1618086 (Refugee)

[2019] AATA 5881

1618086 (Refugee) [2019] AATA 5881 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618086

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Paul Millar

DATE:26 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2019 at 4:06pm

CATCHWORDS

REFUGEE – protection visa – Ghana – religion – Christian convert – rejected tribal customs – forbidden by father and tribal custom from following religion – child’s welfare – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Ghana, applied for the visa on 29 July 2015.[1]  The applicant appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The applicant did not request the assistance of an interpreter and he communicated with the Tribunal in English.  The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant's Ghana passport which appear at folio seven of the Department file.

   CRITERIA FOR A PROTECTION VISA

2. 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, he or she 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.

3. 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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.     

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B). 

   Mandatory considerations

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] DFAT has not issued a country information assessment on Ghana.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that, for refusing to follow tribal custom, his father and those acting at his father’s behest will harm him.[3]  The Tribunal holds concerns about the applicant’s credibility.  Before discussing those, it is necessary to first recite the evidence given by the applicant at the Tribunal hearing about his protection claims.

   The applicant’s evidence to the Tribunal

   [3] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his written statement lodged with the application and his evidence at the Tribunal hearing.  The applicant declined an invitation to attend an interview with the delegate.  The Tribunal had access to the various Department files recorded on the first page of this decision and which relate to the temporary visas for which the applicant has applied both before and after he came to Australia. The contents of these files are not relevant to the grounds on which this review has been determined.

8. To the Tribunal, the applicant related the following account of events on which his protection claims are based.  His family come from [Tribe 1] and, in approximately 2004, his father was made a ‘king’ in that native area.  His father was given that position according to a custom followed by his tribe and another tribe in the area.  From a young age the applicant disapproved of (and did not wish to participate in) the rituals and customs of his native area.  In particular, he objected to [details deleted].  A number of times the applicant refused to do this and, a number of times, people who lived in the ‘palace’ in the native area would beat him.  In addition, a Christian pastor from a church based in city 1, a journey of approximately [number] hours from the applicant’s native village, would travel to the village and the applicant became friends with him.  This person introduced the applicant to Christianity.

9. When the applicant was [age] years old, in approximately [year], he ran away from the native village without telling anyone and went to live in city 1 with this pastor.  The applicant understood that he could not follow Christianity if he stayed in the native village as this was prohibited by the custom and ritual in that area.  Accordingly, if his family knew that he was with this pastor they would kill him.  In city 1, the applicant continued his school education.   He also continued his practice of Christianity and in 2000 he was baptised.  In [year] he completed his school education and, after that, undertook religious studies at different times.  The applicant also commenced operating a business that involved importing[goods] and selling them from a shop in city 1.

10. In the period between leaving his native village as a [age]-year-old and leaving Ghana to come to Australia in 2010, the applicant returned to his native village on two occasions.  The first occasion on which the applicant returned to his native village was when he was approximately [age] years old (and, therefore, in approximately [year]).  At that stage, his father had not been made the king but his father was living in a palace, the applicant referring to a house occupied only by men and another house occupied only by women.  The applicant had had no contact with his family before this return trip. He went back because he wanted to see what the situation would be like.  He thought that people should change the way they treat others and he wanted to see if his father would accept him.

11. On that occasion, his father received him well, but, at night, his mother told him that his father was angry and unhappy with him. She told him that he should straightaway go back to city 1.  She told him that his father heard about him undertaking religious studies and disapproved of that. His father believed that Christian prayer disturbed the tribal spirits. His mother herself was a Christian who had to abandon her faith when she married the applicant’s father.  The applicant returned to city 1 that same night. 

12. After this, the applicant began to have contact with his younger brother, who lived in the native village with his parents.  Initially he did not allow his brother to know where he lived or his occupation.  They would see each other through arrangements made by mutual friends.  After a while, the applicant gained more trust in his younger brother.  He then let his younger brother know where he was living. When asked why he would do this, the applicant said that he wanted at least one family member to know him.  He also thought that his brother was struggling and he wanted to help him.  Throughout the period that the applicant was in contact with his younger brother, his brother told him that his father was angry and the applicant should not return to the native village.  He was told that his father wanted to choose a spouse for him, that the applicant give up Christianity and that he only live in the native village. 

