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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1622488 (Refugee)

Details

AGLC: 1622488 (Refugee) [2020] AATA 786
Case: [2020] AATA 786
Decision Date: 26 March 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Ghana. The applicant claimed he feared persecution if returned to Ghana because he refused to be enstooled as a fetish priest, a role he alleged his family intended for him due to his position as the eldest son. He further claimed he was kidnapped, tortured, and detained by police following his refusal, and that he sustained injuries preventing his departure with his group to Australia. The Administrative Appeals Tribunal (AAT) reviewed the decision of the Department, which had refused the visa application.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a Convention reason, or whether there were substantial grounds for believing that his removal from Australia would result in a real risk of significant harm, thereby meeting the complementary protection criteria. The Tribunal was required to assess the credibility of the applicant's claims, considering inconsistencies in his evidence, omissions in his initial application, and the delay in seeking protection. The Tribunal also had to consider independent country information regarding the selection criteria for chiefs and priests in Ghana and the consequences of refusing such traditional positions.

The Tribunal found that the applicant had not satisfied the onus of proof required to establish his claim for protection. It noted that the mere assertion of fear does not establish its genuineness or that it is well-founded, nor does it automatically prove a real risk of significant harm. The Tribunal considered the applicant's evidence, including his initial application and interview statements, and found significant inconsistencies, particularly regarding the alleged kidnapping, torture, and detention. The Tribunal also noted the omission of key incidents of harm from his written application and the provision of incorrect information to the Department. After considering relevant country information, the Tribunal concluded that there was no real chance of harm to the applicant upon his return to Ghana.

The Tribunal affirmed the decision of the Department and therefore made no orders in favour of the applicant for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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