1620600 (Refugee)

1620600 (Refugee) [2020] AATA 1582 (11 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620600
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Jane Marquard
DATE:11 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 February 2020 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – persons in line for chieftaincy – religion – refusal to become village chief – forced enstoolment – physical assault – fear of killing – torture by security forces – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs FCA, 1997
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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 [an age]-year-old man from Accra, Ghana.
He first arrived in Australia [in] March 2015 on [temporary] visa. He was unlawful from [later in] March 2015 to [April] 2016. He has a Ghanaian passport issued in Accra [in] 2012 and which expired [in] 2017.
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 14 April 2016. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 17 November 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. A summary of the relevant law is set out in Attachment A and an extract from the Act is set out in Attachment B.
CLAIMS AND EVIDENCE
The evidence in this matter includes the application, supporting documents and an interview with the Department, evidence provided to this Tribunal including oral evidence at a hearing on 16 October 2019, and independent country information.
Evidence to the Department
A summary of the evidence provided to the Department is as follows.
The applicant stated that he was born in Accra in [year]. He lived in the [Region 1]. He is a Christian and from the Ewe ethnic group.
He attended primary and middle school in Accra ([at a named] Primary School). He finished school in [year]. From [specified year] to 2011 he worked as a [an occupation 1]. From 2011 to 2015 he worked [in another job].
His father has passed away but his mother and [family members] are still residing in Ghana. He also has [specified children] – [names and years of birth].
The applicant claimed that he left Ghana to avoid the responsibility and task of being enstooled as chief in a village in the Volta region, where his father had left him land. He visited this region twice a month to deal with tenants in their house. He said that his uncle died in [2014] and as a direct descendant of the late king, he was asked to be chief and take over from his uncle who had been chief for [many] years. His uncle had no sons. The applicant was worried about duties such as slaughtering animals and ‘other activities’ which he thought would be inconsistent with his values. He refused the offer when asked and was threatened by the ‘king-makers’.
He claimed that if he returned he would be forced to become chief ‘against my own volition’. If he refused, he would be subjected to all forms of physical and emotional abuse as refusal would be regarded as blasphemous. In extreme cases death could be the consequence, but in most cases there is ostracism, torture and detention.
He claimed in his application forms that he had been publicly mobbed and threatened on several occasions. He left to avoid harm. He said that he had been lynched in public and detained on numerous occasions. He had to struggle with security forces on numerous occasions ‘to avoid being heckled’. The security forces called in to stop the riot ‘brutalised and tortured’ him. He claimed that he was detained and tortured for several days after his release.
At the Departmental protection visa interview, the delegate sought further details. He said that he was first kidnapped in January 2015. He was tied with a rope in a small room in a house for four hours. His sister reported it to the police, who arrived and were stoned by supporters of the king-makers. The police then left. The applicant found a way to escape. His abductors were not there so he took off the rope and ran away. He returned home, but the ‘boys around the kings’ came looking for him. His sister said that he was not there, but they broke down the door and ‘arrested’ him ‘for the second time’ and they kept him for two hours. He told them he did not want to slaughter animals and pour the blood for a sacrifice. They said they would force him. He pleaded with a bodyguard who allowed him to run away. He went to live with a friend for two days, but his friend had a wife and children so he left for his house in Accra. His sister said the bodyguards had been looking for him. He slept in the house until he left for Australia. They did not come at night [when] he was there, and so did not find him. During the day he drove somewhere, parked and sometimes slept. At the time he was also working, [which involved travel] from Accra to the Volta region. They did not find him at work as the road is in a different direction.
He said that at work he was insulted because he had refused to be enstooled. He was unable to seek protection as the security agencies cannot be trusted due to corruption. He claimed that he would be sought out wherever he lived in the country. Asked by the delegate if there would not be a new chief in place, he said that they had to enstool someone prior to burying his uncle. He said that it can be four or five years before they find the right chief.
Asked why it took him over a year to apply for protection, he said that he did not know if he would be sent back if he told his story.