13. In 2009 the applicant began a relationship with a Ghanaian woman who had Australian citizenship.  In December that year, they married in city 1.   At the time of his marriage, the applicant understood that he was not allowed to marry a woman of his choice.  He could only marry a woman chosen for him by his father. He also understood that he could not be a Christian and follow the tribal custom. In addition, he also understood that according to tribal custom he had to live in his native village and be part of his father’s community.  At the time of his marriage, the applicant’s church community said that he should go back to his native village and introduce his wife to his father stating that they would pray that his father would accept them.  This church community wanted the applicant to return to his native village, eventually open a church there and preach the gospel. They believed that the applicant was a suitable person to do this given the tribe he came from prohibited him from being a Christian and his community thought that he would attract more people to the church.

14. For that reason, in approximately January 2010, the applicant and his wife went back to the native area to meet his parents.  The applicant did this in the hope that his parents would accept them.  After returning to the native village, the applicant’s father was angry. He told the applicant that he could not be a Christian and could not marry a woman of his choice. He told the pair of them to get out and said nothing else.  The applicant and his wife arrived in the native village at 9 am and left at 7 pm the same day. On return to city 1, the applicant’s younger brother called and said that his father was looking for him. His older brother, who lived and worked in another part of Ghana, also made contact and said that he had spoken to their father and that things would be bad for the applicant if he did not leave Christianity and his wife and return to the native village.  The older brother then came to see the applicant at the applicant’s business place in city 1. He did this a number of times and, later on, threatened the applicant’s wife to leave the applicant and go back to Australia.

15. Because of this behaviour from the older brother, the applicant and his wife decided that they had to leave Ghana.  The applicant left Ghana in September 2010 in fear for his life, believing that he could be killed.  His wife remained behind for a few months to sell off his business and possessions and, in that period, both of his brothers called, the older brother telling the applicant’s wife to leave him.  Throughout his evidence the applicant said that his father could easily have him killed.  He said that this would not be done in public, but, ‘underground’ and no one would know.  He said that the police would not be able to prevent that or provide any protection.

    Credibility concerns

    The applicant’s behaviour in Ghana

16. As stated above, the applicant said that his church community encouraged him to return to his native village to introduce his wife to his father. The applicant himself said that he did this in the hope that his father would accept them.  The Tribunal asked the applicant why he would return to his native village in this fashion when, according to his evidence to that point, in contact with his younger brother, he had been consistently told that his father was angry with him for what he had done.  That included not heeding his father’s wish that he marry a woman of his father’s choice, abandon Christianity and return to live in the native village.  In response, the applicant said that he and his church community in city 1 prayed and hoped that things would change.

17. The Tribunal asked the applicant what he was planning to do when he and his wife got married in December 2009.  In response, the applicant said that their plan when they married was that they would reside in Ghana.  It was planned that the applicant’s wife would purchase [goods] in Australia and send them to him for sale in Ghana.  His wife would travel back and forward between the two countries.  The Tribunal asked the applicant why he and his wife would, at the time of their marriage, be content to live in Ghana in his claimed circumstances.  In this respect, the applicant had fled from his native village and, in the previous years, in contact with his younger brother, who the applicant did not initially trust to keep his whereabouts confidential, he was being told that his father was angry with him.  In this respect, the Tribunal was also mindful of the applicant’s evidence throughout the hearing that his father could easily have people come and kill him.

18. The Tribunal put to the applicant that, in his claimed circumstances, it had difficulty accepting that he would simply be content to remain in Ghana as he claimed.  In response, the applicant said that his church ministry was progressing well as was his business.  The Tribunal again put to the applicant that it had difficulty accepting he would be willing to remain in Ghana having been told in the intervening lengthy period that his father was angry with him.  Again, the applicant said that he and his church community prayed and they encouraged him to go to his native village to seek an outcome.

