1411183 (Refugee)

[2015] AATA 3619

1411183 (Refugee) [2015] AATA 3619 (5 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411183

COUNTRY OF REFERENCE:                  Ghana

MEMBER:Giles Short

DATE:5 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 November 2015 at 11:42am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. [The applicant] is a citizen of Ghana.  He came to Australia in [year] and he has been here ever since.  As referred to in the decision under review (a copy of which he provided to the Tribunal along with his application for review) [the applicant] applied for refugee status in [year] and he was refused a protection visa in December 1997.  As I explained to him at the beginning of the hearing before me, because his first application was considered under the Refugees Convention I am only able to consider his current application on the basis of the complementary protection criterion in accordance with the decision of the courts permitting such applications.[1]  [The applicant] has said that he has a fetish church or fetish cult problem in Ghana.  He has also referred to material about the fetish cult which he has said he gave to the Australian High Commission in [City 5] in [year].  He has said the fact that this material has not been returned to him poses a danger for him if he returns to Ghana.

   [1] See SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

2. [The applicant’s] current application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. In accordance with Ministerial Direction No. 56, made under section 499 of the Migration Act 1958, I have taken the policy guidelines prepared by the Department of Immigration into account to the extent that they are relevant.  I note that the Department of Foreign Affairs and Trade has not prepared any country information assessment expressly for protection status determination purposes in relation to Ghana.  The issue in this review is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Ghana, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Ghana, there is a real risk that he will suffer significant harm?

   [The applicant’s] claims

3. [The applicant] is aged [age estimate] and he has said that he comes from [Town 1], near Accra.  He has said that his [father] had a [business] in [Town 1], the [name].  He produced a document to the Department indicating that his father had died in [year].  He has said that his mother and his [Sibling A] live in [Country 2] and that his [Sibling B] lives in [Country 3].  He has said that a former [government official] who died in [year], was his [relative].  He has said that he has nobody living in Ghana at the moment.

4. [The applicant] said at the hearing before me that he had completed his O-level examinations (Year 10) in [years].  He said that he had then gone to a [college] where he had studied [subject] part-time for [number] years.  He said that he had been working and being trained at a [business] at the same time.  He said that then, because he had wanted to undertake further education, he had studied for his A-Level examinations but he had not taken the examinations in [year] because trouble had started.  He said that this trouble had been ‘fetish church stuff’ and they had had guards protecting them for a while.  He said that then they had not been able to protect them any more and there had been further trouble so he had taken off with his sibling.

5. In a statement accompanying his first application (a copy of which he also produced in support of his current application) he said that unfortunately a girl who had been [a client of his father] had died at the [business] in [year].  He said that this girl was a [relative] of a relative of theirs, [Mr C], who had died in [year] leaving a share of his assets to him and his [siblings].  He said that there had been a court case as a result and after this girl had died the girl’s relatives had threatened to destroy his family.  He said that they had spilled blood and other herbal fluids in front of his father’s [business].  He said that three days later his [Sibling A] had been kidnapped.  He said that [Sibling A] had been released about a week later and that in [year] his father had arranged for [Sibling A] to go to [Country 2].  [The applicant] said that his family had been protected by the police for eleven months and that after this his father had employed watchmen.

6. In his statement [the applicant] said that life had been normal from [then] until [1990]. At the hearing before me he said that he had not been living in [Town 1] during this period: he had been living in a house belonging to [his relative] in [another town] which he said was close to [ his father’s village], and [approximate time] by bus from [Town 1]. He said that in [1990] he had returned to [Town 1] but he said that he had not really been living there: he had just returned to see his parents and he had then left. He said that after this relative had died he had preferred to stay away from [Town 1]. He said that [for these few years] he had visited [Town 1] but not regularly.