Findings of the Department
The delegate found that the applicant’s testimony in regard to the kidnapping and detention was not convincing. The delegate also found on the basis of country sources that there was no well-founded fear of persecution.
Evidence before the Tribunal
A summary of the evidence before the Tribunal is set out below.
The applicant confirmed that he was born in Accra in [year]. His parents came from [a town] in Volta, which is about [a few] hours from Accra, and moved to Accra before he was born. His father was [an occupation] and his mother [another occupation]. His father passed away [number] years ago. He grew up in Accra and they visited the home town in Volta monthly.
He has [specified family members]. [They] live in the Accra region. [Their occupations and marital status.]. He speaks to his mother and sisters when his sisters are visiting his mother, as his mother does not know how to use the telephone. His grandparents, uncles and aunts have passed away but he does have cousins in Ghana. His mother is now living in Volta although she has no family there, as the applicant could no longer pay her rent in Accra.
The applicant is a Christian and from the Ewe ethnic group. He attended the ‘[named] Church’. He attends the [named] Church in Australia.
The applicant was living in [Region 1 in] Accra prior to coming to Australia, with a [named child]. When he left for Australia she went back to [other family]. He has another [child], who is [age] years old and living in Accra with [a relative]. [That child] is [working]. He was never married. His [children] call him ‘some times’.
He attended primary and middle school in Accra but not secondary school. He finished school in [year]. After that, he learnt the trade of [occupation 1]. Then he worked in Accra for about [number] years with the person who had given him the apprenticeship. After that he bought [equipment] as a commercial venture, and ran this business until he came to Australia. [This] was sold after he came to Australia and he gave the money to his mother.
During the time the applicant was working as [an occupation 1] and [another job], he visited Volta often as he would [travel] there from Accra. He had a room in Volta which he inherited from his father. He also owned another building which he rented out. He said that he had friends in Volta.
The applicant confirmed that he left Ghana because the villagers wanted him to be the chief in the [named] region after his uncle, who was the chief, passed away in [2014].The Tribunal asked the applicant what kind of chief he was asked to be as 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 that he was asked to be the chief of the village. He said that the village chief counsels and provides advice, and is the head of traditional events. He said that if his uncle had a son, he would have been next in line, but he did not and therefore the applicant was the next heir in their family. The elders in the village who know the traditions, discuss and decide who will be the next chief.
[1] Chieftancy, Governance and Traditional Leadership Portal, The National House of Chiefs, 2018
The applicant said that he was asked by elders one month after his uncle died, while he was visiting the village. He did not want to take up the role, because the position involved killing goats and other traditions he did not like. He told the elders that he was not happy with the request, but he would think about it. There was no other contact between them until his next visit to the village.
He said that on his next visit to the village, the elders sent someone to call him. They said to him that they had not been given an answer, and he then told them that he did not want the role because he did not like killing goats, walking through blood and pouring libation. Then an argument ensued. Because the applicant did not want to be chief, the villagers were not happy with him. Asked why they would not just choose someone else for the position, he said that it was because it was his family’s turn to be in line for the position.
He said that he left the village after this encounter. On his next visit to the village in December 2014 he was at home when more than four villagers got hold of him and locked him in a room in the chief’s palace, which is very large with many rooms. His sister who was in the village at the time, reported his abduction to the police. The police arrived, but a crowd of people had gathered and they misbehaved and threw stones at the police. The police had to leave and did not return. The applicant was kept locked up indoors for four hours. His hands were tied together but he was able to untie himself, open the door and run away. He went home to get his things, but the elders followed him there. His sister told them that he was not home but the elders found him and took him again to the same room for about two hours. This time they beat him. One of the bodyguards who offered security for the chief asked him why he did not want to be chief. He told this bodyguard that he did not like the traditions such as killing goats. The bodyguard had sympathy for him, and released him on the condition he not mention his assistance. The applicant then fled to Accra. Asked how he could escape without villagers seeing him, he said his sister called the police. Asked if the police came to the house both times he was taken, he said that it was the second time that the police came and not the first time he was abducted. He then told the Tribunal that he had made a mistake and it was the first time he was abducted that the police came. He confirmed that the second time he was abducted the police did not arrive. Asked how he escaped without people seeing him the second time, he said the bodyguard helped him escape. He said that he does not know how to explain but the village is not a big place and he could manoeuvre his way out. His sister went with him.
