1702309 (Refugee)

[2020] AATA 1004

1702309 (Refugee) [2020] AATA 1004 (31 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702309

COUNTRY OF REFERENCE:                   Ghana

MEMBER:David McCulloch

DATE:31 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 March 2020 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Ghana – union organiser – harassment, arrest, detention and torture – collusion between employer, police and government – embezzlement to pay for visa and ticket – credibility – inconsistent evidence – similar claim by colleague refused and refusal affirmed – country information on police, judiciary, civil and political rights – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Luu v Renevier (1989) 91 ALR 39

MIEA v Guo (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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Ghana, applied for the visa on 25 May 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 29 January 2020 and 19 March 2020. The applicant communicated with the Tribunal in English. The applicant was represented by his registered migration agent, who did not attend the hearings.

   CRITERIA FOR A PROTECTION VISA                  

4. 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.

5. 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.

6. 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).

7. 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–5LA, which are extracted in the attachment to this decision.

8. 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

9. 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

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are made out. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims and interview with delegate

11. The applicant was granted an offshore FA 600 business visitor visa [in] October 2015, which was valid until [February] 2016. The applicant arrived in Australia [in] November 2015. The applicant applied for the protection visa on 30 March 2016. On 9 April 2016, the Department advised that the application was invalid as the applicant had not paid the required fee. The applicant submitted a valid application on 25 May 2016. The applicant states that he was refused a visa to visit [Country 1] [in] February 2015. The applicant states that he applied for a visa in order to visit his relatives, but was rejected as he could not establish his relationship with them.

12. The following information is apparent from the applicant’s application for protection forms. The applicant was born on [Date] in [Town 1], Eastern Region, Ghana. The applicant is a Christian of Akan ethnicity, who speaks Twi, Akan and English. The applicant married [in] March 2012. The applicant’s mother and father reside in Ghana, and he is in contact with them by phone. The applicant does not provide details of addresses lived at. The applicant completed a [subject] course at [Institution], [Suburb 1], Ghana from January 2003 until December 2005. The applicant worked as [a] manager for [the Union] in [Suburb 2] , Ghana from September 2008 until leaving Ghana. (This is an error in terms of the applicant’s employment. Other evidence indicates the applicant was employed by [Employer]. The applicant was [an office bearer 1] of local union executives at [Employer] for representation with [the Union]. The applicant confirmed all of this to be the case in the hearing.)

13. According to the claims in the application for protection forms, the applicant claims that he left Ghana because he was accused of organising workers to riot against the government. The applicant was put under severe pressure to the extent that he had to leave the country. The applicant states that he worked for [Employer] and organised the workers to pursue their rights at work. The applicant states that all of his and their entitlements had been taken away by management with government officials. They raised these issues and were accused of sabotaging and defaming the company, and implicating government officials.

14. The applicant states that ‘we’ were arrested for embezzlement and accused of implicating the company and officials. They were arrested and detained in Ghana, and were harassed. They found out that their charges were politically motivated. The applicant claims that he was detained, harassed and tortured in Ghana. The applicant states that he has been detained several times and felt that he was not safe.

15. The applicant claims that there is no need to seek help in Ghana because he could not secure effective protection, as the authorities cannot protect him. The applicant states that this is because they have implicated the applicant and his colleague in organising riots. The applicant states that the Ghanaian police are corrupt, and once implicated then there is no fair trial. The applicant states that he cannot relocate anywhere in the country, and that he would be a target anywhere in the country.

16. The applicant states that, if he returned to Ghana, then he would likely be imprisoned indefinitely because the charges have been fabricated against him. Due to their role in the union movement, the applicant claims that ‘we’ have been accused of organising and spearheading the workers’ rights movement against the government’s interests. Their presence in the country is deemed inimical to the government and company. If he were to return, he would be imprisoned and tortured.

17. In the applicant’s invalid application, he further states that ‘they’ have the power to track him across the country. The applicant states that the security agencies, government and his employers are seeking to harm him. The applicant states that he has been blackmailed and blamed for organising the riots. The applicant further claims that there is no one who can offer him sanctuary in his country. Aside from this, the information provided in the invalid application is substantially the same.

18. The Department file contains a newspaper and photocopy of a page of a newspaper, which has an inset under the heading of the Ghana police headed ‘Wanted By Police’ with photographs of the applicant and another man, [Mr A], with their names under their photographs. It is clear from other evidence that this is an extract from [Newspaper] published [in] December 2015. The article shows that the applicant and this other man have stolen [Amount 1] Ghana cedis belonging to their former employer. It is claimed that the applicant is highly suspected to be hiding in Accra, Kumasi and [Town 1]. It is claimed that [Mr A] is highly suspected to be hiding in the same locations as the applicant.

