1621159 (Refugee)

[2020] AATA 140

1621159 (Refugee) [2020] AATA 140 (15 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621159

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Jane Marquard

DATE:15 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2020 at 7:57am

CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian – Pentecostal Church – Jehovah’s Witness – fear of relatives – fear of extreme Muslim organisations – no harm suffered in the past – country information – general religious tolerance and harmony between religious groups – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old citizen of Ghana. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 5 June 2015.

2. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 29 November 2016.

3. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee criteria or complementary protection criteria set out in the Act. A summary of relevant provisions is set out in Attachment A and an extract of the legislation at Attachment B.

   CLAIMS AND EVIDENCE

   The evidence taken into account

4. In coming to a decision the Tribunal has taken into account the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources providing information about Ghana.

   Summary of evidence before the Department

5. The applicant made claims and provided evidence in his application forms and at an interview with the Department.

6. He stated in his application forms that he was born in [Town 1], Greater Accra, Ghana. (This is a coastal region in the south-east of Ghana.) The applicant said that he is a Christian and an Akan.

7. He said that his parents are deceased. He has three children in Accra, born in [year], [year] and [year]. He lived apart from his former wife, who was also a Christian, and the three children lived with him. He left the children with his landlady when he travelled to Australia, and his wife filed for divorce. The children now live with the mother of his second [wife]. His youngest is now aged [age] and attends the Pentecostal Church. [Child A] is [age], and [Child B] is [age], and they are Jehovah’s Witnesses. He also has a brother in Accra and a sister in [Town 2]. His siblings are Muslims, and his brother has ‘teamed up’ with the rest of his father’s family in attempting to make the applicant convert back to Islam.

8. The applicant went to school at [Town 3], Accra, finishing in [year]. From January 1994 to September 2007 he was an [Occupation 1] at [Company 1]. During this time he also worked as a [Occupation 2] at a [business].

9. He claimed that he converted to Christianity at the age of [age] and changed his name from [Name 1] to [Name 2]. He said that he found the Q’ran hard to read, but the Bible easier, and he liked it. He belonged to the Pentecostal Church.

10. He claimed that his father and relatives have extreme religious views. They believe that anyone who is not a Muslim should be converted by force. Asked what he thought would happen to him if he returned to Ghana, he said that his father had always confronted him with the question of why he stopped being a Muslim, and when he would become a Muslim again. He said that he did not give his father a definite answer. His father passed away in January 2006. In December 2006 he visited the extended family in [Town 2] in the Central Region, and he was questioned by his uncles as to when he would become a Muslim again. In particular he was questioned by his uncle [who] is [age] years old and the head of the family who ‘organises people’. The family told him that they made an agreement with his father before he passed away. The applicant told the relatives that it was his choice to choose his own religion, which brought confusion in the family. He said that he notified his mother about the encounter with his uncle. She confided that she had regretted continuing her relationship with his father after he became a Muslim as he had two more wives and he became aggressive and authoritative. This information reaffirmed his commitment not to return to the Muslim faith. However his uncles continued to demand that he become a Muslim.

11. He claimed that on some occasions when going to work, he saw the same two Muslim men following him. When he confronted his uncle about them, his uncle said that they would teach him a lesson. He did not report it to the police as he did not believe they could assist as many police are Muslims.

12. The applicant fears that he will be forced into the religion of the family, and refusal will result in his death as his uncles swore to his father that they would ensure he returned to the faith. He said that his uncles have the support of the Muslim community.

13. He said that a [cousin], who married a Christian, died mysteriously without anyone knowing who killed her. She was attacked in Accra.

14. He said that while in the country he did not seek help from anyone as the authorities have no power over religious conflict. He also did not try to move to another part of the country or to another country, as the Muslim communities in Africa have links with extreme Muslim organisations like Boko Haram in Nigeria and other communities in Egypt, Libya, Kenya, Sudan and Somalia. He fears being killed by Jihadist factions for denouncement of Islam.

15. He arrived in Australia [in] September 2007 as the holder of a Temporary Business Entry visa. He said in his application forms that he travelled to Australia for business purposes.