The applicant said that after his abduction, he had aches and pains in his body, and he went to the hospital but was ‘fine’. Asked if he had a medical report from this visit, he said that he did not. He said that the next day he went to work. When he returned his daughter told him that people had visited his house. After that he did not sleep at home and he lived with a friend for two days. He said that he would work, stay in the car for some time, sleep then get up again at 4am. He said that this went on until he left for Australia two months later. He did not speak to the police in the Volta region because his sister had already called them. He did not return to Volta but continued to work in Accra. He had no further contact with elders from Volta after these incidents. When his sister visits his mother, she is able to tell him what is happening there. Asked why his mother would go and live there after this incident, he said that she had to go there a year later because he could not pay the rent in Accra.
He said that as he refused the chieftaincy, it went to the next family in line and a different chief was appointed. The chief, who is not his relative, lost a child, and does not do certain things expected of him as a chief because of this tragedy.
He was asked why he still fears returning to Ghana if his village has a new chief and five years has passed so that the elders may no longer be interested in him. He said that he would like to go back to Volta as the land has an [orchard] and he needs to attend to the building, and he would be seen. He said that the current chief refuses to do what he is supposed to do because of the loss of his child. Thus the applicant fears he will be forced to take up the chieftaincy. The Tribunal asked the applicant if the elders would not just move on to select a chief from a different family, as they did before when he refused to be chief. He said if he returned they would make him do it, as he is the one who is ‘supposed to be doing it’.
The applicant said that he was a [member] in [a working group] that [conducted projects]. There was a [job] in [Australia] at which this group was supposed to [contribute]. They applied for a visa to Australia in 2014 and [worked here]. Asked if an agent in Ghana helped him apply for the visa, he said that the [group] included him in the plans. After arrival in Australia, he decided not to return to Ghana because of what had happened to him. He does not know if the other [working group] members returned to Ghana.
He said that it was difficult to just ‘get up and go’ and relocate to another part of the country and he would need money to do this. 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 Nigeria, or one of the other ECOWAS states. Asked to comment, he said that he had a lot of thoughts about where to live. The countries surrounding Ghana are French which he does not understand. English is spoken in Nigeria, but it is not safe.
Asked if he would like to provide any further submissions on any matter, he said that he mentioned the public beating when he spoke to the Department, but he cannot remember everything he wrote in his application, which is why he had to speak again about this. He thanked the Tribunal for the opportunity to appear and give evidence.
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 criterion, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion, 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’.[2] The benefit of the doubt should however 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’.[3]
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[3] 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.
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,[4] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
Findings of fact in relation to the claims
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal accepts the applicant’s evidence that he is a Christian. He has given evidence of attending church in Ghana and Australia, and the census in 2010 showed approximately 71% of Ghana is Christian.[5] According to the official government website of Ghana the Ewe people are ‘mostly’ Christian.[6] The Tribunal also accepts his evidence about residence, family composition and employment background in Ghana.
