1619418 (Refugee)

1619418 (Refugee) [2019] AATA 4755 (10 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619418
COUNTRY OF REFERENCE:                  Ghana
MEMBER:Jane Marquard
DATE:10 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2019 at 2:06pm
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christianity – forced initiation and service as village chief – refusal to take part in pagan rituals – voluntary travel to home country – delay in applying for protection – country information – fear not well founded – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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 dependant
STATEMENT OF DECISION AND REASONS
OVERVIEW OF APPLICATION FOR REVIEW

The applicant is a man from Ghana, born in [year] in [Town], in the Western Region.
He first arrived in Australia in March 2012 on a [Temporary] visa. He departed Australia [in] March 2013 and returned [in] April 2013.
[In] June 2015 his visa was cancelled on the basis that he had ceased employment with his sponsoring employer. The Administrative Appeals Tribunal (the Tribunal), differently constituted, affirmed the cancellation [in] January 2016.
The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 27 January 2016. A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visa on 26 October 2016.
This is a review of that decision by the Tribunal. The Tribunal must determine whether the applicant meets the refugee criteria or complementary criteria set out in the Act. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Evidence taken into account
In coming to a decision the Tribunal has taken into account the evidence adduced to the Department in the application, supporting documents and at an interview, which is summarised below, as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Ghana.
Summary of evidence before the Department
In his application forms the applicant said that he was from the Akan ethnic group and is a Christian. His mother and [number] siblings are residing in Ghana. He also has [number] children in Ghana, born between [year] and [year].
The applicant has a Ghanaian passport issued in Accra in 2013 and expiring in 2018.
In Ghana he worked as [an Occupation]. He trained in Kumasi from 1987 to 1991 and in Accra in 2009. He worked from 1989 to 1990 for [Employer 1], from 1996 to 1999 for [Employer 2, Town] and for [Employer 3], and from 2001 to 2012 for [Employer 3] in [Town]. He then travelled to Australia to work as [an Occupation].
He stated in his evidence that he is seeking protection in Australia as his relatives in Ghana had plans for him to become the next chief of his village. He rejected this offer as he is a Christian, and the chieftancy is associated with pagan rituals. He claimed that as chief it is customary to slaughter animals to sprinkle the blood as appeasement to the gods, and to pour libation using alcohol, which is against his faith in relation to worshipping idols. He said that it was usual to appoint someone with wealth, and as he had been in Australia, villagers assumed he was wealthy. If he rejected the chieftancy, he claims that he would be killed or harmed.
He claimed that in 2002 his maternal relatives on several occasions tried to abduct him by force to be initiated as chief. He said that he was able to run away from them, like a thief, and had to leave his house to seek refuge from his relatives who were bent on electing him to be chief of the village. He claimed that on one occasion they went to his house to abduct him for the initiation ritual ceremony but he was on night shift. In 2001 to 2002 he reported this to police, but they told him they would not get involved in chieftancy matters. Since then he was always on the lookout for villagers, and had to change his routine and sometimes had to travel to Accra to take refuge with friends.
He said that sponsorship for a partner visa application was withdrawn by his de facto partner due to ‘domestic altercations’.
He elaborated on his claims at an interview with the Department on 20 October 2016. He claimed that he had never been to [Country 1] or applied for a partner visa, as claimed in his protection application. He said that he is from the [particular] tribe. His parents supported his decision not to become a chief. After his relatives tried to forcibly enstool him, he relocated to [Town]. He ‘played hide and seek’ with his relatives until he had the chance to leave. He did not try to leave Ghana sooner than he did because he did not have anywhere to go. One of his [relatives] was enstooled instead of him in 2004, which took the pressure off for a while. However this [relative] passed away in May 2015 and was buried in October 2016. He believes that this [relative] may have died because he did not perform all the rituals to the ‘lesser gods’. The elders have informed his family that his [brother] will be the next chief. When asked to confirm this, he said he or his brothers will be the next chief. If he returned he would be chosen as he is the eldest. His [brother] is currently ‘playing hide and seek’ with the relatives. The applicant returned in 2013 to renew his licence and passport. He stayed in a hotel in Accra and did not return to his village. No-one knew he returned. He was asked why he said in his application that he returned to visit his family, and he said he had to write this.
