1619268 (Refugee)
[2017] AATA 1131
•14 June 2017
1619268 (Refugee) [2017] AATA 1131 (14 June 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER: 1619268
COUNTRY OF REFERENCE: Nigeria
MEMBER:Denis Dragovic
DATE OF DECISION: 14 June 2017
DATE CORRIGENDUM
SIGNED:10 July 2017
PLACE OF DECISION: Melbourne
AMENDMENT: The following corrections are made to the decision:
The sentence “The applicant claims to be a citizen of Nigeria and provided copy of his passport to the Department. On the basis of his oral evidence about where he was born and the copy of his Nigerian passport, which is valid until [2018], the Tribunal finds that the applicant is a” which appears as an unnumbered paragraph above paragraph 22 should be removed.
Denis Dragovic
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1619268
COUNTRY OF REFERENCE: Nigeria
MEMBER:Filip Gelev
DATE:14 June 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 June 2017 at 10:45am
CATCHWORDS
Refugee – Protection visa – Nigeria – Religion – Christian – Missionary work – Threats from Boko Haram – Health conditions – Right to enter and reside in ECOWAS countries
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZRTC v MIBP (2014) 224 FCR 570
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
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
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] September 2014.
A differently constituted Tribunal made a purported decision on 5 April 2016 affirming the decision of the delegate. [In] November 2016 the Federal Circuit Court of Australia remitted the case on the basis that the Tribunal had failed to properly consider the applicant's claim to fear harm in Ghana for reasons of his religion by reference to the relevant country information applicable to Ghana in the circumstances where it had accepted that the applicant will continue to practice and promote Christianity in Ghana.
The applicant appeared before the Tribunal on 25 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [a witness].
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant, including taking into account s.36(3) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claims to be a citizen of Nigeria and provided a copy of his passport to the
Department. On the basis of his oral evidence about where he was born and the copy of his
Nigerian passport, which is valid until [2018], the Tribunal finds that the applicant is aThe applicant claims to be a citizen of Nigeria and provided a copy of his passport to the Department. On the basis of his written and oral evidence and the copy of his passport, the Tribunal finds that the applicant is a national of Nigeria.
The applicant was born and, prior to coming to Australia, lived in Lagos in the south of Nigeria.
The applicant’s initial written claims for protection are contained in his visa application form and a statutory declaration dated 30 July 2013, submitted with the application.
In his visa application forms the applicant states that he left his country because a Muslim extremist group known as Boko Haram spread religious violence and considered Christians as enemies. They undertook terrorist activities, kidnapping several Christian leaders and pastors. Being a Christian religious activist in the community, the applicant has been threatened and blacklisted by this movement. Therefore the applicant claims he has a well-founded fear of persecution.
At university, as a Christian leader, the applicant “gave leadership for the number of crusades in the [City 1] campas, [city] state campas and [city] state campas”. He was engaged in Christian activities in the early 2000s, when he was completing a bachelor’s degree and again after 2012, when he was studying towards a master’s degree.
In the 2013 statutory declaration the applicant gave examples of instances of persecution he had suffered. In January 2013 Boko Haram blocked t[a certain] road while he was on his way to a “crusade” in [City 1]. The applicant’s name was displayed in the campus as a wanted person and he was terrified on several occasions by anonymous text messages. Due to these well planned threats, the applicant had to avoid participating in religious activities. He had to send his family to another state. He was unable to perform his duties as an [occupation] without a fear.
The applicant provided to the Department photos of a damaged car which he said was the car attacked by Boko Haram on [that] road. He did not stop and his car was shot at, resulting in a smashed windscreen.
He told the delegate that the attack on his car happened [in] January 2013. He tried to report it to the police, they asked for a bribe, he refused and thus no report was written.
The applicant provided a second statutory declaration, dated 8 August 2014. In it the applicant said that his [sibling] had died [in] December 2013. He provided materials in support of that death, including a death certificate, but there is no cause of death.
Well-founded fear of persecution in Nigeria
The Tribunal has carefully considered the totality of the evidence before it. While the Tribunal has difficulty accepting the applicant’s claims that his car was shot at by Muslim extremists and that his [sibling] was killed by Muslim extremists, there is no doubt that the applicant is strongly committed to his Christian faith and disdainful of Muslims.
On the evidence before it, the Tribunal accepts the applicant is deeply engaged in Christianity. He has been active in promoting Christianity in Nigeria and in Australia. He will continue to promote religion in Nigeria if returned there.