[5] Census, 2010 referred to in the United States Department of State, Ghana International Religious Freedom Report, 2018, 21 June 2019
[6] Government of Ghana Official Portal, Introduction,
Considering the totality of the evidence in line with the decision in Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) 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 request for enstoolment and the consequences, differed in his account of it to the Department and Tribunal. In his Department application, he said that he was ‘publicly mobbed’ and ‘lynched’ and ‘detained’ on numerous occasions. He said that he struggled with security forces to avoid being heckled. He said that the security forces who were called in to stop the riot, brutalised and tortured him. He said that he was detained and tortured for several days. When asked at the interview with the Department to describe the harm he suffered, he referred only to the harm suffered by elders, and police arriving and being stoned by crowds, and then leaving. This evidence was similar to his evidence at the Tribunal hearing. There was no reference to being detained, tortured or otherwise harmed by security forces. When asked about this by the Tribunal pursuant to natural justice provisions, he said that he could not remember everything he had written in his application but had described to the Tribunal what had happened. This does not explain why he told the Department that he had been harmed by the security forces. The Tribunal notes that there may be instances where applicants have lied or exaggerated about one aspect of the evidence, which may have been the case here in the application forms. 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.[7]
[7] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
However, where the evidence is significantly different in regard to key issues, it does call into question the veracity of the evidence, particularly when considered cumulatively with other factors. There are other aspects of the applicant’s evidence which caused the Tribunal to question whether the request for enstoolment and the adverse consequences in fact took place. For example, when questioned about the attendance of police during his abduction the applicant said that in December 2014 he was at home when villagers got hold of him and locked him in a room in the chief’s palace and his sister reported his abduction to the police. He said that the police arrived, but a crowd of people had gathered and they threw stones at the police and the police had to leave and did not return. He said that he then escaped but was abducted a second time, was released by a sympathetic bodyguard and fled the village. When asked by the Tribunal how he escaped the village without being seen, he said that his sister called the police. Asked if the police came to the house both times he was abducted, he said that it was the second time that the police came and not the first time he was abducted. He then told the Tribunal that he had made a mistake and it was the first time he was abducted that the police came and confirmed that the second time he was abducted the police did not arrive. The Tribunal has taken into consideration that psychological research on memory of trauma[8] indicates that inconsistencies, fragmentation of memory, lapses in memory and lack of specificity do not necessarily reflect lack of veracity in relation to recalled events. Psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[9] The Tribunal has taken into account this research, however the presence of police is a significant event in suffering of harm such that the Tribunal would expect that the applicant would recall with some degree of clarity when police were called to assist him when he had been abducted.
[8] 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
[9] Cameron, H.E., Refugee Status Determinations and the Limits of Memory,2010, International Journal of Refugee Law 469
Secondly, the Tribunal has taken into account the delay in applying for a protection visa after the applicant arrived in Australia. If it was the case, as claimed by him, that he had a genuine fear of serious harm if he returned, and he overstayed his temporary visa to visit Australia for this purpose, then it would have been expected that he would apply at the earliest possible opportunity for protection. He has said that when he came to Australia he did not know the laws of Australia and that a person he spoke to in regards to his situation put more fear in him and made him confused. The Tribunal acknowledges that a person visiting Australia may be confused about Australian law. However the applicant travelled to Australia with a valid visa with other Ghanaians, and has said he remained in Australia because of his fear. It would be expected that he would have found out information from friends, the Department or internet searches. While not definitive nor the sole reason for finding that his claims of forced enstoolment are not based in truth, the fact that he delayed applying for protection does suggest that his claims have been formulated to meet the protection criteria rather than being claims based on genuine fear of returning.
Thirdly, the Tribunal has taken into consideration that if the elders abducted him twice, and wanted to harm him for his rejection of the chief position, as claimed, then it is not clear why they did not follow this up by harming him while he was in Ghana prior to coming to Australia. When asked about this, he said that humans can change and he needs to look after himself as he does not know what people think. This explanation does not clarify why the elders did not harm him while in Ghana. Even if he was sleeping in his car at times, and moving around as claimed, he did continue with his job and was in Accra for two months prior to arrival in Australia such that it is likely that there would have been opportunity for elders to find him and harm him if they in fact had the desire to do so.
