1611148 (Refugee)

[2021] AATA 1230

1611148 (Refugee) [2021] AATA 1230 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1611148

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Anne Grant

DATE:19 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2021 at 10:22am

CATCHWORDS

REFUGEE – protection visa – Ghana – political opinion – opposition to the government – protests against land policies – land resumption – false legal cases – physical attacks on family – new government – applicant’s children in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65
Migration Regulations 1994, Schedule 2

CASES

CSV15 v MIBP [2018] FCA 699
MIAC v SZQRB [2013] FCAFC 33

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Ghana, applied for the visa on 12 June 2014 and the delegate refused to grant the visa on 21 June 2016.

3. The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments.  He gave his evidence in English.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

9. The issue in this case is whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Ghana, the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The applicant’s written claims were as follows: 

    ·In 2014 when his Australian visa possibilities had been exhausted he began to make preparations to return to Ghana.  However when he contacted his father to request some money to purchase his ticket to Ghana, his father started crying and told the applicant never to set foot in Ghana because his entire family - that comprises of his parents and a [sibling], were in the process of relocating to one of the neighbouring countries following several attacks on their house in the preceding month.

    ·After receiving this message from his father, he became very distressed and [in] June 2014, he lost control of his car while driving and [had an accident]. He remains depressed that he cannot return to Ghana.

    ·The applicant’s family house in Ghana was attacked because of his father's involvement with the protests against the government's decision to allocate more farming lands to the mining companies.

    ·He fears he will be harmed and/or killed in Ghana as his family has suffered harm in Ghana. He fears harm from the government and its agents due to his father's political (antigovernment) activities.

    ·His father is a [farmer] and was the leader of the [District 1] branch of [a farmers] Association. The government had been allocating farmlands in [District 1] to mining companies, particularly foreign mining companies. The farmland was confiscated from land owners without adequate compensation.

    ·This 'injustice by the government' infuriated farmland owners however they had been unable to take any action against the government as they lacked the resources and political power to fight against it.

    ·As the leader of the [farmers] Association in [District 1], his father started campaigning against the injustice. The applicant states that his father encouraged farmland owners· to do anything within their power to resist further confiscation of their farmlands by the government. Infuriated by this, the Ghanaian government used every means to silence his father and his group.

    ·In April 2014, [some] foreign miners who went to explore the possibility of [mining] in [District 1] were abducted by unknown people. Without conducting a proper investigation, the police however arrested his father and [other] leaders of the protest against mining companies in [District 1] and accused them of abducting the foreign miners. They were later released on bail, without being charged.

    ·Two days after their release, his father's house was firebombed. Since then, there have been regular attacks on his family. He believes the government's secret agents acting on behalf corrupt politicians are responsible for these attacks.

    ·Given the continuous threats of persecution and threats of harm against his family because of his father wants justice for farmland owners in [District 1], he fears for his safety and fears being killed.

11. At hearing, the applicant gave sworn evidence.  He testified that his claims were true when they were made but that the situation has been resolved now and he (and his family) no longer fears harm in Ghana from the Ghanaian authorities, government or from people associated with the mining companies and the dispute over mining.  He gave evidence that his father now lives ‘between’ Ghana and [a neighbouring country].  He regularly travels between the two.  He has not and neither has any family member suffered any harm from the government or the mining company (or its associates) after the incidents described in his claims from April 2014.  The applicant said that things were bad at that time, but there are no longer such troubles for his family nor such fears for his own safety as a consequence.  His father still owns and manages his farm but he has been unwell and travels from [a neighbouring country] to Ghana when he needs treatment because of the better health facilities there. The applicant said that he genuinely does not have a fear of being harmed for any reason in Ghana now because things have improved since 2014 and also because there is a new government and the overall situation is better. 

12. Nonetheless, the applicant does not want to leave Australia, because he has two children here and he wants to know and parent them. He has a [named child] born in Australia on [date].  He is now separated from the child’s mother.   At hearing he provided a birth certificate for his second child, [named] born [date].  His son now lives in New South Wales and the applicant has not seen him for around six years, which he says is in direct contravention of court orders.  His lawyer recently advised him that they should commence contravention proceedings to restore some contact with his son.   His relationship with the mother of his daughter has also broken down and he is in the middle of hostile family law proceedings around the care of and contact with his daughter.   The next mention date is in August 2021.  The applicant became distressed when talking about his family law matters, and particularly some concerns he holds for the wellbeing of his daughter due to abuse and neglect concerns.  He informed the Tribunal that Child Protective Services have been involved in his daughter’s case.

13. The applicant gave evidence that he had been to court in the contact case for his daughter only the day prior to the Tribunal hearing, and had been granted ongoing contact with his daughter in interim orders starting the following weekend.  He was very much looking forward to that.