The applicant said that he did not apply for a protection visa earlier as his agent told him that he would get permanent residency after two years. But he was ‘laid off’ and his visa cancelled. This prompted him to find another avenue to stay in Australia. He has nowhere to go in Ghana and could not live in a hotel in Accra.
He provided a copy of a Refugee Review Tribunal Research Response dated 3 August 2009 related to chieftancy issues, and an Immigration and Refugee Board of Canada (IRBC) paper from 1999. At interview the Department put to him that these reports suggest forced enstoolment is uncommon. He said that this depends on the family.
Department decision
The delegate, in reaching a decision that the applicant did not meet the criteria under the Act, was not satisfied that the applicant was being threatened by his relatives because he refused the chieftancy.
Summary of evidence before the Tribunal
The applicant appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The applicant was represented but his representative did not appear at the hearing.
The applicant confirmed that he is from the Akan, the largest ethnic group in Ghana. His family’s village was [Village 1] but he only lived there until he was five years old. [Village 1] is part of the spill over area from Accra, and there are about one million people there. When he was [age] he moved with his family to [Village 2] which is about half a day away, where his parents were farmers. He went to school in [Town], which is about 150 kilometres from [Village 1], and then in Kumasi, which is about eight hours from his home village.
His father passed away in 2003. His mother is living in the home village and is now [age] years old. She lives with [Sibling 1] and there are other relatives such as cousins in the village.
[Sibling 1] is the eldest child followed by [Sibling 2], the applicant, [Sibling 3], [Sibling 4], [Sibling 5], [Sibling 6] then [Sibling 7].
[Sibling 2], [Sibling 3] and [Sibling 5] are living in [Village 2]. [Sibling 2] lives with his family and is a farmer. [Sibling 4] is [an Occupation 1] in Kumasi, where he lives with [her/his] [spouse] and family. [Sibling 6], who is unemployed, is also living in Kumasi.
His parents and siblings attended the [Church] in [Village 2] every Friday and Sunday. In Australia, every week he attends the [Church] in [Suburb].
After his family moved to [Village 2] his father said that they should not return to their village as his parents did not follow tribal beliefs, although his grandfather was king and followed both tribal beliefs and Christianity. The applicant thus only visited his village once when he was in primary school, and then for his father’s funeral, which was in the village as is customary. Tribal beliefs were strong in the applicant’s village. Asked to describe the rituals he said that there is pouring of libation and slaughtering of goats and sheep.
He was married in 1996, and then separated after he came to Australia. His wife was from Brong Ahafo. He has [number] children living in Ghana with his wife in Sunyani.
He said that to become a chief, a person is born into a royal family on his mother’s side. This was the tradition in their family. His grandfather on his mother’s side was the chief. He is not sure who became chief after his grandfather. Asked whether his mother had brothers, he said that the ‘last one died last year’. [Relative 1] was the chief, then he died and then [Relative 2], who was [an Occupation 3], became chief. He said that when [Relative 2] died, then the elders wanted to enstool the applicant. This happened while he was in Australia. He said that his village currently has no chief.
He was asked what kind of chief he was referring to. Sources indicate that there are divisional chiefs, sub-divisional chiefs, adikrofo (chiefs of towns and villages), chiefs recognised by the Regional House of Chiefs of that area and sometimes other kinds of chiefs.[1] He said he was referring to the village chief, not adikrofo, which is a ‘bit different’.