19. The newspaper states that the applicant and other man have been charged with embezzlement and an arrest warrant has been issued.

20. The Department file also contains letters from [the Union] to [Employer] which mention the applicant as [an office bearer] of a group of local (the employer) union executives, letters and documents from [Employer], [the Union] and the National Labour Commission regarding negotiations and issues relating to union bargaining, and a contract for the applicant’s employment with [Employer].

21. Relevantly in relation to the documents provided is a letter from the National Labour Commission dated 9 November 2015 to [Employer] referring to the Commission hearing the complaint of a ‘Failure to Negotiate’ brought by [the Union] against [Employer]. Management had contended that as an NGO it would not allow unionisation. The Commission indicated that the company cannot interfere in the unionisation of the workers who have opted for the same. It is ordered that the parties sign the Rules of the Standing Negotiating Committee within two weeks.

22. The applicant has provided to the Tribunal a decision of the delegate. That decision provides a summary of the applicant’s evidence at the interview with the delegate which took place on 15 December 2016. The Tribunal has independently reviewed the interview from the recording and is satisfied that the following information provided by the applicant at the interview is accurate:

    ·If he [the applicant] returns to Ghana the applicant may be imprisoned and unable to see his family again due to organising union activity at his workplace.

    ·The applicant was working for [Employer] from September 2008. When a new General Manager, [Mr B], took over the organisation he removed some of the workers’ entitlements.

    ·The general manager would not meet with the workers to discuss these issues so they decided to form a union. They spoke to the Trade Union Congress (TUC) who advised them that they needed to be affiliated to an existing union. They then went to [the Union] and started the process with them.

    ·Despite many attempts by [the Union] the general manager would not engage in discussions so the situation was taken to the Labour Department.

    ·When they finally formed the union the applicant was voted [Officer bearer 1]. Despite becoming a valid union entity the management of [Employer] refused to meet with them or accept the legitimacy of their union.

    ·During this time the applicant was told many times that he should stop his union activities. He was targeted by management at work who began to hold meetings with his team without discussing it with him and focussing on shortages in the books despite other teams having the same issues.

    ·He was picked up by police in 2015 and held for four hours. During this time they told him that he should stay away from union activities. He agreed and was allowed to leave.

    ·He regularly received threats over the phone telling him to stay away from the union and he would be free.

    ·From May 2015 it got more serious and something would happen every month. There were fabrications about his work and he was told he was not doing well even though he knew he was.

    ·Many colleagues told him he should leave Ghana. His wife asked him to stop his union activities as his life was more important. He told her that he would have to take any opportunity to leave the country.

    ·He was introduced to a person who could help him to leave the country but it would cost a lot of money. He told them he could not afford it and they said his life was more important than the money. He then gave the person his passport to start the process. He was granted a visa but needed to pay the money to get his passport back.

    ·He borrowed money from his friends but it was not enough so he decided to take money from [Employer] to pay for the ticket and to pay the man who got his visa.

    ·When he arrived in Australia he called his wife and told her that he had taken the money. He also called a friend, a church elder, and asked him to approach [Employer] to negotiate paying the money back.

    ·A friend called and told him that he saw a newspaper with his picture in it and a notice that he was wanted by police for embezzlement.

    ·The newspaper notice also included his friend [Mr A]. He asked his friend if he had taken any money and he said no.

    ·The government find it very difficult to be hard on NGOs because they are helping educate the people and the government has an interest in that.

    ·If he returns to Ghana he will be arrested at the airport.

23. [Mr A] has made his own application for a protection visa with linkages and claims similar to those of the applicant. That matter was constituted to the same Member who has considered the current application. The Tribunal held the first hearing with the applicant a day after the first hearing with [Mr A]. After the hearing with the applicant, the Tribunal had a second hearing for [Mr A] at which the Tribunal put to [Mr A] evidence inconsistent with his claims that had been provided by the applicant in his hearing.

24. The Tribunal subsequently had a second hearing with the applicant on the same day as a third hearing with [Mr A].

    Hearings, credibility, findings and assessment

25. 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.

26. 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.

27. The Tribunal is satisfied that the applicant is a citizen of Ghana and accordingly his claims will be assessed against Ghana.

28. The Tribunal has the following credibility concerns with the applicant’s claims.

29. Firstly, inconsistent evidence has been provided by the applicant as to the number of times he was detained. Further, evidence by [Mr A] in his application provides different evidence to that provided by the applicant as to the instances and reasons for detention by police.

30. In his written claims, the applicant indicated that he had been detained several times. In contrast in the interview with the delegate the applicant refers to being detained on one occasion only. The applicant specifically gives evidence that he was picked up only once but that there were a lot of threats and other things. In the Tribunal hearing, the applicant maintained that he was detained on only one occasion and indicated that the application forms confused him causing him to previously indicate that he was detained on several occasions.

31. In a written response provided following the first hearing the applicant indicated that when he wrote he had been detained several times in Ghana he really meant that he would be detained again if he were to return to Ghana.

32. The applicant, as was apparent in the hearings, has a good command of English. The difference in expression as to their having been a single incident of detention or multiple events involves a straightforward use of language. The Tribunal is not satisfied that the process of making the application for the protection visa would create confusion in relation to this straightforward issue. The Tribunal considers that the inconsistency is more likely, particularly considering all of the credibility concerns identified, a consequence of the underlying truth of the situation and managing to maintain a consistent story as opposed to any understandable confusion.

33. There is a further inconsistency in terms of evidence provided by the applicant’s colleague [Mr A] in relation to his application for a protection visa. In the first Tribunal hearing with respect to [Mr A]’s application he indicated that the applicant was detained on two occasions for the alleged embezzlement in the space of a week before he was detained either at the end of September 2015 or the beginning of October 2015.

34. This further inconsistency was put to the applicant in the first Tribunal hearing as being inconsistent with his claims that he was only detained once four months before coming to Australia and inconsistent with claims that police had never detained him or allegations had been made that he had embezzled money. In response, the applicant said that he was not detained for embezzlement. The Tribunal noted that the claims between him and his colleague, [Mr A] do not match in the context of them having made similar claims of harm and them being included jointly in the claimed police wanted notice published in the newspaper. It seemed quite unusual to the Tribunal that [Mr A] was detained for embezzlement but that the applicant was not when both were being accused of embezzlement.

1. The applicant provided a response which did not specifically address the inconsistency other than to say categorically that he was not arrested or questioned on allegations of embezzlement.

2. The Tribunal finds the inconsistency in evidence on this issue as undermining of the credibility of both the applicant and [Mr A] given claimed similar circumstances of their claims.

3. The Tribunal also notes that in the application forms for the protection visa the applicant indicates that ‘we’ were arrested for embezzlement. This, again, contradicts the applicant’s evidence in the hearing that he was not accused of embezzlement until after he came to Australia. This issue was put to the applicant in the second Tribunal hearing. In response the applicant indicated that he did not know why he said this. He indicated that at the point he wrote this he had seen the newspaper wanted notice. The applicant referred to problems with his English.

4. Despite these explanations, the Tribunal has credibility concerns with the applicant’s claims in the application form for the protection visa that ‘we’ were arrested for embezzlement.

5. Secondly, the applicant has been inconsistent as to whether he was tortured. In the application form for the protection visa the applicant indicates that he was detained, harassed and tortured in Ghana. However, in the first hearing the applicant did not indicate physical harm in Ghana. In the second hearing, the applicant confirmed that he was not physically harmed by police or others in Ghana.

6. The Tribunal put to the applicant his written claim that he was in fact tortured. In response, the applicant indicated that he meant this to mean that he was threatened.

7. There is a significant difference between being threatened and tortured. The applicant appeared in the hearings to have a reasonably good command of English. The Tribunal draws some adverse inference as to the applicant’s credibility in terms of his inconsistency in this respect.

8. Thirdly, it is not plausible that police would take an adverse interest in the actions of unionised employees to seek representation by a union. This would be a matter governed by relevant industrial law. Indeed, the applicant has provided a letter dated 9 November 2015 (only a week before the applicant came to Australia) of the National Labour Commission to [Employer] indicating to them that the company cannot interfere in the unionisation of workers who have opted for the same. It is ordered that the parties sign the Rules of Standing Negotiation Committee within two weeks.

9. This provides an indication of an ongoing lawful process in relation to the attempted unionisation of workers within [Employer]. It is not plausible to the Tribunal that police would have determined that the action by workers seeking to unionise was adverse, improper or unlawful. Further, the Tribunal would not consider that police would have any broader concern at attempts by employees of a company to unionise. It would not be within the concern or interest of police.

10. In response to this issue in the first hearing the applicant referred to three rulings from 2013 that the company unionise but which had not been accepted by [Employer]. The applicant indicated that in Ghana there is significant corruption and the potential for police to act through the payment of money with the potential for [Employer] to have paid money to the police to seek to pressure the applicant.

11. The Tribunal accepts that this might be a possibility and therefore cannot be completely ruled out. However, the Tribunal thinks that this still remains an unlikely scenario even acknowledging corruption within the police force.