7. In his statement [the applicant] said that one [evening] in [1991] when his parents had come home from work they had found blood spilt in front of the main entrance of the house along with pieces of skeleton bones and both their dogs had been [killed].  He said that his parents had gone to Accra to consult their lawyer and he and his [Sibling B] had remained at the house with the night watchman.  He said that the next morning they had gone to stay with a church elder.  He said that on the [next day], when their parents had not returned, he and his sibling had packed some clothes and his father’s briefcase which had contained some confidential documents and they had gone to join the [church elder] in the next community.

8. [The applicant] said that in their father’s briefcase they had found an address for [a relative] whom they did not know, [Relative D], who had had an address in [a town] in [Country 4].  He said that they had written to [Relative D] and while waiting for his response they had travelled by bus to [another town] and they had then walked for three and a half hours to a village named [name].  He said that they had stayed in the village until [year] and that during this time they had obtained passports and their [Relative D] in [Country 4] had arranged tickets for them to travel there via [City 5] and Australia.  He said that their [Relative D] had told them that he would meet them at the airport in [Country 4].

9. [The applicant] said that he and [Sibling B] had flown to [City 5] on [date] and that [the next day] they had visited the [airline] office where they had been told that they needed transit visas for Australia.  He said that they had gone to the Australian High Commission in [City 5] which was in the same building but that their applications for transit visas had been refused.  He said that the office had told them that they should have applied in [Country 6].  [The applicant] said that his [Sibling B] had gone to [Country 6] but that he himself had decided to travel to [Country 4] via [City 7].  He said that after he had arrived in [Country 4] on [date] he had not been able to locate his [Relative D].  He said that he had met a Ghanaian in the street who had sold him a ticket for [an international sporting event] in Melbourne for [price].  He said that he had then applied at the Australian High Commission in [Country 4] for a visa to visit Australia and in this way he had arrived in Australia [several days later].

10. [The applicant] said that he was applying as a refugee on humanitarian grounds.  In a statutory declaration made [in] 1997 he said that he had a ‘(FETESH) Church problem’ which involved a lot of black magic.  After he was refused a protection visa he applied to the Refugee Review Tribunal on 16 December 1997 and in his application he said that some fetish church in Ghana had been looking for him and his [Sibling B] because their parents had committed various sins and the fetish priest had said that the gods wanted him to come and serve as a slave to pay off their sins.  He said that he and [Sibling B] had given the Australian High Commission in [City 5] some letters their [Relative D] had written to them and two audio tapes in their tribal language from the church asking his father to release him to come and serve them.  He said that the [City 5] office had used his information for something else and he could not go anywhere if they did not produce his file.

11. In his current application for a protection visa [the applicant] said that he was a Christian and that he was not in favour of anything fetish or occult.  He said that he feared being forced to go against his religion.  He said that his family did not know how his father had died.  With regard to whether the authorities would protect him he said that it was all about black magic and fetish beliefs and that the authorities had very little option when it came to traditional or native issues.  He repeated that he and his [Sibling B] had given documents and two audio tapes to the Australian High Commission in [City 5] to support their application for transit visas and that they had never got them back.

12. [The applicant] produced copies of letters which he had received from the Commonwealth Ombudsman in 1998 and a ‘Complaint Summary’ indicating that he had complained to the Ombudsman that his [Sibling B] had disappeared and that he believed that the files of the Australian High Commission in [City 5] were somehow related to his [sibling’s] disappearance.  The Ombudsman stated that, without some objective evidence to support [the applicant’s] belief that his [sibling’s] disappearance was connected to the release of information from his file or his [sibling’s] file by the Australian High Commission in [City 5], there was no useful action the Ombudsman could take to assist him.  The letters and ‘Complaint Summary’ indicate that the Department had informed [the applicant] that his application for a transit visa had been destroyed under the Department’s usual archives disposal practices after two years.