[1] Chieftancy, Governance and Traditional Leadership Portal, The National House of Chiefs, 2018
He stated that he was first asked to be chief before they enstooled [Relative 1] as king. He heard of the desire of elders that he be chief from [Relative 2] in about 2008/9. [Relative 2] told him that whether he liked it or not he must be chief. He told [Relative 2] that he did not want to be chief as he did not want to do libations or slaughter animals. So [Relative 2] told the elders that the applicant had refused. The applicant never spoke to the elders or villagers himself. He said that elders monitored his movements in [Town], where he was working. He knew this because he saw some of them. His siblings were aware that the elders wanted him to be chief, and gave him information. He said that after that they appointed [Relative 1] they left him alone. There were no difficulties for him between 2008/9 and 2012 as [Relative 1] was chief so he was not approached.
The applicant said that his brothers were not asked to be chief as they had moved away. He does not know why the elders wanted him particularly. His father had died by this stage. His mother did not want him to be chief, and none of his siblings supported it.
Asked if the approach in 2008/9 was the only approach by the villagers, he said that they came every two to three months before the approach and before [Relative 1] was made chief. He was asked why he had told the Tribunal that he never spoke to them. He said that he heard from his mother, [sibling] and [Relative 2] that they wanted him but he did not speak to them. Then, [Relative 2] approached him with the specific request in 2008/9. He said that while [Relative 1] was the chief there were no problems from the villagers. However the applicant was still worried that the villagers would approach him.
He said that when a person is appointed chief, he dies soon after. He does not know why but believes they are cursed. He does not know how [Relative 1] died but believes he was cursed.
He found a recruitment agency recruiting [Occupation 1] to travel to Australia. He travelled to Perth for this work in 2012. He thought that this would be the end of requests to be chief as he would not return to Ghana. He returned to Ghana in 2013 to renew his driver’s licence. He stayed in Accra. He did not inform his siblings and did not visit his mother or children. He said that he had to hide himself. He was asked why he was concerned about being harmed if someone else was chief. He said that if you are not a Christian you can have no problem of pouring libation. Asked if he did not want to visit his family or children he said that he would not have peace.
He said that no-one has been chief since October 2016 because it is ‘the line and up to us’. Asked why his brothers or cousins have not been appointed, he said that he did not know. [Sibling 6] was told that he should be chief as he is not working, and he refused.
He said that there is no pressure on him while he is out of the country. Asked why they would still be interested in him if so much time has passed and he has been away from the village, and if he could not just say no to the elders, he said that there is no-one else. Asked how [Sibling 6] could say no without repercussion, he said that he was being asked to take the place of [Relative 2]. Asked if the fact that his brothers have not been harmed does not reassure him that he would not be harmed, he said that it is because he has been specifically chosen for his personality and other attributes.
He was asked if he could approach the Regional or National House of Chiefs[2] which resolves chieftancy disputes. He said that this is to do with land disputes only.
[2] Chieftancy, Governance and Traditional Leadership Portal, The National House of Chiefs, 2018
The Tribunal put to the applicant that he applied for the protection visa after his visa was cancelled in 2016, despite being in Australia since 2012. This does appear as if he applied for protection as a last resort to stay in the country, rather than out of a genuine fear of serious or significant harm. The applicant said that he thought that he would get permanent residency within two years through his company. For this reason he did not put in a protection visa until his employment visa was cancelled.
The Tribunal asked the applicant what would happen to him if he refused to become chief. He said that it would not be easy. He said that they ‘put you in the chair and that is it, then you are chief’. The Tribunal asked him a number of times if he could explain what the repercussions would be if he refused the chief position. He said that he could not say. He said that it is ‘easy to pass away in a short time’, and he thinks that he would be the victim of a curse.
He was asked if he could not live in a different part of Ghana to avoid the harm, like he did while he was living in the country. He said that his mother is in the village and he could not return without visiting her. He said that it would not be easy to live somewhere else.
The Tribunal referred the applicant to the Economic Community of West African States (ECOWAS) protocol. It was put to him that under the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in a third country, such that he could have taken such steps in regards to [Country 2], or one of the other ECOWAS states. Asked to comment, he said that Africa is not safe generally and he could not have gone to an ECOWAS country.