19. Further in the hearing, the Tribunal again put to the applicant that it had difficulty believing that he would risk returning to his native village after getting married, given everything he had done to that point, since running away from his village as a [age]-year-old, was against his father’s wishes.  Again, he had been consistently told by his younger brother about his father’s anger and the risk of ensuing harm.  In response, the applicant said that he would be killed, not in public, but underground. He had returned to the native village with his wife and that would prevent his father harming them as if he did, that would be ‘public’ and that was because his wife was not a member of the family.  He then said that Christianity was not illegal in Ghana and it could bring harm to his father if harming them was public.  It would be preferable to get others to kill them underground.

20. The applicant’s evidence to the Tribunal was that from the age of [age] he was, virtually, living in another part of Ghana in hiding in fear that if his father or those in the community located him he could be seriously harmed if not killed.  This was because he was not living in the village, but, also, because he had chosen to follow Christianity and, subsequently, married a woman who was not chosen for him by his father.  In addition, as stated above, it was a theme of the applicant’s evidence to the Tribunal that his father could have him killed in secret and the police could do nothing about that.

21. In those circumstances, the Tribunal had difficulty believing that the applicant, at the age of [age] would actually go back to his village. The Tribunal had difficulty believing that once the applicant married his plan was to continue to reside in Ghana in his claimed circumstances.  Even if the Tribunal was to accept that the applicant would return to his village when he was [age], the Tribunal could not accept that he would then go back to the native village in early 2010 after marrying a woman who had not been chosen for him by his father. 

22. In essence, the applicant’s explanations for these concerns were that he wanted to see if his family could accept him; his church community encouraged him; they and he prayed things would go well; he was becoming more involved in his church and his business and thought that his father could not kill him or his wife in the native village as that would become ‘public’.  The Tribunal finds all of those claims and explanations to be unconvincing.  Even if the applicant thought that he and his wife would not be harmed in the native village itself he would have well appreciated the risk of that happening as soon as they left and returned to city 1.  On the one hand, the applicant claims to be at risk of being killed and living in hiding for that purpose over a number of years, but, on the other hand, behaves in a manner that is inconsistent with those claims.  His evidence about this reflected poorly on his credibility.

23. The Tribunal was also concerned that the applicant was granted a visa to come to Australia in July 2010 but he did not leave Ghana until September that year.[4]  To the Tribunal, his delay in leaving Ghana was a continuation of behaving in a manner that was inconsistent with his claim to be at risk of being killed.  When this concern was put to him, the applicant said that he was not sure at the time. He wanted to sell his possessions. He was not sure how things would go and as the pressure increased he decided to go.   The Tribunal rejects that claim because, as discussed below, the very purpose of applying for the visa to come to Australia was for his safety and because he had decided he had to leave Ghana.  This delay on the applicant’s part in leaving Ghana was a further reflection of untruthfulness in his evidence.

    Concern that the applicant was not harmed in Ghana

    [4] The date of the grant of the visa is displayed in the applicant's passport, the relevant page being copied at folio 23 of the Tribunal file.

24. The Tribunal asked the applicant why it was that he was never actually harmed in Ghana before he left the country in September 2010, having fled from his native village many years before then and having received threats in January 2010 following his visit to his native area with his new wife.  In response, the applicant said that his father was angry that the applicant had married as that was disobedience. The applicant would not confront him and say that this was what he wanted to be.  The Tribunal put to the applicant that he had gone to the native village, according to his account, in January 2010, but, was not harmed for the next eight months before leaving the country. In response, the applicant said that he was living in hiding from January 2010.  As discussed below, the applicant’s evidence about events that occurred following January 2010, including evidence about going into hiding was inconsistent. Overall, the fact that the applicant did not suffer harm in Ghana seemed highly improbable to the Tribunal when considered against the applicant’s claims that from the time he ran away from his village when he was [age], up until leaving Ghana, he was at risk of being killed.  The Tribunal’s concern over this aspect of the applicant’s account further reflected poorly on his credibility.