16. Department records indicate that he was unlawful from 9 December 2007 until 26 November 2014. He lodged his application for a protection visa on 5 June 2015. When asked by the Department about the delay in applying for a protection visa, he said that he was ignorant and also had advice to apply for a partner visa.

17. The applicant said that when he arrived in Australia, he realised how ‘easily people went about their religion’, without fear of relatives. This observation made him decide to stay in Australia, where he met his wife, an Australian citizen, who is a Jehovah’s Witness. She introduced him to her religion, which he has embraced wholeheartedly.

    Documents provided to the Department

18. The applicant provided the following documents:

    • A photograph of his parents.
    • A statutory declaration from [Mr C], [Suburb 1] Congregation of Jehovah’s Witnesses, dated 8 October 2016. [Mr C] confirmed that the applicant first came into contact with the Jehovah’s Witnesses in 2010, that he maintained his commitment to the church and attended weekly Bible study classes.
    • A letter from [Reverend D], founder and head pastor of [Church 1], [Central Region], Ghana dated 26 September 2016. The Reverend stated that he had known the applicant for 13 years. He said that after the death of the applicant’s father, he visited the family and spoke to one of the uncles who told him that they had sworn to the deceased brother that they would ensure the applicant joined their religion. The Reverend also stated that the applicant’s mother approached him for help and he reported it to police who did not assist. Further, the applicant’s mother died mysteriously due to ‘maltreatment and disturbance over the applicant’s issues’.

    Decision of the Department

19. The Department accepted that the applicant converted from Islam to Christianity during his teen years and is now a practising Jehovah’s Witness. However the delegate did not accept that he suffered any harm or genuinely fears serious harm.

    Summary of evidence before the Tribunal

    Evidence of the applicant

20. The applicant provided the following additional documents to the Tribunal:

    • A statutory declaration from [Child B], the applicant’s daughter. [Child B], who was born in [year], stated that her father is a staunch Catholic and a ‘strong religious leader’. She said that after the death of her grandfather, her father was ‘compelled and mistreated to convert to Islam as his family was an Islamic family’. She said that her father told his family that he was not interested and did not want to engage with a religion that does not teach understanding, tolerance and morality. She said that her uncles threatened to teach her father a lesson if he rejected conversion, and he had to escape as his life was in danger.
    • A statutory declaration from [Reverend D]. The Reverend said that he is a childhood friend of the applicant. He said that the applicant is a devoted Christian and the applicant’s father was a Muslim, who was buried in accordance with Islamic customs without an autopsy. Consequently no death certificate was issued. The Reverend said that he accompanied the applicant to visit the bereaved family at [Town 2] in the Central part of Ghana to solve ‘trivial conflict issues pertaining to the applicant’s transition from the Islamic religion to Christianity’. He said that the applicant said that Islam does not teach understanding, tolerance and morality. His uncles were furious at this explanation as they found it insulting to Islam, and warned the applicant that he would be taught a lesson if he disobeyed the family tradition. The uncles said that they vowed to his father’s corpse to do whatever it takes to make the applicant convert back to Islamic religion. The Reverend was accused of influencing the applicant and he returned to Accra because of the accusations. The applicant’s mother notified him of the traumatic encounter the applicant had with his uncles and asked her son to stay with him. He said that the applicant had been attacked and his property was destroyed by unknown Muslim assailants. He told the police but they did nothing.

    The Reverend said that the applicant’s mother died mysteriously due to the ‘maltreatment and disturbance’ of the applicant’s ‘issue’. He said that the applicant’s cousin married a Christian and was secretly killed by some unknown assailant at [a] town in Ghana. The Reverend lost communication with the applicant after his mother’s death as she was the means of communication he had with the applicant. He was happy when the applicant called him to say that he had escaped.

21. The applicant appeared before the Tribunal to give evidence and present arguments on 12 December 2019. An interpreter assisted the hearing and the applicant confirmed that he understood the interpreter clearly. The applicant also provided written submissions. A summary of the evidence provided is set out below.

