Mamprusi area, had suffered only one incident at the hands of the Dagombas (though that incident had horrendous consequences for the appellant and his family).  It is also noteworthy that there is no history in the south of conflict amongst the northern tribes.  The Authority finds that, whether or not the appellant lives in a zongo, and accepting that he is identifiable as a Konkomba from the north, there is only the remotest possibility that he will be found in the south by Dagombas from his local village and killed or otherwise persecuted because of this or that he will suffer persecution from the Dagombas generally.

...

There is no reach (sic) chance of the appellant being persecuted should he return to Ghana and live in the south.  The appellant can access genuine domestic protection in the sense that he is not at risk of harm in the south.  Furthermore, the Authority finds that it is reasonable for him to relocate to the south.  The appellant could think of no reason, beyond his fears as to his safety, why it would be unreasonable for him to relocate.  He is clearly a resourceful individual who was able to make his way from Ghana to South Africa where he successfully established himself there (though found it unsafe) and subsequently found his way to New Zealand.  He speaks numerous languages, including English and the national Ghanaian language of Ashante (Twi).  There is no evidence that the appellant is in any way psychologically or emotionally disturbed because of his experiences in Ghana, nor was this claimed.

Counsel prays in aid the 'benefit of the doubt' principle.  However, there can be no room for the application of that principle in the appellant's favour where the Authority has no real doubt as to its conclusions.

Turning to the framed issues, the Authority finds that there is no real chance of the appellant being persecuted should he live in southern Ghana.  His fear of persecution there is not well-founded.  He can safely relocate to southern Ghana and it is reasonable for him to do so."

[7] In the meantime Mr Razak had been released from detention and served with a removal order.  Since that time he has been in hiding within New Zealand.  His former counsel has sworn an affidavit explaining the delay in this matter which can be broadly attributed to the "plight of the applicant" and delays on the part of his former counsel.

Determination

[8] For the applicant Mr Neave submitted that in reaching its conclusion the Authority had effectively ignored the evidence of Dr Quayson that the applicant's life would still be at risk even in southern Ghana.  At the very least, submitted Mr Neave, the Authority had failed to give any meaningful explanation for rejecting the highly relevant evidence from Dr Quayson.  And he argued that on the evidence it could not be said that it was unreasonable for Mr Razak to hold the view that his life would be at risk if he was returned to southern Ghana.

[9] In response Mr Carter submitted that Dr Quayson's evidence had been expressly taken into account by the Authority which accepted part and rejected other parts of his evidence.  He said that eligibility for refugee status was for the Authority, not Dr Quayson, to determine and Dr Quayson's view about whether or not refugee status should be granted could carry little weight.  Mr Carter also argued that in the end result the Authority had correctly applied the relocation principle, which is a recognised feature of refugee law.

[10] In Butler v Attorney-General [1999] NZAR 205 a full Bench of the Court of Appeal noted with reference to applications for refugee status that those making a decision which may put an individual's right to life at risk and Courts reviewing any such decision have a special responsibility to see that the law is complied with.  An explanation of the law to be considered in relation to Mr Razak's application for review can be found in Butler v Removal Review Authority [1998] NZAR 409 at p 424:

"... the Authority is a body required to act judicially.  It must evaluate and reach a determination on the evidence ...  It is for the Authority to evaluate and assess the evidence in a reasoned, objective and judicial manner.  Expert evidence is an important part of the evidence, but, ... it is only 'part' of the evidence.  The Authority is entitled, indeed required, to consider it in the context of, and to measure it against, other evidence.

...

... the Authority is  not obliged to accept the report of a qualified expert without more.  It is fully entitled to evaluate and assess that evidence, to consider it in the context of the totality of the evidence, and to reach its own objective and reasoned assessment of it."

[11] The Authority was, of course, entitled to summarily reject Dr Quayson's comment that Mr Razak "has an ironclad case to be granted asylum".  That issue was for the Authority to determine, not an expert witness no matter how well qualified.  As to the remainder of Dr Quayson's evidence, it can be seen that while the Authority accepted his explanation about communication networks, it was not prepared to accept that Mr Razak's life would necessarily be in danger if he relocated in southern Ghana.  Significantly Dr Quayson himself cautioned that the case "is not to be over stated" and on the face of his comments the danger seemed to be linked to the possibility of land litigation which does not appear to arise on the evidence before the Authority.

[12] Apart from that, several factors appear to have prompted the Authority to conclude that there was nothing more than the remotest chance of the applicant being found by members of the Dagomba tribe if he was relocated in south Ghana: he came from a small and remote village hundreds of kilometres to the north; and even if there is a network extending to the south there could only be a remote chance of Mr Razak being located in a large city such as Accra because he was not a tribal leader and had a low profile.  Moreover, there was no history of conflict in the south between the northern tribes.  In reaching its conclusion the Authority also took into account that Mr Razak was identifiable (presumably by virtue of his tribal marking) and that he may well have to live in a zongo.  Nevertheless it considered that there would only be a remote chance of him being located.  When arriving at those conclusions the Authority also took into account other decisions concerning Ghanaian nationals.

[13] I am satisfied that this was not a situation where an Authority has rejected evidence without explaining its reasoning process.  On the face of the decision it can be seen that the Authority has weighed the evidence from Dr Quayson against all the other information legitimately before it and has reached its own conclusions in a reasoned, objective and judicial manner.

Outcome

[14] The application is dismissed.  Since the applicant is legally aided there will be no order as to costs.

Solicitors for the applicant: A N Watson, Newfields Law (Christchurch)
Solicitors for the respondents: Crown Law Office (Wellington)