14. During the hearing when he became distressed, the applicant told the Tribunal that ‘he is not well’.  He became upset as he talked about his family law issues.  He was clearly referring to his mental health.  When asked if he received treatment for his mental health, the applicant replied that he does not take any anti-depressant medication nor receive any formal treatment for depression - but he has a friend who is a psychologist, so he seeks help from him ‘when he needs to’.  He was able to continue the hearing and the Tribunal considers that his capacity to understand the questions and give evidence was not impaired during the hearing by his periods of distress, which primarily arose when he discussed having to return to Ghana and be separated from any future involvement in his children’s lives.  During the hearing, the applicant was encouraged to seek support from both his friend and his GP to manage his distress in the short term.  No medical evidence about the applicant’s mental health is before the Tribunal.

15. The Tribunal discussed with the applicant that, on the basis of his evidence before the Tribunal, there did not seem to be any protective reasons why he could not return to Ghana – that is, there was not a real chance or a real risk that he would suffer harm from any person or for any reason if he returns to Ghana.  It was noted that separation from his family in Australia would cause the applicant emotional distress, but that it did not appear that it would involve him suffering significant or serious harm caused by any persecutor in Ghana.  The applicant agreed, noting that he was being honest in his evidence before the Tribunal about his lack of any fear of being harmed if he returns to Ghana for the reasons in his written claims or any other, but explained that he wants to stay in Australia so that he can have a meaningful connection with his children.

16. The applicant gave evidence that he has lived in various parts of Ghana, and has skills and work experience in [a profession].

    Consideration:  Is the applicant a refugee?

17. The applicant’s own evidence is that there is no longer any real chance that he will be harmed for any reason in Ghana.  He no longer fears persecution or harm from the government of Ghana or from any person, corporation or authority there.  The Tribunal accepts this evidence.   Based on his evidence, the Tribunal accepts that the issues and claims raised in his protection application have fully resolved.  His family is safe and now live between Ghana and [a neighbouring country] without fear of harm of any kind.   The Tribunal is satisfied that the applicant could return to Ghana without a fear of or a real chance of being persecuted for any reason.

18. Although not formally put as a claim, the information before the Tribunal suggests that the applicant will suffer emotional distress if he must return to Ghana because he will be separated permanently from his two children in Australia.  As noted above, the information and evidence before the Tribunal does not formally include a diagnosis that the applicant suffers depression and or anxiety and so the Tribunal makes no finding on his current mental health apart from accepting his distress over his family law concerns is genuine.  Nonetheless, the Tribunal considers that the applicant would suffer genuine emotional distress and potentially a deterioration of his mental health if he was to return to Ghana, due to his family separation and loss of the potential of reconciliation and contact with his children. 

19. However, the Tribunal considers that the distress and deterioration of mental health he might potentially experience due to his separation from his children if he leaves Australia would not involve persecution for one or more of reasons of race, religion, nationality, membership of a particular social group or political opinion.  The harm he would experience would be due to the applicant’s departure from Australia and the consequent physical separation from his children and not due to persecution for any convention reason.          

20. The Tribunal concludes that the applicant does not have a well-founded fear of persecution in Ghana due to a dispute his family encountered with a mining company, people associated with that dispute (including Ghanaian authorities) or due to the potential emotional distress of being separated from his young children.  No other claims arise or are suggested on the information and evidence before the Tribunal.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations s.36(2)(a).

    Consideration:  Complementary Protection

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

22. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

23. The Tribunal refers to the discussion of the applicant’s claims and evidence above.  The Tribunal has accepted the applicant’s evidence that the issues in his written protection claims have been resolved in the years since 2014 and he no longer has grounds to fear harm in Ghana for any reason related to those concerns.  The Tribunal finds, based on that evidence, that there are not any grounds for believing that there is a real risk that the applicant will suffer significant harm at the hands of any person, company or authority in Ghana (including the Government of Ghana) due to his father’s 2014 dispute over local mining concerns or for any other reason related thereto.

24. The Tribunal has accepted that the applicant will potentially suffer distress and potential deterioration of mental health due to his being physically and practically separated from his children if he is returned to Ghana.  However the Tribunal considers that the emotional distress caused by separation, (even if it were to develop after he is removed from Australia and the applicant is formally diagnosed at some point with depression or other mental illness) would not involve the applicant suffering ‘significant harm’ as defined in s.36(2A) for the purposes of considering the complementary protection provisions.  Any potential emotional distress  which arises due to his separation from his children would arise from the act of removal itself and not be due to any act or omission by any person in Ghana  which intentionally inflicts severe pain or suffering or which is intended to cause extreme humiliation on or to the applicant.

25. The Tribunal also notes the comments and conclusions of Collier J in CSV15 v MIBP[1] where Collier J reasoned that the definitions of each of the harms described in s.36(2A) referred to “acts perpetrated by others which cause[d] the non-citizen to suffer harm”.  I consider that the deterioration of a person’s existing mental health condition and the practical limitations and consequences of that deterioration are not due to ‘acts perpetrated by others’ and do not meet the definition of ‘significant harm’.  As noted above, no other claims are suggested on the information or evidence before the Tribunal. 

    [1] [2018] FCA 699 at [34]

26. The Tribunal concludes that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia, the applicant will suffer significant harm.  The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Anne Grant
    Member