22. The applicant confirmed that his parents were born in Accra. His father was a [Occupation 3] and his mother a [Occupation 4]. The applicant was born, and lived his whole life, in [Town 1], Greater Accra, which is about [number] kilometres from the city centre. When growing up, he lived with his parents, a brother and a sister.

23. He said that prior to travelling to Australia he lived in the family home with his wife and children. He has separated from his wife and has not spoken to her since. She had problems from his family as they thought she helped him convert to Christianity. She has a new husband in Nigeria, and the children are living [in] Accra. He speaks to his elder daughter monthly and asks her about the other children. His son is living with his mother-in-law. The other children are living with a friend.

24. His grandparents and parents have passed away. He has uncles, aunts and cousins in [Town 2], about 70 kilometres from [Town 1]. His brother and his sister are also living in [Town 2]. His brother, who is a [Occupation 5], is married and his sister, [details deleted], is divorced. He is not in contact with his brother and sister. They are opposed to his move away from the Muslim religion.

25. He claimed that he grew up in a Muslim family and they were very religious. He went to a religious school called a makarantah for primary school until grade five. They learnt the Q’ran there. During the day his father would regularly attend the mosque to pray. The applicant would accompany him, and they would wash hands, feet and ears. His mother was offered a position in the mosque. The Tribunal asked him why he did not refer to the Islamic school in his application forms and he said that it was pre-primary school which he attended to grade five. His father was a ‘crier’ who would call people to the mosque, normally at 4am. His parents had to fast each year, and there were times when they had to fast, but his parents let him eat sometimes. Asked if he remembered what this festival was called, he said he did not memorise the names. Asked if through his father or at his Islamic school he was taught the most important elements of the Islamic religion, he said that he was very young and learnt the ‘a, b and c of Islam’ up to grade five. He learnt from an early age that when praying you must ‘look to where the sun comes from’.

26. The applicant said that ‘after that’ he did not continue at the Islamic school but then went to a [Christian organisation] school. He was asked why his father would allow him to attend a church school if he was very religious. He said that all children had to move to different schools after primary school as it finished at grade five. He finished middle school, then he found a job at [Company 1] loading goods. He worked there for 15 years.

27. He said that he was married about [number] years after he left school. He met his wife in Accra through friends at a church. They had a traditional marriage. His family boycotted the wedding, but he had a stand-in for his father. His wife’s family did attend. Her family were Christian.

28. He said that he quit the Islamic religion a long time ago, about 1974/5, and moved to the Church of Pentecost. He came into contact with Christianity through church crusades. He had not understood the Islamic religion, but when he listened to the crusades at the Church of Pentecost he became interested. By this time he had ceased practising Islam, and a friend had given him a Bible and he wanted to understand it more. He attended a public crusade, and thought it was interesting, so he went along to the church near where he lived. He was asked what it was he liked about Christianity that made him change his religion. He said that he did not understand the Islamic religion but he liked John 10:10 which says that Jesus came to change the world. This inspired him to belong to the Christian church. He then became a regular church member and was baptised. He did Bible study with the pastor as well.

29. He said that his mother and father knew that he was going to church. His father disagreed with him attending church, and called him and told him to cease. However the applicant continued to go to church until he came to Australia. He and his wife brought their children up in the church. His parents thought that it was unthinkable that he was Christian and they did not see his children.

30. Asked what he fears if he returns to Ghana, the applicant said that before his father died he hated the applicant for being a Christian. His father was not happy that he had left the religion as his father was a leader. When the applicant worked for [Company 1], he felt threatened, as his father said to him that there would be consequences for his conversion.

31. The Tribunal asked him why he feared returning as a Christian as he had not suffered any harm on this basis in the past. He said that there were many instances of harm. Some Muslims ‘would be following him to work, they would turn to one side when he looked at them’. He said that he knew that they were Muslims ‘at his heels’ threatening him. His mother was not happy about him being a Christian but she loved him, and told him to report threats to the police. He said that he was afraid there may be Muslim police who would not assist so he did not report it to the police.

32. Asked who he feared would harm him he said that it would be ‘the Muslims’, because his father told the Muslim community that he had forbidden the applicant to be a Christian. There was a person in his community, a cousin who had married a Christian. She was mugged in Accra and died mysteriously and no-one was punished.

33. He was asked if he could have moved to a different part of Ghana to escape the Muslim men whom he believed were following him. He said that ‘when you are targeted by the Muslims it does not matter if you move to other parts, you are known’ and there is no protection. He said that he could be tracked down.

34. The Tribunal asked why the relatives or members of the community would be interested in harming him now that his parents have passed away and it is such a long time after his conversion. He said that the Islamic religion states that if you do something forbidden then the imam says that you are not forgiven.

35. He was asked if he considered moving to one of the countries which are part of the Economic Community of West Africa States (ECOWAS), as people can move freely between the member countries. He said that it is not easy just to move. In Nigeria it is worse than Ghana with ‘Muslims everywhere’, and he had done a ‘forbidden thing’.

36. He said that he was under pressure to leave Ghana and he applied to visit Australia. He travelled to Australia for business through a friend, but he did not ‘do what the visa brought him here to do’. When he reached Australia, he saw that he could practise his religion freely.

37. He was asked why he delayed applying for a protection visa from 2007 until 2015 if he came to Australia ‘under pressure’. He said that he did not know that he had to apply ‘to be in the system’. Fortunately he met a lady that he loved and he married her.

38. The applicant was asked about a comment by the pastor that the applicant’s mother approached the pastor for help and he reported it to police who did not assist. The pastor also commented that the applicant’s mother died mysteriously due to ‘maltreatment and disturbance over the applicant’s issues’. The applicant said that the pastor knew him and his mother as they visited his church many times. He said that the pastor knew what the Muslim people were up to. His father had proclaimed that the applicant had done something forbidden. The Tribunal asked the applicant what the cause of his mother’s death was. He said that his mother did support him, but he suspected that the Muslims ‘did something’. The applicant was not told how his mother died. Asked if he tried to find out, he said ‘not exactly’ but that he spoke to his daughter and she said that his mother passed away ‘in a mysterious way’. He said that this is all that he knows.

39. The Tribunal asked him why he stated in his visitor visa application that he was invited to a training workshop on [specified topic] in Australia, and provided a letter of invitation from an organisation called [Organisation 1]. He said that he did visit Australia to learn about [specified] equipment as he had been an agent, but when he arrived in Australia, he realised his knowledge was too low so he decided to stay, and he married after finding a wife. He did not return because of the pressure put on him by the Muslim community.

1. He said that relocation is difficult as the Muslim community is very well connected and it would be a matter of time before he was found and his life would be in danger. Not everything is reported and it is difficult for the police to do anything, and he may end up dead like his cousin.

2. The Tribunal asked if there was any further information he wished to provide. He said that he wished to thank the Tribunal member for the manner in which the hearing was conducted, and he asked for a favourable decision as he wants to live the life God wants him to have.

   Evidence of [Mr E]

3. [Mr E] is an employee of [a Christian organisation] and a hospital chaplain. He met the applicant in the early 1990s when he was working in West Africa. He met him [when] he was travelling between Nigeria and Ghana.

4. He said that over a period of time he got to know the applicant socially and then he asked the applicant to become an agent for him, providing [specified] equipment. He spent time with him socially in Ghana and got to know his children. He also got to know his wife [later].

5. He said that he did not hear anything about his parents, uncles or brother and sister. He did not hear of any problems that he had in Ghana.

6. He witnessed the applicant worshipping in [a named] Baptist church. He went with him there on more than one occasion. He knew that he was a practising Christian.

7. [Mr E] did not assist the applicant to visit Australia but was aware that he would be visiting in 2007. He has spent time with him socially in Australia, and knows that he is attending church in [Suburb 2].

8. [Mr E] said that he has been in Ghana regularly over the last 20 years and he is aware of the political situation. He said that Ghana was always safe, but over the past 20 years there has been a change with civil and religious unrest. He has not witnessed religious persecution but there are changes there. He is unaware of persecution of Christians from followers of Islam.

   Independent country information

9. 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

   General legal principles

10. 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 of 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 the receiving country, there is a real risk of significant harm.

11. 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).

12. The Tribunal is not bound by legal forms and technicalities or rules of evidence in reaching a decision although 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 Tribunal must determine the weight to be given to evidence before it.

13. The findings of the Tribunal, based on the evidence provided, are set out below.

    Section 438 Certificate

14. A preliminary issue for consideration concerns a certificate restricting disclosure of certain information in the Departmental file.

15. The Tribunal has received a Departmental file which contains the application for protection and associated documents. The delegate has placed a non-disclosure certificate on the Department’s file pursuant to s.438(1) of the Act. The reason given for the restriction of certain folios is because they ‘contain information relating to an internal working document and business affairs’. The certificate purports to restrict folios 153 and 165. The material in these pages consists of a Department case note dated 18 May 2017, relating to the applicant’s temporary business entry, UC 456, and a disclosure decision checklist.

16. In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP [2016] FCA 1081, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.

17. As discussed with the applicant at the Tribunal hearing, the Tribunal considers that the certificate is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios ‘contain information relating to an internal working document and business affairs’ does not properly identify a basis for public interest immunity. There is no suggestion that the disclosure of the documents would harm the nation or public service.

18. Further the Tribunal outlined the nature of the relevant material and put it to the applicant that there is no material in any of these documents which is relevant to the review and no information which is adverse to the applicant or that supports the application. The Tribunal considers the material does not result in a loss of opportunity to advance the applicant’s case. The material in the documents does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.

    Nationality/receiving country

19. The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in Ghana. The Tribunal is satisfied on the basis of the passport and other documentation provided, 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

20. 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’.[1] 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’.[2]

    [1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

    [2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

21. 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.

22. 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.

23. 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.[3]

    [3] Hathaway, J, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

24. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

25. 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).

26. The Tribunal has considered carefully the overall internal and external consistency and coherency of the applicant’s account, as truthful witnesses often present coherent, consistent and detailed accounts of events. The Tribunal has taken into consideration however that psychological research on memory of trauma[4] 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.[5]

    [4] 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

    [5] Cameron, H.E., Refugee Status Determinations and the Limits of Memory, 2010, International Journal of Refugee Law 469

27. The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, 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.

    Findings of fact in relation to this matter

    [6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT website, >

    The Tribunal is satisfied that the applicant grew up in a Muslim family. He was able to describe to the Tribunal how he attended a religious school called a makarantah where he learnt the Q’ran. He also referred to his father ‘crying’ people to mosque at 4am and praying towards the sun. While he did not have detailed knowledge of Islam, for example he could not recall the name of the fasting festival, this may have been because he attended the Islamic school until grade five only and was not particularly religious himself.

28. The Tribunal is also satisfied that the applicant became interested in the church through crusades in his area in about 1974/5, and that a friend gave him a Bible. The Tribunal is satisfied that this began an interest in Christianity, fuelled by a lack of understanding of the Islamic religion. The Tribunal accepts that since then he converted to Christianity, practising with the Church of Pentecost in Ghana and with Jehovah’s Witnesses in Australia. His evidence about his practice has been corroborated by letters from pastors at both these churches and from the helpful evidence of [Mr E] as well as his daughter [Child B]. The Tribunal is satisfied that the applicant has engaged in conduct in Australia, that is, practising Christianity, for reasons other than bolstering his refugee claim, given that he was a Christian for a long time in Ghana.

29. The Tribunal is satisfied that the applicant’s father, brother and other members of the family opposed his conversion. Although there is no evidence of harm they inflicted, the Tribunal gives him the benefit of the doubt on this matter, taking the reasonable approach to fact-finding mentioned above. The Tribunal also accepts on this basis that his relatives told his father that they would try and ensure that the applicant came back to the Islamic religion. This claim is also corroborated by the pastor.

30. The Tribunal is not satisfied that the applicant’s mother or cousin were killed by Islamic relatives for religious reasons. While the applicant did not definitively claim that his mother was killed by relatives, he said that she died in ‘mysterious circumstances’ but he did not know how or elaborate on what he believed happened. It seems unusual that he would not have found out more details about her death, but in any event, the Tribunal gives this evidence little weight, given how vaguely it was expressed, despite the Tribunal asking questions about it. The Tribunal is satisfied that his cousin who was a Christian convert died suddenly, but does not accept she was killed by family members or other members of the Islamic community, given that the applicant has provided little evidence to substantiate the claim and the idea that she was killed for reasons of being a convert was expressed in a general, speculative manner.

31. The Tribunal is also not satisfied that the applicant was followed by the same two Muslim men to work who would turn to one side when he looked at them. The Tribunal also does not accept that his uncle told him these men would teach him a lesson. The reasons for this are as follows considered cumulatively. Firstly, if these men wished to harm him they had ample opportunity to do so. Secondly, the evidence about these men was very vague and speculative and the applicant did not provide specific information about times and locations and how these men were connected to his family, only saying that they were dressed like Muslims. He also did not suggest these people spoke to him at all or threatened him which may have been expected had they been sent to intimidate him. Thirdly, the Tribunal notes that the applicant had lived his life as a Christian without family intervention, and even if the uncles had spoken to his father about trying to get him to be an Islam, it is unlikely they would suddenly resort to intimidatory tactics, particularly given the tolerant attitudes to other religions discussed elsewhere in this decision. Fourthly, it is likely that if the applicant genuinely feared men such as these, then he would have applied for his protection visa at the earliest opportunity. Further the applicant did not contact police about these men, claiming he feared that there would be Muslim police and therefore they would not protect him. If he really did have a fear that these men were threatening him it would be expected that he would have contacted police, given that information suggests that police do not discriminate on the grounds of religion. Article 17(1) and (2) of the 1992 Constitution of Ghana prohibit discrimination on grounds of gender, race, colour, ethnic origin, religion, creed, or social or economic status.[7] According to the BTI 2018 Country Report Ghana:

    Civil liberties do not only exist on paper. The government and state agencies are closely monitored by the media regarding violations of civil rights. Basic human rights are respected and there is no systematic policy of denying individuals’ constitutional rights. Single instances of police abuse are more connected to poor training and challenging work conditions.[8]

    Does the applicant have a well-founded fear of persecution if he returns to Ghana in the reasonably foreseeable future?

    [7] United Nations Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Ghana’, 30 January 2015

    [8] Bertelsmann Stiftung, ‘BTI 2018 Country Report Ghana’, 23 March 2018, p.10

32. The applicant claims to fear relatives who made a promise to his father on his death bed to bring the applicant back to Islam and other members of the Islamic community. He claims to fear death for refusing to follow the Islamic religion.

33. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution, for the following reasons.

34. Firstly, it is a long time since the applicant’s father died (2006) such that it is likely the concerns his family may have had about him have lost momentum, particularly as the applicant is not a young man. Further his brothers would be old men now, such that it is less likely they would be capable of organising or inflicting violence.

35. Secondly, and importantly, while the applicant was living in Ghana, practising Christianity and married to a Christian woman, he suffered no harm. He claimed that he converted to Christianity at the age of [age] after attending a church school, so he was in the country for roughly forty years without suffering harm. The father and relatives did not harm him during this time, despite claims by the applicant that his father knew he went to church and hated him being a Christian as his father was an Islamic leader. Further, he has indicated that his three children are Christians, and he has not suggested that they have suffered any harm from his relatives. Even after his father’s death, when his relatives had promised to ensure he returned to Islam, he did not suffer any harm from those he claims to fear. When these matters were put to the applicant, he said that it was all true but he never had ‘peace of mind’. He did not feel comfortable since his father had said that he had done a forbidden thing. The Tribunal notes that lack of peace of mind is not in itself serious harm. The Tribunal has given significant weight to the fact that he was not harmed while living in the country and nor have other Christian family members been harmed.

1. Thirdly, as discussed with the applicant at the hearing, it has been difficult to locate independent reports of incidents in which Christian converts have been harmed in Ghana, besides one article from June 2019, in which the media — citing a local news source — reported that a Muslim teenager was hiding in fear of retribution from her father after converting to Evangelical Christianity.[9] While of course not all incidents are reported, if there was systematic and discriminatory persecution of Christian converts taking place in Ghana, it is likely that this issue would be mentioned in major reports such as the United States Department of State International Religious Freedom Report.

   [9] Peace FM Online, ‘Father “Ready to Go To Jail” Over Daughter’s Conversion to Christianity’, 14 June 2019

2. Fourthly, there is state protection available for people who are discriminated against because of religion. Country information indicates that the state guarantees freedom of religion and prohibits discrimination on this ground in Ghana. Ghana is a constitutionally secular state and is also a signatory to the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights (since 1989). According to the US Department of State’s (USDOS) Ghana 2018 International Religious Freedom Report:

   The constitution prohibits religious discrimination, stipulates that individuals are free to profess and practice their religion, and does not designate a state religion…Muslim and Christian leaders continued to emphasize the importance of religious freedom and tolerance, and reported sustained communication among themselves on religious matters and ways to address issues of concern.[10]

   [10] United States Department of State, ‘Ghana 2018 International Religious Freedom Report’, 21 June 2019

3. According to a 2009 UK Home Office report:

   Religious differences within the country are generally respected. […] [There is] adequate state protection […] for Christians and converts to Christianity[.][11]

   [11] UK Home Office, ‘Operational Guidance Note: Ghana’, United Kingdom Home Office, para. 3.7.6, p.5, 28 January 2009

4. Fifthly, the sources indicate that overall there is religious tolerance and inter-faith dialogue in Ghana, although there can be tensions and competition between Christian and Muslim communities.[12] In May 2019, a BBC article on the visit of Ghana’s National Chief Imam to a Catholic Church service noted that:

   Ghana, where Muslims make up 18% of the population in the mainly Christian country, has no history of religious warfare. But relations can be fractious – and the imam has sought to douse any flare-ups.[13]

   [12] Peter Knoope and Gregory Chauzal, ‘Beneath the Apparent State of Affairs: Stability in Ghana and Benin’, Clingendael Report, Netherlands Institute of International Relations, January 2016, p.11

   [13] BBC News, ‘Ghana’s 100-year-old imam who went church’, 12 May 2019

5. According to the Bertelsmann Country Report for Ghana in 2018: ‘[t]he role and influence of religious leaders has been instrumental in fostering unity within certain strata of the population’.[14] In a speech delivered in April 2019, Ghana’s Vice President, Alhaji Dr Mahamudu Bawumia, stressed the importance of inter-faith dialogue, particularly between Ghana’s National Chief Imam and the Christian leaders, in maintaining a culture of religious tolerance in Ghana.[15] Other media sources also indicate inter-faith dialogue and religious tolerance.[16]

   [14] Bertelsmann Stiftung, 'BTI 2018 Country Report Ghana', 23 March 2018, p.13

   [15] Peace FM Online, ‘Islam, Christianity Have More Similarities Than Differences – Bawumia’, 23 April 2019

   [16] Oasis Center, ‘Ghana, if Islam Becomes an Enigma’, 11 June 2018; Arab News, ‘A Journey Through Islam: Muslims have come up well in Ghana’, 1 March 2013

6. A 2011 journal article presented a harmonious relationship between the Christian and Muslim communities in Ghana. The article concluded that:

   Ghanaian Christians and Muslims have found a way of living together in peace and harmony through a daily, yet practical dialogue that brings them together in both sacred and secular space. Politics, which often times has been the bane of Africa, has tended to afford Ghanaian Muslims and Christians the opportunity to accommodate each other for the national good. Education is another instrument with which the Ghanaian nation has shaped the understanding of Muslims and Christians about each other’s faith.[17]

   [17] Mustapha Abdul-Hamid, Ilorin Journal of Religious Studies, ‘Christian-Muslim Relations in Ghana: A Model for World Dialogue and Peace’, Vol.1, No.1, 2011, pp.30-31

7. A 2010 research report on Christian–Muslim relations in the central region of Ghana with particular regard to traditional Akan culture noted:

   [..] Christian-Muslim marriages have become common among the Akan people not only because Christians and Muslims are now more exposed to each other in a pluralistic environment they find themselves, but also because the traditional society also permits and facilitates it. In other words, in an Akan society where, traditionally, religious background is not a prerequisite for marriage and the ultimate objective of marriage is alliance between families, it is not a surprise that Christian-Muslim marriages do often happen. Furthermore, interreligious marriage does not pose a problem in traditional Akan society because customs and tradition stipulate clearly the spiritual affiliation of both parties and the children. Traditionally, a person, male or female, worships his or her father’s god. Religion is one of the important cords linking a person to their father. And many fathers are not ready to let go this association to their children. In fact, fathers do not take it kindly when that religious association to their offspring breaks as a result of conversion or marriage. There are cases when fathers have disowned children for denouncing their religious tradition. Christian and Islamic denominations often demand religious background as a requirement for marriage. Often times it is required by the individuals.[18]

   [18] Cosman Justice Ebo Sarbah, PhD Thesis, University of Birmingham, ‘A Critical Study of Christian-Muslim Relations in the Central Region of Ghana with Special Reference to Traditional Akan Values’ September 2010, p.138

8. According to the United States Department of State Report on International Religious Freedom in 2018:

   Muslim and Christian leaders reported continued regular dialogue between their respective governing bodies and the National Peace Council, an independent, statutory institution with religious reconciliation as part of its mandate. The council did not convene any formal meetings with religious figures. Faith leaders, however, reported sustained communication among themselves on religious matters and ways to address issues of concern or sensitivity.[19]

   [19] United States Department of State, ‘Ghana 2018 International Religious Freedom Report’, 21 June 2019

9. The above information was put to the applicant for comment. He said that this kind of tolerance does not ‘work in all situations’. He said that there was some harmony between Christians and Muslims, however in his family they are radicals and a cousin of his was killed. The Tribunal accepts that country information is based on generalised reports and there may be individual differences. However considering that Ghana is a predominantly Christian state where there is general religious tolerance and harmony between religious groups, the chance of serious harm for converting to Christianity appears remote.

10. Finally, the Tribunal has taken into account the delay in applying for the protection visa. Department records indicate that the applicant arrived in 2007 and lodged his application for a protection visa on 5 June 2015. He has said that he was not aware of how to apply and also was advised to apply for a partner visa. The Tribunal accepts that at certain points over this time, these factors may have been relevant. However the applicant is an intelligent man who has had advice. If in fact he had a genuine fear based on a real chance of persecution, it is likely that he would have applied for protection earlier. 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) but it has been taken into account.

11. In sum, considering all these matters cumulatively, and particularly the fact that the applicant lived in the country for a long time as a Christian convert without suffering any serious harm, the Tribunal is not satisfied there is a real chance of serious harm if the applicant were to return to Ghana in the reasonably foreseeable future. While the applicant may face some ostracism or animosity from family members, such behaviour does not reach the level of ‘serious’ harm as envisaged by the legislation.

12. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his religion or any other reason set out in the legislation were he to return to Ghana in the reasonably foreseeable future.

    Does the applicant meet the complementary protection criteria?

13. The Tribunal turns now to consider whether 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 that he will suffer significant harm (‘the complementary protection criterion’).

14. ‘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.

15. 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 accepts that the applicant converted to Christianity when he was a young man and that members of his family opposed this. However the Tribunal has not accepted that he was followed by some Muslim men or that other family members were killed for reasons associated to conversion. The Tribunal is not satisfied that there is a real chance of serious harm were he to return to Ghana in the reasonably foreseeable future. Detailed reasons for this finding are set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation. While the applicant may face some hostility from members of his family, the Tribunal does not accept that this type of behaviour would reach the level of ‘significant’ harm required by the legislation.

16. 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.

    CONCLUDING PARAGRAPHS

17. 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).

18. 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).

19. 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

20. 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

21. 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.

22. 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.

23. 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).

24. 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.

100.   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

101.   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 – LEGISLATION

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.

…

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.

…

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.

…

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.

…