12. This is not an issue which is a majorly significant credibility concern. It is given some limited adverse weight and considered cumulatively with more significant credibility concerns.

13. Fourthly, a number of additional credibility concerns of the Tribunal in relation to similar claims for protection by [Mr A] to those being made by the applicant are undermining of the claims made by the applicant (and [Mr A]) of their employer and/or officials seeking to harm or frame them as a result of having being involved in union activities.

14. In the hearing, the applicant indicated that he and [Mr A] had faced the same issues from [Employer] and police and officials in relation to their union activities. He indicated that their claims were based on similar claimed circumstances.

15. The Tribunal put to the applicant in the hearing pursuant to the procedural requirements of s.424AA evidence given by [Mr A] as part of his protection visa application, and particularly in his Tribunal hearing. The Tribunal noted to the applicant the relevance of this information in terms of it demonstrating a lack of credibility on the part of [Mr A]. Given the similarity and linkages in the claims, the credibility concerns in relation to [Mr A] undermine the applicant’s credibility.

16. In particular, the Tribunal noted to the applicant that [Mr A] had not been able to tell the Tribunal the name of the union to which employees of [Employer] were seeking affiliation. This is in the context of [Mr A] indicating to the Tribunal that he had been the [office bearer 2] of the local employee union executive for a period of two years. This cast significant doubt as to [Mr A]’s credibility which could also impact on the credibility of the applicant’s claims.

17. The Tribunal further noted to the applicant that [Mr A] had provided inconsistent evidence as to the number of times he had been detained by police and the nature of other harm inflicted by police. This cast significant doubt as to [Mr A]’s credibility which also could impact on the credibility of the applicant’s claims.

18. The Tribunal further noted that [Mr A] claimed that he was paid his salary by [Employer] after he had been detained by police accusing him of embezzling money from the company. This is implausible. This implausible evidence cast out on the credibility of [Mr A] which could also impact on the credibility of the applicant’s claims.

19. The Tribunal further noted that [Mr A] implausibly avoided detection or contact by police or [Employer] after he was detained by police either at the end of September 2015 or in early October 2015 until he came to Australia on 15 November 2015. This lacks credibility which is undermining of [Mr A] and could also be undermining of the applicant’s claims.

20. The Tribunal further noted that [Mr A] indicated that he had not returned to work at his company after he was detained by police for embezzlement. This was in contrast to the applicant’s evidence that [Mr A] worked at the company together with the applicant until the eve of coming to Australia.

21. The Tribunal put other concerns to the applicant apparent from [Mr A]’s first hearing with the Tribunal but which, given further evidence provided following [Mr A]’s first hearing the Tribunal no longer takes as adverse to [Mr A]’s or the applicant’s credibility.

22. In the Tribunal hearing, the applicant repeated back to the Tribunal the concerns it had expressed to him, with the Tribunal providing clarifying comments to the applicant. The applicant indicated that he would respond in writing. The Tribunal noted to the applicant that he could seek a recording of the hearing after the end of the hearing which would enable him to clarify the information put by the Tribunal to the applicant and the relevance of it and the consequence of taking it into account. The Tribunal gave the applicant 10 days to respond to the Tribunal.

23. In the written response subsequently provided, the applicant said that [Mr A] was a member of the union but he was not on the employee union executive. Reference is made to documentary evidence indicating [Mr A] as a member of the union.

24. The applicant indicates that [Mr A] was working at the company together with the applicant until the eve of coming to Australia. The applicant did not otherwise comment on the reason why [Mr A] would have provided inconsistent evidence indicating that he had left the company much earlier potentially undermining the claims of the applicant himself.

25. The applicant did not comment on other relevant matters raised under the provisions of s.424AA. As indicated, the applicant stated that he had written in his original protection visa application that he had been detained several times because what he really meant was that he would be detained again if he returned to Ghana.

26. As indicated, the Tribunal is not satisfied that this inconsistency is a matter of understandable confusion in English expression.

27. The Tribunal notes the explanations but, apart from accepting that [Mr A] was an employee of [Employer] and a member of the union, the Tribunal considers that the other credibility concerns put to the applicant concerning [Mr A]’s claims are undermining of claims by both the applicant and [Mr A] that they are facing harm as a result of claimed union activities by both of them.

28. Before considering the credibility issues cumulatively, the Tribunal notes the following.

29. After the first hearing, the Tribunal received a response back concerning inquiries it had made, through the relevant DFAT post in Africa, as to the genuineness of the police wanted notice published in the newspaper indicating that both the applicant and [Mr A] had been accused of stealing money from that employer. The information that came back indicated that both the applicant and [Mr A] are facing such charges in Ghana. That would indicate that the police wanted notice that has been provided is genuine.