With some hesitation, the Tribunal accepts the applicant will engage in “crusades” in areas of Nigeria where Boko Haram operates.
The Tribunal accepts the DFAT assessment from its most recent Country Information Report (10 February 2015) that Christians face a moderate risk of violence from Boko Haram in the north east of the country (at 3.16 of the Report).
The Tribunal finds there is a real chance the applicant would suffer serious harm amounting to persecution from Muslim (Boko Haram) if he returned to Nigeria, and travelled to the north of the country in order to proselytise, something he is entitled to do as a Christian pastor.
The Tribunal accepts that the applicant’s Christian religion would be the essential and significant reason for the persecution as required by s. 91R(1)(a) of the Act.
The Tribunal further finds that the applicant fears “serious harm”, namely, a threat to his life, significant physical harassment or significant physical ill-treatment (ss.91R(2), 91R(1)(b) of the Act).
The Tribunal also accepts that the persecution which the applicant fears involves systematic and discriminatory conduct (s.91R(1)(c)).
While the harm feared is from non-state actors, Boko Haram, it may amount to persecution for a Convention reason if the motivation of the non-state actors is Refugee Convention related, and the Tribunal has already accepted that religion provides the requisite nexus – and the state is unable to provide adequate protection against the harm.
On the evidence before it, including the DAFT Country Information Report (Part 5 of the Report), about the security situation in Nigeria, the Tribunal finds that the Nigerian State is unable to protect the applicant in his activities in the north of the country.
Relocation is not relevant in the present case, because the applicant insists that he wishes to engage in promoting Christianity into the areas where Boko Haram operates and away from the areas where he would be safe (Lagos).
The Tribunal finds that there is a real chance the applicant will face serious harm amounting to persecution from Muslim extremist for reasons of his religion, if the applicant returned to Nigeria now or in the reasonably foreseeable future. Therefore the applicant’s fear of persecution in Nigeria is well-founded.
Evidence in relation to right to enter and reside in Ghana
During the hearing with the previous Tribunal, the issue of the applicant’s right to enter and reside in a third country was discussed. The previous Tribunal drew the applicant’s attention to the Economic Community of West African States (ECOWAS), and noted that the DFAT report indicates that Nigerians can freely enter 15 other ECOWAS countries with their Nigerian passport, and that Nigerians have a right to reside in ECOWAS nations.[1]
[1] Article 59 of the ECOWAS Revised Treaty 1991 provides that citizens of the member states shallThe previous Tribunal drew the applicant’s attention to Ghana in particular. The Tribunal noted that Ghana was a member state of ECOWAS.
The presently constituted Tribunal during the hearing with the applicant mentioned most of the 15 states from ECOWAS, which are Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Senegal, Sierra Leone and Togo.
The Tribunal read to the applicant Article 59 of the ECOWAS treaty
Immigration
1. Citizens of the community shall have the right of entry, residence and establishment and Member States undertake to recognise these rights of Community citizens in their territories in accordance with the provisions of the Protocols relating thereto.
2. Member States undertake to adopt all appropriate measures to ensure that Community citizens enjoy fully the rights referred to in paragraph 1 of this Article.
The Tribunal asked whether the applicant accepts he can enter and reside in Ghana. He and his representative replied that in practice the applicant may not be able to reside in the other 14 member states of ECOWAS.
The agent referred to a movement in Nigeria called “Go to Ghana”, a movement in Nigeria targeting Ghanaians resident in Nigeria. The Tribunal looked at country information about “Ghana Must Go” and pointed out that it seems to have happened in 1983 and it concerned Ghanaians in Nigeria not the other way around.[2]
[2] A. Folorunsho-Francis, “The trauma of 1983 Ghana Must Go Era”, CityPulse,October 2014,
The applicant referred to the ethnic problems in Nigeria between various ethnic groups. He suggested that the same applies to ethnic politics in other countries, including Ghana.
The applicant told the Tribunal he was not sure whether he would be allowed to enter and reside in Ghana. He referred to South Africa, which he said is governed by the rule of law, and yet the government of South Africa returned migrants to other African countries.
The representative asked the Tribunal member whether he (the Tribunal member) had been to west Africa before. He suggested that as the Tribunal member has not been to that part of the world he would not be sufficiently equipped to know the situation on the ground in Ghana. The representative argued that the ECOWAS treaty may not be implemented properly.
Both the applicant and his representative repeatedly claimed that what the Tribunal might read or think about the situation in west Africa does not necessarily correspond to the reality on the ground.