    Evidence as to when the applicant decided to leave Ghana  

1. In his initial evidence, the Tribunal asked the applicant when he stopped operating his [business].  The applicant first said that everything stopped in 2009 when he got married and went to his native village. He then said that he worked in his  [business] until leaving Ghana to come to Australia (in September 2010).  Further in his evidence, the applicant related his account of going back to the native village with his wife and seeing his father who told the pair to get out.  He said that they went back to city 1 and his older brother came into contact with him including coming to his business.  His older brother came a number of times and also threatened the applicant’s wife following which the decision was made that they would go to Australia. The applicant said that the threats continued and his older brother had been sent by his father to tell him that he had to return to the native village.

2. The applicant then said that he was told by his older brother that he had one week to do this.  When asked what happened at the end of that week, the applicant said that he stopped going to his business and stayed with a friend. Otherwise nothing happened.  He said that three weeks after the expiry of that initial one week period he left Ghana. He left Ghana alone and his wife remained there disposing of his business and possessions.

3. Further in the hearing, the Tribunal asked the applicant when he actually decided to leave Ghana.  In response, the applicant said that the decision to leave was made after the couple had gone to the native village and his father had told them to get out and disapproved of what they had done.  After that, he applied for a visa to come to Australia based on his marriage to his wife. He said that before he applied for the visa, he had received threats from his older brother face-to-face.  He repeated his account of being told that he had one week to return to the native village and if he did not do that he would be seriously harmed.  When asked when that threat about having a one week period to comply with his father’s demands was made, the applicant said that it was before he applied for his visa to come to Australia.

4. The Tribunal drew the applicant’s attention to a claim in his written statement lodged with his protection visa application that when he returned to the native village after his marriage, his father told him about a particular festival held every year in the month of August. The Tribunal asked the applicant why that particular month and festival was mentioned. In response, the applicant said that his father told him that, by the time of this festival in August that year, everything had to be solved. The Tribunal asked the applicant whether he was saying therefore that he had until August to return to his village as that appeared to be inconsistent with his initial evidence that soon after going to see his father in January 2010 he was given one week to comply with his father’s demands.

5. In response, the applicant said that both statements were made.  When he returned to the native village after his marriage his father told him that what he had done was taboo and had to be fixed by August when the festival occurred.  He then returned to city 1 and received a call from his father using his elder brother’s phone stating that he had one week to comply with his father’s demands.  The Tribunal then asked the applicant when it was that he returned to his native village after marrying in December 2009.  In response, the applicant said that it was very soon after they married and it was soon after that when his father told him that he had one week to comply with his demands.

6. Further in his evidence the applicant confirmed that it was in January 2010 that he went to see his father in the native village and it was in the same month that he was given the demand to comply within one week.  When the Tribunal put to the applicant that nothing happened to him from that time until he left Ghana, the applicant said that from January 2010 he went into hiding.  He thought that he was in hiding for approximately two months.  The Tribunal put to the applicant that this was inconsistent with his earlier evidence that he was given the demand to return to the native village within one week, that for the next three weeks he was in hiding and that, at the end of that three week period, he left Ghana.  In response, the applicant said that was incorrect and he did not give that evidence.

7. The Tribunal finds all of this evidence to be conflicting and unsatisfactory.  Initially, the applicant said he stopped operating his business in late 2009 once he married. After giving that evidence, the applicant said he stopped work in his business when he left Ghana in September 2010.  However, then the applicant indicated that he stopped working in his business three weeks before leaving Ghana after his brother told him he had one week to comply with his father’s demands.  In contrast to that claim, there was his subsequent claim that this particular threat from his brother was made before he applied for his visa to come to Australia.  His visa was granted in late July 2010 and he left Ghana two months after that.  Allowing for the time taken for the application to be processed, it is reasonable to infer therefore, on this account, this particular threat from his brother was made much earlier than three weeks prior to the applicant leaving Ghana.