13. The letters also indicate that the Department had initially refused to release [three] folios [ ] of the Department’s file [number] to [the applicant] but that after he had complained to the Ombudsman the Department had agreed to release these folios.  [One folio] is a cable dated [date] from the Australian High Commission in [Country 4] to the Australian High Commission in [City 5] referring to the fact that [the applicant] had applied for a visitor visa (Class [number]) to attend the [international sporting event] and asking the Australian High Commission in [City 5] to advise ‘if you hold any adverse information to enable us to assess bona fides’.  [Another folio] is the response dated [three days later] from the Australian High Commission in [City 5] stating: ‘No record of abovenamed or any information at present, visa may be granted at your discretion s.u.c.  However you should be aware that Ghanaian citizens have a high incidence of over staying their v/v.  You should satisfy yourself of bona fides.’

14. [The applicant] was interviewed by the primary decision-maker in relation to his current application [in] May 2014.  He said that his whole story was about a cult.  He said that every Ghanaian would know that the way things had been spilt in front of his family’s home was more spiritual.  He said that the disappearance of the information he had given to the Australian High Commission in [City 5] made him very worried.  He said that this information had a lot to do with the cult but he could not tell the primary decision-maker what went on in the cult because he was not a member.  He said that he feared the elders of the cult, the gods of the cult and those who were running the place now.  He said that he did not know the name of the cult because he was not a member.  He said that the members of the cult might do anything to him.  He referred to the shedding of blood.  He said that he feared being physically harmed or maybe that they would even drag him in to become a member.  He said that it could be torture.  He said that he knew he had crossed the line by giving out information about them.  He said that he did not know what the gods wanted of him.  He said that according to movies he had watched he could easily die.  He said that killing was nothing to a cult and that it was all about shedding of blood.

15. [The applicant] said that a member of his family had been a member of this cult but he did not know which member of his family.  He said that it could have been his father or his [Relative D].  He said that besides the two audio tapes which he had given to the Australian High Commission in [City 5] there had been black and white photographs of his father and his [Relative D] who had died and a few bank statements in the name of the cult.  He said that he did not know if they had had some accounts which had been financing the cult.  He said that the bottom line was that when things like the spilling of blood happened in an African country it was a spiritual something and it was always linked to somebody in that house, directly or indirectly.  He said that he had obtained a visa to go to [Country 8] to study [language] but he had not travelled because of his fear.

16. [The applicant] said that the photographs, audio tapes and bank statements had been in a suitcase belonging to his father.  He said that when he and his [sibling] had given this material to the Australian High Commission they had not been given a receipt.  He said that he had asked for this material back but he had been told that they needed to make copies.  He said that he had a strong feeling that this cult had been involved again.  He produced copies of the cables referred to in paragraph 13 and a copy of a fax from the Department’s head office to the Australian High Commission in [Country 4] stating that no information was known on [the applicant] and that Departmental indexes had been checked Australia-wide.  He said this information was important to him and he had every right to know what had happened to it.

17. [The applicant] said that if you were not an African or you had not dealt with a cult before it would be very difficult to understand.  He said that this was a spiritual something, it was not physical.  He said that the spilling of blood and bones had been a warning that something terrible was coming.  He said that because of his African background he knew these things very well.  He said that you heard these things all the time.  He said that these people could locate you anywhere.  He said that how they had got the documents demonstrated how powerful they were.  He said that as a Christian he was leaving God to do the fighting for him but he was living in extreme fear.  He said that: ‘I must take their documents back to them.’  He said that he knew that these documents had belonged to the cult because they had been photographs of ‘the group’, bank statements and two audio tapes.  He asked who else these documents could have belonged to.  He said that he was certain in his spirit.  He said that this was all spiritual warfare.

18. The primary decision-maker referred to the claims which [the applicant] had made in connection with his first application.  [The applicant] said that the man who had died, [Mr C], had been in the photograph.  He said that this man had been a [leader] of a village.  The primary decision-maker referred to the fact that [the applicant] had only raised his claims about the fetish priest five years after he had first applied for protection.  [The applicant] said that he had only been in Australia for two weeks when he had written the statement accompanying his first application and he had not even been settled at all.  He said that at this time he had not even known that the information had vanished.  He said that he had only realised this after continuously calling the Department.  He said that the fetish priest issue had been definitely at the back of his mind.  He said that if blood and bones were spilt at your door any African walking past would know that there was more trouble in a spiritual sense.  He produced a letter dated [in] 2013 from [Pastor E], the [Pastor] at [Church 9], saying that he supported [the applicant’s] application for permanent residence.  [Pastor E] said that he had known [the applicant] as an active founding member of [Church 9] seven years previously, that [the applicant] was able to interpret English messages to ethnic youth and that he was also the [office bearer] of the church.