The representative recounted how he had been bashed in Nigeria by the police. He said it showed that there is no respect for the rule of law in this region. The representative was completely innocent, yet he was assaulted. He said that by analogy the Tribunal must consider whether the applicant may be stopped and refused entry at the border.
The Tribunal advised that the law requires it to consider whether under the ECOWAS treaty the applicant must have a “liberty, permission or privilege lawfully given” which has not been withdrawn.[3]
[3] MIMAC v SZRHU (2013) 215 FCR 35.
Earlier in the hearing the applicant and his representative stated that there may be domestic Ghanaian law which limits the operation of the ECOWAS treaty. The applicant submitted that if he goes to Ghana, he will be asked “a million questions” by the Ghanian authorities in relation to his protection application in Australia.
The Tribunal said it is not aware of restrictions on ECOWAS nationals who want to enter into Ghana or temporal restrictions imposed by Ghana on nationals who want to reside in Ghana.
The Tribunal advised the applicant that in any case the law stipulates that Australia is taken not to have protection obligations where a person has the right to enter and reside in another country permanently or temporarily.[4]
[4] See SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [27] that there is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word temporarily.
The Tribunal explained that the law does not prescribe an exact period of time, a stipulated minimum period of residence in a country. The Tribunal said that if the applicant were allowed to enter into Ghana for a relatively short period of time (e.g. 30 days), the Tribunal would probably not find that the applicant has the right to reside in Ghana. However, a longer period, even if it is not indefinite, could constitute a right to reside. There is no evidence before the Tribunal that Ghana only allows nationals of ECOWAS countries for very short periods of time (such as 30 days).
At the hearing with the previous Tribunal the applicant said that as a Christian he would be persecuted by the Muslims who are there. The applicant told the previously constituted Tribunal that he would not be safe in Ghana. He said that he was against “wrong information, wrong preaching”; the Bible and the Quran contradict each other. As a Christian he needs to correct the misconceptions that Muslims have.
At the hearing before this Tribunal, the Tribunal noted that more than 70% of people in Ghana are Christians and about 18% are Muslim. The Christians belong to many different churches or denominations.[5]
[5] "CIA World Factbook - Ghana", , 14 September 2016, CIS38A80121907, accessed on 23 May 2017.
The Tribunal referred to the US Department of State 2015 Report on International Religious Freedom the Constitution of Ghana prohibits religious discrimination and stipulates individuals are free to profess and practice their religion. According to the Report there were no reports of significant social actions affecting religious freedom.[6] More than 70% of the of people in Ghana are Christian and they belong to many different denominations. Muslims constitute a small minority, about 18% of the population.
[6] "2015 Report on International Religious Freedom - Ghana", US Department of State, 10 August 2016, OGD95BE926711, accessed on 23 May 2017.
The Tribunal advised that Amnesty International Report on human rights practices, 2016-2017, makes no mention of any religion related problems in Ghana.[7]
[7] "Amnesty International Report 2016-2017", Amnesty International, , NG2A465F54, accessed on 23 May 2017.
The Tribunal also told the applicant that another international NGO, Freedom House, in its annual “Freedom in the World Report 2017” criticises various African states for human rights violations and calls the situation in Ghana “a bright spot”. It says:[8]
Ghana consolidated its position as one of the most stable democracies on the continent when opposition candidate Nana Akufo-Addo defeated incumbent John Mahama in the December presidential election.
[8] Freedom House, "Freedom House - Freedom in the World Report 2017", , NG2A465F53, accessed on 23 May 2017.
An article published in June 2016 in an academic journal states that Ghana has not experienced any acts of Muslim terrorism.[9]
[9] A. Frimpong, "Suicide Terrorism Perspectives from Muslims in Northern Ghana", Journal of Public Administration and Governance, 09 June 2016, CIS38A80122456.
The applicant said that he was a travelling preacher, not a residential preacher, and that makes him more vulnerable. The applicant said that he cannot have his safety guaranteed. The Tribunal explained that the issue is whether he faces a real chance of persecution or a real risk of significant harm.
According to a 2014 (undated) letter from [a] psychologist, the applicant suffers from [mental health conditions]. Another letter, dated [August] 2014, from [a doctor] states that the applicant has high blood pressure and [a mental health condition].
At the hearing before this Tribunal the applicant was asked about his mental health. He said that he has been on medication for high blood pressure since February 2014 and he continues to take [medication] (he pulled out a small plastic bottle from his pocket).
When he went to the GP and was first prescribed blood pressure medication, he was referred to a psychologist for his mental health. Some months later he saw a mental health specialist and was prescribed [medication]. He said he did not remember the name of it. It has changed since 2014 when he obtained a letter which mentioned the medication he was on.