Fourthly, country sources, while not applicable in every circumstance, indicate that the selection process for chiefs, takes into account willingness as well as other factors besides lineage, contrary to the claims of the applicant. 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.[10] However, the applicant has identified as part of the Ewe ethnic group, one of Ghana’s five main ethnic groups, accounting for about 14% of the population.[11] According to sources, the position of chief is based on patrilineal lineage, as suggested by the applicant. The founder of the community is chief and is usually succeeded by paternal relatives. The chief is a ceremonial figure and is assisted by a council of elders.[12] While the Ewe were among the first converts to Christianity in Ghana,[13] some Ewe tribe members continue to practise a traditional religion called Tro.[14] According to the website Easy Track Ghana, the Tro religion is ‘organized around a creator deity, Mawu, and over 600 other deities.’[15] Elders generally find someone willing to be the chief if a requested chief refuses the position.[16] This information does suggest that the applicant’s willingness would be a factor to be taken into consideration by the elders in the Ewe community, although the Tribunal accepts there may be variables in practice.
[10] 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
[11] CIA, CIA World Fact Book Ghana, 1 May 2018
[12] News Ghana, Ethnic Groups Ewe,
[13] Levinson, D 1998, Ethnic Groups Worldwide, Oryx Press, p.174,
[14] Every Culture n.d., Ewe and Fon - Religion and Expressive Culture,
[15] Easy Track Ghana, Tribes, Rastas & Religions, 17 June 2012
[16] Immigration and Refugee Board of Canada, GHA 41613E, Ghana: Stool mothers within the Ewe ethnic group; selection process, average age, marital status and consequences of refusing the position, >
Fifthly, sources indicate that generally there are no adverse repercussions for refusing the offer of the position of chief. As was put to the applicant at hearing, since 2009 there have been no reports found in the sources regarding incidents of forced enstoolment or harmful repercussions for refusing the chief position.[17] In fact country sources suggest that a person may turn down the offer of chieftaincy 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. Academics quoted by the Immigration and Refugee Board of Canada (IRBC) state that people are not forced into accepting chieftaincy.[18] 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.[19] 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’.[20] 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.’[21]
[17] 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
[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
[19] 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
[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
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.[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 201
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.’[23]
[23] 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. [24]
In 2012, the instructor in sociology confirmed that this information remained accurate.[25]
[24] 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
[25] 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.[26]
[26] 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 updated advice provided to the IRBC in 2012, the associate professor provided the following information about the consequences of refusing a chieftaincy, noting that depending on the rank of the chieftaincy position refused, the individual may be driven out of their community:
The "consequences" of refusing/misbehaving, then, increase with the greater level of chiefship concerned.
On the personal level, a person refusing/turning-down such a position 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…. In 14 August 2012 correspondence with the Research Directorate, the Associate Professor further explained the socio-economic consequences that may result from someone's refusal to accept a chief or priest position. According to the Associate Professor, chiefs or priests and their "kin group" are seen by the community as "owners" of a god, fetish, and/or shrine, and as such they receive money and gifts from pilgrims (Associate Professor 14 Aug. 2012). If a designated person refuses to take on a chief or priest position, members of the community "may question the legitimacy" of the shrine, the god or the fetish in question (ibid.). As a result of this lost [sic] of "credibility," the pilgrims may turn to "competing" shrines, depriving the "kin group seen as owner of the god/shrine" from the money and gifts usually received from pilgrims (ibid.). The Associate Professor stated that therefore, someone's refusal to accept a chief or priest [sic] position has an impact on the whole community (ibid.).[27]
[27] 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

As discussed, Ghana has a significant Christian population, including most Ewes, and sources indicate that Christianity has increasingly shifted from the religious periphery to assume an important role in Ghanaians’ lives.[28] Information indicates that Christianity would not prevent a person from accepting chieftaincy, although it may be offered as an excuse for refusing an offer of chieftaincy.[29] Interviews were conducted with several Ewe people by an international development consultant for the IRBC. He said that he found that if someone is offered a chief position and refuses there is no risk of danger or physical punishment. Elders can generally find someone willing to become the chief, and they prefer someone wealthy or educated. The international consultant found that there were no known cases of anyone being put into danger of harm or death for refusing a stool. This conclusion was supported by other academics.[30]
[28] See for example, Social responsibility in the Christianised Akan Ethnic Culture of Ghana, by Joseph Quayesi-Amake