    Discussion of [the applicant’s] claims

19. At the hearing before me [the applicant] said that at the time he had made his first application he had been living with his ‘[Relative]’ whose name he said was actually [Relative D name variation] and who he said was actually his cousin. He said that [Pastor E] was this man’s [sibling]. With regard to the fact that he had said in his statement that he had not been able to find his ‘[Relative D]’, [the applicant] said that he had not known that this man was his relative and that he had only been living with him. With regard to what he feared would happen to him if he returned to Ghana now, [the applicant] said that the Privacy Act had been breached before he had come to Australia and that since he had last appeared before the Tribunal in 1998 his information had been everywhere. He said that he had given information about the fetish church or cult to the Australian High Commission in [City 5] and for some reason it had disappeared. He suggested that the cult had used their spiritual powers to retrieve this information.

20. [The applicant] said that if he applied for protection elsewhere he would still need the information which he had given to the Australian High Commission in [City 5] to back his claims for protection.  He said that the Australian High Commission in [City 5] kept telling him that this information had been destroyed.  I asked [the applicant] again what he feared would happen to him if he returned to Ghana.  He said that anything could happen.  He said that he had been living in fear before he had got here.  He repeated that his information had been everywhere.  He said that he had wanted to go to [Country 8] to start a new life but he had been afraid to travel so he had not gone.  He said that if he went back to Ghana he could be killed or he could be asked questions about the cult or the fetish church.  He said that he was not even a member.

21. I asked [the applicant] why he feared that he would be killed.  [The applicant] said that blood and bones at your door was a warning of death.  With regard to his information being everywhere [the applicant] said that this had all started when he had applied for refugee status in [year].  He referred to the fact that he had appeared before the Tribunal in 1998.  He said that he had paid the post-decision fee of $1,000 at the time but that [in] 2012 the Department had asked him for this money again.  He said that this was the second error.  He also referred to the fact that when he had been applying for Ministerial intervention the Department had told his lawyer that he had been unlawful between [1994] and [2000].  He referred to the fact that he had complained to the Ombudsman and that the Department had told the Ombudsman something different.  He also said that a file had gone missing.

1. I emphasised to [the applicant] again that his current application concerned what he feared might happen to him if he went back to Ghana and that whatever problems he might have had with the Department were not really relevant to this. [The applicant] repeated that his information had not been protected. He said that the cult would definitely want to know where the information had gone. He said that it had been leaked. He repeated that he had given things about the cult to the Australian High Commission in [City 5] and he said that he wanted them back if he had to go to Ghana. He referred to the fact that when he had requested the records under the Freedom of Information Act [three] folios [ ] had been withheld. He said that this meant that somebody in the Department had known that something had gone wrong. He referred to the fact that he had obtained these folios with the assistance of the Ombudsman. He said that what had been released was not what he had given to the High Commission: it was the evidence that something had gone wrong. He said that he was an African so he knew about fetishism and occultism. He said that he had seen what power these things had when it came to retrieving information. He said that he wanted to know where this information was.

2. I referred to the fact that [the applicant] had said that he and his [Sibling B] had given this information to the Australian High Commission in [City 5] when they had been applying for transit visas and I asked him why they would have done this.  [The applicant] said that they had wanted to know his reasons for coming to Australia.  He confirmed that he and his [sibling] had been going to [Country 4] and that they had only been transiting through Australia.  I put to [the applicant] that I had difficulty in accepting that he was telling the truth about having given this information to the Australian High Commission.  [The applicant] referred to the stamp that had been put in his passport.  I indicated to [the applicant] that I accepted that he had visited the Australian High Commission in [City 5] and that he had been refused a transit visa which was what the stamp said but this did not mean that he had given information about the cult to the Australian High Commission.  I put to [the applicant] that as I understood it his reasons for travelling to [Country 4] had had nothing to do with the cult: he had been going to see his [Relative D].  [The applicant] denied that he had gone to [Country 4] to try to find his [Relative D]: he said that the address in [the town] which he had given in his statement had been the only address which he had had for his [Relative D] but that his [Relative D] had been living in Sydney at the time.

3. I asked [the applicant] again why he would have given this information about the cult to the Australian High Commission in [City 5].  [The applicant] repeated that they had wanted to know why he and his [sibling] had been coming to Australia.  I put to him again that the cult had not had anything to do with this.  I put to him that according to his evidence he and his [sibling] had not been coming to Australia because they had had a problem: they had been applying for transit visas because they had been on their way to [Country 4].  [The applicant] maintained that his application for a transit visa had not been destroyed.  I put to him that it had been destroyed in accordance with normal procedures and he had been told this by the Ombudsman.  [The applicant] said that it had not gone through the normal procedures.  I asked [the applicant] once again why he would have given this information about the cult to the Australian High Commission in [City 5].  He said that this was what he had had to give them.  He said that this had been his first time travelling and he had not known anything about travelling.

4. I indicated to [the applicant] that I was going to give him some information which I considered would be the reason, or a part of the reason, for affirming the decision that was under review.  I indicated that I would explain the information to him so that he understand why it was relevant to the review.  I indicated to him that I would also explain the consequences of the information being relied upon in affirming the decision under review, I would ask him to comment on or to respond to the information and if he wanted additional time to comment on or to respond to the information he could tell me and I would then consider whether to adjourn the review to give him additional time.

5. I put to [the applicant] that in the statement accompanying his application for refugee status which he had made in [year] he had referred only to the dispute with [Mr C’s] family.  He had first mentioned that he had some sort of fetish or black magic problem in a statutory declaration which he had made [in] 1997.  In his application for review to the Refugee Review Tribunal in December 1997 he had claimed that a fetish church in Ghana had been looking for him and his [Sibling B] because his parents had committed various sins and the fetish priest had said that the gods wanted him to come and serve as a slave to pay off their sins.  I put to [the applicant] that this was also the first occasion on which he had mentioned having given some information to the Australian High Commission in [City 5].

6. I put to [the applicant] that in that application he had said that the information in question was some letters his [Relative D] had written to him and two audio tapes in his tribal language from the fetish church asking his father to release him to come and serve them.  I put to him that at the interview in relation to his current application he had said that besides the audio tapes there had been black and white photographs of his father and [Relative D] and a few bank statements in the name of the cult.  He had said that he had crossed the line by giving out information about the cult and that he had to take their documents back to them.  I put to [the applicant] that this information was relevant to the review because the fact that he had made no mention in his application for refugee status in [year] of his claims regarding the fetish cult or the information which he claimed he had handed to the Australian High Commission in [City 5] and the changes in his evidence about the information which he had actually given to the Australian High Commission in [City 5] cast doubt on whether those claims were true.

7. [The applicant] said that there had been two letters from his [Relative D name variation] when he had been preparing their visas in [Country 4] for them as well as audio tapes and documents from the fetish church cult which had been in his father’s briefcase.  I put to him again that in his application for refugee status in [year] he had said that his problems related to the dispute with [Mr C’s] family.  He had made no mention of the fetish church or cult at all.  [The applicant] said that he had mentioned the cult.  I put to him again that he had only mentioned the fetish cult five years later and that he had only mentioned in his application for review the information which he claimed he had given to the Australian High Commission in [City 5].  He had said that the information in question had been some letters from his [Relative D] and two audio tapes in his tribal language.  He had not said anything about photographs or bank statements.  He had only said this when he had been interviewed by the primary decision-maker in relation to his current application.  I put to him again that this cast doubt on whether what he was saying was true.