The applicant argued that high blood medication would not be available in Ghana. The representative suggested that sending the applicant to Ghana would be a death sentence. The Tribunal suggested that [the] medication is available in Ghana. The representative made some rather confusing submissions in response. It seems that he was using the expression “death sentence” figuratively and not referring to an actual death sentence, nor to a likelihood that the applicant will die as a result of the lack of treatment. The representative also noted that fake medication is frequently sold in Africa. But ultimately he conceded that he was not submitting that the unavailability of quality health care in Ghana would amount to serious harm or significant harm.
The Tribunal suggested that even if the applicant is not able to access the same level of care as in Australia, Australia would still not have protection obligations unless there is a real chance of persecution for a Convention reason (i.e. the requisite Convention nexus would not be there). In so far as complementary protection and significant harm is concerned the Tribunal pointed out that torture, as well as cruel, inhuman and degrading treatment or punishment require an element of intent (intentional withholding of treatment).
The [witness]said that she has travelled through Africa and based on what she saw at the time she believes the applicant will not be safe in Ghana. She also emphasised what a great asset he would be for the country. She and her husband also provided a letter to the Tribunal after the hearing which the Tribunal has taken into account in making its decision.
The representative repeated that if the applicant goes to Ghana, it would be a new country and he may be harmed, for example, if he preaches to the wrong people. It was submitted that the applicant does not have any connection to Ghana and he would be heart-broken to have to start over again in Ghana. The witness [and] her husband made some similar arguments in their post-hearing submissions.
The Tribunal gave the applicant and his representative until 2 June 2017 to provide further evidence or submissions in support of the case. In a brief submission, dated 15 May 2017, the applicant’s representative asserted that history tells that both Nigeria and Ghana “has difficulties facing movement of people to live side by side in the past” and in addition there were terrorist threats posed by Malians in Ghana. It was submitted that the applicant will engage in missionary work in Ghana and as a result he will not be safe from being “harm and mistreatment” by terrorists.
In support of these claims the representative submitted media articles which, although undated, appear to be from 2016, about possible terrorist attacks in Ghana after terrorist acts in Cote d’Ivoire and Burkina Faso.[10] No terrorist attacks in Ghana have occurred.
[10] See articles provided by the applicant’s representative after the hearing, folios 53-55.
The applicant and his representative engaged in largely speculative reasoning that because of ethnic strife across Africa and endemic corruption in Africa (and particularly in Nigeria), therefore the applicant may not be able to enter Ghana; may only be able to enter after paying a bribe; once he enters may be harassed or asked to pay bribes; and he may be expelled from Ghana.
In support of these claims the following country information was provided with the submissions of 15 May 2017: an anonymous and undated document entitled “Challenges/Problems faced by Foreigners in Ghana (Personal Experience)” and a 2012 Report from Oxford Business Group. The latter report refers to the period 1969-1970 when Ghana expelled large numbers of Nigerian residents and the early 1980s when Nigeria expelled a total of 1.3 million Ghanaians. The report states that these sporadic outbursts have largely died down, but foreigners operating businesses in Ghana must comply with a 1994 Act mandating that foreigners must employ at least 10 Ghanaians and invest at least $300,000 to operate in Ghana. According to the report although Nigerian traders or business owners were affected by efforts to enforce this legislation “the overall impact on resident Nigerians has not been noticeable”. The Tribunal has carefully considered the information before it and places some weight on the 2012 Report from Oxford Business Group.
.As a Nigerian national, the applicant can enter Ghana and he can remain there for three months without a visa.[11] On the evidence before it, the Tribunal has concluded that the right of citizens of any of the ECOWAS countries, including Nigeria, to enter Ghana without a visa and to remain there for three months constitutes a right to enter and reside in Ghana at least temporarily as referred to in subsection 36(3) of the Migration Act. [12]
[11] ‘Ghana Visa Regulations – Entry Requirements’, Government of Ghana Official Website, undated, downloaded from accessed 14 July 2008; ‘Visiting Ghana For Business/Temporary Stay’, Ghana Immigration Website, undated, downloaded from accessed 20 January 2009.
[12] See Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; see also SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43.
Without wishing to create any doubt in relation to its finding in the paragraph immediately above, the Tribunal observes there is evidence before it that the applicant will be able to remain in Ghana beyond the initial three month period. The evidence was provided by the applicant himself – the document entitled “Challenges/Problems faced by Foreigners in Ghana (Personal Experience)” strongly implies that nationals of ECOWAS countries can obtain a Work and Resident Permit. The author of the document complains that the applicable fee is too high and that he had to apply for it twice.[13] He or she does not claim that he had any other problems obtaining the permit.
