1622223 (Refugee)

1622223 (Refugee) [2020] AATA 5126 (21 October 2020)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622223
COUNTRY OF REFERENCE:                   Ghana
MEMBER:David McCulloch
DATE:21 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 October 2020 at 10:17am
CATCHWORDS
REFUGEE – protection visa – Ghana – divorced woman – single woman in Ghana – fear of first husband – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424AA, 438, 499
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Ghana, applied for the visa on 5 August 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 17 February 2020 and 30 September 2020. The applicant had requested the use of an interpreter in the Twi language. The scheduled interpreter became unavailable just before the first hearing on 17 February 2020. The applicant elected to continue with the hearing in English. However, early in the hearing the Tribunal determined that the applicant’s English was not of a sufficient quality that the hearing should continue with her communicating in English. Consequently, the Tribunal adjourned the hearing and rescheduled it for 30 September 2020.
In the second hearing, the Tribunal was assisted through the use of an interpreter in the Twi language. The applicant was represented in both hearings by her registered migration agent.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant applied for a TO 300 prospective marriage visa offshore on 5 October 2010, which was granted on 19 May 2011. The applicant arrived in Australia [in] June 2011. The applicant’s application for a BS 801 partner visa was refused on 25 November 2014, and the Tribunal affirmed the decision on 16 May 2016. The applicant requested Ministerial intervention on 5 July 2016, which was refused on 6 July 2016. The applicant applied for the current protection visa on 5 August 2016.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Tema City, Ghana. The applicant is a [Christian] of Akan-Twi (Ghana) ethnicity, who speaks Twi (Ghana) and speaks, reads, and writes English. The applicant married [in] 2011, and divorced [in] 2015. The applicant states that her father is deceased, and her mother lives in Ghana, and the applicant’s adopted daughter lives in Australia. The applicant is in contact with her mother through phone calls. The applicant lived at one address in Tema City in Ghana from birth until June 2011. The applicant attended primary school from [date] until [date], and graduated from Year[grade] at [a] Secondary School in [date], both in Tema city. The applicant then undertook an apprenticeship for [a trade] from January 1995 until January 1997. The applicant worked as a [an occupation] in Tema City from January 1995 until June 2011. The applicant was unemployed from June 2011 until November 2011. The applicant then worked as [an occupation] at [a workplace] from November 2011 until February 2013. The applicant works [in] a [workplace] in Australia from February 2012 until the present.
The applicant provided a written statement responding to questions in the application form and outlining her claims for protection as follows (not corrected for spelling or grammar):
Q88. Ghana
Q89. In June 2011, I ran away from my former husband in Ghana by marrying an Australian Ghanaian man [named].
I belong to the Akan Tribe speaking the Twi language in Ghana. I was [age] years old when I was forced by my family to marry my former and first husband [who] belonged to the Ewe Tribe and he was a son of a Chief and who was [number] years older than me. I was married in a tribal ceremony performed by my own father. This was not civilly recorded in Ghana which is an accepted practice. When I turned [age], my husband took on another wife of which I do not have a say on the matter.
This was allowed in our culture and there is nothing that I can do with it.
When I turned [age], [a] child was handed to me in accordance to our Akan-Twi culture in Ghana. At that time the mother, who was my cousin cannot look after the child because of the mother's mental illness and the father was not working. The family named the child [name]. I reared her as my own child. I do not have a say on the matter but in time I learned to love her as my own daughter. When I turned [age], I gave birth to a baby boy but he did not survive and my former husband blames me for that and that led him to despise me and being aggressive on me. I did not have any other means to be able to support myself, so I stayed with my former husband. When I turned [age] years of age my former husband once again took on a third wife. I do not have a say on the matter so I accepted it.
In [year], I gave birth to a baby boy, to whom the family named as [name]. I stayed faithful with my former husband until sometime in April 2009, when I met my future 2' husband and visa sponsor at a restaurant in Accra, Ghana. After two years, I was approved to travel to Australia on a prospective marriage visa.