8. After that evidence was given, then the applicant introduced the account of his father telling him that his demands must be met by the time of a particular festival held in August.  After being confronted with the inconsistency between that and his earlier claims, the applicant’s account then became that it was his father who said that he had one week to comply with his father’s demands, not his older brother.  However, at the same time, notwithstanding that demand, he also claimed that his father gave him the deadline of August when a particular festival was held. Finally, the applicant said that the direction that his father’s demands be met within one week was made soon after the applicant and his wife visited the father in January 2010.  In response to the obvious concern that nothing happened to the applicant from that time, his evidence that he went into hiding is inconsistent with his evidence above indicating that he did not do this until much closer to the time he left Ghana.  His claim that he was in hiding for two months was in conflict with his initial claim that he stayed with a friend for three weeks before leaving Ghana. 

9. The Tribunal well appreciates that the claimed events occurred a number of years ago, but they relate to a very crucial period of the applicant’s life, in which he made the significant decision to leave his country for his safety. The Tribunal finds that it is reasonable to expect the applicant to give a consistent account about this period of his life and the matters discussed above demonstrate that he has failed to do this. This inconsistency in his evidence further reflected poorly on his credibility.

   Delay in applying for protection

10. The applicant arrived in Australia in September 2010 as the holder of a partner visa based on his then marriage to an Australian citizen.  This relationship subsequently broke down and in June 2011 the applicant withdrew his application for a visa based on that marriage.[5]  In July 2011, he applied for a ‘religious worker’ visa, an application that was refused in February 2012. In March 2012, he applied for a visa based on his relationship with a new partner but, this relationship subsequently broke down.  In April 2015, his application to remain in Australia on the basis of that relationship was refused.  His application for a review of that decision by the former Migration Review Tribunal was refused in June 2015.[6]  Finally, in July 2015 the applicant made this current application for a protection visa. 

    [5] The migration history presented in this decision is taken from the decision of the delegate, a copy of which was enclosed with the application for review lodged with the Tribunal.

    [6] See MRT Case Number [details deleted] [in] June 2015.

11. The Tribunal was concerned by this significant delay on the part of the applicant to seek protection for the harm he claims to fear in Ghana.  As stated above, the applicant said that he left Ghana and came to Australia to save his life.  He told the Tribunal that when he got to Australia his wife said that because of the way she had been threatened by his older brother she no longer wished to be married to him and their relationship ended.  The Tribunal questioned the applicant closely as to what contact he had with family in Ghana following his arrival in Australia in September 2010.  The applicant said that for one year after he arrived in Australia due to his fear of his family he had no contact with any family member. 

12. He then said that after one year he contacted his younger brother who told him that his father was angry and would ‘get’ him. The applicant said that he continued to have contact with his brother after that time and every year from 2011. Sometimes he said to his brother that he was coming back to Ghana and would obey his father. His brother would tell him that his father would not take that. In addition, his departure from Ghana had made his father even more fixated on wanting to harm and kill him.  The applicant said that in all of this contact with his younger brother he was told not to return to Ghana and his father would kill him.

13. The applicant also said that his father was performing certain rituals that were causing difficulty to the applicant in his life in Australia. The applicant in this respect referred to coming out of a [location] and finding a sheet of paper on the windscreen of his car that had ‘moslem writing’.  He said that people he met would initially be pleasant and then their behaviour would change.  He referred to his previous spouses being violent towards him.  The applicant then said that the people at the church he attended after arriving here told him to do a religious visa and then he referred to a lawyer not giving him a letter.

14. The Tribunal put to the applicant that it was concerned that he left Ghana in September 2010 to save his life and from 2011 was being told that his father was angry with him and wanted to kill him, but, he did not apply for protection until July 2015.  In response, the applicant said that people at the church he was attending said that he can apply for a visa as a religious worker. The Tribunal put to the applicant that both of those attempts had failed by 2012.  He then mentioned his second marriage.

15. The Tribunal put to the applicant that it was concerned that he had attempted through various means to be able to stay in Australia but did not apply for protection until so long after he came here. In response, the applicant said that he did not know anything about protection. He did as his church community here told him to do and applied for a visa as a religious worker.  Otherwise, he just did not know what to do. In addition, the same people told him that Ghana had no refugee history and if he applied for refugee status in Australia he could be sent back to Ghana. He said that a lawyer [he] consulted here told him the same thing. It was only after a decision from the former Migration Review Tribunal was released that he consulted a ‘white’ lawyer who gave him better advice and explained protection to him.  