30. That causes the Tribunal to find that the applicant did steal money from his employer and that he is wanted by police for this action. The applicant indicated in the first Tribunal hearing that he did in fact steal approximately [Amount 1] cedis in order to fund his trip to Australia. The risk of serious or significant harm to the applicant based on the criminal charges that would await him in Ghana and his interaction with the police and justice system are detailed further below.

31. However, considering the cumulative impact of the multiple credibility issues identified, the Tribunal is not satisfied as to other core claims made by the applicant.

32. Considering the credibility concerns together, the Tribunal is not satisfied that the applicant is a truthful or credible witness. The Tribunal is not satisfied as to key substantive claims made by the applicant.

    Unionisation and targeting and harm as a result

33. Whilst the Tribunal is satisfied that the applicant was [an office bearer 1] of a group of employees seeking to unionise, the Tribunal is not satisfied that this action caused a vendetta and retaliatory action from either the employer or authorities. Whilst the Tribunal accepts that the attempt at unionisation may have created some work pressures for the applicant from management, the Tribunal is not satisfied that the attempts at unionisation resulted in police detention or any conduct by [Employer] or others which could be described as serious or significant harm. The Tribunal considers that claims to this effect have been manufactured by both the applicant and [Mr A].

34. The Tribunal is not satisfied that the applicant’s employer has falsely, and in corrupt collusion with police, alleged embezzlement of funds by the applicant as a vendetta against his union activities. The applicant has admitted that he took funds to fund his trip to Australia.

35. (As found by the Tribunal as part of  [Mr A]’s application, the Tribunal is not satisfied that [Mr A] was actively involved in promoting the unionisation of the workforce of his employer particularly given his inability to name the relevant union in his first Tribunal hearing. The Tribunal considers that [Mr A]’s involvement was limited and passive with no engagement beyond having initially joined the union.)

36. The Tribunal is not satisfied that police have had any concern in relation to the applicant’s union activities with his employer or that they have, on any occasion, detained or arrested him as a result of his union activities. Although the applicant did not maintain this in the first Tribunal hearing, as it is a claim made by the applicant as part of his initial application, for the avoidance of doubt, and given the contrary claims by [Mr A], the Tribunal is not satisfied that there was any allegation made by either the applicant’s employer or the police towards the applicant during the period that he was in Ghana that he had embezzled money from his employer. The Tribunal is not satisfied that the applicant was detained or arrested by police on allegations of embezzlement from his employer. The Tribunal does accept that, following the applicant’s arrival in Australia, it has been discovered by his employer and reported to police that the applicant, and allegedly [Mr A], had embezzled money from the employer.

37. Given these findings the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm arising from a vendetta by [Employer] or authorities as a result of pursuing union activities and/or being framed for embezzlement.

    Prosecution and any sentence for stealing

38. The Tribunal explored with the applicant in the second hearing harm he fears from the prosecutorial process and any sentence in relation to the stealing charge.

39. The Tribunal noted to the applicant that the ordinary prosecution and sentence for stealing would be as a result of the application of the law of general application and for that reason would not meet the refugee criterion. In relation to the complementary protection criterion, relevant definitions of significant harm would not constitute significant harm if they were a product of a lawful sanction that was not inconsistent with the International Covenant on Civil and Political Rights.

40. The applicant indicated that the prosecution process will not be fair. The applicant indicated that the prosecution is being pursued as a result of the applicant’s union activities as opposed to just being a prosecution in the normal course for having stolen funds from the company, which the applicant admitted to doing.

41. The applicant indicated that this is demonstrated by a number of factors. One is the fact that it is being claimed that [Amount 1] cedis have been stolen as opposed to the [Amount 2] cedis that the applicant actually took from the company. The applicant also indicated that on his arrival in Australia he had a person that he knew in Ghana go with a priest to [Employer] to acknowledge that the applicant had taken money from the company (without indicating the amount) and offering restitution. [Employer] said that they would undertake an audit to determine any amount taken. There was no subsequent response from the company. After the applicant’s friend in Ghana who had made this approach saw the wanted notice for the applicant in the newspaper, he approached the company again. The applicant indicated that the company said that it would get back to him, but never did so.

42. The applicant also indicated that his wife had previously acted as a guarantor for the applicant in relation to his involvement with the company and that the company had never called upon his wife to honour the guarantee in relation to the amount taken.

43. The applicant indicated that all these matters in terms of the failure by [Employer] to seek restitution and the progression of criminal charges indicate that the rationale for the prosecution is corrupt and unfair.

44. The applicant also indicated that the prison system is very crowded and that many individuals in the prison system who are innocent can be on remand for many years before their cases are heard.

45. The applicant provided at the second Tribunal hearing Internet reports concerning police and judicial corruption in Ghana.

46. The applicant provided print-outs of three articles at the second Tribunal hearing. The first report, ‘Public-police relation not the best – IGP laments’, Modern Ghana, 10 March 2020, quotes the Ghanaian Inspector General of Police admitting that the police-public relationship has not been good. Reference is made to alleged unprofessional conduct of certain police personnel creating an impression that police are corrupt and unprofessional. Mention is made of a course on improved police-public relations, and EU funding and assistance to the police.

47. The second report is the full text of President Akufo-Addo’s 2020 address to the nation as published on Ghana Web, 21 February 2020. The speech outlines Ghana’s achievements and difficulties over the preceding year. Mention is made of increase in police equipment and training, and that the government has committed to training police in modern policing methods. Reference is made to poor public perception of the police, and they are urged to work harder on their reputation.

48. The third report is ‘Police still viewed as most corrupt in Ghana – Report’, Citi Newsroom, 11 July 2019, stating that 59% of Ghanaians view the police as the most corrupt institution in Ghana according to the 2019 Global Corruption Barometer, with the second-most corrupt being the judiciary, a view shared by 39% of Ghanaians. Mention is made of the shift from previous reports, with Ghanaians reporting that they feel these institutions have become less corrupt. Reference is made to a 2015 report finding that 64% of Ghanaians felt the police were corrupt. Mention is made of 60% of Ghanaians believing that the current administration is doing a good job combatting corruption, compared with 25% in 2015. Reference is made to Ghana’s position as 78 of 180 countries on the corruption perception index, an improvement from its 2017 ranking as 81 out of 180.

49. The Tribunal has obtained its own evidence concerning the integrity of the justice system in Ghana. Country information located shows that Ghana’s justice system is based on legal and institutional pluralism and suffers from corruption. There are barriers to accessing the justice system and impediments to the operation of an effective and fair system of rule of law. An examination of independent evidence relating to the justice system in Ghana is attached at Attachment A.

50. The Tribunal accepts that there can be police and judicial corruption in Ghana. However, as the Tribunal is not satisfied that there has been a vendetta perpetrated by [Employer] together with police to target the applicant as a result of his union activities, the Tribunal is not satisfied that there has been or will be a corrupt prosecution process in relation to the applicant in relation to his admitted stealing of [Amount 2] cedis from [Employer].

51. The Tribunal is not satisfied that the fact of overtures being made on behalf of the applicant by others to [Employer] to reimburse the amount taken or the fact of the applicant’s wife being a guarantor for the purpose of the applicant’s employment and not being approached by [Employer] demonstrates that the prosecution process is corrupt. As the applicant himself indicated in the second hearing, those approaching [Employer] on his behalf did not disclose to [Employer] the amount that had been taken. It was left to [Employer] to undertake an audit to identify the amount taken.

52. The overwhelming credibility concerns in relation to the evidence of [Mr A] in relation to his application cause the Tribunal to consider that there is at least a legitimate allegation by police that [Mr A] has also taken money from [Employer].

53. The Tribunal does not think that overtures on behalf of the applicant to [Employer] to compensate for the theft would eliminate the desire by [Employer] to legitimately make a criminal complaint to authorities about the amount taken.

54. Considering all of the evidence on this issue, the Tribunal is not satisfied that the allegation and process in relation to the applicant and [Mr A] to having stolen money from [Employer] is part of a corrupt process outside the normal operation of the justice and prosecutorial system, albeit accepting that there can be corruption in the Ghanaian system. The Tribunal is not satisfied that the applicant would be subject to a corrupt prosecutorial system on return such as to lead him to face a real chance of serious or significant harm on that basis.

1. In relation to conditions of detention if the applicant is convicted and given a sentence of imprisonment for stealing, the applicant indicated that there could be a long period on remand and prison conditions are overcrowded. The Tribunal accepts evidence of problems with the Ghanaian prison system including overcrowding, poor conditions and, in some instances, life-threatening conditions.[1]

   [1] Freedom in the World 2019 – Ghana’, Freedom House, 4 February 2019, Sect. F3, 20200224170136

2. In relation to the refugee criterion, given that the Tribunal is not satisfied that any prosecutorial process in relation to the applicant would be corrupt, the Tribunal considers that any sentence, including imprisonment, would be the result of the application of the law of general application. In any event, the Tribunal would not be satisfied that imprisonment or conditions in prison would be for a refugee criterion reason.

3. In relation to the complementary protection criterion, the Tribunal considers that any sentence including prison sentence and treatment in prison would be a lawful sanction not inconsistent with the International Covenant on Civil and Political Rights (ICCPR).

4. As indicated, the Tribunal accepts that Ghanaian prison conditions are poor. A recent 2020 media report notes that Ghana’s President has conceded that ‘[t]he conditions in our prisons have for some time not been acceptable’ and that the government has taken some steps during 2018–2019 in collaboration with Ghana Health Service and other stakeholders to improve the deplorable conditions that have been described ‘by observers as dehumanizing’.[2]

   [2] ‘Gov’t To Tackle Overcrowding in Prisons’, Modern Ghana, 16 February 2020, 20200224164521

5. However, suffering from poor prison conditions is as a result of the allocation of resources by the state to the system rather than a deliberate attempt by any individual or body to cause harm, as would be required in terms of considering whether the applicant faces cruel or inhuman treatment or punishment, or degrading treatment or punishment for the purpose of the complementary protection criterion.

6. The applicant has not made a claim that he would be subject to deliberate physical harm in prison. Whilst independent evidence cited in paragraph 89 does indicate that the situation in Ghana and prisons can be life-threatening, the Tribunal is not satisfied that that evidence establishes that there is a real chance to the applicant, as a prison inmate without inherent vulnerability, of dying or being deliberately harmed while in prison. The Tribunal considers that the risk is remote including in the absence of the Tribunal not being satisfied that there is any vendetta against the applicant aided by police/authorities as a result of the applicant’s union activities. The Tribunal is not otherwise satisfied that in prison the applicant faces a real risk of being treated inconsistently with rights under the ICCPR.

7. Given these findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution or is at a real risk of significant harm as a result of prosecution or sentence for stealing or from the situation faced in prison.

   Conclusion

8. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

9. 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 a necessary and foreseeable consequence of being removed from Australia to Ghana, there is a real risk of him suffering significant harm.

10. 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).

11. 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).

100.   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

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

David McCulloch
Member

Attachment A – Integrity of Ghanaian justice system

Ghana’s justice system is based on legal and institutional pluralism and it recognises Ghanaian customary law as well as English common law.[3] In Ghana, the judiciary is an arm of government.[4] Article 126 of the 1992 Constitution of Ghana ‘establishes the Superior Court of Judicature and such lower courts or Tribunals as Parliament may by law establish to administer justice according to law’.[5]

[3] ‘Ghana – Government and Society - Justice’, Encyclopaedia Britannica, 22 January 2020, 20200225112746

[4] ‘Training Modules and Materials on Basic law and Anti-Corruption in Ghana’, Legal Aid Scheme, Ghana, May 2018, p.131, 20200225124305

[5] ‘Training Modules and Materials on Basic law and Anti-Corruption in Ghana’, Legal Aid Scheme, Ghana, May 2018, p.132, 20200225124305

In a dated source from 2010, a joint report by the Judicial Service of Ghana and the World Bank provides the following description of Ghana’s justice sector:

Ghana’s justice sector is a conglomerate of government ministries, departments and agencies. These include the Ministry of Justice and Attorney General’s Department, the Ghana Police Service, the Ghana Prisons Service, the Social Welfare Department, and the Judicial Service.

The justice sector is also characterized by legal and institutional pluralism for the settlement of disputes. At independence, the British left Ghanaians an established Common Law system. This means that Ghana’s legal system, like that of the United States of America, Great Britain, South Africa, or Nigeria, makes use of judge-made-laws in addition to statute law. In addition, Ghana’s legal system makes use of Customary Law, the ethnic norms and rules that govern various communities in Ghana.[6]

[6] ‘Uses and Users of Justice in Africa: The Case of Ghana’s Specialised Courts’, Department of Justice (Republic of Ghana) and The World Bank, July 2010, pp.5-6, 20200225111901

According to the Encyclopaedia Britannica:

The administration of justice is handled by various courts divided into two groups: the superior courts, consisting of the Supreme Court, the Court of Appeal, and the High Court; and inferior courts, consisting of the circuit courts, the district courts, and other courts provided by law, such as the juvenile courts. The adjudicating authorities in chieftaincy and purely traditional matters are the regional and National House of Chiefs. Appeals from decisions of the National House of Chiefs are made directly to the Supreme Court.[7]

[7] ‘Ghana – Government and Society - Justice’, Encyclopaedia Britannica, 22 January 2020, 20200225112746

There are also a number of specialised courts for the settlement of disputes.

As far as institutional pluralism goes, aside the regular courts, there are a number of administrative tribunals and quasi-judicial bodies for the resolution of disputes in Ghana. These Uses and Users of Justice in Africa: The Case of Ghana’s Specialised Courts include the Commission on Human Rights and Administrative Justice (CHRAJ), the National Labour Commission, the Judicial Committees of the National House of Chiefs and the various state institutions which regularly use Alternative Dispute Resolution mechanisms, such as the Legal Aid Scheme. Again, institutions outside of the formal state apparatus, such as traditional autorities [sic], resolve many disputes in their domain and these may be recognised and enforced by the regular courts as Customary Arbitration Awards. The APRM report also notes that there is a myriad of Civil Society Organisations (CSOs) complimenting the efforts of the regular courts in justice delivery. Prominent among these is the work of the Ghana Association of Chartered Mediators and Arbitrators.[8]

[8] ‘Uses and Users of Justice in Africa: The Case of Ghana’s Specialised Courts’, Department of Justice (Republic of Ghana) and The World Bank, July 2010, pp.5-6, 20200225111901

The 2019 Freedom in the World report notes that although Ghana’s constitution and laws upheld judicial independence and that the judiciary ‘demonstrated greater levels of impartiality in recent years, corruption and bribery continue to pose challenges’.[9] The same report provides an example from 2018 when Ghana’s President suspended four High Court judges on allegations of bribery dating back to 2015.[10] According to Transparency International’s 2019 International Corruption Index, Ghana ranked 80 out of 180 countries and scored 41 out of 100 with regard to the perceived level of public sector corruption.[11] While citing a 2016 source, a 2018 Transparency International report on the prevalence of corruption in Ghana noted that Ghana’s judiciary was ‘one of the most corrupt bodies’.[12] The report provides the following insight into the operation of the judiciary:

[9] ‘Freedom in the World 2019 – Ghana’, Freedom House, 4 February 2019, Sect. F1, 20200224170136

[10] ‘Freedom in the World 2019 – Ghana’, Freedom House, 4 February 2019, Sect. F1, 20200224170136

[11] ‘Transparency International – Ghana’, Transparency International, undated[Accessed 24 February 2020], 20200224171255

[12] ‘Overview of corruption and anti-corruption in Ghana’, Transparency International, p.14, 11 September 2018, 20200224170920

The judiciary is also known to use its discretionary powers to punish the poor and favour the rich. While influential people charged with corruption face jail time of two to four years, those that are less fortunate receive 10 year sentences for stealing a basket of tomatoes [.] [13]

[13] ‘Overview of corruption and anti-corruption in Ghana’, Transparency International, p.14, 11 September 2018, 20200224170920

The 2019 Freedom House report notes the following on the individual’s right to justice and the due process of law:

Constitutional protections for due process and defendants’ rights are mostly upheld. However, police have been known to accept bribes, make arbitrary arrests, and hold people without charge for longer than the legally permitted limit of 48 hours. The government is not obliged to provide the accused with legal counsel, and many people unable to afford lawyers are forced to represent themselves in court.[14]

[14] ‘Freedom in the World 2019 – Ghana’, Freedom House, 4 February 2019, Sect. F2, 20200224170136

The Bertelsmann Stiftung (BTI) 2018 Country Report on Ghana notes that corruption acted as a barrier to rule of law in Ghana:

Corruption and limited administrative capacity continue to pose the biggest challenges, exemplified in unduly long legal procedures and sometimes incomprehensible verdicts. Going to court is too expensive for the average citizen. Only those with means can afford legal proceedings. Informal procedures of arbitration (e.g. through traditional rulers or elders) are more easily accessible and still play an important role.[15]

[15] ‘BTI 2018 Country Report Ghana’ Bertelsmann Stiftung, 22 March 2018, p.9, 20200225111543

In 2018, the World Justice Projects’ yearly evaluation report ranked Ghana’s judicial system highest in Africa.[16] But in the 2019 World Justice Project Rule of Law Index, Ghana ranked 48 out of 126 countries on rule of law, dropping two positions.[17]

[16] ‘Denmark and Ghana rank top as best judicial systems in the world and Africa’, Embassy of Denmark in Ghana, 22 February 2018, 20200225110926

[17] ‘Ghana ranked 48 out of 126 countries on rule of law, dropping two positions’, World Justice Project, 28 February 2019, 20200225110431

In December 2019, during the swearing in ceremony of newly appointed Justices of the Superior Court of Judicature (High Court and Court of Appeal), Ghana’s President, Akufo-Addo, stressed the need for transparency and integrity to protect the people’s confidence in the judiciary that was shaken by charges of corruption in 2015.[18]

[18] ‘Judicial corruption must not happen again – Akufo-Addo to judges’, Ghana Web, 17 December 2019, 20200224170337

Attachment B – Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Country Report on Human Rights Practices for 2018 - Ghana', US Department of State, 14 March 2019, Sect.1c, pp.3-4, 20190314112415