I arrived in Australia [in] June 2011 accompanied by my adopted/foster daughter and got married to my sponsor and 2^nd husband [in] 2011.
In 2013, I left our family home because my husband maltreated me as he found another woman and we divorced [in] 2015.
Back in Ghana, my former husband to whom I had abandoned in 2011, had made threats and promises to my family that if I returned to Ghana he and his entire clan will hunt me down and kill me because I have shamed him by running away to Australia and marrying another man.
Q90. My former husband or any of his clan people will kill me for shaming their clan and tribe. He was a son of a Chief of their Ewe Tribe.
Q91. My former husband is very cruel to me and made threats that he will kill me if I returned to Ghana. He is a son of Chief and I have caused so much shame on their family. My own family have to tell a lie that they do not know of my whereabouts, in order to protect my safety.
Q92. No. I did not seek any help from the Ghanaian Authorities as I know that it is of no use as it is in our culture that a man's wife is his possession and it cannot be taken away. Adultery is punishable by death within our tribal practices. The police will not do anything in our country to protect a woman's rights against her husband as it is in our culture that the husband is head of the family.
Q93. No. Being a single woman moving to a different part of the country will mean I will move away from my own tribe (Twi) and join a different tribe. I will not be accepted if I am not married to a member of that tribe.
Q94. Yes, I will be killed if I will return to Ghana because my former husband [is] very angry that I caused so much shame to his family by running away with another man.
Q95. No. the authorities in Ghana cannot protect me because it is a cultural thing - I have ran away from my former husband and according to his tribal culture by running away from him, who was a son of a Chief, I caused him so much shame to the whole tribe and is punishable by death.
Q96. No. It is very hard for a single woman to live in Ghana away from her tribe. I cannot go back to my tribe as my husband's clan will kill me and hunt me down. If I go to another tribe I will not be accepted and I can be raped and killed because I am not attached to any man.
Provided following the interview with the delegate were photographs that were claimed to be of the applicant, her first husband and her child in Ghana. In addition, a copy of a Certified Copy of Entry in the Register of Births’ from Ghana was provided of the birth of [her son] born on [date], showing the applicant as the mother.
The applicant supplied various pieces of independent information to the Department. Provided is an undated report from Every Culture titled ‘Ewe and Fon – Marriage and Family.’ The report notes that polygamy is common amongst the Ewe and Fon, but also states that abuse of polygamy leads wives to leave their husbands for other men, so that women tend to have more than one husband in their lifetime. The report describes the two different kinds of marriage amongst the Ewe and Fon: in one, the husband pays or performs work for the father-in-law, and thus gains rights over the children; in the other, the husband merely marries the woman, and she retains rights over the children. The report mentions a marriage can be done by giving gifts to the bride and her family, and the sharing of drinks. The report discusses inheritance, and the social setting, including that multiple wives and children may maintain their own small huts or houses alongside their husband.
Another report provided is a print-out of the Wikipedia page on Anlo-Ewe. The article describes the history and political organisation of the Anlo-Ewe. The article mentions that polygamy is practised, but only a small percentage of men have more than one wife. Reference is made to the Anlo-Ewe’s religious funerary practices.
Another article is from the Bluawofogbe Foundation on Anlo-Ewe marriage. The article discusses prohibited marriages due to close relationship, and mentions that traditional structures have changed due to economic, religious, and other considerations. Mention is made of the traditional method of proposing marriage under the right of ‘knocking.’ There is discussion of the traditional marriage ceremony, including the statement that many of the traditional practices have disappeared through the spread of Christianity. The article discusses traditional divorce. The article sets out that only a woman can initiate a divorce; reference is made to low levels of divorce in the past, and that divorce was only allowed for flagrant breaches of the husband’s obligation to the wife and her parents, for childlessness, or for adultery. The article states that a woman may divorce due to childlessness, cruelty, or desertion. Mention is made of sterility of a wife or husband being a serious issue and considered a shameful disease, and a woman married to a sterile man would be advised to leave. Reference is made to divorce being possible outside of courts, with the parties’ families meeting and agreeing on a divorce, and fining the wronged party. The article states that, though beating a wife was common, a woman’s family may warn or fine the husband several times if they believe him to be overly violent, and may take the wife away if the husband persists in violence. Reference is made to the difficulty of divorcing for adultery due to proving it has occurred. Discussion is made of desertion, which could amount to a husband leaving for extended trips without giving adequate support to a woman, or, if living together, the husband failing to provide the woman with sufficient ‘market-day money’, the amount determined depending on the family’s circumstances. Reference is made to wives being taken away from a husband if he is not fair to them, such as favouring one wife over another.