16. The applicant said in his evidence that, once he started contact with his family as early as 2011, it was made clear to him that his life was in danger in Ghana.  Indeed, the applicant claimed that his father was carrying out acts in Ghana causing difficulty to him in Australia being only further evidence that his father would harm him if he returned to Ghana.  In essence, the applicant seeks to explain the delay on his part and apply for protection to save his life by claiming that the delay was due to advice he received from those around him.  In particular, he claims that it was not until 2015 that he was finally even told that he could apply for protection. 

17. While the applicant claims that, prior to that time, others told him that if he sought refugee status he could be sent back to Ghana, the Tribunal is sceptical of his claim that it was not until 2015 that he found out he could apply.  The Tribunal finds the applicant’s explanations for this delay to be unconvincing, especially, in his claimed circumstances of having to flee from his country to save his life and, over the ensuing years, being consistently warned that the risk to his life still existed.  The delay on the applicant’s part in applying for protection is significant and firmly indicated that he does not genuinely fear harm in Ghana.

    Conclusions on credibility

18. Considered cumulatively, the Tribunal’s concerns about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that he was subjected to demands to live in a certain village, follow certain customs and marry someone chosen for him by his father.  The Tribunal disbelieves the applicant’s claims that he fled from his native village because of those demands (or for any reason) and his claims that his family or anyone else in Ghana threatened and sought to harm him. 

19. The Tribunal accepts that the applicant comes from the claimed [Tribe 1], but, because he is not a witness of truth, disbelieves his claims that his father holds some particular position in that group and that his father and other family members have behaved as he claims.  The Tribunal accepts that the applicant is a Christian, but, disbelieves his claims that he was not allowed to follow that religion in Ghana.  Although the Tribunal accepts that the applicant is a Christian, he did not claim protection purely on that basis.  His claims were that his father and tribal custom forbade him from practising that religion, but, for the reasons given, the Tribunal disbelieves those claims. 

20. By letter dated 29 July 2015 the representative made submissions on the applicant’s case, in a sense, repeating the applicant’s account of events on which his protection claims are based and making submissions as to why that made him a refugee within the meaning of the Act.  For the reasons given above, the Tribunal finds that the applicant’s account of events is false and so these submissions are rejected.

21. The Tribunal has no credible evidence before it that the applicant suffered harm in Ghana and no credible evidence that anybody in Ghana seeks to harm him. The Tribunal has no credible evidence as to why the applicant left Ghana in 2010 or his true circumstances in Ghana prior to his departure.  The Tribunal has no credible evidence as to why he does not want to return there.  For all of these reasons, there is not a real chance that the applicant will suffer serious harm in Ghana. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.  For the same reasons, the applicant does not meet the complementary protection criterion.

22. According to the decision of the delegate, in relation to the relationships on which the applicant has applied for visas to enter and remain in Australia, ‘family violence’ has been claimed by the applicant.  The applicant did not claim protection on that basis.  At the hearing, both the representative and the applicant made claims that the applicant has a [age]-year-old child from a previous relationship in Australia, the child’s mother is not a suitable caregiver and the child needs the emotional and financial support of the applicant.  No claim was made that the applicant will suffer harm in Ghana on this ground.  Rather, the Tribunal was urged to take the child’s welfare into consideration should the applicant have to return to Ghana.  Because the applicant is not a witness of truth, the Tribunal has no credible evidence about these claims, beyond accepting that should the applicant return to Ghana he will be separated from this child. 

23. This separation would arise from his failure to comply with Australia’s immigration laws and any distress that separation causes him and his child does not amount to serious harm within the context of being a refugee as that term is defined in the Act.  The distress caused by this separation, for the same reason, does not amount to significant harm within the context of the complementary protection criterion.  Although the representative requested the Tribunal to consider recommending that the Minister intervene to allow the applicant to remain in Australia, the Tribunal declines this request.  Seeking the intervention of the Minister is a matter for him and about which he and his representative can make an application as they see fit.  

    CONCLUSIONS

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

25. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. 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

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

    Paul Millar
    Member