8. [The applicant] said that when he had written to the Ombudsman he had been asking for documents and two audio tapes.  He repeated that he had given something to the High Commission.  He referred again to the stamp in his passport.  I put to him again that all this stamp indicated was that he had made an application and that this application had been refused.  I put to him that as I understood it no one had ever disputed that he had made such an application.  He had applied for a transit visa at the Australian High Commission in [City 5] and the High Commission had refused the application.  [The applicant] said that the High Commission did not know what he had given to them, they did not know how they had kept the information and they did not know when this information had been destroyed.  I put to him that he had been told what had happened by the Ombudsman who had investigated this for him although it appeared that he did not accept what he had been told.

9. [The applicant] asked where the information had been when the High Commission in [Country 4] had requested it.  I put to him that the High Commission in [Country 4] had not requested it: it had asked whether there was any adverse information about him, meaning information indicating that he should not be granted a visa.  [The applicant] asked why the High Commission in [City 5] could not produce the information to the High Commission in [Country 4].  I put to him that there had been no information to produce: there had been no adverse information.  [The applicant] repeated that the Australian High Commission in [City 5] had had information on him.  He referred again to the fact that [three folios] had initially been withheld.  I put to him that he had been given these folios subsequently and that these were the communications between High Commission in [Country 4] and the High Commission in [City 5] which we had been discussing.  I put to him again that I had great difficulty in accepting that he had given this information to the Australian High Commission in [City 5] at all.  I put to him that he had told the High Commission in [Country 4] that he had been refused a transit visa in [City 5] and they had wanted to check whether there had been any reason for this before issuing him with a visa: this was just normal practice.  [The applicant] referred once again to the fact that the response from the Australian High Commission in [City 5] had said that they had no information on him.

10. I put to [the applicant] that he had claimed that he had gone to [Country 4] to look for his [Relative D] and that he had only decided to travel on to Australia for the [international sporting event] after a Ghanaian whom he had met in the street in [Country 4] had sold him a ticket.  I put to him, however, that his ticket to travel from [City 5] to Melbourne via [City 10], [City 7], [Country 4] and Sydney had been booked on [date] which indicated that it had always been his plan to come to Australia provided that he had been able to get a visa from the Australian High Commission in [Country 4].  [The applicant] initially said that this ticket had been booked by his [Relative D] but he then said that he had booked this ticket through a travel agent in [City 5].  After I put to him that the ticket had been booked in Sydney he said that the travel agent in [City 5] must have spoken to someone in Sydney.  I put to [the applicant] that this information was relevant to the review because it did not confirm his story that he had only decided to come here after meeting a man on the street in [Country 4].  [The applicant] repeated that his [Relative D] had arranged this trip.

11. I put to [the applicant] that I might not accept that he was telling the truth about these events.  I put to him again that I might not accept that he had given material about the fetish cult to the Australian High Commission in [City 5] as he had claimed.  I put to him that I might not accept that a fetish church in Ghana was looking for him and his [Sibling B].  I put to him that I might not accept that he or his family had had any problems with a fetish cult or indeed with [Mr C’s] family.  I put to him that I might not accept that there was a real risk that he would suffer significant harm if he went back to Ghana.  [The applicant] repeated that he wanted the information which he had given to the Australian High Commission in [City 5] or else he would not be able to go anywhere.  I noted that, as I had mentioned earlier, he was entitled to seek additional time to comment on, or to respond to, the information I had given him in the course of the hearing.  [The applicant] said that he did not want additional time.  He repeated that he was not leaving if he did not get back the information which he had given to the Australian High Commission in [City 5] and that he needed this information to apply for protection if he had to do this elsewhere.

    Conclusions

12. [The applicant’s] claimed fears if he returns to Ghana now revolve around his claim that when he and his [sibling] went to the Australian High Commission in [City 5] they gave the High Commission some material about the fetish cult in which he has claimed his father or his [Relative D] were involved. As I put to [the applicant] in accordance with section 424AA of the Migration Act, while he mentioned in the statement accompanying his first application that he and his [sibling] had taken his father’s briefcase which had contained some confidential documents when they had left their home in [Town 1] in [1991], he first mentioned having given some information to the Australian High Commission in [City 5] only when he applied to the Refugee Review Tribunal for review of the decision refusing to grant him a protection visa in December 1997. As I put to him, he said in that application that he had given the High Commission two letters which his ‘[Relative D]’ had written to him and two audio tapes in his tribal language from the fetish church asking his father to release him to come and serve them.

13. As I put to [the applicant], at the interview in relation to his current application he said that besides the audio tapes there had been black and white photographs of his father and [Relative D] and a few bank statements in the name of the cult.  He had said that he had crossed the line by giving out information about the cult and that he had to take their documents back to them.  At the hearing before me he suggested that the cult had used their spiritual powers to retrieve this information although he also said that the cult would definitely want to know where the information had gone.  As I put to [the applicant], I consider that the fact that he made no mention in his application for refugee status in [year] of his claims regarding the fetish cult or the information which he claims he handed to the Australian High Commission in [City 5] and the changes in his evidence about the information which he actually gave to the High Commission cast doubt on whether these claims are true.

14. As referred to above, when he was interviewed by the primary decision-maker [the applicant] suggested that it would have been obvious to any Ghanaian or any African that his claims involved a fetish cult because he had referred to the spilling of blood and bones at their door.  However even if the words he used were to be understood as referring to something spiritual or occult, the fact remains that, as I put to him, he made no mention of his claims regarding the fetish cult, specifically his claims that a fetish church in Ghana had been looking for him and his [Sibling B] because his parents had committed various sins and the fetish priest had said that the gods wanted him to come and serve as a slave to pay off their sins.  With regard to his failure to mention his claim that he had handed information about the fetish cult to the Australian High Commission in [City 5], [the applicant] said when he was interviewed by the primary decision-maker that at this time he had not even known that the information had vanished.  He said that he had only realised this after continuously calling the Department.

15. As I put to [the applicant], this still does not explain why his evidence about what he actually gave to the Australian High Commission in [City 5] has changed.  As I put to him, in his application for review of the decision refusing his first application he said that the information in question had been some letters his [Relative D] had written to him and two audio tapes in his tribal language from the fetish church asking his father to release him to come and serve them.  At the interview in relation to his current application he said that besides the audio tapes there had been black and white photographs of his father and [Relative D] and a few bank statements in the name of the cult and at the hearing before me he said that there had been two letters from his [Relative D name variation] when he had been preparing their visas in [Country 4] for them as well as audio tapes and documents from the fetish church cult which had been in his father’s briefcase.  As I put to him, I consider that these changes in his evidence likewise cast doubt on whether these claims are true.

16. Moreover, as I likewise put to [the applicant], he was unable to explain to me why he would have given this material to the Australian High Commission in [City 5].  He has said that the High Commission wanted to know his reasons for coming to Australia but, as I put to him, he claims that he and his [sibling] were intending to go to [Country 4] and that they were only passing through Australia in transit.  As I put to him, there would therefore have been no reason for him to have given the Australian High Commission any material about the cult.  [The applicant] said that this was what he had had to give them, that this had been his first time travelling and that he had not known anything about travelling.  However I remain of the view that there would have been no reason for him to have given this material about the cult to the Australian High Commission in [City 5].

17. As I indicated to [the applicant], I accept that he went to the Australian High Commission in [City 5] on [date] and that he was refused a transit visa.  However there is no evidence apart from his own evidence that he gave any material - documents, audio tapes or photographs - to the Australian High Commission in [City 5].  [The applicant] has attached great importance to the exchange of cables between the Australian High Commission in [Country 4] and the Australian High Commission in [City 5] referred to in paragraph 13 above and the fax from the Department’s head office to the Australian High Commission in [Country 4] stating that no information was known on him and that Departmental indexes had been checked Australia-wide.  As I put to [the applicant], however, the High Commission in [Country 4] simply asked the High Commission in [City 5] whether there was any adverse information about him, meaning information indicating that he should not be granted a visa, and the High Commission in [City 5] responded indicating that there was not.  [The applicant] said that the High Commission in [City 5] did not know what he had given to them, they did not know how they had kept the information and they did not know when this information had been destroyed.  However, as I put to him, he was told by the Commonwealth Ombudsman’s Office in the correspondence which he produced that his application for a transit visa had been destroyed under the Department’s usual archives disposal practices after two years although it is apparent that he does not accept this.

18. As I also put to [the applicant] in accordance with section 424AA of the Migration Act, he claimed in his statement that he had gone to [Country 4] to look for his [Relative D] and that he had only decided to travel on to Australia for the [international sporting event] after a Ghanaian whom he had met in the street in [Country 4] had sold him a ticket. As I put to him, however, his ticket to travel from [City 5] to Melbourne via [City 10], [City 7], [Country 4] and Sydney was booked on [date] which indicates that it was always his plan to come to Australia provided that he was able to get a visa from the Australian High Commission in [Country 4]. [The applicant] initially said that this ticket had been booked by his [Relative D] but he then said that he had booked this ticket through a travel agent in [City 5]. After I put to him that the ticket had been booked in Sydney he said that the travel agent in [City 5] must have spoken to someone in Sydney although he said that his [Relative D] had arranged this trip. I remain of the view that this information does not confirm his story that he only decided to come here after meeting a man on the street in [Country 4].

1. I accept that [Pastor E], the [Pastor] at [Church 9], supports [the applicant’s] application as he said in his letter but the weight I might attach to this letter is diminished by the fact that, as [the applicant] said at the hearing before me, [Pastor E] is actually the [sibling] of his cousin [Relative D name variation] whom he referred to in his statement as his [Relative D] and who he has said arranged his trip to Australia.  I do not consider that any weight I might attach to the letter from [Pastor E] outweighs the problems which I have with [the applicant’s] own evidence set out above.  I also accept that, as indicated by the copy of his passport which he produced along with his current application, [the applicant] was granted a visa to travel to [Country 8] in 2007.  He said at the hearing before me that he had wanted to go to [Country 8] to start a new life but that he had been afraid to travel so he had not gone.  I do not regard the fact that he did not travel to [Country 8] as confirming his claims with regard to his fear of returning to Ghana.

2. Having given careful consideration to all of the evidence before me, I do not accept that [the applicant] is telling the truth about his travel to Australia or his claimed problems in Ghana.  I consider that his objective was always to come to Australia and that, having failed to obtain a transit visa from the Australian High Commission in [City 5] on [date], he then travelled to [Country 4] via [City 7] and applied for a visitor visa at the Australian High Commission in [Country 4] using the pretext that he wished to attend the [international sporting event].  I do not accept that he was telling the truth in his statement when he said that he only decided to travel on to Australia from [Country 4] after a Ghanaian whom he met in the street sold him a ticket for the [sporting event].  Having regard to the problems with his evidence which I have identified above, I do not accept that he gave material about the fetish cult to the Australian High Commission in [City 5] as he has claimed, nor that a fetish church in Ghana was looking for him and his [Sibling B], nor that he or his family had any problems with a fetish cult or indeed with [Mr C’s] family.

3. For the reasons given above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Ghana, there is a real risk that he will be killed, tortured, or physically harmed, that he will be forced to become a member of a fetish cult or church or that he will be asked questions about a fetish cult or church as he has claimed. I accept that, as [the applicant] has said, there are no members of his immediate family living in Ghana, but I do not accept that this, without more, provides substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Ghana, there is a real risk that he will suffer significant harm. For the reasons given above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Ghana, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Ghana, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

   CONCLUSIONS

4. For the reasons given above, I am not satisfied on the evidence before me that [the applicant] satisfies the criterion set out in paragraph 36(2)(aa) of the Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

6. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.’

   Complementary protection criterion

7. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

8. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Credibility

9. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

   ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

10. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

11. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.