[13] Folio 52 of Tribunal file, document submitted by the applicant’s representative.
Right to enter and reside, s.36(3) of the Act, ECOWAS and Ghana
Section 36(3) states Australia is taken not to have protection obligations in respect of a noncitizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(4) provides that subsection (3) does not apply in relation to a country in respect of which:
(a)the non-citizen has a well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or political opinion;
or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race,
religion, nationality, membership of a particular social group or political
opinion.(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the
non citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and
foreseeable consequence of the non-citizen availing himself or herself of a
right mentioned in subsection (3), there would be a real risk that the non-
citizen will suffer significant harm in relation to the other country.The Tribunal finds that the applicant, as a Nigerian national who holds a current Nigerian passport, valid until [2018], has a right to enter and reside in any of the ECOWAS nations, and in particular that he can enter and reside in Ghana.
The document entitled “Challenges/Problems faced by Foreigners in Ghana (Personal Experience)” provided by the applicant’s representative after the hearing claims that the all foreigners, including ECOWAS nationals, have to pay a fee to obtain a Work and Resident Permit. The Tribunal accepts a fee is probably payable.
However, the Tribunal does not accept the bare assertions by the applicant and his representative, not supported by independent country information, that the applicant will be asked a thousand questions at the border, that he may be stopped and denied entry or his residence permit may be revoked on a whim, that he will be asked to pay a bribe to enter and/or to reside in the country because all countries in west Africa are corrupt.
As the Tribunal pointed out to the representative at the hearing, there is ample country information about the high levels of corruption and incompetence existing in the Nigerian police force and while it is rather unfortunate that the representative was assaulted by Nigerian police, this personal anecdote does not constitute probative evidence that the applicant will encounter difficulties with the Ghanaian authorities.
The representative referred to the “Ghana Must Go” campaign of the early to mid-1980s against Ghanaians residing in Nigeria. The tensions between the two countries led to mass expulsions of Ghanaians from Nigeria and more than 30 years ago. Ghana had expelled many Nigerians in 1969-1970, which is almost 50 years ago and precedes the introduction of the ECOWAS treaty.
After the hearing there was further country information provided to the Tribunal in relation to the difficulties that business owners from Nigeria face in Ghana. As the applicant is not a business owner, the Tribunal does not consider that the legislation promoting the employment of Ghanaians by foreign business owners in Ghana affects the applicant.
The Tribunal has considered the available country information in relation to the applicant’s ability to practise his religion in Ghana. The Tribunal accepts that in 2016, after terrorist acts in Cote d’Ivoire and Burkina Faso,[14] there was concern in Ghana may become the target of terrorists. No terrorist attacks have taken place.
[14] See articles provided by the applicant’s representative after the hearing, folios 53-55.
The country information, including information discussed with the applicant at the hearing, is unanimous that Christians in Ghana experience no problems in practising their religion.
On the evidence before it the Tribunal finds that the applicant will be entirely free to practise his religion in Ghana, including engaging in “crusades”, that is, proselytising to Muslims, and he will not face a real chance of persecution, nor a real risk of significant harm.
In relation to medical treatment, the Tribunal has accessed Ghana’s “Standard Treatment Guidelines” and lists 8 categories of drugs prescribed for hypertension (high blood pressure).[15] The Tribunal accepts that the applicant may not receive the same standard of treatment for his health problems in Ghana as he would continue to receive in Australia. He would also need to be careful when purchasing medication not to buy fake drugs. However, the lower standard of health services in Ghana compared to Australia does not constitute serious harm for a Convention reason, nor significant harm as defined in the Act.
[15] “Standard Treatment Guidelines - Ghana (GNDP; 2004; 510 pages)”, accessed on 7 June 2017.
On the evidence before it, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Ghana for reasons of his religion or any other Convention reason.
Further, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in Ghana, there would be a real risk that he will suffer significant harm in relation to that country.
On the evidence before it the Tribunal finds the applicant does not have a well-founded fear that Ghana will return the applicant to another country, including Nigeria.
Therefore the Tribunal finds that s.36(3) applies to Ghana.
The Tribunal is not satisfied the applicant has taken all possible steps to avail himself of the right to enter and reside in Ghana, and therefore Australia is taken not to have protection obligations in respect of the applicant.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Filip Gelev
Member
have a right to enter and reside in all member states;
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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