1621434 (Refugee)

[2019] AATA 6799

1621434 (Refugee) [2019] AATA 6799 (31 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:   1621434

COUNTRY OF REFERENCE:  Ghana

MEMBER:  Jane Marquard

DATE:      31 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2019 at 9:11am

CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – fears harm from family for unwillingness to accept chieftaincy – religion – Catholic – inconsistent evidence – no real chance of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 man from Ghana, born in [a certain year] in Accra, the capital.

2. He arrived in Australia [in] May 2016 on a [temporary] Visa ([Subclass]).

3. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 16 August 2016. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 24 November 2016.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. 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 of the legislation is set out in Attachment B.

   CLAIMS AND EVIDENCE

   The evidence taken into account

6. 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 about Ghana.

   Summary of evidence before the Department

7. The applicant provided the following claims and evidence in his application form, supporting documents and interview before the Department.

8. His parents, [siblings], son and daughter are still residing in Ghana. He is divorced. His family originally came from [Town 1] in the Central Region of Ghana, located [a number of] km from Accra. He visited there for festivals including Christian festivals.

9. His father was in the military. The applicant attended a Methodist school in Kumasi and then completed a [degree] at [College 1], Accra from July [year] to July [year]. He joined the army a year after leaving school, in [year]. He worked as an Army Administration [Officer] at [a location in] Accra. Then from November 1988 to February 2016, prior to travel to Australia, he worked as [an occupation] and instructor at the Multidimensional Peace Support Operations at Kofi Anna International Peace-keeping Training Centre, Teshe, Accra. He travelled with the army to a number of countries including [Country 1], [Country 2] and [Country 3] on peace-keeping missions, working [in various] duties. He said that he participated in 18 UN Missions for the UN Peace Keeping Force.

10. He is an Adventist Christian and comes from the [named] clan which is a sub-group of the Akan ethnic group.

11. He says that he was not baptised as a child. He ‘did not see’ his parents being strong Christians but occasionally they went to church. He did not practice as he did not have time while he was in the army, but he did pray. In the early 1990s he went to Israel and toured the Holy Land which gave him new insight into the Christian religion.

12. The applicant has a passport issued in Ghana [in] 2012, which expired in [2017].

13. When he went to [Country 2] in 2014 he decided to dedicate his life to Christ and became a Seventh-Day Adventist. He was baptised when he returned to Ghana. He decided to become a Seventh-Day Adventist rather than a Methodist, because he realised that the Jews also worship on Saturdays and the Bible talks about worshipping on Saturdays, and he listened to teachings and readings. There was no problem worshipping in the army. He once went door-to-door to talk about the church. Asked about what happens to Seventh Day Adventists if they go to hospital, he said that there were no problems and no instructions to give a hospital.

14. The applicant claims to come from the [Named] Family, custodians of the [Specified] stool in [Town 2].

15. He claims that in March 2016, the family head, [Mr A], called a meeting with the elders and informed them that Chief [Mr B], the [specified] of [Town 2], who was [a certain age], had requested a successor. [Mr B] was his paternal grandfather’s brother. He said there were other brothers as well. The Chief Mother, in consultation with the Queen Mother selected the applicant. He was asked to return to the village immediately. An elder told him that due to the chief’s poor health and age, he would need to be initiated and enstooled so that he could represent and perform duties on the chief’s behalf. He immediately accepted the role and was initiated.

16. His initiation took place in March 2016, after he had returned from [Country 3] in January. At the time he was living [in] Accra. He drove to the village. They used schnapps, a kind of libation, evoking the spirit of the ancestors in a ritual. He was told that they would find a date for the stool ceremony. This did not take place before he left the country. At that ceremony he would have killed animals on the stool.

17. He said that after the initiation, the elder told him to stop attending church and to devote his time entirely to the worship of the gods. The applicant claims to be a devoted Christian and worshipping the gods is against his religion. He said that he does not want to be involved in the traditional activities such as killing goats. The elders told him that as he had been initiated he had no choice but to sacrifice his life for the gods.

18. The applicant said that he then ran away to Accra as he had brought disgrace to the family and community. One week later, while he was not at home, three of the elders and two men went to his house in [Town 3], Accra to look for him. They left a message that he should return to the village or sacrifice his life. After this he constantly received threatening messages. He reported the matter to the police, but was told that they could not help as it was a family and tribal matter. He stayed hidden until he had enough money to leave the country.

19. He claims to fear returning to Ghana because it will not be safe as he will be killed by his family and sacrificed to the gods. He said that his family has not nominated anybody else for the position which is currently being held by one of the elders. He claims that the Queen Mother and King are trying to find a successor, however they cannot install another person until the applicant dies, as he has already gone through the initiation as a succession chief. He has been informed that the elders are still looking for him to kill him and sacrifice him to the gods. He claims that they want him to give up his religion or be killed, and they have executioners to carry out the killing.

    Decision of the Department

20. The Department did not accept that the applicant would be harmed if he returned to Ghana.

    Summary of evidence before the Tribunal

21. The applicant appeared before the Tribunal to give evidence on 24 October 2019. The Tribunal provided an overview of the relevant processes and law to the applicant. The applicant also provided written submissions. A summary of the evidence provided is set out below.

22. The applicant confirmed that he was born in Accra, and his parents were born in Kumasi, about 280 kilometres away. His paternal grandparents had migrated from the Central Region and settled in Kumasi, where his father met his mother. He then corrected himself. He said that his paternal grandparents lived in [Town 2] in the Central region and his grandmother is still living there. His maternal grandparents have settled in Kumasi. He then said that his father was born in the Central Region and not Kumasi, and he was sorry but he had ‘got that wrong’. His father grew up in [Town 2], and then went to Kumasi for the military and met his mother. All his grandparents, except his paternal grandmother, have now passed away.

23. He said that his father had [a number of] siblings, all of whom have passed away. His mother had [many more] siblings. [A number] are still alive, living in Kumasi.

24. He said that his parents are now living in Accra. His father was in the military and his mother was [working], but they are now pensioners. His father goes to the village often to see his grandmother. His cousins are also living in the village. The applicant’s [siblings] are all living in Accra. They visit the village every now and then. All his [siblings] are in the military.

25. His grandparents were all Catholics and so are his father and mother. He did not grow up as Catholic as he attended a Methodist missionary school, [and] a Methodist church. His father was not a very strong Catholic; he goes to church once in a while. His mother [and siblings] now attend a charismatic church. When he was growing up, they went to church on Sundays and also took part in church activities. His father did not usually attend. Occasionally they would go with him to the Catholic Church. The applicant went by himself to the Methodist church. They lived in barracks and parents encouraged children to go to church. He was not baptised until 2014 when he joined the Adventists after attending the church in [Country 2] while on a mission. He thinks he was not baptised as a child because he was not a strong member of the church. However he always wanted to be baptised. They lived in Kumasi for primary school, then Accra where his father was posted. He attended high school in Accra.

26. His father took him to the Central Region from time to time, maybe once a year. His father visited there often. They went there for his grandfather’s funeral and for vacations. It is quite a big village, with a few thousand people.

27. In Ghana he was engaged but not married, and they had a son, born in [year] and a daughter, born in [year]. The son and daughter are in Ghana. The relationship encountered difficulties as the applicant was always busy and away. His son is in university and his daughter is at school and lives with the applicant’s mother. His ex-partner lives somewhere else.

28. When the applicant finished high school he went straight to the army, where he remained until he came to Australia. He specialised in peacekeeping and peace support. He went to peacekeeping college and supported UN missions. Each mission lasted six months, sometimes longer. His last one was over a year in [Country 3]. Soldiers did not get paid well, but they did it ‘for humanity’. The applicant is a person who is always trying to help.

29. He moved to the Seventh Day Adventist church, because of celebrating Sabbath on Saturdays which he felt was the right approach. He also liked the doctrine for health and good living, such as no alcohol and eating certain foods. In Australia he is no longer at a Seventh Day Adventist church – rather he and his wife have moved to [Church 1], although they looked at the Seventh Day Adventist Church. He said that [Church 1] has a sound doctrine. He said that members are all Christians and there is a lot of similarity in the doctrine.

30. The Tribunal asked him whether he still had concerns about returning to Ghana as a significant amount of time had passed since he was asked to be chief. He said that even though time has passed he still has concerns about returning and being required to be chief. This is because he has completed his initiation. The villagers look up to him as he has been in the military. The Tribunal asked how his fathers and brothers could escape the request to be chief and he said that the elder decides who is to be chief and they chose him.

31. The Tribunal asked the applicant when he first knew that the elders wanted him to be chief. He said that even when he was young he was called chief, but he did not know the details of it. He said that he first heard that he was required to be chief in 2013.  He visited his grandmother when he came back from [Country 4] and the village performed a welcoming ceremony. The family head, Mr [A], said that the reigning chief had made it official that the applicant must pick up the chieftaincy. His grandmother and aunties said he must get ready. He did not say anything in response, as he was not interested in it as he did not like their practices. He knew he would not take up the position, but he did not want to tell the villagers this as he did not know what their reactions would be.

32. Following the visit to his grandmother, he left for Accra. In August 2014 when he came back from [Country 2] the family head, Mr [A], visited the applicant in his house in Accra and told him that the chief was very [old]. Mr [A] told the applicant it was time for him to be chief and that he must return to the village. The applicant told Mr [A] that he would go, but he did not go back to the village as he went to [Country 3] in November. He sent the elders a message that he was gone for duty, and would return to the village when he returned.

33. He heard while he was on mission that the chief was not feeling well. His son told him that the village elder went to look for the applicant at his house while he was away. When he got back from [Country 3] in early 2016, the elders had heard that he had resigned from the army, which was mandatory after 25 years. Mr [A] sent people to the barracks to get the applicant, but they could not get in to the premises as barracks are protected. The villagers spoke to his colleagues, and he knew they wanted him to go and be chief. He was advised to ‘make a police case’ so he reported the approach of the villagers to police. However police told him it was a family and traditional matter. He had no further dealings with the elders but he was reliably informed by one of his childhood friends that they were looking for him. He then prepared to leave the country. He had a house outside Accra and he moved there for one month and then left. He did not see the villagers or go back to the village and had not been there since 2013. He was asked why he feared harm from the villagers. He said that he feared harm because he had started with initiations when he went back in 2013. When they said to him ‘it is time to be chief’, this meant initiation had begun.

34. He was asked if he could have told the villagers he was unwilling to take up the position because of his beliefs; he said he was advised not to do this as they would harm him. Asked why villagers would harm him, he said it is because they believe that he disobeyed the gods.

35. He was asked who the current chief is. He said that the old chief is dead. He thinks that there is a regent in place until he returns. He said that he has asked his father, who told him that there is a regent. He was asked if he did not feel assured that his father and brothers can visit the village without harm. He said they only want him. He was asked if the villagers could not have found him if they wanted to do so before he left the country. He said that they did not know where he was.

36. He first applied to travel to Australia in 2015 on holiday. He did not visit then, but later decided to travel to Australia because the situation in Ghana was getting more dangerous. He applied himself, without an agent.

37. The applicant told the Tribunal that he married [in] March 2018. He and his wife, who is an Australian citizen, attend [Church 1] in [city] where they have a strong network of Christian friends. They hope to start a family soon. He provided statutory declarations from his pastors and friends at the church. He said that he had been working in the [named] industry and had also enrolled with [College 2] to pursue a career in [a specified area]. He provided references from his current employer, and details of his enrolment.

38. The Tribunal put to the applicant under natural justice procedures that Departmental records indicate that he applied for a visa to Australia on 19 August 2015 which was well before his claimed return to the village. Therefore this indicates that he wished to come to Australia for reasons other than seeking protection. This does indicate that the information he has provided about fearing for his life because of forced enstoolment has been set up to bolster a refugee claim. He said that earlier he applied to visit Australia for a holiday. It was also put to the applicant that as he was being mandatorily retired at the time he came to Australia, this suggests that he was seeking a new life in Australia, rather than fleeing persecution. He said that this was not the case as he was going to set up his own business in Ghana.

39. He thanked the Tribunal for the opportunity to appear before it. He reiterated that the situation in Ghana is ‘serious for him’, as the elders really wanted him to be the chief and he was lucky to get away. He said that since he has been in Australia the government and Australian people have been very kind to him. He would like to live with his wife in Australia and make a new family to support each other. He is looking forward to the opportunity to give back to the Australian community.

40. Asked if he could not live in Accra where his family is, or a different part of Ghana than the village, he said that villagers would find him in Accra or somewhere else, and he would not be alive.

41. The applicant’s wife gave evidence in support of the applicant.  She was born in Ghana and has been an Australian citizen since 1996. She met the applicant in July 2017. They were married in March 2018 in the church they attend together.  They plan to make an application for a partner visa.

42. She said that in the time she has known and been married to the applicant she has found him to be authentic and a person of integrity. She supports him in him not wanting to return to Ghana. He has told her that he is the line for chieftainship and there are many animistic rituals that he does not want to be part of. Given his experience and background the ‘history tells the story’. He has given his life to Ghana and wants a new opportunity in Australia with her as his wife to start a new family.

    Documents submitted

43. The applicant submitted documents set out in Attachment C.

    Independent country information

44. 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.

45. The Tribunal notes that it was difficult to locate information about the [Named] Family or the [Specified] Stool. Information about the Akan ethnic group and enstoolment generally in Ghana is referred to in the findings below.

    FINDINGS AND REASONS

    Criteria and guiding principles

46. 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.

47. 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).

1. 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.

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

   The reasonable approach to fact-finding

3. 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 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

4. 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.

5. 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.

6. 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.

7. 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.

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

   [4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, of fact

9. Taking all these matters into account, the Tribunal accepts that the applicant is a Christian. Although he has changed denominations a number of times, he has provided reasons for this. His family were Catholics, although they were not very religious. He attended a Methodist school, which was where he primarily attended church, before becoming attracted to the Seventh-Day Adventist Church while in [Country 2]. In Australia he has been regularly attending [Church 1] where he married his wife. He has said that the doctrine is similar and has provided explanations for his attendance at this church. Supporting documents have been provided from the pastors and fellow congregation members.

10. The Tribunal also accepts that the applicant was on peacekeeping missions in different countries as part of the Ghanaian army for [number] [years].

11. The Tribunal is not satisfied however that the applicant was called on to be chief in his father’s village while living in Ghana or that he suffered threats because of his reluctance to take up the position. In coming to this finding, the Tribunal has  considered the evidence in its entirety and not in isolated parts, as referred to in Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). The Tribunal notes that the applicant has provided different evidence to the Tribunal about the events in Ghana to that provided to the Department.

12. As discussed with the applicant at the Tribunal hearing, in his Department evidence he said that after he had returned from [Country 3], in March 2016, the family head, [Mr A], called a meeting with the elders and informed them that [Mr B], the [specified] of [Town 2], who was [age] years old, had requested a successor. The applicant said that he was asked to return to the village immediately, which he did, driving to the village. He said that he immediately accepted the role and was initiated in March 2016. He was told they would find a date for the enstoolment. He said that after the initiation, the elders told him to stop attending church and to devote his time entirely to the worship of the gods so he ran away to Accra as he did not want to do this and had brought disgrace to the family and community. He said that one week later, while he was not at home, three of the elders and two men went to his house in [Town 3], Accra to look for him. They left a message that he should return to the village or sacrifice his life. After this he constantly received threatening messages. He reported the matter to the police, but was told that they could not help as it was a family and tribal matter. He stayed hidden until he had enough money to leave the country.

13. The evidence that the applicant gave to the Tribunal was very different. He told the Tribunal that in 2013 he visited his grandmother in the village and there was a welcoming ceremony for him, and the elders and his grandmother said that he must prepare himself to be chief. He said that he did not agree and did not respond. He then said that in 2014 on return from [Country 2], Mr [A] came to his home and asked him to go to the village but he did not return to the village as he did not want the position. Some men then looked for him in the barracks but were not allowed in and later he heard from a friend that they were looking for him and he reported this to police.

14. When the Tribunal asked him at the hearing why his evidence differed from the evidence he has provided to the Department, the applicant said that he had made a mistake in his evidence to the Tribunal and he did in fact tell the elders he would take up the position. The Tribunal asked him if he went back to the village before he left for Australia as he had told the Tribunal he had not returned there since the welcoming ceremony in 2013, but he had told the Department that he had agreed to be chief in the village in 2016. He considered this question for some time and then told the Tribunal that he thought he returned briefly to the village.

15. 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 applicant has not claimed that the differences in evidence are due to trauma of some kind. The Tribunal has nonetheless taken into consideration that psychological research on memory of trauma[5] 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.[6] He may also have been nervous at the Tribunal hearing, although he presented as lucid and coherent.

    [5] 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

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

16. In this case however, the applicant’s claims about being called on to be the chief against his will are at the core of his claims for protection. The Tribunal would expect him to remember whether or not he returned to the village to discuss the chief position just before he left the country, as it was a matter of such importance. He adamantly told the Tribunal that he had not been to the village since 2013, only a short time later changing his mind about this matter when the differences in evidence were put to him. Furthermore, in his evidence to the Department he said that when he visited in 2016, this was an initiation, whereas to the Tribunal he suggested that the welcoming ceremony in 2013  when he was asked to be chief comprised the initiation. As he suggested that it was because of his initiation that he was expected to continue to be chief, it would be expected that he would recall if this occurred just before he left the country or three years prior.  The Tribunal would also expect him to recall if he in fact accepted the position or said nothing about it, as this would impact on the events that followed subsequently.  Although it is easy to confuse dates, the Tribunal would expect him to recall if he was asked to be chief very shortly before he left for Australia, or two/three years prior. Finally, it would be expected that he would remember when and why he made a police report. These are the key aspects of his claim for protection and these events took place only a few years ago. Looking at the totality of the evidence, and taking into account possible cultural factors, impact of trauma, nervousness and lapses in memory, the Tribunal is not satisfied that these events in Ghana took place, given that the inconsistencies are substantive rather than minor as they relate to his claims of past harm and the exact reason he is seeking protection. The Tribunal is not satisfied therefore that the applicant was sought out to be chief in his father’s village or that he suffered any adverse consequences for refusing to comply.

17. Furthermore, the applicant’s experiences about being sought out to be chief due to paternal lineage do not accord with country sources about appointment of chiefs amongst the Akan. As put to the applicant at the hearing, country sources indicate that the position of chieftainship in the Akan is based on the mother’s line and children are considered part of the mother’s kinship group, whereas the applicant indicated that in his village it was based on paternal lineage.[7] The applicant said that he was not a paramount chief, but he was the ‘king maker’. He said the paramount chief, who must come through the maternal line, is located in a different town. The Tribunal notes that the information refers to chiefs generally[8] and does not indicate that maternal lineage applies to paramount chiefs only. However even if it were so, the Tribunal is not satisfied that the applicant was asked to be chief, on the basis of the important differences in evidence provided to the Department and Tribunal as discussed above. Furthermore, his evidence about threats made to him because of reluctance to become chief do not correlate with country sources about refusal to be a chief.[9] This county information is discussed in more detail below in relation to whether the applicant has a well-founded fear of persecution. Additionally, he has said that his father visits the village often, his grandmother lives there and his brothers visit sometimes. All this indicates that there have been no repercussions for his family members.

    [7] Volta Digest, The Chieftancy Institution in Ghana, 18 August 2015; Immigration and Refugee Board of Canada, Ghana: Succession of chiefs among the Akan, in particular, the Sunyani traditional area including the name of the current chief and how long he has been ruling, 26 June 2001, Volta Digest, The Chieftancy Institution in Ghana, 18 August 2015; Immigration and Refugee Board of Canada, Ghana: Succession of chiefs among the Akan, in particular, the Sunyani traditional area including the name of the current chief and how long he has been ruling, 26 June 2001, 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

18. In making the finding that the applicant was not requested to be chief and did not suffer any adverse consequences for refusing to do so, the Tribunal acknowledges that other than this, the applicant appears to be a person of integrity, as demonstrated by his exemplary career in the peacekeeping forces, [and] as referenced by his wife, who appears to be a person of good character and with whom he appears to have a close relationship, and friends and pastors in the church community.

    Nationality/receiving country

19. 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.

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

20. Under s.5H(1) of the Act, a person is a refugee if  he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is 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.

21. 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.

22. 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.

23. 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.

24. As discussed, the Tribunal is not satisfied that the applicant was told by elders in the village that he was to be chief, or that he suffered any adverse consequences for reluctance to take up the position. The Tribunal is not satisfied therefore that there would be a real chance of serious harm if the applicant returned to Ghana in the reasonably foreseeable future on the basis of lack of compliance with this requirement. Furthermore, country sources indicate that selection can take into account a person’s desire or lack of desire to be a chief, and people who refuse to be chiefs are not harmed because of such unwillingness.

25. While the sources are not definitive, they do indicate that the selection process takes into account willingness as well as other factors besides lineage, and there are no adverse repercussions for refusing the offer of the position of chief. There are approximately 92 separate ethnic groups in Ghana so it is not possible to make generalised findings about the chieftaincy rules that govern each group.[10] However, the applicant has identified as part of the Akan ethnic group. The Akan are the largest ethnic group in Ghana, accounting for 47.5% of the population.[11] According to sources, the position of chieftainship does not automatically revert to the son of the previous chief, and is based on the mother’s royal lineage. Candidates are selected by the Queen Mother and may be subject to approval by the local community. Queen Mothers advise chiefs and act as moral leaders and are not necessarily the mothers of the chief.[12] The Queen Mother consults with members of the royal family and elders, and they look at personal characteristics as well as lineage. An article in the Nordic Journal of African Studies states that the chiefs are mostly elected after consulting all the families and everyone has the right to express views. A few representatives are then selected to consult the Queen Mother.[13]

    [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] Volta Digest, The Chieftancy Institution in Ghana, 18 August 2015

    [13] Vehnamaki, M, Nordic Journal of African Studies, Culture and Economic Development in Ghana: The Conventional Wisdom Revisited, , 8 (1), 1999, p.63

26. A Canadian report also indicates that at least among the Twi, elders hold a meeting to choose a chief, and they then hold a meeting with the Queen Mother where they considered all eligible candidates in turn and chose the one most suitable, based on intelligence, humility, generosity, manliness and physical prowess. The Queen Mother would then send a recommendation to the kontihene, an elder.[14]

    [14] Immigration and Refugee Board of Canada report, GHA31879.E, Ghana: Selection of chiefs among the Twi; whether a person can refuse to be chief, and role played by the chief in religious rites,1 May 1999, type="1">

27. The applicant was asked to comment on these sources, which indicate that the process involves selection based on a number of factors. He said that they do take into account willingness but only ‘for the public eye’. He said it goes against his faith to be chief but he cannot refuse.

28. The Tribunal considered whether sources indicate that there are repercussions against people who express reluctance to be chiefs and discussed these with the applicant. An article in 2006 reported that a former mayor and parliamentary candidate was abducted in order to force him to occupy the chieftaincy of the Teshie Traditional Area. The report also referred to reports of a famous broadcaster dying in mysterious circumstances in a bid to install him on a stool.[15] As put to the applicant at hearing no other reports since then were found in the sources regarding incidents of forced enstoolment or harmful repercussions for refusing the chief position.[16] In fact country sources also 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. The information suggests that a person who refuses to become chief due to religious beliefs will not suffer adverse consequences, although there may be loss of money and gifts for the community.[17]  Academics quoted by the Immigration and Refugee Board of Canada also state that people are not forced into accepting chieftaincy.[18] For example, in May 2017, a professor of political science at the University of Ghana stated that to his knowledge, ‘one is free to accept or refuse a chieftaincy position in any part of Ghana’ and that state protection is therefore not needed in this field.[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 Immigration and Refugee Board of Canada 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]

    [15] Coomson, J, The Ghanaian Chronicle, Ghana Parliamentary Aspirant’s flight from Traditionalists end in violence, 27 January 2006

    [16] 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

    [17] Immigration and Refugee Board of Canada GHA104154.E: Ghana: Consequences of refusing a fetish priest or chieftaincy position, 16 August 2012, p.1, 3783

    [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

29. A senior lecturer at the University of Ghana’s Department of Sociology advised ‘there is no physical punishment for refusing a traditional 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 2017

30. 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

31. 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

32. 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

33. In September 2019, Peace FM reported that the chair of the Youth Employment Agency and national Organiser of the New Patriotic Party had declined the scheduled enstoolment as Mampong Apagyahene, due to his political career, which he said ‘would not allow him to undergo the Chieftaincy process.’[27]

    [27] Peace FM Online,  Sammy Awuku Declines Chieftaincy Offer As "Mampong Apagyahene",  09 September 2019, 20191016155938

34. The Tribunal notes that Ghana has a significant Christian population and that sources indicate that Christianity has increasingly shifted from the religious periphery to assume an important role in Ghanaians’ lives.[28]  Information indicates that Christianity would not prevent a person accepting chieftaincy, although it may be offered as an excuse for refusing an offer of chieftaincy.[29]  

    [28] See for example, Social responsibility in the Christianised Akan Ethnic Culture of Ghana, by Joseph Quayesi-Amake, fn 13 above

    [29] Canada: Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftancy position, and whether there is state protection available, 16 August 2012, GHA104154.E, available at: >

    The applicant, when asked to comment on these sources, said that the situation as presented to the outside world does not depict what is happening on the ground. Traditional rulers give out information that they will not harm anyone, but they will. Elders think that there is disobedience from the Gods. They will find some other means to kill people. Sometimes people die in different ways not to do with the chieftaincy.

35. The Tribunal accepts that there may be incidents of isolated harm which are not reported. However given that there are many human rights organisations which report on Ghana, and numerous academics have written recently on this topic, if people were being harmed on the basis of refusing to be chief, it is likely that this would be reported on by media, academics or in human rights reports. Furthermore, the applicant has indicated that his father visits the village often, his grandmother lives there and his brothers visit sometimes. There have been no repercussions for them for the applicant’s reluctance which is also an indicator that he would not be harmed if he returned. The Tribunal is satisfied on the basis of the reports set out above that the chance of harm would be insubstantial, remote and far-fetched, and would not amount to a real chance of serious harm (Chan v MIEA (1989) 169 CLR 379).

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

    Does the applicant meet the complementary protection criteria?

37. 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 he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).

38. ‘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.

39. Section 36(2)(aa) of the Act 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 was asked to be chief or suffered adverse consequences for non-compliance, while he was in Ghana. The Tribunal has also found that the applicant does not face a real chance of serious harm were the applicant to return to Ghana in the reasonably foreseeable future, for reasons set out earlier in this decision. For the same reasons as set out in relation to ‘real chance’, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation if the applicant was removed from Australia to Ghana.

40. 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.

    Section 438 Certificate

41. The Tribunal received a Departmental file which contained the application for protection and associated documents. The delegate had 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 internal working documents and business affairs’. The certificate purports to restrict folios 64 to 71. The material in these pages consists of a Departmental case note and screenshots relating to the [temporary] visa application, screenshots of records of the applicant’s contact details and other Departmental notes.

42. 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.

43. 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 internal working documents 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.

44. The Tribunal outlined the nature of the relevant material and put it to the applicant that the material in these documents was not relevant to the review, other than the details of the [temporary] visa application which had already been put to the applicant. The Tribunal considers that the material in the documents does not otherwise prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.

    CONCLUDING PARAGRAPHS

45. 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) of the Act.

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

47. There is no suggestion that the applicant satisfies s.36(2) of the Act 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

    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 Act 1958

    5 (1)      Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)         severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)         pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)          that is not inconsistent with Article 7 of the Covenant; or

    (d)         arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)         that is not inconsistent with Article 7 of the Covenant; or

    (b)         that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)         for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)         for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)          for the purpose of intimidating or coercing the person or a third person; or

    (d)         for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)         for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)         a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)         if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    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.

    …

    ATTACHMENT C

    DOCUMENTS PROVIDED BY THE APPLICANT

    Documents submitted to the Department

    • Letter from Pastor Roger M Vince from Seventh-day Adventist Church dated 20 November 2016. The Pastor confirms that the applicant is a member of the church located in Merrylands, NSW. The letter states that the applicant is of good character, regularly participates in the activities of the church and is currently supported by the congregation.
    • Copies of pages from a ‘Certificate of Service’ issued by Ghana Armed Forces. This indicates that the applicant enlisted at Tamale on 17 November 1988, and was discharged on 28 July 2016. The certificate confirms that the applicant was [an] officer ‘who was employed as [deleted]’, that he served on numerous peacekeeping missions, and was an army [Occupation 3].
    • Copies of pages from his passport issued by the Republic of Ghana, with visas and entry and exit stamps.
    • A copy of a ‘Diploma for Safe Driving’ issued by the United Nations Interim Force in [Country 1].
    • A copy of a document titled ‘Multidimensional Peace Operations Course’.
    • A copy of a Certificate of Merit issued to the applicant by the Ghana Armed Forces on 5 April 2005.
    • A copy of a Certificate of Completion issued to the applicant for the completion of a ‘Multidimensional peace operations course’, conducted at Kofi Annan International Peacekeeping Training Centre, Accra, Ghana between 1 and 12 June 2015.
    • A copy of a Certificate of Service issued to the applicant by ‘UNAMSIL’ for service with the United Nations Mission in Sierra Leone (undated).
    • A copy of a certificate dated 5 June 2007 stating that the applicant has been awarded the United Nations Medal for his service as a Military Member of the United Nations Organisation Mission in [Country 4].
    • A copy of a certificate issued to the applicant on 23 October 2008 stating that the Secretary General of the United Nations has awarded the United Nations Medal to the applicant. 
    • A copy of a certificate issued by the United Nations on 28 May 2011 stating that the applicant had been awarded the United Nations Medal for his service as a Military Member of the United Nations Organisation Stabilisation Mission in [Country 4].
    • A copy of a certificate issued by the United Nations on 9 May 2014 stating that the applicant had been awarded the United Nations Medal for completing service as a military member of the United Nations mission in [Country 2].
    • A copy of a certificate issued by the United Nations on 10 February 2015 stating that the applicant was awarded the United Nations Medal for his service of peace as a military member of the United Nations Mission in [Country 3].
    • A copy of the applicant’s temporary driving license, issued by the Republic of Ghana on 8 March 2016.
    • A copy of a citation for the applicant, issued by Kofi Annan International Peacekeeping Training Centre on 16 December 2011 stating that the applicant was posted to the Kofi Annan International Peacekeeping Training Centre (KAIPTC) as a Field Training Team (FTT) [Occupation 3] in June 2009, and he delivered lessons on conventional and counter-insurgency operations.
    • Copies of thirteen photograph identification cards issued by the United Nations, for various UN Missions dated between 2005 and 2016.
    • A copy of the applicant’s voter card issued by the Electoral Commission of Ghana, featuring the applicant’s photograph and name.
    • A copy of an identification card issued by Kofi Annan International Peacekeeping Training Centre featuring the applicant’s name and photographs and stating that he is an [Occupation 3].

    Documents submitted to the Tribunal

    The applicant attached four statutory declarations from his friends and pastors at [Church 1] and a number of other documents:

    • A statutory declaration by David Geoffrey Taylor, dated 19 September 2019, stating that he has known the applicant since August 2017. The declaration states that he is a pastor and friend of the applicant and the applicant’s wife, who attend [Church 1], [city].
    • A statutory declaration by the applicant’s friend and marriage celebrant, James Aidan Stone, dated 17 September 2019. The declaration states that he has known the applicant’s wife since March 1998, and has known the applicant since mid-2017.
    • A statutory declaration by the applicant’s friend, Pastor Patrick S Chavez, dated 19 September 2019, confirming that the applicant attends [Church 1].
    • A statutory declaration by the applicant’s friend, Andrew Leung, dated 20 September 2019, confirming that the applicant and his wife attend [Church 1] in Wahroonga.
    • A letter from the applicant’s employer [dated] 21 September 2019, signed by Joshua Adams, [Operations] Manager at Westpoint Blacktown, and stating that the applicant has been employed as a permanent full-time [job] at Westpoint Blacktown Shopping Centre since 3 June 2019.
    • A statutory declaration and attached letter written by the applicant’s wife dated 20 September 2019, recounting the development of their relationship and their marriage on 19 March 2018. It also states that the applicant’s wife is an international development worker, who had worked in the humanitarian sector in [Country 3] from 2010 to 2013. She states that their Christian faith guided their plans for marriage. She currently lives with the applicant and her mother.
    • A copy of the applicant’s certificate of marriage issued by the Commonwealth of Australia dated 18 March 2018.
    • Copies of a bank statement issued by ING, for an account under the names of the applicant and his wife. The statement is for the period 29 December 2017 to 31 March 2018.
    • 9 photographs of the applicant and his wife on their wedding day.
    • A copy of an email sent to the applicant by [College 2] dated 30 July 2019 confirming the applicant’s registration with the College.