[29] Immigration and Refugee Board of Canada, GHA104154.E, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, 16 August 2012, available at: Immigration and Refugee Board of Canada, GHA 41613E, Ghana: Stool mothers within the Ewe ethnic group; selection process, average age, marital status and consequences of refusing the position, >
The United States Department of State Report on International Religious Freedom in Ghana states that the constitution prohibits religious discrimination and stipulates that individuals are free to profess and practise their religion. The report refers to regular dialogue between leaders of religious bodies about religious tolerance. There was no reference to violent actions by communities against persons refusing to be chiefs.[31]
[31] United States Department of State, 2018 Report on International Religious Freedom, >
The applicant was provided with an opportunity to comment on the information which suggests that there are no adverse consequences besides perhaps some ostracism. He said that Ghana is a Third World country. He said that there may be information on the internet but it may not reflect reality. He said that lecturers produced these reports, but the elders have mentioned that traditional customs have been done for many generations and cannot be changed. He claimed that if something adverse happens it would be difficult to inform a lecturer and not everyone has access to the internet. He said that there are things that happen that are not right which are not found in the sources.
The Tribunal accepts the applicant’s contention that not all instances of harm may be reported or that research is not always entirely accurate. However given that there is a significant volume of information about the consequences of refusing the position of chief, including from reputable sources and a number of academics within the country, the Tribunal is satisfied that there are generally no adverse consequences for refusing the position of chief, particularly among the Ewe. Furthermore, the applicant was not harmed in Ghana for the two months he remained in the country after refusing the position. 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 the position.
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)?
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.
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 (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent 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 in the reasonably foreseeable future for any of the reasons set out in the legislation if the applicant were to return 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 was approached for the position, refused it, or has suffered any harm in the past as a result of being unwilling to take up his role as chief, for all the reasons set out earlier in this decision. Furthermore, the applicant gave evidence that he remained in the country for two months after the alleged incidents of abduction, and suffered no harm. 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 set out earlier in this decision indicate that persons are generally not forcibly enstooled and willingness is taken into account.
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. This is particularly the case amongst the Ewe, as many people are Christian. At most, there may be some ostracism, which would not reach the level of serious harm required by the Act.
Fourthly, a year elapsed between the applicant’s arrival in Australia and the application for protection, which does suggest that he did not have the genuine fear he claims to have, particularly if he overstayed his temporary visa to visit Australia for this purpose. As discussed earlier, he has said that when he came to Australia he did not know the laws of Australia and that a person he spoke to in regards to his situation put more fear in him and made him confused. The Tribunal acknowledges that a person visiting Australia may be confused about Australian law. However the applicant travelled to Australia with a valid visa with other Ghanaians, and has said he remained in Australia because of his fear. The Tribunal is not satisfied that he has a genuine fear of serious harm.
Finally, the applicant’s evidence is that after he refused the position of chief, the elders then moved on to choose another chief from a different family, as is customary. On this evidence, there is a current chief such that the applicant would not be pressured to be chief, or harmed if he refused, if he returned. The applicant argued that the current chief is not carrying out all his responsibilities as he lost a child so has been unable to do so, and this means that the elders will revert to asking the applicant to be chief. The Tribunal is not satisfied that this would take place, as five years have passed, and the applicant’s evidence is that the elders move on to another family when there is refusal to be chief.
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 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 criterion.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion 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 criterion’).
‘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 chieftaincy 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, for any of the reasons set out in the legislation were the applicant to return to Ghana in the reasonably foreseeable future. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the types of significant harm set out in the legislation, 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 criterion.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A – RELEVANT LAW
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 themselves 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 the attachment to this decision.
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 the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B – EXTRACT FROM MIGRATION ACT1958
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 1582

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction