1622488 (Refugee) - [2020] AATA 786

1622488 (Refugee) [2020] AATA 786 (26 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622488
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Jane Marquard
DATE:26 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 March 2020 at 2:18pm

CATCHWORDS
REFUGEE – protection visa – Ghana – refusal to be enstooled as a fetish priest – credibility concerns – inconsistent evidence – omission of key incidents of harm in written application – provided incorrect information to the Department – delay in applying for protection – country information – selection criteria for chiefs and priests – consequences for refusing traditional positions – no real chance of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [age]-year-old man from Accra, Ghana, born in [year].
He first arrived in Australia [in] March 2015 on a [temporary] visa.
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) one year later on 3 March 2016.
A delegate of the Department for Home Affairs, as it is now known, (the Department) refused to grant the visa on 22 December 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act.
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). He or she must be 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.
Section 36(2)(a) provides that a person is a refugee if he or she is outside their country of 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: s.5H(1)(a) of the Act.
Under s.5J(1) of the Act, 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 extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion he or she may meet the criteria for the grant of the visa if there are 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
CLAIMS AND EVIDENCE
The evidence taken into account
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
The applicant provided evidence and made claims in the application form provided to the Department and in an interview with a delegate of the Department. A summary of his evidence is set out below.
The applicant is from the Ga ethnic group and is a Christian. His parents [and number of siblings] are still residing in Ghana. He was not married, but has a son in Ghana. He has married in Australia, and has one child and a step-daughter.
After completing high school the applicant attended [Education Institute 1] in [Town 1], Ghana from September 2004 to June 2007. From June 2007 he worked as a [Occupation 1] at a [company]. He lived in [District 1] in Greater Accra.
The applicant claims in his application forms that he refused to be enstooled as a fetish priest because it was contrary to his Christian beliefs. In his interview he said that every house has a shrine. His father was Christian, but his father’s family had a shrine. He said that there was a festival called Ohomor where the area chief spreads something called ‘piply’, a type of food. The fetish priest ‘follows the chief’ and talks to the shrine and the gods. The applicant had never attended a ceremony.
The fetish priest who was enstooled on the shrine was a woman, but the elders wanted the applicant to replace her when she died, as his father was head of the family and the applicant was the eldest son. He said that when he was about to leave for Australia, his mother told him that the family were planning to enstool him so he should be careful. He was later asked by the delegate if he was personally asked and he replied that he was.
He then said that ‘the woman passed away in January. But they waited until they buried her, and they start making a family meeting…so when they are doing the family meeting, I was not part of them.’ He said that there was a meeting in January or February after they buried the woman, and he heard that he was the one who was next in line. His mother told him that his father had called to say that he had been chosen. He said that he was given one week to decide.
He said in his application forms that he was kidnapped and tortured following his refusal, but managed to escape. He said that the police detained him as punishment to force him to change his mind.
In his interview he said that he had a mark on his forehead from being hit with a stick on the day when they said he had to take over and when he said he was not going to be the fetish priest. He said that they tried to force him and push him to the shrine. He said that he tried to escape and his family hit him. He went to hospital and had to recover so could not leave with his group to Australia. He said that he hid with his friends while recovering. He said that he had to get the mark on his face to recover. He had bandages on his head so could not travel.
The delegate asked him why in his application he said that the police detained him. He responded that the chief had contact with one of the police commanders. He then said that the police boys came and threatened him, and that was how his forehead was hurt. The delegate put it to him that previously he had said that his family hurt his head. He did not respond to this.
In his interview he said that he did not tell his mother about moving to Australia as he did not want her to talk about him moving, as this would alert the people looking for him because he refused to be priest. The delegate put to him that he applied for the Australian visa in December 2014 which was before the request for enstoolment had taken place.
In his interview he said that when he was in Australia, he hoped that they would put a different person on the shrine. He said his brothers could not be chosen unless the applicant had passed away. He said that they had been without a fetish priest since he had been away. They are still waiting for him. He said that they have told his mother that they will kill him if he refuses. He said in his application forms that he fears returning to Ghana as he will be kidnapped and subject to harm, including beatings, torture, genital mutilation, assault, starvation and humiliation. He said that he could not seek help as the government has a policy of non-interference in relation to traditional religious matters.
He claimed that he could not relocate as he speaks a local dialect, Ga, which is only spoken in Accra.
The applicant said that he came to Australia with a group. He was delayed in Ghana so they travelled ahead of him. After arriving in Adelaide, he went to the airport to fly to Sydney. Asked by the delegate why he was delayed he said that ‘they hurt me, so before I bought my ticket and got to Australia.’ He said that he joined the group in Adelaide. He then spoke to his mother who said that the elders had not changed their minds so he decided to stay in Australia. He initially lived with [his] head pastor’s brother. Now he is married and his wife is pregnant.
He said that he attends [Church 1] in [Suburb 1]. Two to three days after arriving in Australia he met a man at a train station who was preaching. He was from Ghana as well and approached the applicant. This man introduced him to the church.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 3 March 2020 by video from [Australian City 1] to give evidence and provide arguments. He confirmed that he could hear and see well from the [Australian City 1] office and that he could understand the interpreter.
The applicant confirmed that he had lived in Accra his whole life. Both his parents, who have split up, are from Accra, and are still residing there. His mother was a [Occupation 2] and [did certain work], and his father worked as a [Occupation 3]. His mother lives with her family and his father with his family. His mother has brothers and sisters but recently she lost her elder brother. His father has a large extended family.
Prior to travelling to Australia the applicant lived close to his mother’s family house, in a house by himself. Before that, he was living with the mother of his child. He had been going out with her, and she fell pregnant so her parents asked him to live with her. They lived together for a while and then she and their child left him, after he lost his job, four to five months before coming to Australia. He lost his job due to ‘circumstances because of what he was going through’. He could not go to work, so his employers had no choice but to sack him. His child is now living with his mother and will be [age] years old in [specified month]. The applicant said that he is close to his mother but because of the separation of his parents, less close to his father. He keeps in touch with them both. Because of his child he speaks to his mother more often. One brother lives in [Town 2] and his sister lives in [City 2]. His other brother lives with his mother. His brothers do not work. They ‘make ends meet’ from [certain work].
The applicant confirmed that he attended primary and secondary school in Ghana and then worked for one company until he came to Australia.
When in Ghana, he attended an Anglican church in Accra infrequently. He considers himself a Christian. He goes to church in Australia – initially [Church 1] in Sydney and now, [Church 2], also in Sydney. He went to [Australian City 1] after he met his wife in April 2016. Now he lives in Sydney. [Church 2] has a branch in both Sydney ([Suburb 2]) and [another city] ([Suburb 3]), which he attends.
He did not use an agent to assist him to travel to Australia. In Ghana he was part of a [group] called [Group 1], which was due to travel to Australia. He was not planning to travel with them but because of what ‘he was going through’ they made it possible for him to do so. He [had a specified role] and was part of the group for three years, but did not take it seriously. They were paid for [their work], but it was not much. When he ‘had the problem’ he called the leader to say that ‘if he did not get out of the country they would kill him’. The leader organised the visa for him. He did not travel to Australia with [Group 1]. He came later because he was scared that people in Ghana would hurt him, so he delayed coming. Asked if he could explain the problems he encountered in Ghana, he said that this was ‘to do with a shrine in the family house’. He said that the fetish priest died early 2015 and it was decided that he should take over. The applicant then corrected himself and said that these incidents took place in 2014 or 2015.
He was asked who decided he should take over as fetish priest. He said that it was ‘done in such a way that everyone has a turn, and then you get asked to take your turn’. He said that it should have been his father but his father was not well. Asked about the first time he was asked to be fetish priest, he said that it was in the middle of 2014 that they ‘brought the issue to him’. He told them that he could not take on the role as he is a Christian. Asked who approached him, he said that it was the advisor to the fetish priest. The applicant was at work at the time. When he returned home from work, his mother said to him that his ‘father’s side’ said that he must be priest. His mother had spoken to the advisor.
He was asked if he spoke to the advisor himself. He said that the advisor then ‘came to talk to him at home’ in mid-2014. The advisor said that his father was sick and the applicant must become the priest. The applicant said that he told the advisor that he would not do it as it did not ‘agree with his heart’ and it did not accord with Christianity. He said that the advisor did not respond, but left. After that four ‘guys who came with the advisor’ started harassing him. Asked what form the harassment took he said that a week later the four guys went to his mother’s house while he was holding his child, and harassed him by trying to ‘force him to be the priest’. He said that they ‘took him away and locked him in a room where the fetish priest lives’. Asked how they took him there from his mother’s house, he said that they put him in a car. Once he was in the room, they asked him if he was ready to be priest and he said that he was not, so they went out of the room and came back with a cutlass and started threatening him. He said that he was in the room for two weeks. A time came when they had to perform a sacrifice and they told him that he must be part of the sacrifice. They brought him out of the room and put a fetish gown on him. They then gave him a stool to sit on and started preparing the sacrifice. When the time came, they took him to the beach, and he was bathed with sea water. On return they poured libation and started slaughtering the animals. After this, they took some blood and used it to wash his face. A lot of people left then so he ran away. He hid in his friend’s house.
Asked if he saw the associates of the fetish priest again after this, he said that they went to see his mother and said that the ‘shrine was annoyed’ and they would ‘use him as thanksgiving’ when they got hold of him. He said that the elders contacted his mother but he personally had no more contact with them until he left the country. He said that he was in hiding and for this reason he left his job.
He said that his mother told him he should report the kidnapping to the police which he did, but the law in Ghana ‘did not work and nothing was done’.
He said that he went to the hospital after being held for two weeks, as he had cuts and wanted to check that he did not have internal bleeding. He does not have any hospital records.
He was asked by the Tribunal if he could move to a different part of Ghana so that he would not be harassed by the associates of the fetish priest. He said that he thought about it, but he realised it was not safe as they have contacts everywhere.
He said that the fetish priest is now his father’s brother. He was asked why the associates of the fetish priest would want to harm him if he returned to Ghana, as there is now a new fetish priest in place. He said that it was because they said that the shrine was ‘upset with him’.
He said that he got married in Australia and has also applied for a partner visa.
Asked if he would like to provide any further submissions on any matter, he said that he had provided all his evidence.
Independent country information
The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.
Mandatory considerations
In accordance with Ministerial Direction No.84 the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, 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.
DECISION OF THE DEPARTMENT
The Department did not accept that the applicant was selected by family members to be a fetish priest or that he experienced threats of harm. The Department was not satisfied therefore that the applicant met the criteria for grant of a protection visa.
FINDINGS AND REASONS
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk of significant harm.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
The applicant has a Ghanaian passport issued in Accra in 2012 which expired in 2017.
The applicant gave evidence that he is a citizen of, and born in, Ghana. The Tribunal is satisfied on the basis of the passport and other documentation provided, as well as the applicant’s knowledge of the country, that the applicant is a citizen of Ghana, and that Ghana is the receiving country for the purposes of the legislation.
Section 438 Certificate

A preliminary issue for consideration concerns a certificate restricting disclosure of certain information in the Departmental file.
The Tribunal has received a Departmental file which contains the application for protection and associated documents. The delegate placed a non-disclosure certificate on the Department’s file pursuant to s.438(1) of the Act. The reason given for the restriction of certain folios is because they ‘contain information relating to an internal working document and business affairs’. The certificate purports to restrict folios 70 to 77. The material in these pages consists of a report by the Department in regards to postal intercepts of five counterfeit Ghanaian driver’s licences and a note of a telephone call between an officer of the Department and the applicant.
There are two issues for the Tribunal: one is whether the certificate is a valid certificate and the other is the nature of the information in the purportedly restricted folios.
In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. In some circumstances public interest immunity might operate to prevent the disclosure of Cabinet deliberations (the relevant public interest being free and fully informed Cabinet debate), police investigative documents (the relevant public interest being to keep police methods confidential and not prejudice investigations),[1] and information provided in confidence where it might reveal the source.[2]
[1] See Guo v MIBP [2016] AATA 897 (President Justice D Kerr and Deputy President Prof R Deutsch, 26 September 2016).
[2]SZTYV v MIBP [2018] FCCA 64 at [58]-[59].
In MZAFZ v MIBP,[3] 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.[4]
[3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
As discussed with the applicant, the Tribunal considers that the certificate on the file is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios ‘contain information relating to an internal working document and business affairs’ does not properly identify a basis for public interest immunity. There is no suggestion that the documents would harm the nation or public service by disclosure of the material.
In fairness to the applicant, the Tribunal outlined the nature of the purportedly restricted documents and put the information in the documents to the applicant for comment. In regard to the report on counterfeit driver’s licences, the applicant said that the driver’s licence he is using was the licence he used in Ghana. He asked people in Ghana to send it to him, as he did not bring it with him.
The Tribunal has not given this report weight in assessment of the evidence as the Tribunal has no other information about the report, and the existence of the licence is not directly relevant to the issues under review.
Also on the file was a note of a telephone call between an officer of the Department and the applicant in relation to the [visa] application. The contents of this note were put to the applicant during the course of the hearing for response or comment. The content and the applicant’s response are discussed in more detail later in this decision, in relation to inconsistencies between the information relayed by the applicant in the telephone call, and evidence to the Tribunal.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact about 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’.[5] The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[6]
[5] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[6] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204
This approach is supported in numerous judgments and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[7], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[7] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
Taking all these matters into account, the Tribunal accepts that the applicant is Christian. Ghana has a large Christian population and the applicant has given evidence of attending church in Ghana and in Australia.
The Tribunal also accepts that the applicant’s father’s family followed some traditional practices. This is not uncommon in Ghana[8], and the applicant was able to discuss broadly some aspects of the practice.
[8] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783 16 August 2012
Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts.[9] The Tribunal has taken the reasonable approach to assessment of evidence, but considering the totality of the evidence, the Tribunal is nonetheless not satisfied that the applicant was asked to be priest or that he suffered adverse consequences from refusing to do so. The reasons for this are as follows.
[9] Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Firstly, the applicant’s account of what took place in Ghana leading to his departure, was confused and disjointed, and was not consistent in his various accounts of what took place. This led the Tribunal to conclude that in key aspects the evidence had been formulated to bolster a refugee claim, rather than being evidence of direct experience. Examples of this are set out below.
When asked by the delegate, ‘when exactly did you hear about this plan’, in relation to when he was asked to be fetish priest, he said that the woman (the previous fetish priest in his village) died in January 2015. He said that elders waited until the burial then started planning who was to be next and then he heard he was to be next. He said that he was told by his mother that his father had called her and told her that he must be the next priest and he would be given a week to make the decision.
However the applicant told the Tribunal that it was mid-2014 when these incidents took place (although he first said that it was early 2015), and that the advisor for the fetish priest told his mother that he must be priest. The Tribunal put to the applicant that this inconsistency about this significant incident suggested to the Tribunal that his evidence had been devised to bolster a refugee claim. He said that he had told the Tribunal that he was not sure about the dates. The Tribunal accepts that it can be difficult to remember exact dates when incidents took place, however the Tribunal is of the view that the applicant would recall if he was asked to be priest two months before he left the country or six to seven months prior. The Tribunal is also of the view that he would recall if this was the reason he applied for his visa to come to the country (which is what he told the Tribunal). However he told the Department that the incidents occurred in January 2015, which was after he applied for his [visa] to Australia (December 2014). He then appeared to become confused about this, suggesting that he had not told his mother about his visa because he did not want her to attract the attention of the elders, although he had told the Department that his mother was the one who told him about the request for priesthood, and this was after he had applied for his visa.
His evidence about who told him that he must be priest was also different in his accounts to the Department and Tribunal. As mentioned, he told the delegate that his mother told him, after hearing from his father that a village meeting had been held. He told the Tribunal that an advisor to the fetish priest informed him. He then said he was at work at the time and his mother spoke to the advisor. He also said that after this the advisor came to speak to him at home. The Tribunal is of the view that the applicant would recall who spoke to him about being a fetish priest and broadly when this occurred, as it was significant, and indeed allegedly led to assaults on him.
Further, as discussed at the Tribunal hearing, although he said in his application forms that he was ‘kidnapped and tortured’, he did not provide the delegate at interview with details about being locked in a room for two weeks, threatened with a cutlass, and being forced to attend a sacrifice, all of which he spoke about at the Tribunal hearing. He also did not inform the Department about other details – that he was required to become priest because his father was unwell or that he was fired from his place of work because he had to hide from elders. The Tribunal put to the applicant that these important omissions may indicate that the events he described did not take place but had been added to his evidence to bolster his claim. The applicant responded to this by saying that the delegate did not ask him for details whereas the Tribunal had asked him for specific details. The Tribunal accepts that applicants may formulate answers based on questions asked, however the applicant was clearly asked about the harm he suffered in his application forms and it would have been expected that he would have mentioned being locked in a room for two weeks, and being fired from his job. The applicant also did offer evidence to the delegate about being hit on the head, and when asked if anything else happened, he said that it did not, apart from being threatened. The omissions do suggest that the additional evidence has been added in his evidence to the Tribunal for purposes of bolstering the claims, rather than being an expression of actual experience.
The applicant also stated in his application to the Department that the police detained him as ‘punishment to change his mind’ in order that he agree to be priest. The delegate asked him why he did not refer to this when asked at interview about repercussions for refusing the priesthood. He then said that ‘police boys came and threatened him’. However at the Tribunal hearing, although asked about harm suffered, he did not refer to police detention, assaults or threats. The Tribunal indicated that this was a significant difference which may suggest that he has not told the truth about the repercussions of refusing to be a priest. The applicant responded that his evidence to the Department was difficult as he did not have an interpreter.
In his Departmental interview he also gave varying accounts of how he got a mark on his forehead, first saying that his family hit him on the day he was asked to be priest, after they tried to force him to the shrine. He said that this was shortly before he left for Australia so he could not travel with the group as he had marks on his face. He later said that ‘police boys’ came and threatened him and hurt his forehead. He also told the Tribunal that a week after he was asked to be priest he was forcibly taken and locked in a room for two weeks. The Tribunal indicated that these differences in what took place might suggest that the incidents did not occur at all as they were inconsistent. He said that the delegate asked questions very fast and the English was not clear to him.
The Tribunal accepts that there may have been problems in understanding the questions at interview and has taken this account into assessing his evidence. A review of the evidence at the Departmental interview does indicate that he was given the opportunity to present evidence on these matters, spoke freely, and that in general he did not appear to misunderstand the delegate. In any event the evidence about the police detention was a written statement in his application.
The Tribunal acknowledges also that there may be instances where applicants have lied or exaggerated about one aspect of the evidence but that specific inconsistencies 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.’[10]
[10] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86
Furthermore, in considering the evidence as a whole, the Tribunal has also taken into consideration that psychological research on memory of trauma[11] 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.[12]
[11] 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
[12] Cameron, H.E., Refugee Status Determinations and the Limits of Memory, 2010, International Journal of Refugee Law 469
The Tribunal has considered whether there may have been specific exaggerations or additions to the evidence which although untrue did not affect the overall claims. The Tribunal has also considered whether the trauma of being asked to be priest or the alleged assaults which followed could have resulted in the inconsistent and confused evidence which was presented. However, even taking into account some possible misunderstandings due to interpretation, and inconsistencies due to trauma, the Tribunal is not satisfied that the applicant was asked to be priest or suffered adverse consequences for refusing to do so. This is because when considered cumulatively, the evidence was so fragmented and so different in key aspects that when considered in its entirety, the Tribunal is not satisfied that any of the events in relation to his claim took place.
This conclusion is supported by the fact that the applicant has some history of providing inaccurate information to the Australian government. As put to the applicant at the Tribunal hearing, information in his application for a [visa] and from a telephone call he had with the Department about this visa on 19 January 2015 was different to the information he has provided to the Tribunal. He told the Department in his forms and during the telephone call that he lived with his wife and two children in Ghana and had [a number of siblings]. He said that he had [worked] professionally with [Group 1] for four years and had travelled with [Group 1] to [Country 1], [Country 2] and [Country 3]. However he told the Tribunal that he lived by himself, had [a different number of siblings], [worked] for the group ‘not seriously’ for three years and had not travelled to [Country 1], [Country 2] and [Country 3]. When asked by the Tribunal to comment on this the applicant said that the leader of [Group 1] prepared the visa application, and he repeated what was said in order to get the visa. He said that the leader of the group had travelled to those countries. While the Tribunal acknowledges that where applicants have a fear of persecution they may embellish visa applications in order to flee the country, in this case the applicant applied in December 2014 when, at least according to his evidence to the Department, he had not yet been asked to be priest. This incorrect information does demonstrate that the applicant may have some propensity to provide incorrect information to government authorities.
Additionally, the Tribunal has given some, but not significant weight, to the fact that the applicant arrived in Australia in March 2015 but did not apply for protection until March 2016. The applicant told the Tribunal that he came to Australia to flee persecution such that it would be expected that he would have applied after arriving in the country. He was asked if the delay indicated that he did not in fact have a genuine fear of returning. He said that people he spoke to told him that if he applied for a protection visa he would be sent home, so he was afraid. He was asked if he made any efforts to find out information from the Department or from the internet. He said that he had a friend who told him that he should apply, and that the Department would help him. The Tribunal acknowledges that immigration processes can be intimidating, however, it would have expected the applicant to seek avenues or apply at an earlier opportunity if he did in fact fear persecution on return.
Furthermore, the Tribunal has taken into consideration the fact that country sources, while not definitive in all respects, do generally indicate that the selection process for priests takes into account other factors besides lineage. There are approximately 92 separate ethnic groups in Ghana so it is not possible to make entirely generalised findings about the rules that govern each group[13]^.However, according to a Ghanaian professor of political science, the basic principles are basically the same across Ghana (9 May 1994).[14] The professor explained that there may be some differences, but these are ‘minor’ and may relate to the kinds of rituals performed during the enstoolment or destoolment processes. According to ‘Area Handbook for Ghana’, the Ga idea of a chief was borrowed from the Akan.[15]
[13] 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
[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, 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">
Sources do indicate that there are a number of factors taken into account in appointment of both chiefs and priests. An article in the Nordic Journal of African Studies states that chiefs are mostly elected after consulting all the families and everyone has the right to express views.[16] 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.[17] 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.[18] The enstoolment process begins when the families contending for the position have agreed or decided upon the person to be appointed. The decision becomes final when the Queen Mother approves the selected person as capable of leading and representing the community. The role of the Queen Mother in the process is important as her consent is essential for enstoolment.[19]
[16] Vehnamaki, M, Nordic Journal of African Studies, Culture and Economic Development in Ghana: The Conventional Wisdom Revisited, , 8 (1), 1999, p.63
[17] 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, Volta Digest, The Chieftancy Institution in Ghana, 18 August 2015
[19] Immigration and Refugee Board of Canada Report, Ghana: Information on the Chieftaincy process and how people are destooled and enstooled, by whom and whether the government gets involved, 1 May 1994, >
In relation to the Ga specifically a recent article refers to claimants to the Ga stool being ruled as unfit by a Committee which suggests that a number of people are considered and factors taken into account.[20]
[20] Myjoyonline, 1 March 2019
In response to this country information, the applicant said that there is a difference between a fetish priest and a chief. He said that the chief looks after the people in the community and the fetish priest is connected to the shrine. The applicant is correct that there is a difference in the functions of these traditional positions, as described by an associate professor of Anthropology at York University, who has done extensive fieldwork on fetishes in Ghana.[21] He explained that a chief operates in the public, political sphere of life while a fetish priest operates in the more private, religious sphere. He indicated that most villages have only one chief but several fetish priests.[22]
[21] The New York Times, A Visit From the Devil Feared Traditional Priest From Ghana Spends a Year in the Bronx, 19 July 2013
[22] The New York Times, A Visit From the Devil Feared Traditional Priest From Ghana Spends a Year in the Bronx, 19 July 2013
It is also true that much of the literature refers to selection of chiefs, although some sources appear to refer to both positions interchangeably[23]. However the sources which do refer to selection of priests also indicate that lineage is not the only requirement for priesthood. Some sources suggest that fetish priests are ‘often people selected from a specific family who may be “possessed” by a god’.[24] There was no suggestion that the applicant was so possessed. One source suggests there are two types of positions considered in relation to fetish priests in Ghana: okomfo (or akomfo) and obosomfo (or abosomfo).[25] According to the source, okomfo is an intermediary who conveys messages from deities to people. The position of an okomfo is not hereditary and both men and women may occupy it. A person is called to become an okomfo when a deity suddenly possesses him/her or reveals himself/herself in a dream or in a real life encounter. A person who has received such a call can become an okomfo by undergoing a lengthy training process supervised by a senior priest.[26] Again, there was no suggestion by the applicant that he experienced a deity in a dream or other encounter. A Canadian Immigration and Research Board report refers to a number of criteria which could be taken into account:
Some people in the community cannot become chief/priest because they are not a member of the inheriting/’owning’ kin-group; because they are circumcised; because they are not literate enough, etc.. the elders seeking an office holder want the most highly educated, and potentially wealthy and powerful candidates, in their own right, to be the office holders. [27]
[23] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783   16 August 2012
[24] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783   16 August 2012
[25] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783   16 August 2012
[26] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783   16 August 2012
[27] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783   16 August 2012
Taking these various sources into account, it does appear that a priest is not selected only because of lineage, as claimed by the applicant, but that other factors are taken into account.
Furthermore and importantly, nearly all the sources consulted indicate that there are minimal harmful repercussions for refusing the position of both chief and priest.[28] The training of the okomfo priest, for example, ends with a test, which determines whether the trainee is actually capable of mediation with the deities.[29] A Canadian Immigration and Refugee Board report has stated that ‘since functioning as an okomfo depends on the person's ability to become possessed by a deity, I do not think that anybody can be forced to become one.’[30] Similarly in relation to chiefs, a Ghanaian professor of political science has stated that he is not aware of anyone being sanctioned for refusing to be a chief.[31] Sources suggest that a person may turn down the offer of chieftaincy if a person is a Christian and does not want to pour libation on a stool of the dead chiefs or perform rituals that are perceived as non-Christian.
[28] 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
[29] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783 16 August 2012
[30] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783 16 August 2012
[31] 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, >
About 71% of Ghana is Christian, such that Christianity and tribal beliefs often interact. A number of other academics also suggest that there are no repercussions for refusing traditional positions.[32] In May 2017, the 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. [33] 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’.[34] The IRBC report quotes a professor emeritus of anthropology at Haverford College in the US as stating that ‘nobody would be penalized for not wanting the job.’[35] A senior lecturer at the University of Ghana’s Department of Sociology advised ‘there is no physical punishment for refusing a traditional position’.[36]
[32] 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]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
[34] 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
[35] 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
[36] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
A 2009 Operational Policy Guidance Note published by the UK Home Office reported that ‘there is no specific evidence that individuals who claim they are persecuted by family, community or tribal leaders to become the next chieftain or high priest in fact encounter mistreatment.’[37]
[37] UK Home Office, Operational Guidance Note: Ghana, 29 January 2009, p.7
In 2006, an instructor in sociology at Camosun College in Victoria, British Colombia and former senior lecturer at the University of Cape Coast in Ghana advised:
The usual method for a person who does not want to accept an offered office is to travel so as to avoid the possibility of being offered the position. The elders are quite aware of this method, and incorporate it into their deliberations. [In] their minds, it is preferable that not many contenders, who will have different groups of supporters within the clan, are around to mess up the replacement process (e.g., enstoolment). To maintain their pride and face, the persons running away will exaggerate the danger to themselves of refusing a proffered office....
There is no practice of punishing persons for running away before being offered a position as chief or elder, including female positions such as Queen Mother. If the chosen person is not bright enough to run away, and wants to refuse office, the usual practice is for him or her to offer a sheep to sacrifice to pacify the annoyed ancestors, and that is the end of it. There is no need for state protection because there is no punishment. The disappointed elders may express their irritation, but it happens so often, they usually sigh and are resigned to the fact. [38]
[38] Immigration and Refugee Board of Canada, GHA105792.E, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
The 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.[39] Information indicates that Christianity would not prevent a person accepting chieftaincy, given that ‘the people of Southern Ghana are notable syncretists, being able to accommodate many, often incompatible (in our eyes) religious beliefs.’[40] However Christianity may be offered as an excuse for refusing an offer of chieftaincy.[41]
[39] See for example, Joseph Quayesi-Amake, Social responsibility in the Christianised Akan Ethnic Culture of Ghana
[40] Immigration and Refugee Board of Canada, Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, GHA104154.E, 3783 16 August 2012, United States Department of State, International Religious Freedom Report Ghana, 15 August 2017
[41] 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: >
While there may be specific instances where a person suffers consequences, considering all this country information in the context of the applicant’s fragmented narrative about his past, the Tribunal is not satisfied that he suffered any harm for not accepting a position of priest.
Does the applicant have a well-founded fear of persecution for reasons of his religion, or for reasons of membership of a particular social group of persons in line for priesthood (or a similar group)?
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·     the real chance of persecution relates to all areas of a receiving country.
For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
The Tribunal is not satisfied that there is a real chance of persecution if the applicant returned to Ghana. The reasons for this finding, which have been considered cumulatively, are set out below.
Firstly, the Tribunal is not satisfied that the applicant has suffered any harm in the past as a result of being unwilling to take up his role as priest. The reasons for this are set out earlier. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559: ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ In this case, the applicant has based his claims on fear of harm from elders or family who want him to become the priest. However the Tribunal does not accept that he was asked to be priest or suffered any adverse consequences for refusing to accept the position.
Secondly, the country sources referred to in detail earlier are generally in agreement that persons are not forced to take up traditional priest positions. The sources do not indicate that persons who refuse to take up traditional positions are subject to violence or other forms of persecution. At most, there may be some ostracism, which would not reach the level of serious harm required by the Act.
Thirdly there is no suggestion that other members of his family have suffered harm due to his refusal.
Fourthly, five years have elapsed between the applicant’s arrival in Australia and the request that he be enstooled as the priest. The applicant told the Tribunal that a new fetish priest, his uncle, has been appointed since he has been in Australia. Although the applicant claims that the elders will still want to harm him because the stool is ‘upset with him’, it is likely that any alleged interest in the applicant has diminished over time, particularly as a new priest has been appointed.
In light of all these factors considered cumulatively, the Tribunal is satisfied that the chance of harm would be insubstantial, remote and a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379). The Tribunal is not satisfied therefore that there is a real chance of serious harm for any of the reasons set out in the legislation were the applicant to return to Ghana in the reasonably foreseeable future.

100. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation. Therefore the applicant does not meet the refugee criteria.
Does the applicant meet the complementary protection criterion?
101. If a person is found not to meet the refugee criteria he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criteria’).
102. ‘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.
103. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
104. The Tribunal does not accept that the applicant has suffered any repercussions in the past for refusing to take up the position of priest. Detailed reasons for this are set out earlier. The Tribunal is also not satisfied that there is a real chance of serious harm if the applicant refused to be priest. For the same reasons as set out earlier in relation to ‘real chance’, the Tribunal is not satisfied that there is a real risk of significant harm were the applicant to be removed from Australia to Ghana and refused to take up the priest position. Although there may be some ostracism from elders and others, this does not reach the level of significant harm envisaged by the legislation.

105. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana there is a real risk of significant harm. The applicant thus does not meet the complementary protection criteria.
CONCLUDING PARAGRAPHS
106. 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).
107. 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).
108. 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
109. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
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.
…