Asked if he would like to provide any further submissions on any matter, he said that he wants to have peace in Australia, which he could not find in Ghana. He emphasised that he would abide by Australian laws and policies.
Independent country information
The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.
FINDINGS AND REASONS
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk of significant harm.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is not bound by legal forms and technicalities or rules of evidence, in reaching a decision, although it is guided by them. The Tribunal may take into account any matter relevant to the issues to be determined, and considers all of the evidence before it in order to make the correct or preferable decision.
The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
The applicant provided a copy of his passport and gave evidence that he is a citizen of, and born in, Ghana. The Tribunal is satisfied on the basis of the passport and other documentation provided, as well as the applicant’s knowledge of the country, that the applicant is a citizen of Ghana, and that Ghana is the receiving country for the purposes of the legislation.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[3] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[4]
[3] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[4] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[5]
[5] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86
The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[6], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts. Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). Considering the totality of the evidence, the Tribunal is not satisfied that the applicant was asked to be chief of his village or that he suffered any adverse consequences from refusing to do so. The reasons for this are as follows.
Firstly, the applicant’s account of what took place in Ghana in relation to the requests for enstoolment was fragmented, and he was not consistent in his various accounts of what took place. The Tribunal has taken into consideration that psychological research on memory of trauma[7] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Further, the Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[8] In this case however the applicant is not claiming that he has suffered significant trauma, although he says he was not at peace and his memory may be disrupted by time, stress in relation to the Tribunal proceedings or other concerns. Further even taking into account possible fragmentation and disruption of memory, the Tribunal would expect that the applicant would recall clearly how and when he was approached to take up the chieftancy, as this is a fairly significant event. However his evidence before the Department was significantly different from what he told the Tribunal.
[7] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661, Brewin, C, The nature and significance of memory disturbance in posttraumatic stress disorder, (2011) 7 Annual Review of Clinical Psychology 203
[8] Cameron, H.E., Refugee Status Determinations and the Limits of Memory, 2010, International Journal of Refugee Law 469
In his Department evidence he said that in 2002 there were attempts by his maternal relatives to abduct him by force on several occasions to become chief, including once when he was on night shift, and he escaped and went to the police. He said that he had to play hide and seek with the elders until he left the country. However in his evidence to the Tribunal he said that the first approach to him was in 2008/9 through [Relative 2] and he never spoke directly to the elders. He said that after [Relative 1] was appointed chief, he was left alone. The Tribunal put these inconsistencies in his evidence to him under the natural justice procedures set out in s.424AA of the Act. The Tribunal explained to him that these inconsistencies caused the Tribunal to question whether he was approached by elders at all, as it would be expected that he would recall if he had been forcibly abducted and how approaches were made. He said that he did mention that [Relative 1] said that he had no choice. Even taking into account that it is easy to forget dates and details, the Tribunal is not satisfied that the applicant would not recall that first approaches were made to him six years earlier than the date he told the Tribunal, and that these approaches involved force which he followed up by reporting to police. The Tribunal does not accept that he would not remember that he was actually approached by the elders rather than stating he had no direct contact with them. Finally, the Tribunal would expect him to recall if the elders continued to harass him until he left the country or left him alone, however the evidence on this differs.
Secondly, the Tribunal has taken into consideration that the applicant returned to Ghana in 2013. It is not usual for a person who fears persecution to return to the location of that persecution. While not conclusive, the fact that he did return to Ghana does suggest that he did not believe that he would be harmed if he returned.
The applicant initially told the Department that he returned in 2013 to visit his mother, siblings and children. He later said that he returned to renew his driver’s licence and stayed in Accra, without contacting his family. When the Tribunal put this to the applicant under the s.424AA natural justice procedures, he said that he thought he had said that he went back to renew his licence. The discrepancy does cause the Tribunal to question whether he had changed his evidence to bolster his claims for protection by suggesting that he had to hide, when in fact he had visited his family. It does seem, given all the other evidence in its totality, that he would have visited his family on return to Ghana, as he originally told the Department, as he has close relatives there such as children and his mother. This evidence, while not conclusive, does suggest that he did not have a genuine fear of serious harm.
Thirdly, in his most recent evidence at least, the applicant did not suggest that he had been harmed while living in Ghana, even though he had refused the chief position. According to his most recent evidence, he refused the chief position in 2008/9, which was communicated to the elders. They then appointed someone else, and left him alone until he travelled to Australia, although he said he was ‘not at peace’. He has indicated that he was working for [Employer 3] in [Town] before travelling to Australia. This does suggest that besides some sense of fear, he did not suffer any consequences for refusing to be chief.
Fourthly, country sources, while not definitive, do indicate that the selection process takes into account willingness as well as other factors besides lineage, and there are no adverse repercussions for refusing the offer of the position of chief. There are approximately 92 separate ethnic groups in Ghana so it is not possible to make generalised findings about the chieftaincy rules that govern each group.[9] However, the applicant has identified as part of the Akan ethnic group. The Akan are the largest ethnic group in Ghana, accounting for 47.5% of the population.[10] According to sources, the position of chieftanship does not automatically revert to the son of the previous chief, and is based on the mother’s royal lineage. Candidates are selected by the Queen Mother and may be subject to approval by the local community. Queen Mothers advise chiefs and act as moral leaders and are not necessarily the mothers of the chief.[11] The Queen Mother consults with members of the royal family and elders, and they look at personal characteristics as well as lineage. An article in the Nordic Journal of African Studies states that the chiefs are mostly elected after consulting all the families and everyone has the right to express views. A few representatives are then selected to consult the Queen Mother.[12]
[9] Asante R & Gyimah-Boadi, E, United Nations Research Institute for Social Development, Ethnic structure, inequality and governance of the public sector in Ghana, 2004, p.8
[10] CIA, CIA World Fact Book Ghana, 1 May 2018
[11] Volta Digest, The Chieftancy Institution in Ghana, 18 August 2015
[12] Vehnamaki, M, Nordic Journal of African Studies, Culture and Economic Development in Ghana: The Conventional Wisdom Revisited, , 8 (1), 1999, p.63
The information provided by the applicant (Immigration and Refugee Board of Canada, GHA31879.E, Ghana: Selection of chiefs among the Twi; whether a person can refuse to be chief, and role played by the chief in religious rites), also indicates that at least among the Twi, elders hold a meeting to choose a chief, and they then hold a meeting with the Queen Mother where they considered all eligible candidates in turn and chose the one most suitable, based on intelligence, humility, generosity, manliness and physical prowess. The Queen Mother would then send a recommendation to the kontihene, an elder.
The applicant was asked to comment on these sources, which indicate that the process involves selection based on a number of factors. He said that he has many siblings, but the elders wanted him. The Tribunal is not satisfied that the elders would continue to demand that he be chief if he was unwilling, considering that multiple factors are taken into account, as set out in these sources.
The applicant provided a copy of an RRT Research Response dated 3 August 2009 to the Department (GHA35054). There was a reference in the paper to an article in The Ghanaian Chronicle dated 27 January 2006 reporting that a former mayor and parliamentary candidate was abducted in order to force him to occupy the chieftancy of the Teshie Traditional Area. The report also referred to reports of a famous broadcaster dying in mysterious circumstances in a bid to install him on a stool. As put to the applicant at hearing no other reports were found in the sources regarding incidents of forced enstoolment or harmful repercussions for refusing the chief position.[13] In fact country sources also suggest that a person may turn down the offer of chieftancy if a person is a Christian and does not want to pour libation on a stool of the dead chiefs or perform rituals that are perceived as non-Christian. About 71% of Ghana is Christian, such that Christianity and tribal beliefs often interact. The information suggests that a person who refuses to become chief due to religious beliefs will not suffer adverse consequences. Academics quoted by the Immigration and IRBC state that people are not forced into accepting chieftancy.[14] For example, in May 2017, a professor of political science at the University of Ghana stated that to his knowledge, ‘one is free to accept or refuse a chieftaincy position in any part of Ghana’ and that state protection is therefore not needed in this field. [15] A social anthropologist at the University of Ghana similarly states that the ‘recalcitrant individual may be persuaded to accept the office but no one to my knowledge can be compelled to accept the office’.[16] The IRBC report quotes a professor emeritus of anthropology at Haverford College in the US as stating that ‘nobody would be penalized for not wanting the job.’[17]
[13] Sources searched include CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), the United States Department of State reports, NGO and human rights organisations, local news sources and major newspapers
[14] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
[15]Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
[16] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
[17] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
A senior lecturer at the University of Ghana’s Department of Sociology advised ‘there is no physical punishment for refusing a traditional position’, however:
[t]radition hardly allows an unwilling chieftaincy candidate to have his way simply because the candidate’s refusal to accept a chieftaincy position is a denial of a whole family, or section of it (ruling/royal gate) of such an opportunity and subsequently, denies such a family or a section of it the opportunity to present candidates for the particular chieftaincy position.[18]
[18] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
A 2009 Operational Policy Guidance Note published by the UK Home Office reported that ‘there is no specific evidence that individuals who claim they are persecuted by family, community or tribal leaders to become the next chieftain or high priest in fact encounter mistreatment.’[19]
[19] UK Home Office, Operational Guidance Note: Ghana, 29 January 2009, p.7
In 2006, an instructor in sociology at Camosun College in Victoria, British Colombia and former senior lecturer at the University of Cape Coast in Ghana advised:
The usual method for a person who does not want to accept an offered office is to travel so as to avoid the possibility of being offered the position. The elders are quite aware of this method, and incorporate it into their deliberations. [In] their minds, it is preferable that not many contenders, who will have different groups of supporters within the clan, are around to mess up the replacement process (e.g., enstoolment). To maintain their pride and face, the persons running away will exaggerate the danger to themselves of refusing a proffered office....
There is no practice of punishing persons for running away before being offered a position as chief or elder, including female positions such as Queen Mother. If the chosen person is not bright enough to run away, and wants to refuse office, the usual practice is for him or her to offer a sheep to sacrifice to pacify the annoyed ancestors, and that is the end of it. There is no need for state protection because there is no punishment. The disappointed elders may express their irritation, but it happens so often, they usually sigh and are resigned to the fact. [20]
In 2012, the instructor in sociology confirmed that this information remained accurate.[21]
[20] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
[21] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
In 2006, an associate professor of anthropology at York University in Toronto is quoted as stating that he is aware of circumstances in which it is acceptable to turn down a chieftaincy, noting:
On the personal level, a person refusing/turning-down such a position (without "good," i.e., community-acceptable reason: e.g., I knew a man who stepped down from a major chiefship and the community, with regret nevertheless accepted the decision, because they saw the merit of his "reason," which was that he did not have much formal education, was illiterate and felt that put h[imself] and his people at a disadvantage vis-à-vis other chiefs, people and Government) may be socially ostracised (they are putting their kin group and community at disadvantage and risk, and may also be costing them economic benefits, so life thereafter for that person may be quite unpleasant), perhaps driven away.[22]
[22] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
The applicant, when asked to comment on these sources, said that it depends on the family as to whether it will be easy to refuse the offer of chieftancy. For example if he had other cousins then it would be ‘fine’. He said that people who travel are regarded differently and seen as appropriate choices for chiefs.
The Tribunal notes that Ghana has a significant Christian population and that sources indicate that Christianity has increasingly shifted from the religious periphery to assume an important role in Ghanaians’ lives.[23] Information indicates that Christianity would not prevent a person accepting chieftancy, although it may be offered as an excuse for refusing an offer of chieftancy.[24] The Tribunal accepts the applicant’s contention that what takes place depends on the family and village involved. However considering all this country information in the context of the applicant’s narrative about his past, the Tribunal is not satisfied that he suffered any repercussions in the past for not accepting a position of chief.
Does the applicant have a well-founded fear of persecution for reasons of his religion, or for reasons of membership of a particular social group of persons in line for chieftaincy (or a similar group)?
[23] See for example, Social responsibility in the Christianised Akan Ethnic Culture of Ghana, by Joseph Quayesi-Amake, fn 13 above
[24] Canada: Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftancy position, and whether there is state protection available, 16 August 2012, GHA104154.E, available at: >
Under s.5H(1) of the Act, 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.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·the real chance of persecution relates to all areas of a receiving country.
Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
The Tribunal is not satisfied that there is a real chance of persecution if the applicant returned to Ghana. The reasons for this finding, which have been considered cumulatively, are set out below.
Firstly, the Tribunal is not satisfied that the applicant has suffered any harm in the past as a result of being unwilling to take up his role as chief. In fact he lived there from 2002 to 2012 without suffering any harm. In his original claims he said that in 2002 there were attempts to forcibly enstool him. He told the Tribunal that he was asked to be chief in 2008/9. In any event he confirmed that another relative was appointed and he suffered no adverse consequences except a sense of unease. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559: ‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’
Secondly, the country sources indicate that persons are not forcibly enstooled as set out in the country sources referred to earlier in this decision.
Thirdly, a number of sources, referred to earlier in this decision, suggest that persons who refuse to take up the role of chief when requested to do so are not subjected to violence or other forms of persecution. At most, there may be some ostracism, which would not reach the level of serious harm required by the Act. There is also no reference in the sources cited of curses which result from taking up the chieftaincy.
Fourthly, the applicant has returned to Ghana once without any repercussion.
Fifthly, other members of his family have not suffered harm even though he claimed that [Sibling 6] was also approached to become the chief. He said that [Sibling 6] had refused to become chief, but there has been no evidence that he has been harmed for this refusal.
Sixthly, seven years have elapsed between the applicant’s arrival in Australia and the application for protection. The Tribunal notes that he claims that the pressure to become chief heightened after the death of [Relative 1] in 2014. However he earlier claimed that he had been asked to be chief as early as 2002. The applicant has said that he expected permanent residency in Australia through his employment. While it is understandable that he may have been hoping for such an outcome, if he had a genuine fear of persecution, it would be expected that he would have applied for protection earlier, although this is not the sole reason for finding that the applicant’s claims are not credible, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346.
In light of all these factors considered cumulatively, the Tribunal is satisfied that the chance of harm would be insubstantial, remote and a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379). The Tribunal is not satisfied therefore that there is a real chance of serious harm for any of the reasons set out in the legislation were the applicant to return to Ghana in the reasonably foreseeable future.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation. Therefore the applicant does not meet the refugee criteria.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criteria he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 (‘the complementary protection criteria’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
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.
The Tribunal has not accepted that the applicant has suffered any repercussions in the past for refusing to take up the chieftancy, for reasons set out earlier in the decision. The Tribunal is also not satisfied that there is a real chance of serious harm if the applicant refused to be chief, were the applicant to return to Ghana in the reasonably foreseeable future. For the same reasons as set out earlier in relation to ‘real chance’, the Tribunal is not satisfied that there is a real risk of significant harm were the applicant to be removed from Australia to Ghana. Although there may be some ostracism in the village, this does not reach the level of significant harm envisaged by the legislation.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana there is a real risk of significant harm. The applicant thus does not meet the complementary protection criteria.
CONCLUDING PARAGRAPHS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard

Member
ATTACHMENT A
CRITERIA FOR A PROTECTION VISA
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.
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).
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, which are extracted in Attachment B.
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), which are extracted in Attachment B.
Mandatory considerations
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4755

10 October 2019

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Immigration

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