The applicant provided a report on the Ewe people from ‘Ghana Web.’ The article provides a brief overview of Ewe history, mentioning that the Ewe are patrilineal unlike most Akan societies.
An article provided by Buzz Ghana is entitled Facts About Akan People, Language, Religion and Culture. The article discusses the culture and history of the Akan, and their language. Mention is made of groups of extended families’ heritage and land being organised within a matrilineal structure, although inheritance is focussed on males. Reference is made to marriage within the structure being forbidden, people needing to marry into other groups of families.
An article provided is the Wikipedia article on the Akan people. The article discusses the history and social structures of the Akan, with more discussion regarding their matrilineal clan system.
The applicant provided the DFAT brief on Ghana, which lists demographic and economic statistics.
The applicant provided a print-out from the Wikipedia page on women in Ghana. The article mentions polygamous marriage in Ghana, stating that the rate in rural areas of women in polygamous marriages is 23.9%, whereas in urban areas it is 12.4%. Reference is made to marriages being traditionally organised by the fathers and senior kinsmen of the bride and groom. Mention is made of women from matrilineal groups such as the Akan traditionally remaining in their maternal home after marriage, and visiting their husbands. Reference is made to the more ‘Western’ approach to marriage in urban areas, and also to the difficulties of women leaving their husbands due to responsibility and lack of familial support. Discussion is made concerning female-headed households in Ghana and female roles in society. The article states that domestic violence in Ghana is likely to occur to 1 out of 3 women, and that there is a deep cultural belief that it is acceptable to hit a woman to discipline her. Reference is made to a 2011 census’ findings that 60% of Ghanaian women believe that husbands are justified in beating their wives, and to a 2008 census which found that 38.7% of Ghanaian women had experienced physical, emotional, or sexual violence by a husband or partner. Reference is made to a 2007 statute passed by the Ghanaian government to prosecute men who abuse women. The article discusses education rates amongst women in Ghana, and employment of women. Mention is made to women predominantly working in the informal sector, including lower pay rates and lack of opportunities. Discussion is made regarding health amongst women in Ghana, and efforts of feminist groups within Ghana.
The applicant’s migration agent provided a submission to the Tribunal dated 4 February 2020 in advance of the Tribunal hearing. Relevant aspects of that submission are referred to later in this decision.
Independent information sourced by the Tribunal
The text of the following independent information was provided to the applicant during and after the Tribunal hearing, including for the purpose of discussion in the hearing and for providing written submissions after the hearing.
Customary marriages – divorce
A 2015 report published by the Government of Ghana with the support of several UN agencies provides extended information on both civil and customary divorce procedure in Ghana. Specific to terminating customary law marriages, the report writes:
170. It is possible to terminate customary law marriage by application to court under Matrimonial Causes Act, section 41 of the Matrimonial causes Act, 1971 (Act 367). A petition for divorce may be presented to the court by either party to a marriage and the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.
[…]
172. Any of the partners in a marriage has a legal right to institute divorce petition in the law court for dissolution of the marriage they have contracted.[1]
[1] 'Civil Registration and Vital Statistics System in Ghana: Report on the comprehensive assessment', Government of Ghana, 1 July 2015, pp.30-31, CISEC96CF15453
The report continues, delineating between ordinance (civil union) marriages and customary marriages (underlining added):
174. For Ordinance marriage, it is only the courts that can grant divorce. After the law courts have granted divorce, it is considered as having been registered as there are records maintained at the various stages of the process. The process involves the petitioner filing a suit and the court then serves the respondent with the suit. The respondent is given eight days within which to file his/her response or an appearance. The petitioner is then served with the response, and is expected on receipt to file for a day for the hearing of the case or what is referred to as setting down. In most divorce cases, they are heard in camera (that is, behind closed doors). If the petitioner finds favour with the Judge, then a divorce is granted. The judgment that is given is considered as a certificate.
175. In the case of customary marriages, the families involved grants the divorce. The process is similar to that of the law courts as one of the parties will bring a case before the elders of the family or community. Both parties are invited with their families and the petitioner is requested to provide evidence or reasons for the divorce. If both parties finally agree to the dissolution of the marriage, the drinks (schnapps) that were presented as the symbol of the marriage having been agreed upon are returned and served to all present as evidence for the dissolution of the marriage. In the customary case also, divorce is only granted after all efforts made to reconcile the couple have failed. In this instance, no records are kept on divorce cases; as cases are dealt with as and when they are brought before the family elders and it dies off if granted.[2]
Status of women in relationships in Ghana and frequency of divorce
[2] 'Civil Registration and Vital Statistics System in Ghana: Report on the comprehensive assessment', Government of Ghana, 1 July 2015, p.31, CISEC96CF15453

The Tribunal made a research request of the Country of Origin Information Services Section (COISS) of the Department of Home Affairs specifically in relation to this matter. The following response was provided on 16 December 2019 in relation to the following question from the Tribunal:
Please confirm whether in the case of Ewe/Akan marriages the practice of polygamy makes it common for women to leave their husbands and take other husbands.
Country information confirming the specifically framed question has not been located,[3] but general country information found does indicate that women in polygamous marriages in general are at greater risk of divorce, with Akan women enjoying greater autonomy in their marriages which may be associated with higher likelihoods of marital instability. Country information also indicates increasing rates of women filing for divorce in Ghana.
[3] Sources consulted include CISNET, online search engines, Refworld and ECOI.net, EBSCOhost, academic databases, local and international new outlets, government and non-government sources.
A 2007 academic article notes that women in polygamous marriages ‘have a higher risk of being divorced’.[4]
[4] ‘Matrilineal Family Ties and Marital Dissolution in Ghana’, Baffour Takyi, Journal of Family Issues, May 2007, p.695, 20191209165448.
A 2019 article published in the New York Times reports on the high proportion of divorce cases filed by women in Ghana in 2016-17.
In Ghana, 73 percent of divorce cases handled by the Legal Aid Scheme of Greater Accra were filed by women in 2016-2017, a big shift from the past. Divorce, once considered taboo for conservative Christians, is being presented in some church sermons as a better option than ending up with domestic violence or adultery.[5]
[5] ‘A Quiet Revolution: More Women Seek Divorces in Conservative West Africa’, New York Times, 6 January 2019, 20191213103609
This same theme goes back to at least 2011, as indicated in the following article, published on the Ghana Web website in that year:
Interesting, but startling statistics from the Greater Accra Head Office of Legal Aid Ghana says at least 40% of marriages registered annually in the region break up within a spate of 14 months.

According to the Head of Registry of Legal Aid, the number of females who apply for separation every week far outweighs that of their male counterparts.

Mr. Ernest Mawuli Adzekey revealed this when the College Press newspaper caught up with him in an exclusive interview in his office. The number of divorce cases brought before his outfit from January to September, 2011 shows that the number of cases are expected to exceed that of previous years.[6]
[6] ‘More Women File For Divorce’, Ghana Web, 3 September 2011, 20191213104132
A 2015 academic article published in academic journal Population draws links between the comparatively higher levels of autonomy enjoyed by Akan women and marital instability, including fewer moral obligations to remain married:
The few studies that estimate divorce rates in Ghana have recorded high numbers: Tabutin and Schoumaker (2004) mention that 35% of women’s first marriages end in divorce after 30 years of marriage, and Takyi and Gyimah (2007) estimate that in 2003, around 25% of ever-married women aged 15-49 years had divorced. Several anthropological studies on marriage instability in Ghana discuss these seemingly high rates and the cultural notions concerning family relationships. These notions are important to consider, as they can shape individuals’ marriage and divorce decisions. They might thus explain the relatively high prevalence of divorce.
