High Court of Ireland Decisions

 


HC 241/04

THE HIGH COURT JUDICIAL REVIEW

Record No. 2003 No.400JR

BETWEEN:

R. A.

APPLICANT

AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr Justice Michael Peart delivered the 26^th day of May 2004:

The applicant was born in Ghana, and on his arrival in this country at the end of January 2002, via Amsterdam, was aged 20 years, having been born on the 3^rd November 1981.

On arrival he completed an application for refugee status on 24^th January 2002, in which he stated, inter alia, that he was single, and that his mother was a member of the Kussasi tribe, and that his father was a member of the Gonja tribe in Ghana. Prior to his departure from Ghana he had resided in the Bawku region of Ghana, and was of the Muslim religion. In that application form he stated that he had been a member of a political organisation known hereafter as "the NDC party", to which the Kussasi tribe traditionally give allegiance.

It appears that another tribe in Ghana is known as the Mamprusi tribe, and that members of that tribe predominantly owe allegiance to another political party, the New Patriotic Party, which is referred to as the NPP party, and rivalry between the NPP party and the NDC party is fierce and violent. In December 2001 the NPP party assumed power in Ghana, having been successful over the NDC party in December 2000.

It appears that another tribe in Ghana is known as the Mamprusi tribe, and that members of that tribe predominantly owe allegiance to another political party, the New Patriotic Party, which is referred to as the NPP party, and rivalry between the NPP party and the NDC party is fierce and violent. In December 2001 the NPP party assumed power in Ghana, having been successful over the NDC party in December 2000.

In his application form for refugee status, the applicant explained that his uncle sold a portion of his land to a member of the opposing party/tribe, namely a member of the Mamprusi and that his family did not agree to this transaction, and accordingly burnt down a kiosk which had been erected on the piece of land in question, and that two days later on the 2^nd December 2001 members of the Mamprusi tribe burnt down a kiosk belonging to the applicant's family by way of retaliation, and in addition ambushed and burnt a truck, killing the driver and his companion.

Following this event he stated that a demonstration was organised in relation to the killings and the tribal rivalry, as well as in relation to the manner in which the police were handling complaints by the NDC (the party to which the applicant's family owes allegiance).

He states that the police were called to this demonstration at which five people were killed. He says that the police started firing guns, and also that on 3^rd December 2001, while staying at a friend's house he learned that "there was war in the city" (Bawku) and that his house had been attacked and burnt, and that members of the Mamprusi tribe (NPP) were looking for him, and that he therefore ran away to another town called Kumasi, staying in a village called Besiase until his friends could contact his mother. He stated that his mother arranged for him to go to Accra which is in another region of Ghana away from the trouble, and that later he was informed that his father had been one of those people killed in Bawku during the clashes there.

In his application form he gave this information in a paragraph of the questionnaire which seeks information as to why the applicant is seeking refugee status, and in which he is urged to supply full information bearing in mind the requirement to

demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is unwilling to avail himself of the protection of his country of origin.

Subsequently the applicant was interviewed on the 5^th July 2002 in relation to his application for refugee status. He was asked to explain his reasons for seeking asylum here, and in answer to this question he explained his reasons in the following way:

"For a long time there have been ethnic problems between the Kusasis (his mother's tribe) and the Mamprusis (the opposing tribe). The township is divided according to the two main political parties. The Kusasi support the NDC and the Mamprusi support the NPP. I joined the NDC youth wing. I helped the party to recruit young people. After the 2000 elections ballot boxes were brought in a later hour. The officer in charge of one ballot box did not accompany it to the community centre. This raised suspicions. Some people said the box was in one place, others said it was somewhere else. People protested inside and around the community centre. The police fired shots to disperse people. Some people had guns and began firing them. Some had very sophisticated weapons such as AK 47s. Others had bows and arrows and knives. It was the police who fired first.

My elder brother was a polling agent for the NDC. He and I were attacked. I was beaten badly. I had a cut on my head, and a bone in my right hand was dislocated. The fighting was between the rival ethnic groups. I fought back. It was give and take. People used chairs and tables as weapons. My brother was badly injured and died before reaching hospital. There were many deaths and injuries. Some people went into the bush and never came back. Not less than 20 people were killed. It took three or four months for me to recover from my injuries. It was a long time before I could write again. The Mamprusi suffered a lot. More of them died than Kusasi. Houses were burned. I made a number of complaints to the police. They said they would take action but did nothing. The people on the streets realised that the police were on the side of the one political party – the NPP. Dawn to dusk curfews were imposed after the elections and the military were brought in to calm the situation.

If people insinuate, even without proof, that you were involved in violence against their ethnic group, you could become a target. If you are involved in the activities of a political party, you can become a target.

Since then life has not been normal. When walking on the streets people made comments such as " you will see" in a threatening manner. I was attacked a number of times. My mum worked for an NGO headed by the wife of the former President, Jerry Rawlings. The NGO was the " 21^st December Women's Movement" [corrected to "31 December Women's" Club by letter from the applicant's solicitor dated 22^nd July 2002]. When it is known that you belong to a party you become an enemy of the ethnic group which supports the other party.

The NDC lost the parliamentary seat for Bawku Central. The Mamprusis and NPP said that if the NPP had not created tensions and raised questions about the ballot boxes which were not accompanied to the Community Centre, the NDC would have managed to steal the election. They said that they wanted to cheat. When the NDC lost the elections, the NPP and the Mamprusi said that the families who suffered during NDC government should now retaliate for all the things that were committed against them.

A piece of land which belonged to my family had been sold some years back. There was a problem in relation to this which had not been resolved. There was a kiosk located on the land. On Friday 30^th November 2001, my uncle had a problem with the owner of the kiosk and lottery transactions. In anger my uncle and his friends burned down the kiosk. The elders tried unsuccessfully to resolve the problems. On

Sunday the Mamprusis burned down some kiosks, including one belonging to my family. My family's kiosk was their main target. People went on the rampage and a lot of property was burned down. Because of my last experience I was very cautious. I was already a target and had to be very careful. The Mamprusis burned a car. At the end of Sunday I heard that five people were killed by the Mamprusis; some people say that the death toll was higher. We organised ourselves. In the afternoon we held a demonstration. During the demonstration some of the people destroyed a pick-up truck. There was nobody in it. The police arrived. They were shooting in the air, and catching and beating people. I was beaten by them with a bolt. [The interview notes indicate that at this point the applicant showed the interviewer some scars on his left shoulder and upper arm]. I was grabbed by the police but I broke away. Most of us were youths or young men. Those who were not caught by the police fought back against the Mamprusis. After the police made arrests the situation calmed down. Later on Sunday night/ Monday morning most of the atrocities occurred. The Mamprusis killed a truck driver and his mate. They burned a truck which was carrying oranges from Bolga to Bawku. Everything exploded. People were burning, shooting and killing. Our house was attacked. My father was killed when he was attacked with a cutlass. I did not sleep at home that night. I was at a friend's place. According to the Mamprusis if I had been there they would have cut me into pieces. There were a lot of shootings, killings and burning of houses and cars in the exchanges between the two main tribes. More than 100 houses were burned. That morning I had wanted to return to my house when I heard about the problems in the town. There was smoke all over the place and loud sounds of gunfire. Everyone was running for their lives. They were looking for me and other targets. I managed to get into the bush. People were fleeing the town. I got on a truck which was carrying people from the town. We went south and next morning we were in Kumasi. There, I met a friend who told my story to his family. They had already heard it on the news and were afraid. My friend took me to Besiare village. His family got in touch with my Mum and she arranged for someone to take me to Accra. I went to Accra before Christmas. In Accra I realised that I would not have been alive if I had not fled the township. Party members in Accra visited me to see if I was o.k. I spent Christmas in Accra. I left Accra on 21^st January 2002."

Following this answer he was asked whether he would have been safe if he had stayed in Accra, and he responded that he did not think it would have been safe in Accra, and that his mother visited him there twice, and that each time it was at night, and that he could not go out and remained indoors. More specifically he was asked also whether he would have been in danger from the Mamprusis if he had stayed in Accra and he replied as follows:

"Yes. The Mamprusis and NPP would have been able to locate me in Accra. There is a lot of movement and trading activities between Bawku and Accra. The Mamprusi and Kusasi communities in Accra are not very large. You cannot mingle without the Mamprusis and Kusasis knowing where you are."

The Refugee Appeals Commissioner made a Report and Recommendation on the 3^rd October 2002, pursuant to section 13(1) of the Refugee Act, 1996 (as amended), in which he recommended that the application for refugee status be refused. This report noted that the applicant had based his claim on two grounds, namely a fear of persecution on grounds of his ethnicity and his political opinion. It notes that the applicant's account of the violence which erupted in December 2000 is corroborated by country of origin information, and that "from the applicant's account, although this violence had ethnic overtones, its immediate cause resulted from allegations of attempted electoral fraud." In relation to the violence which erupted between the rival ethnic groups in December 2001, the report notes that this incident is referred to in country of origin information, but states also that "although this violence was clearly ethnic in nature, it was sparked off by a dispute over land and lottery sales from a kiosk on that land. The violence erupted after the applicant's uncle burned down this kiosk."

This report states that although the Ghanaian State has not been wholly effective in preventing ethnic clashes between the Mamprusis and Kusasis, "it is not reasonable to conclude that state protection was not available to the applicant in Bawku", and notes that the State sought to diffuse these clashes by the imposition of curfews, as well as referring to a U.S. State Department Report on human rights practices in Ghana in 2001 which points out that while the security forces were initially overwhelmed by the scale of the violence, the police and army had restored order within 48 hours and had imposed a strict curfew. It also notes that this report has stated that by December 2001, with the presence of combined military and police patrol teams commercial activity had resumed and civil servants who had fled during the conflict had returned and a festival had been celebrated without any incident. It refers to other such country of origin information, and the report comes to the conclusion that by the end of 2001 displaced persons were returning to Bawku and resuming their lives there, and that senior government officials had visited the area and pledged to assist in the re-opening of peace negotiations between the two opposing tribes.

In relation to any danger posed to the applicant in Accra, the report states that although the applicant stayed in Accra for a month he feels that he would not have been safe if he remained in Accra for the reasons he stated at interview, but goes on to say that the applicant "does not claim that he came under any danger while he resided in the capital", which the report notes is a city of 1.7 million people and is "big and sprawling".

The Commissioner in her report also refers a UK Home Office report which refers to provisions in the Ghana Constitution which outlaw discrimination on grounds of ethnicity, and states that no one tribe is favoured by the government, and that "although some political parties draw greater support from one tribe than another, none is tribally based and no such party can be legally registered."

The Commissioner concluded that "it is not reasonable to conclude that state protection was not available to the applicant", and further that "it is not reasonable to conclude that the applicant had a well-founded fear of persecution for reasons of race (ethnic origin) or political opinion."

Again under the heading "Findings", the Commissioner stated that the applicant had lived in Accra for about a month before leaving Ghana, and that he "does not claim to have been under any danger while residing there. Accra is a large city with a population of 1.7 million people."

On the 13^th November 2002 an appeal to the refugee Appeals Tribunal ("RAT") was lodged on behalf of the applicant against this Recommendation of the Commissioner. Thirteen grounds of appeal were set forth, which can be briefly summarized as follows:

That the Refugee Appeals Commissioner ("RAC") erred respectively either in law or in fact in respect of the following:

1. failing to observe fair procedures at the interview and drew incorrect conclusions;

2. failing to give the applicant the benefit of the doubting relation to certain facts which were unclear or unsubstantiated;

3. reaching unreasonable or irrational conclusions based on invalid assumptions and suppositions;

4. holding that State protection was available to the applicant;

5. holding that no particular tribe was favoured by the Ghanaian government;

6. holding that there was no evidence of systemic abuse of constitutional rights in Ghana, and that the electoral process was free and fair;

7. holding that the applicant was not in danger in Ghana.

8. failing to carry out any or any proper assessment of the reasonableness of relocation for the applicant;

9. holding that the applicant did not have a well-founded fear of persecution;

10. failing to properly research or have any sufficient regard to background information regarding the applicant's claim;

11. having regard to irrelevant considerations, or failed to have regard to relevant considerations in reaching its decision;

12. failing to properly investigate the applicant's claim, and to have regard to the shared burden of proof;

13. failing to have regard to the applicant's fear of persecution.

This appeal was considered by the RAT and a Decision was made on the 24^th April 2003 which affirmed the recommendation of the RAC that refugee status be refused.

Saul Woolfson BL on behalf of the applicant has made two principal submissions in relation to the Decision of the RAT. Firstly that the RAT has concluded that the applicant could have safely relocated in Accra, but at the same time had decided that the applicant did not have a well-founded fear of persecution in his home town of Bawku. In this regard he submits that it is not open to the RAT to consider the question of relocation unless it had first decided that the applicant has a well-founded fear of persecution, but that even if they had so found in relation to the well-founded fear, it did not carry out any proper investigation and inquiry in relation to the possibility of safe relocation. Counsel for the Respondent has stated in reply that the decision to refuse refugee status was not one based on the possibility of safe relocation in Accra. Indeed she has accepted, in her oral submissions, that if it was in fact so based, the RAT has not carried out the inquiry as to the possibility of safe relocation in as full and appropriate a manner as would be required. But she says that the decision is based on the lack of a well-founded fear of persecution, and that the reference to relocation in the Decision is incidental to the decision itself.

Secondly, Mr Woolfson has submitted that there is no material, apart from mere speculation on the part of the RAT, that the applicant fled Ghana in order to escape the consequences of his involvement in the riots in Bawku in December 2001, rather than out of a fear of persecution, and that accordingly it is not open to the RAT to conclude that the applicant's reason for fleeing Ghana was to escape prosecution as opposed to persecution.

He has also submitted that within the Decision itself there are a number of factual errors appearing, and that therefore the Decision is flawed as being based on wrong findings. Counsel for the Respondent has said in response that while there may be some matters expressed inaccurately, they do not go to the heart of the Decision and are therefore irrelevant as far as the validity of the Decision is concerned.

He submits also that in this case there is no finding of adverse credibility to be found in the decision of the RAT or in the Report and Recommendation of the RAC, and that therefore the applicant's account of events in his application and interview must be accepted at face value. In this regard also, he draws attention to the fact that the Respondents have not filed any replying affidavit on this application for leave to seek Judicial Review, and that therefore the facts set forth in the applicant's grounding affidavits must be accepted for the purpose of this application. Counsel for the Respondent accepts that there is no adverse credibility finding against the applicant contained in the Decision.

In relation to factual errors in the Decision, Mr Woolfson has referred to page 3 thereof where reference is made,, in the section headed "Evidence", to the applicant stating that "both he and a number of his colleagues held knives and other weapons with which they beat and killed certain members of the opposing groups. He stated that he also wielded a baton or stick", as well as to the final paragraph of that section which states "The applicant maintains that he did not kill anyone during the riots in Ghana but certainly used his stick or baton to beat his political opponents." Mr Woolfson has referred to the fact that in his questionnaire and interview the applicant had never stated that he killed anybody, but simply that he was involved in the riot, and that therefore these two statements of the evidence are inconsistent and therefore that the decision is based on at least this erroneous fact, namely that the applicant had killed somebody during the riot. In the part of the Decision headed "Decision" at the foot of page 3 thereof the RAT states in this regard:

"I find that the applicant was most likely involved in the riots in Ghana during which both his father and brother and several other people were killed. He stated that he took an active role in these demonstrations and from the account given, it would appear that he was one of the protagonists and acted both in terms of attack and defence. The applicant stated that as a result of the killings, the police launched a widespread investigation to identify and prosecute the attackers."

It is true that in the account of the evidence which I have quoted above, the Tribunal member has expressed the evidence in terms which at least suggest that the applicant was a participant in the actual killing as opposed to merely being involved in the violence. It is possible to read the words "with which they beat and killed certain members………" as including the applicant. Equally, it can be said that in the actual decision paragraph which I have just quoted, the Tribunal regard him as having been a protagonist in the riot or demonstration. Something which cannot be doubted for the purpose of this application is that the applicant was present at and participated in the riot or demonstration at which beatings and killings occurred. Whether the applicant did or did not actually kill any person is perhaps beside the point, if there is some basis on which the authorities would be able to suspect or allege that he did. But even if he did not actually kill any person, the authorities could still have wished to arrest him for whatever his part in the disturbances was. I do not have to agree with the decision arrived at by the Tribunal, or decide that I might have arrived at a different conclusion. If there is material or information available to the Tribunal on which it could base its decision that the applicant was fleeing prosecution rather than persecution, then the decision is a valid one on that ground. It seems to me that even allowing for the fact that perhaps the Tribunal was in error to some extent in stating that the applicant had been a participant in actual killing, it is not necessary for him to have killed for him to have been the object of the authorities attention.

However, Mr Woolfson has submitted that before the Tribunal could conclude that the applicant was fleeing prosecution, there must be some form of inquiry embarked upon in that regard, and they cannot rely on mere speculation that he was trying to avoid prosecution by the authorities. He has referred to the well-known work on The Law of Refugee Status by James C. Hathaway (Butterworth 1991) at page 169 et seq., where the learned author deals with this question of the fear of persecution as opposed to prosecution, and to a portion of that work which supports his submission that the commission of an offence, even one as serious as murder, would not automatically be a bar to refugee status, where it can be demonstrated that the applicant would be subject to a criminal prosecution as a form of selective punishment by a State based upon an enumerated ground. Mr Woolfson has highlighted the fact that, in his submission, the Tribunal has completely overlooked the applicant's own denial of any criminal act, and failed to conduct any proper enquiry in that regard before reaching its conclusion. He submits that any act of the applicant that might be regarded as a criminal act is clearly one which was motivated by political reasons, given the background to the riot in question and the applicant's membership of the NDC political party, being a member of the tribe which gives its allegiance to that party. He submits that where any alleged criminal activity is motivated politically, it does not necessarily exclude the possibility of persecution.

Mr Woolfson has referred the Court to country of origin information dated December 2000 showing that there was a campaign of violence and intimidation waged by the NPP party against members of the NDC party (that to which the applicant belongs), but it has to be noted that this particular piece of information referred back to a time before the election when the NDC was actually in power, and the NPP was in opposition, a position reversed in the election of December 2000. However, there is other such information in late December 2001 which confirms political rivalry, including intimidation, between the two parties.

Mr Woolfson submits that it is clear that the applicant's fear has a political nexus, and that this has been wrongfully rejected or ignored by the Tribunal, and that this rejection is in the face of country of origin information which corroborates the applicant's account of events.

In this case there has been no credibility issue raised in the Decision of the Tribunal.

The Tribunal made its decision based on the lack of a well-founded fear, and on the basis that it was a fear of prosecution rather than persecution that caused the applicant to flee his country. For that basis to be a valid basis it is necessary that the prosecution of those offences is not carried out in a discriminatory manner and that the applicant is not singled out for prosecution on the basis only that he belongs to a particular political party or tribe. In other words the criminal process itself must not be tainted in a way that would itself amount to persecution. But I am satisfied from a consideration of the entirety of the country of origin information produced, that it was open to the Tribunal to reach its conclusion that having been involved in the riots at which a number of people were killed, he fled in order to avoid prosecution. There is material within this information which indicates that at the time of these particular riots, the civil authorities restored order quite quickly. There is nothing to suggest that these authorities sought out members of the NDC as opposed to offenders within the NPP party. That is not to ignore the undoubted fact that members of these political parties were engaged in sometimes violent confrontation and rivalry, particularly around election-time. I am also satisfied that the applicant's account of how these riots started suggests that it started out of a dispute over the burning of lottery kiosks.

In my view, the fact that the protagonists in a riot are composed of members of opposing political parties does not immediately convert what is normally regarded as criminal activity into a political action, the prosecution for which must then be regarded as persecution in respect of which refugee status must be given. In this case, if the authorities are in fact looking for the applicant, they may well have grounds for doing so on a normal basis of suspicion of having committed a crime. It is certainly open on the materials for the Tribunal to have reached that conclusion. It was open on the materials available to the Tribunal to satisfy itself to the appropriate standard that there was no adequate evidence that the applicant was at risk of persecution from the authorities. After all the NPP had been in power for twelve months before these riots, and the applicant had not fled, and there was no evidence that he had been under any form of threat or attack which could amount to persecution during that period. It was the civil disturbance arising out of the burning of the kiosks which resulted in the applicant's flight. Even though I am of the view that the decision of the Tribunal might have been more carefully crafted, I do not believe that it suffers from the infirmities claimed on behalf of the applicant.

The complaint made about the finding in relation to re-location does not have to be addressed further by me since I am upholding the finding that there was no reasonable fear of persecution. Mr Woolfson is correct when he submits that the Tribunal could only consider the issue of relocation after it found that there was a fear of persecution, and so it does not arise for consideration in the instant case.

I am also satisfied that on the material before the Tribunal it could conclude that the applicant had not demonstrated that the protection of the State was not, or would not have been available to him prior to leaving Ghana. There was no evidence that he had been refused help. In fact he said in his interview that he had sought help after the injuries he received in the elections in 2000, and that "they said they would take action but did nothing". In my view it cannot be concluded that the reason nothing happened as a result of his complaint was that he was a member of the NDC or the Kassasi tribe. Mr Woolfson has referred in this regard to Hathaway at paragraph 4.5.1.and to the principles in Rajudeen v. The Minister of Employment and Immigration (1985), 55 N.R. 129 (F.C.A.) regarding the standard of test for the adequacy of State protection. Hathaway quotes from the judgment of Hearld J. in that case as follows:

"…an individual cannot be considered a 'Convention refugee' only because he has suffered in his homeland from the outrageous behaviour of his fellow citizens. To my mind, in order to satisfy the definition the persecution complained of must have been committed or been condoned by the state itself and consist either of conduct directed by the State toward the individual or in it knowingly tolerating the behaviour of private citizens, or refusing or being unable to protect the individual from such behaviour."

It is the last portion of this principle upon which the applicant relies, and this is on the basis that the applicant stated that he had sought help from the police after the 2000 incidents and that while they had said they would take action, nothing was done. It was open to the Tribunal to form the view that this fell short of establishing lack of State protection. In this regard I note another passage in Hathaway at page 126 which contains a quotation from a decision of the Immigration Appeal Board in Ganganee Janet Permanand (T87-10167, August 10, 1987) as follows:

"The abuse of power by agents of the State or their unwillingness to discharge their duties in respect to a particular citizen or group of citizens could indeed constitute persecution. However, to be so, such practices must be carried out systematically and with the overt or covert concurrence of the state."

If that statement be correct, there can be no doubt that the country of origin information and the applicant's own testimony falls far short of what would be required to establish, even on a low threshold of proof, that State protection was unavailable to the applicant.

I therefore refuse leave to seek the reliefs sought.