[…]
The prevalence of divorce is said to be even higher among Ghanaians with matrilineal kinship ties (Bleek, 1987; Takyi and Gyimah, 2007), such the Akan who constitute the majority of international migrants. Akan women are said to enjoy greater autonomy than their patrilineal counterparts, although some studies indicate that their independence is decreasing due to processes of modernization.
[…]
In general, studies indicate that women in Ghana are quite independent, whatever their lineage.
[…]
This, combined with the practice of separate residence, has led to relationships that are not necessarily egalitarian, but are characterized by the autonomy of spouses. Women’s greater autonomy is, in turn, associated with marital instability, as these women may feel better able to establish independent households and experience fewer moral obligations to remain in a marriage.[7]
A 2007 academic article published in the Journal of Family Issues writes that ‘Across all the surveys, the results suggest that matrilineal Akans have a significantly higher risk of divorce than their non-Akan counterparts, as Model 1 indicates’.[8]
Honour killings in Ghana
[7] ‘Does International Migration Lead to Divorce? Ghanaian Couples in Ghana and Abroad’, Kim Caarls and Valentina Mazzucato, Population Vol.70, No.1, 2015, pp.127-151, 20191213105658
[8] ‘Matrilineal Family Ties and Marital Dissolution in Ghana’, Baffour Takyi, Journal of Family Issues, May 2007, p.695, 20191209165448
In September 2018, COISS published a Question and Answer report including information on honour killings in Ghana.[9] COISS did not find any instances or reports of honour killings. Information was provided on a range of activities that Ghanaian government agencies were undertaking to protect women from domestic violence. No evidence was provided by COISS in its research report dated 16 December 2019 provided for the purpose of this matter as to honour killings being part of the culture affecting Ghanaian relationships.
[9] See 'Ghana CI180911133026909 – Honour Killings – Treatment of Women – Female Divorcees – Adultery – Children Born out of Wedloc', Country of Origin Information Services Section (COISS), 21 September 2018, CR837DFFB331
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Ghana and accordingly her claims will be assessed against Ghana.
The Tribunal explored with the applicant in the second hearing her meeting the person who was to become her Australian husband in Ghana. The applicant indicated that she met this person in a restaurant. He was only in Ghana for about a month before returning to Australia. The applicant formed a relationship with him during this time which became serious and they talked about making a life together in Australia. After the future Australian husband returned to Australia, the applicant and he would communicate by telephone.
The applicant indicated that her Ghanaian husband did not know about her relationship with her future Australian husband. The applicant indicated that she left Ghana for Australia without the knowledge of her husband. She left while he was away from home on business. The applicant indicated in the hearing that her son went to live with her mother.
The applicant indicated that at a certain point her husband discovered that she had come to Australia and was furious. At this point, the applicant asked her mother to make arrangements for ‘drinks to be taken’ to dissolve the marriage. The applicant indicated that the applicant’s mother sought to make these arrangements with the applicant’s Ghanaian husband’s father, the Chief. However, there was a refusal by both he and the Ghanaian husband to agree to this.
The applicant indicated in the hearing that she has heard through her mother and friends of threats by the Ghanaian husband to harm the applicant should she return to Ghana. When the Tribunal explored recent threats, she stated that her mother and friends had been continuing to advise of threats even in the days before the Tribunal hearing.
The Tribunal has credibility concerns with the applicant’s claims that her Ghanaian husband initially refused the dissolution of the marriage and that he has a desire to harm the applicant on her return to Ghana because she has left him and married another person in Australia.
This is for the following reasons.
Firstly, there is inconsistent evidence by the applicant as to whether the customary marriage with her Ghanaian husband has been dissolved. As the independent information makes clear, where both parties agree to the dissolution of a customary marriage, the drinks that were presented as a symbol of the marriage are returned and served to all parties as evidence of the dissolution of the marriage. This is clearly what the applicant is referring to when she indicates in the interview with the delegate that she asked her mother after she was in Australia to arrange the ‘taking of drinks’ to dissolve the marriage.
Following the applicant indicating this in the interview, she was asked by the delegate whether the marriage was dissolved. In response, the applicant indicates that the marriage was dissolved. However, she indicates that because the applicant has ‘tarnished the stool’, the husband will kill the applicant.
Notwithstanding this qualification, that evidence suggests that the Ghanaian husband did agree to the dissolution of the marriage.
This is inconsistent with later evidence by the applicant that the marriage was not in fact dissolved. The applicant changes her earlier evidence in the interview with the delegate later in the interview by indicating that in fact her Ghanaian husband refused to accept the taking of drinks to dissolve the marriage. The applicant reiterated this in the second Tribunal hearing.
The submission provided by the applicant’s migration agent in advance of the first hearing claims that the applicant’s claim in interview that the marriage was dissolved is not correct. In the first hearing, the Tribunal asked if it was been claimed that this was a mistranslation. It is clear from the response that there had not been a review of the interview by the applicant or her representative. The Tribunal provided an opportunity for submissions to be provided following the first hearing if it was being claimed that there was an interpretation error. A copy of the interview was provided to the applicant for this purpose.
No submission was made that there was an interpretation error.
In the second hearing, the Tribunal put to the applicant her prior inconsistent initial evidence in the interview that the marriage was dissolved. In response, the applicant indicated that the marriage had dissolved because she left for a foreign land. She maintained that the Ghanaian husband would not take drinks.
In the context of the applicant’s initial evidence in the interview, she clearly gives evidence that the marriage was dissolved as part of the process of ‘taking drinks’. The applicant gives evidence that she asks that drinks be taken to dissolve the marriage. When she is then asked if the marriage was dissolved, she replies that the marriage was dissolved.
The Tribunal considers this clear evidence that the marriage was dissolved as part of this ‘taking of drinks’ process, rather than any broader understanding that the applicant was intending to mean that the marriage had clearly been ended because she had left for Australia and married another person.
Given the independent evidence, the fact of the marriage through this process being dissolved would suggest that the Ghanaian husband had agreed to the dissolution.
The Tribunal is concerned at subsequent claims to the contrary. The fact of the Ghanaian husband consenting to the dissolution is undermining of claims that he has an intention to harm the applicant due to leaving the marriage.
Secondly, independent information concerning the status of women, particularly Akan women, in marriages, the prevalence of divorce in Ghana and the lack of evidence of honour killings in Ghana are all undermining of the applicant facing a risk of harm from her Ghanaian husband.
The Tribunal noted to the applicant that independent evidence (extracted above) indicates that divorce is relatively common in Ghana and more prominent in polygamous marriages. The research shows that women in Ghana are quite independent, whatever their lineage, but particularly Akan women. The research also indicates that polygamy tends to mean that women have more than one husband during their lifetime.
It was also noted that research on investigations into honour killings in Ghana does not indicate that honour killings are cultural occurrences in Ghana.
The Tribunal put to the applicant in the hearing that all of this is not supportive of a culture in which divorce would be considered taboo, such that it would be likely that the applicant would be at risk of physical harm from her former husband, many years after leaving him.
In response, the applicant indicated that what she knows is that if her husband will not take steps himself to harm or kill the applicant, he will hire people to do so. Her husband is a very jealous man and will never forgive the applicant for leaving.
The applicant’s migration agent provided a written response on these issues following the hearing. In relation to honour killings, it is indicated that this is not a term commonly used in Ghana but that most women in Ghana have suffered domestic violence from their husbands. Wikipedia is cited as supporting this. It is also indicated, and evidence is provided, of a Member of Parliament in Ghana in 2014 advocating stoning women to death if they committed adultery.
Information is provided as to the status of women in polygamous marriages.
Information is provided, under the heading of Akan women being independent, as to the motivation of women in entering marriages. It is submitted that the applicant is considered the personal property of her Ghanaian husband.
Information is provided as to gender inequality in Ghana.
The Tribunal is not satisfied that the independent evidence provided on behalf of the applicant demonstrates any prevalence of honour killings in Ghana nor that death is the penalty for adultery. The Tribunal is not satisfied that one statement by a Member of Parliament that women committing adultery should be stoned demonstrates these facts.
The Tribunal is not otherwise satisfied that the independent information provided on behalf of the applicant counters evidence gathered by the Tribunal of the prevalence of divorce in Ghana or contradicts that Ghanaian women, particularly Akan women, are quite independent, or contradicts the fact that Ghanaian women tend to have more than one husband during their lifetimes.
It has been claimed on behalf of the applicant that her Ghanaian husband has not agreed to the separation, on which, as indicated in the first credibility issue, the applicant has provided inconsistent evidence. As indicated, the Tribunal does not accept that her Ghanaian husband did not initially agree to the marriage being dissolved.
The Tribunal additionally considers that the independent information sourced by the Tribunal does not suggest a culture in Ghana that would make the applicant’s separation and re-partnering lead to a likelihood of extreme and violent action by her former partner and/or his associates many years after the relationship has ended.
Thirdly, untruthfulness and opportunism by the applicant is demonstrated in other visas applied for to enter or stay in Australia.
Put to the applicant in the second hearing in accordance with the procedural requirements of s.424AA of the Act, was information in terms of the Tribunal (differently constituted) finding that the applicant’s relationship with her Australian husband was not a genuine one. Also put to the applicant was information that when the applicant was interviewed in Ghana about her prospective marriage visa to enter Australia, she indicated that she had not been married before.
The Tribunal put to the applicant that this information suggested untruthfulness on the part of the applicant in relation to engagement with the Australian government in terms of entry to Australia. This could be undermining of the credibility of the applicant’s claims in relation to her protection visa.
In response, the applicant elected to respond in writing. It is submitted that the applicant’s relationship with her Australian husband was genuine. The Tribunal is more inclined to accept the view of the Tribunal (differently constituted) that the marriage was not genuine.
It is submitted that although the applicant’s customary marriage in Ghana is recognised as a marriage, it is not so recognised in Australia. That is why the applicant made the statement that she was not married to her first husband. This is claimed notwithstanding that the applicant would still need to be divorced by her husband before she could marry another person.
Despite this explanation, the Tribunal considers that the applicant was being economical with the truth in claiming to Australian officials that she had not been married before, when, on her own claims, in substance, she had been married before.
These matters are given some adverse weight in terms of considering the applicant’s credibility.
The Tribunal notes that its finding as to the lack of genuineness of the applicant’s relationship with her Australian husband is undermining of her claims of genuinely meeting and falling in love with this person in Ghana. This is undermining as to the claimed circumstances of the applicant.
Fourthly, the delay by the applicant in applying for the protection visa, and only after exhausting all options in relation to the partner visa, is undermining of her claim of genuinely fearing harm in Ghana.
As indicated, in the second hearing, the applicant indicated the it was about a year after coming to Australia that she learnt about threats from her Ghanaian husband to harm her should she return.
The Tribunal put to the applicant in the hearing that the delay from this point until applying for the protection visa in August 2016, after her Ministerial intervention application for the partner visa was refused, could be seen as undermining of her claims.
In response, the applicant indicated that she did not originally think that the threat was serious but decided at a certain point that she had to do something.
This does not persuade the Tribunal that the applicant would not have made an earlier application for a protection visa if she genuinely held the fears claimed.
In the written response provided following the hearing, a different explanation is provided, being that the applicant felt protected because of her relationship with her Australian husband and that her visa pathway on that basis would protect her. It was only when that relationship fell apart that she determined that she needed to apply for a protection visa.

As indicated, the Tribunal prefers the view of the previous Tribunal that this relationship was not genuine.
However, the Tribunal does acknowledge that the applicant had a partner visa on foot, which she was focusing on to secure her stay in Australia.
The delay by the applicant is given limited weight but it buttresses the other more significant credibility concerns.
Before considering these four credibility concerns, the Tribunal notes that in the hearing, the Tribunal put to the applicant additional information pursuant to the procedural requirements of s.424AA of the Act. This information was provided by an individual to the Department on the basis of anonymity. This person indicates that the applicant’s marriage in Australia is a sham. Also, the applicant’s claimed adopted daughter is not her daughter. It was indicated that the application was being used as a way of getting the claimed adopted daughter into Australia before turning 18. This person indicated that all of the applicant’s claims as to what was happening in Ghana and here are ‘pretend’. There is an indication that the applicant has two children, a boy and a girl, but only the girl is included in the application.
The Tribunal noted to the applicant that this information could be undermining of the credibility of her current claims and the consequence of relying on this information could be to disbelieve her claims.
In response, the applicant indicated that none of this information is true and she does not know why such claims would have been made.
In the written response provided following the hearing, it is stated that the person who came with her to Australia was her genuine adopted daughter. It is also claimed that the relationship with her Australian husband was genuine. As indicated, the Tribunal prefers the contrary view of the previous Tribunal.
As indicated to the applicant in the hearing, the Tribunal has no ability to question or test the adverse information, and, to that extent, was not likely to give the information any weight. The Tribunal does not give the adverse information any weight.
The Tribunal notes that the adverse information put to the applicant above was covered by a Certificate and Notification issue under s.438 of the Act. This was to protect the privacy of the individual who made the claims. As is clear from the above, the Tribunal has provided the applicant the substance of the information without revealing the identity of the person who provided it. The applicant was advised at the hearing of her right to challenge the validity of the s.438 Certificate, which neither the applicant nor representative chose to do.
The Departmental file contains a Certificate and Notification issued under s.438 of the Act restricting the disclosure of certain information on the file on the basis that the documents are internal working documents and relate to business affairs. The Tribunal does not consider that this provides a basis for public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid. This was indicated to the applicant in the hearing.
The Tribunal discussed with the applicant in the hearing the claim that in Ghana there is the death penalty for adultery. The Tribunal noted to the applicant that there is no independent information supporting this, and that the Tribunal would be unlikely to accept this unless independent information supporting the contention was provided.
In response, in the hearing, the applicant indicated that words are more powerful than a sword. The Ghanaian husband has made utterances that he will harm the applicant and is very jealous, implying that he will indeed harm the applicant.
As indicated, in response following the hearing, as indicated above, a report was provided of a Member of Parliament in 2014 advocating the death by stoning of women who commit adultery. The Tribunal is not satisfied that this advocacy by one individual, albeit a Member of Parliament, demonstrates that death for adultery is either a law or otherwise a practice in Ghana.
The Tribunal considers cumulatively the four credibility concerns identified. Considered together, they result in the Tribunal not being satisfied as to core claims by the applicant.
The Tribunal considers that the Ghanaian husband consented to the dissolution of the marriage with the applicant. The Tribunal is not satisfied that he has evidenced an ongoing intention or has an intention to inflict physical harm on the applicant as a result of her leaving the marriage approximately nine years ago and travelling to Australia.
The Tribunal is not satisfied that adultery in Ghana is punishable by death, or that it, as a matter of practice, results in death.
In the written statement by the representative prior to the first hearing, it is claimed that the applicant faces sexual attack in Ghana as a result of not being attached to any man. No independent evidence has been provided of this being a systemic risk to attached women in Ghana. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on this basis.
Given the Tribunal’s findings, it is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk of her suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - 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.
…

[2020] AATA 5126

21 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction