1717702 (Refugee)

1717702 (Refugee) [2021] AATA 1425 (19 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717702
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Jane Marquard
DATE:19 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2021 at 7:19am
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – single woman with no male protection – bore two children as a result of rape and experienced other sexual assaults – fear of harm from sexual assault and stigmatisation as single mother – country information – no systematic or discriminatory conduct or discriminatory withholding of state protection – complementary protection – married to Australian citizen – partner visa refused – one Australian citizen child and pregnant with second – best interests of children – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1), 5J(1), 5L, 36(2)(a), (aa), 65, 417(1), 438(1), 499
Migration Regulations 1994 (Cth), Schedule 2, Schedule 3, Criterion 3001
CASES
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim [2000] HCA 55
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZAFZ v MIBP [2016] FCA 1081
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THIS APPLICATION FOR REVIEW

The applicant is a [age]-year-old woman from Ghana. She arrived in Australia [in] December 2011 as an unauthorised maritime arrival[1] with no valid visa. She married an Australian citizen [in] September 2012 and applied for a partner visa on 20 December 2012. This visa was refused by the Department on 27 June 2014 as the applicant did not apply within the time limit required. This decision was affirmed by the Migration Review Tribunal (MRT) on 3 March 2015.
[1] As that term is defined in s.5AA of the Migration Act 1958
The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 3 March 2016.
On 19 July 2017 the Department of Home Affairs (the Department) refused to grant the applicant the visa.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant claims to fear sexual assault if she returns to Ghana as she was the victim of sexual assault when she lived there. She also fears stigmatisation and ostracism as a single woman and a mother of children conceived through sexual assault.
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. 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 the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.
SUMMARY OF FINDINGS
The Tribunal affirms the decision under review.
The Tribunal refers the matter to the Minister for consideration under s.417 of the Act in light of the unique and exceptional circumstances of the case.
RELEVANT LAW AND PRINCIPLES OF REVIEW
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.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
Complementary protection criterion
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 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 meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
In reaching a decision, the Tribunal has taken into consideration evidence before the Department and this Tribunal, as well as independent sources about Ghana.
Evidence provided to the Department
A summary of the evidence provided to the Department is set out below.
The applicant was born in Kumasi, Ghana and resided in Ghana until she travelled to Australia in 2011. She lived with her mother, brother and two children in Ghana. Her brother has now passed away.
She is an Ashanti and follows the Christian religion.
Her parents and two daughters, [Child 1] and [Child 2], are living in Ghana.
The applicant is married to an Australian permanent resident. She said that she met her husband at church and knew him for a year before marriage. Her husband has a farm in Ghana and returns on occasion, and he also visits her mother and daughters. They lodged a partner visa application which was unsuccessful.
She said that she was working in [Work Sector 1] in Australia and sending money back to her family. She said that she speaks to her mother and daughters frequently.
She provided a copy of her passport, marriage certificate dated [September] 2012 and Entry in the Register of Births on [Date 1].
After completing secondary school in Kumasi in [year], the applicant attended [a] Training Institute in Kumasi. She then worked as an [Occupation 1] at [Employer 1] from 2004 to 2009. From October 2009 she was unemployed. From August 2010 to September 2010 she sold water in Takoradi.
The applicant claimed that she left Ghana due to being repeatedly sexually assaulted by men in her local community. She claimed that she was raped on two occasions by different men. These two assaults resulted in the birth of her two children.
She claimed that she was raped by a friend called [Mr A] when she was [age] years old in [year]. They had been going out for four months when he forced himself on her. When she came home she told her parents, who went to see the boy’s family. He denied it. They did not report it to the police as her parents decided the course of action for her. She became pregnant and had her first child. Whenever the perpetrator saw her in the community he verbally abused and insulted her and said that she had spread false rumours about him.
She said that after that she was fearful of men generally because of the memory of the first sexual assault. Her aunty introduced her to a person called [Mr B]. On the fourth occasion of them going out, they went to his house, and he forced her into the house and sexually assaulted her. He was a friend and not her boyfriend. She told her aunty who said that she would deal with it and to leave everything to her. She became pregnant and her aunty gave her some medicine to try and abort the child, but it did not work.
She claimed that she does not want her two children who were conceived by the rapes to be stigmatised by her return. She claimed to have moved to Takoradi and Sunyani, two other places in Ghana, to avoid harm.
She claimed that she was living on a boat from September 2010 for ‘almost a year’, working as a cleaner. She said that the did not know where the boat was going.
She claimed that there are high incidences of sexual violence against women and girls in all parts of Ghana. She said that the high level of these incidences indicates that the authorities are unable to protect women and girls. She stated that she fears suffering sexual assault on her return.
She said that the father of her children know that they are the fathers but do not provide any support. She said that she has not seen [Mr B] since the assault.
She said that after the second incident, she moved towns as there was a lot of stigma about having children outside marriage. She said that she feared sexual assault if she returned and that when she moved to Sunyani and Takoradi it was ‘the same’. She said that wherever she went men inappropriately held and touched her She said that in Ghana ‘they think is nothing’.
She said police in Ghana do not do anything about rapes.
She had not lived in any of the countries which form part of the Economic Community of West African States (ECOWAS).
She said that she was also assaulted when she was a cleaner on the boat. She was going to clean the rooms and one of the crew assaulted her.
She said that when she arrived in Australia, she did not know anything about the immigration process, and it was her husband who assisted her in making applications.
The Department decision dated 27 June 2014 and the Migration Review Tribunal decision dated 2 March 2015 in relation to the partner visa application
The Department was not satisfied that the applicant met Criteria 3001 for the visa as she had not applied within 28 days of holding a substantive visa, and there were no compelling reasons for not requiring that this criteria be met.
The Migration Review Tribunal on 2 March 2015 affirmed the decision of the Department. In a summary of the hearing before the Tribunal, the Tribunal noted that the applicant said that she was sexually assaulted on a number of occasions. She said that on the first occasion, she had been a virgin. She said that she was scared to go out with men after that. The Tribunal found that there were no compelling reasons for requiring that criteria 3001 not be met.
Evidence to the Tribunal
The applicant appeared before the Tribunal on 31 March 2021. Her representative, [Ms C], appeared at the hearing. The applicant provided written submissions dated 29 March 2021. A summary of her evidence is set out below.
Personal particulars
The applicant confirmed that she has been married to [Mr D] for ten years, and they live together at [suburb] with their child, [Child 3], who was born on [Date 2]. Copies of birth and marriage certificates were provided. The applicant also confirmed that she is [pregnant] with their second child.
The applicant works in a permanent part-time position as [an Occupation 2] with [Employer 2]. Copies of her employment contract and recent payslips were provided to the Tribunal. [Details of job tasks deleted] She has worked [in a specified field] in the past and was an [Occupation 1] in Ghana. This has given her ‘the necessary experience and skills’. She said that she enjoys the work very much. She said that there are certain [clients] who ask for her specifically and they will not [accept other staff] as she has built trust with them. She finds it very rewarding. [Details of job deleted].
She said that her husband is self-employed buying used [products] and sending them overseas. She said that she does not have other family in Australia. Her husband has a [sibling] living in Australia.
Her mother, father and two daughters, [Child 1] and [Child 2] are still living in Kumasi. When she was growing up her father worked as [an occupation]. Her mother worked as [an occupation] until she retired. She is now [age]. Her daughters live with her parents. The eldest is [age] years old and studying [subject], and the youngest is [age] years old. The applicant also has an aunt in Ghana. She speaks to her children and mother weekly and sends them money.
After secondary school in 2004 she attended [a] Training Institute in Kumasi. She then worked as an [Occupation 1] for five years but had to stop when she became pregnant. She moved to Sumyani after the birth of her second child to get away from the stigma following the sexual assault. She felt ashamed to go out so she thought that she would move to another town. She did not tell her mother she was leaving and left her children with her mother. She stayed in a market area in a very basic shelter. She worked helping people carry shopping but knew no-one in this town. She later went to Takoradi, because Sumyani was quiet and she thought she could do better in a larger town. She sold iced water and contacted her mother. She did not talk to her family much during that time. Now she talks to them frequently.
She said that she was around [age] years old when the first sexual assault took place. She was at school at that time. She had plans to be an [occupation]. The perpetrator was one of a group that she would see out and about. She had known him for four months but was not going out with him as a boyfriend. She would see him as ceremonies. She went to his house to get some water on the way to her house. After he sexually assaulted her, she was bleeding, hurt and felt unwell. She had been a virgin. She told her mother but did not see a doctor. Her parents took the applicant to the family’s house to tell his family. His family did not believe her as they thought the boy was ‘so innocent’. Her mother did not take her to the police, and she ‘went along with her mother’s recommendations’.
She said that after this sexual assault she became fearful of men generally because of the memory of the first sexual assault. Her aunty encouraged her to go out although she did not want to do so. She did not even want to go to the market.
The second assault occurred after she was encouraged to go outside by her aunt. She saw the offender in a group in the community and she ‘tried to be friendly and have fun with him’. She was over 18 and they went to get a drink. He raped her on the way. She told her aunty, but only told her parents later, when she became pregnant. Her aunty said that she would deal with the situation and to leave everything to her. However, her aunt did not do anything about it. Her aunt gave her some medicine to abort the baby, but this did not work. The applicant said that after the first incident, she did not want to confront the offender or his family. She thought it was ‘her fate’. She wanted to know why she was ‘the only victim’. She said that she ‘was not in a right mood to make a decision’ about the police or taking any action. She said that she ‘was not physically hurt as much as the first one’.
She said that her father expressed anger towards her, as he was upset as he did not want her ‘life to be this’ and he had wanted her to have success. She said that he was struggling to make ends meet so she could have a future. He was also angry with the perpetrators. When he saw them outside he ‘argued with them’. Her brother said nothing about it as ‘her father was the head of the family’. She said that she did not discuss the incident with her girlfriends. When she became pregnant she was embarrassed and did not spend time with them anymore. She felt shy and like they were ‘higher than her’. She hid when she saw them. She said that she had heard of sexual assaults happening to other people. She had heard about it happening to another classmate but did not know the details.
She said that the fathers of her children have never expressed any interest in the children. She said that she sometimes bumped into the boys on the streets after the incidents occurred. She said that ‘they tried to beat me up saying why did I say things about them’. She said that there was also stigma towards her children. When she became pregnant, she had to leave school. People knew the pregnancies were as a result of rape. She was scared that people would be talking about her children ‘in an insulting manner’. She decided to leave her hometown so people would not know they were her children. She said that her children are doing well although they have been insulted a few times.
She said that when she was in Takoradi she sometimes helped old people with house chores and carrying goods in the market. On one occasion she was talking to a man about needing a job. He said that he would let her know when there was a vacancy as a cleaner. He later called her to say a boat was about to leave and she could work on it. She was afraid to go but needed a job. She was never told where the boat was going, and she simply cleaned the boat. It was taking containers to various places. She was paid. At the time she was not ‘mentally in a good place and was not thinking straight’. She did not even know if she would return to Ghana. There were two cleaners and two white men and some crew on board. She was on the boat for roughly a year. She did not get off anywhere during this time. She was raped on a number of occasions while on the boat. When she refused to have sexual intercourse with ‘the boss’, she was sacked, and this was when she found out that she was in Australia. One of the cleaners helped her leave on a small boat. She had some money with her and after walking for some time, she found a bus, and got on it.
The applicant said that the sexual assaults have had a significant impact on her life. When she finally married, she felt very scared of ‘anything to do with sex’. Her husband had to be very patient with her as sex brought back memories of the assaults. When she hears of others being raped on the news, it brings back memories. She often has nightmares of what took place. She said that it would be very difficult if she had to go back to Ghana as she would have to pass through places where the assault happened and see the people involved. She also knows there will be significant stigma as she had two children from rape. She does not know how she would survive there with four children, two of them very young. She would not have the courage to go out and do things. She said that although she would be happy to see her mother and other daughters and could live with them, it would still be very difficult. Her mother is [age] and she cannot ‘help her with those memories’. Her daughters are young and would not ‘understand those things’.

The applicant was asked if she had considered applying for another partner visa, given that she had been with her partner for so long, had a child with him and another on the way. She said that she had not so far. The representative said that she may have difficulties applying as she was an offshore maritime arrival and further, she cannot go offshore to apply.
In concluding comments, the applicant said that she wants to plead with the Department to ‘have mercy on her’. She said that she will have two children in Australia and does not want to take the children back to the place which encompasses so much misery for her. She said that her children are innocent and do not ‘deserve to be punished’. She said that she does not know how they would survive in Ghana. Her [Child 3] is almost [age], and his life is in Australia. It would be difficult for him to leave his father, friends and childcare.
The representative and applicant expressed appreciation for the manner in which the hearing was conducted.
DECISION BY THE DEPARTMENT DATED 19 JULY 2017
The delegate of the Department was satisfied that the applicant had been sexually assaulted in Ghana as claimed and was a member of the particular social group of ‘women in Ghana with no male protection’. The delegate was satisfied that there is evidence of significant prevalence of sexual assault against women in Ghana, however was not satisfied that the applicant faced a real chance of serious harm.
FINDINGS AND REASONS OF THIS TRIBUNAL
Nationality
The applicant claims that she left her passport on the boat when she arrived in Australia. She was later issued a Ghanaian passport on [in] 2012 in Australia. This passport expired [in] 2017. The Tribunal is satisfied therefore that the applicant is a citizen of Ghana, and that Ghana is the receiving country for the purposes of this review.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to claims, in this case whether the applicant was sexually assaulted as claimed. This may involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth[2], and in sexual assault cases there is often little or no corroborative evidence. In general the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[3] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. This approach is supported in numerous judgments and commentaries. Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 that 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.
[2] Fox v Percy (2003) 214 CLR 118
[3] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The Full Federal 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 mindful of the difficulties faced by refugee 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 presents evidence. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[4], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons[5], in light of the evidence about the applicant’s experiences of sexual assault. It goes without saying that the experience of sexual assault has significant impact on a person’s mental health.[6]
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, World Health Organisation, Sexual violence: prevalence, dynamics and consequences, in Guidelines for Medico-Legal Care of Victims of Sexual Violence,
The Tribunal is satisfied on the basis of the applicant’s testimony that she was sexually assaulted as claimed, on two occasions in Ghana and on a number of occasions while working with Ghanaians on the boat. On the first occasion she was only [age] years old. The Tribunal is satisfied that she had two children as a result of these sexual assaults. She first provided evidence about the sexual assaults in a compliance interview with the Department on 12 December 2013, well before she applied for protection. The evidence she provided in the compliance interview was consistent with the evidence she has provided to the Department and this Tribunal indicating veracity. When discussing the matters with the Tribunal she spoke of the incidents with the kind of detail and emotional recall that is often consistent with truth. Her evidence about feeling degraded so much so that she hid from her classmates, feeling they were ‘higher than her’, was persuasive. She was also able to speak credibly and tragically about the impacts on her. For many victims of sexual assault the effects can be wide-ranging and lifelong, including mental health effects and disruption to everyday activities such as eating and sleeping.[7] This is consistent with her experience. She has spoken of memories flooding back when she sees stories of rape on television, and of her fear of returning to the area where the rapes took place.
[7] Australian Institute of Health and Welfare, Sexual Assault in Australia, August 2020
The Tribunal is also satisfied that the applicant was in a vulnerable state when she left Ghana, accepting work on a boat with little information as to where she would be taken.
Non-disclosure Certificate
A delegate of the Department issued a non-disclosure certificate dated 17 August 2017 pursuant to s.438(1) of the Act restricting disclosure of certain folios in the Department file. The reason given for the restriction of these folios was because they ‘contain information relating to an internal working document and business affairs’.
In MZAFZ v MIBP,[8] 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.[9]
[8] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[9] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
As discussed with the applicant, the Tribunal found that the certificate was 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 for example that the documents would harm the nation or public service.
The Tribunal therefore outlined the nature of the document to the applicant for reasons of natural justice. The Tribunal noted that the contents of the document related to information of which the applicant was already aware. The document is a ‘Community Status Resolution Interview/Assessment’ form referring to an interview with the applicant on 12 December 2013. The notes on the form refer to the applicant presenting to [location] with her migration agent and being interviewed. The notes state that in the interview she said that she had left her hometown as she was being sexually abused by different men. She claimed that her children were sexually assaulted by different men and that she had been sexually harassed in the markets and walking around town. She said that she had vaginal injuries but had not sought medical treatment. She claimed that she arrived in Australia by boat. The Departmental officer noted in the document that there were no records of her arrival. It was noted that she had provided two accounts of how she was issued her passport. On the first account, she said that she was issued the passport that year in Ghana. On the second account, she said that she had lost her passport on the boat and applied in Australia. She claimed that she found work on a boat in Takoradi and worked on the boat as a cleaner for a year. During this time the workers had sexual intercourse with her without her consent. When she refused, she was sacked and left the boat, seeing sinking sand, a town and big city buildings. She caught a bus to a train station, where she sheltered. An African man called members of [a] Church and she was taken to a Ghanaian family where she lived for some time.
The information in the document was discussed with the applicant at the Tribunal hearing. The information was consistent with information she has provided to the Department and Tribunal in relation to the protection visa application. In relation to the passport, the applicant told the Tribunal that she left her passport in the boat as she had to leave quickly, evidence which the applicant accepts. The Tribunal assured the applicant that it did not consider the information in the identified folios would undermine the prospects of a favourable decision by the Tribunal.
Does the applicant have a well-founded fear of persecution?
Under s.5H(1) of the Act, a person is a refugee if, owing to a well-founded fear of persecution, a person is unable or unwilling to avail themself of the protection of their country of nationality.
Having found that the sexual assaults took place in Ghana as claimed, 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.
Persecution must involve systematic and discriminatory conduct.[10]
[10] S.5J(4) of the Act
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
These provisions are discussed in detail below.
Does the applicant fear being persecuted?
Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
The Tribunal is satisfied that the applicant has a genuine fear of harm given that she was sexually assaulted on two occasions in Ghana, as well as on the boat prior to arrival in Australia. She was also sexually harassed in the marketplace and streets. It is reasonable to assume that due to the memories of these traumatic incidents, she would be fearful of returning to Ghana.
Is the applicant a member of a particular social group of ‘single women in Ghana’ or ‘single women in Ghana with no male protection’ or a similar group?
The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion).
The Tribunal is satisfied that the applicant is a member of a particular social group of both ‘single women in Ghana’ and ‘single women in Ghana with no male protection’. The Tribunal is satisfied that both these groups meet the criteria set out in s.5L of the Act. Firstly the groups share relevant characteristics of female gender, and in relation to the second group, being single with no male protection. The applicant has indicated that her husband will not return with her to Ghana. Secondly these groups are distinguished in Ghanaian society as women are treated differently.[11] Thirdly, the characteristics are not a fear of persecution.
[11] See examples of differential treatment referred to in The Conversation, Women in Ghana: progress, but important challenges remain, 6 March 2020, Women in Ghana: progress, but important challenges remain (theconversation.com)
Is there a real chance of persecution?
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’. This provides an objective element; 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 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’.
The Tribunal is not satisfied that there is a real chance of serious harm for reasons of membership of a particular social group of single women or single women without male protection, for the reasons set out below.
Firstly, while sexual assault is a serious problem in Ghana[12], the Tribunal is not satisfied that there is a real chance, that is a substantial or non-speculative chance, of the applicant being targeted for sexual assault, given the statistics on incidence, information about efforts to reduce rates of sexual assault, as well as the applicant’s circumstances.
[12] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020; Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360
The Tribunal acknowledges that although the law criminalises sexual assault and there are safeguards in place, the state does not consistently implement and enforce the law to provide protection. In 2016 the UN Human Rights Committee said it was ‘concerned about the persistence of violence against women, including domestic violence, sexual assault and rape.’[13] A 2013 article in the journal Women's Health & Urban Life provides information on the prevalence of sexual violence in Ghana:
Data reveal the prevalence of sexual violence in Ghana: 20% of women in Ghana report their first sexual experience as being forced, and 33% report fondling and touching against their will (Ardayfio-Schandorf, 2005; Ark Foundation, 2011; Kuenyehia, 1998)..The Domestic Violence Victims Support Unit (DOVVSU) of the Ghana Police Service reports that on average, 21% of Ghanaian women are forced by their husbands to have sex, 8% of all women have been raped, and 6% of all girls have been raped (of which 78% were defiled by a close relative, acquaintance, or authority figure; DOVVSU, 2010). More than 10,000 rape cases have been reported over the last decade in Ghana, and in 2012, DOVVSU handled a total of 1,164 reported rape cases in Accra alone.. The frequency of unreported rapes points to a culture of secrecy and silence around rape: rape and defilement are associated with negative and stigmatized attributes such as promiscuity, unfaithfulness, and personal weakness (WHO, 2008).[14]
[13] United Nations Human Rights Committee, Concluding observations on the initial reports of Ghana, 9 August 2016, p.3,
[14] Women's Health & Urban Life, I Was Raped: The Psychological Effects of Rape Among Liberian & Ghanaian Women in Ghana, May 2013, pp.100-101
The UNFPA (formerly the United Nations Population Fund) in 2020 stated that, ‘in 2016, approximately 27.7 per cent of Ghanaian women had experienced at least one form of domestic violence (physical, economic, psychological, social and sexual violence).’[15] World Bank statistics in 2008 indicate that 19.2% of Ghanaian women between the ages of 15-49 between the ages of 15-49 were subjected to physical and/or sexual violence in the previous 12 months.[16]
[15] UNFPA, 2020
[16] World Bank, 2008
The Overseas Security Advisory Council Report for 2020 noted that rape, sexual assault and domestic violence remain significantly under-reported.[17] An article by Boateng states that official figures present rape figures as low, despite ‘daily occurrence’ of rape, predominantly marital rape.[18]
[17] Overseas Security Advisory Council, Ghana 2020 Crime and Safety Report, 8 May 2020
[18] Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360

The applicant’s representative submitted that although Ghana has in place laws protecting girls and women, the statistics of sexual assault have not decreased since the laws have been implemented and are ‘not working’.
It is not an easy task to assess whether there is a real chance of serious harm where it is known that crime does take place impacting on thousands of women. The courts have provided guidance by stating that there must be a substantial and non-speculative chance.[19] The Tribunal is not satisfied that there is a substantial or non-speculative chance given the findings and statistics referred to above, the protections available and the applicant’s circumstances. The population of Ghana is 31.5 million.[20] Assuming roughly half are women, there are approximately 15.7 million women in Ghana. There is a variance in the statistics about rates of sexual assault cited above, part of which may is explainable by inclusion of different types of violence (for example psychological violence is included in some studies) and different years. There are conclusions that 2 %[21], 8%[22] or 20%[23] of women have been raped[24], although it is accepted that these figures are probably significantly higher due to under-reporting[25]. Patriarchal and stereotypical attitudes of police have prohibited reporting.[26]
[19] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559
[20] Worldometer, Quoting a 2015 study in Ghana (GSS & IDS, 2016), in Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 21(3), July 2015,(PDF) Victims of sexual assaults: The experiences of Ghanaian women (researchgate.net)
[22] DOVVSU in Women's Health & Urban Life, I Was Raped: The Psychological Effects of Rape Among Liberian & Ghanaian Women in Ghana, May 2013, pp.100-101
[23] Ardayfio-Schandorf, 2005 quoted in Women's Health & Urban Life, I Was Raped: The Psychological Effects of Rape Among Liberian & Ghanaian Women in Ghana, May 2013, pp.100-101
[24] Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 21(3), July 2015,(PDF) Victims of sexual assaults: The experiences of Ghanaian women (researchgate.net)
[25] Overseas Security Advisory Council, Ghana 2020 Crime and Safety Report, 8 May 2020; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 21(3), July 2015,(PDF) Victims of sexual assaults: The experiences of Ghanaian women (researchgate.net)
[26] Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360
While the figures in Ghana indicate that there are a significant number of women affected, statistics indicate that there are similar figures in many other countries, including Australia[27], where there is also often under-reporting[28] although under-reporting could well be higher in Ghana due to reported attitudes of police[29]. In a document entitled, ‘Sexual Assault in Australia’, prepared by the Australian Institute of Health and Welfare in August 2020, it is stated that ‘sexual assault is a major health and welfare issue in Australia’. The article states that almost 2 million Australian adults had experienced at least one sexual assault since the age of 15 amounting to 17% of the population,[30], with Australia the 11^th worst country in the world for rates of reported rape.[31] While the task of ascertaining whether there is a real chance of serious harm in Ghana does not equate with comparing the situation in Australia, the statistics do indicate that the problem of sexual assault is prevalent in many countries. The Tribunal notes that a real chance may be much less than fifty percent[32], but it must be a substantial chance and not speculative. While sexual assault is a serious problem in Ghana, the Tribunal is not satisfied that the chance of harm is anything but speculative or based on surmise[33], given the statistics (taking into account under-reporting), as well as the opportunistic and random nature of crime including sexual assault[34]. Furthermore, incidence of reported rape in Ghana appears to have reduced since 2000[35] and many of the studies referred to above refer to the prevalence of marital rape, which will not be a problem in the reasonably foreseeable future, given that the applicant is married to an Australian citizen.
[27] Australian Institute of Health and Welfare, Sexual Assault in Australia, August 2020
[28] Australian Institute of Health and Welfare, Sexual Assault in Australia, August 2020
[29] Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360
[30] Australian Institute of Health and Welfare, Sexual Assault in Australia, August 2020
[31] Countries Compared by Crime > Rape rate. International Statistics at NationMaster.com
[32] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559
[33] MIEA v Guo (1997) 191 CLR 559
[34] US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, Greathouse, S; Saunders, J and ors, Rand Organisation, A Review of the Literature on Sexual Assault Perpetrator Characteristics and Behaviors, 2015, A Review of the Literature on Sexual Assault Perpetrator Characteristics and Behaviors (rand.org)
[35] Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360
In AGA16 v MIBP [2018] FCA 628 the Court accepted that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. The applicant submitted that individuals with a past history of rape or sexual abuse are identified as individuals or groups of individuals who may be more vulnerable to rape or sexual abuse. She said that victims are vulnerable and ‘people will see and point at her’ and know that she is vulnerable and that she may be a target again. The applicant’s representative relied on World Health Organisation guidelines for this submission,[36] arguing that previous rape victims are seen as more vulnerable and that the applicant has limited familial, community or social connections in Ghana which would make her a target. She submitted that people would know that she has been living in Australia and is alone. She argued that certain people are picked as vulnerable, particularly those who have been victims previously. The Tribunal accepts that the applicant may have some vulnerabilities in this regard and would have limited social and community connections as she has been living out of Ghana for such a long time. However she is older now, with more life experience, has familial support and would be able to get some financial support from her husband in Australia which would mean that she would be able to have some protection. The Tribunal is also not satisfied that there is evidence from country sources[37] that the fact that she has come from Australia would make her more vulnerable to harm. For example, the smart traveller advice from DFAT lists kidnapping, theft and scam/frauds as particular issues for people travelling to Ghana, but there is no mention of sexual assault.[38]
[36] World Health Organisation, Sexual violence: prevalence, dynamics and consequences, in Guidelines for Medico-Legal Care of Victims of Sexual Violence, p11 & 12
[37] See for example, United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020 and Overseas Security Advisory Council, Ghana 2020 Crime and Safety Report, 8 May 2020
[38] DFAT, Smart Traveller Advice, >
The Tribunal is not satisfied that there is a real chance, in the sense of a substantial chance[39] of serious harm, taking all these matters into account cumulatively. In reaching these conclusions as to whether there is a real chance of serious harm, the Tribunal has also taken into consideration possible impact of progress in enforcement of sexual assault laws and community education programs referred to below.
[39] Chan v MIEA (1989) 169 CLR 379
The Tribunal has also considered whether there is a real chance of serious harm by means of discriminatory withholding of state protection for reasons of membership of a particular social group of single women in Ghana or single women in Ghana without male protection. In Ghana there are laws in place which prohibit sexual assault and the government is working to improve enforcement as well as education about sexual assault. The United States Department of State Report on Human Rights Practices states that the law criminalises rape, with sentences of 5 to 25 years.[40] There are multiple government and non-government organisations working to address the problems of rape and domestic violence in Ghana. The Report states:
The Domestic Violence and Victim Support Unit (DOVVSU) of the Police Service worked closely with the Department of Social Welfare, the Domestic Violence Secretariat, the CHRAJ, the Legal Aid Commission, the Ark Foundation, UNICEF, the UN Population Fund (UNFPA), the national chapter of the International Federation of Women Lawyers, and several other human rights NGOs to address rape and domestic violence.[41]
[40] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
[41] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
The Report highlights a number of problems in the provision of protection for sexual assault victims included inadequate logistical capacity in the DOWSU and other agencies, including the absence of private rooms to talk to victims as well as pervasive cultural beliefs in female roles.[42] The Report said that few cases where police arrested suspects for rape reached court or conviction due to witness unavailability, inadequate training on investigation, police prosecutor mismanagement and lack of resources on part of victims.[43] The OSAC report also states that police often lack capacity to investigate and prosecute effectively.[44]
[42] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
[43] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
[44] Overseas Security Advisory Council, Ghana 2020 Crime and Safety Report, 8 May 2020
However, the United States Department of State Report on Human Rights Practices refers to a number of steps being taken to progress education about sexual assault and improve enforcement, including DOWSU teaching courses for police, educating the community through social media and campaigns and had enlisted the Second Lady of Ghana to deliver a keynote address at an anniversary of their work.[45] The government of Ghana has told the United Nations in 2020 that DOVVSU was working closely with the Attorney General’s Office to ensure effective prosecution. It had put in place a walk-in system for victims, a help line, a referral system and family tribunal and gender-based violence courts in Accra to speedily resolve gender-based violence cases.[46]
[45] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
[46] UN – ICCPR, Concluding observations on the initial report of Ghana, 4 January 2020
Freedom House in Freedom in the World 2019, Ghana stated: ‘The government has worked to combat gender-based violence over the past decade, including by expanding the police’s domestic violence and victim support units and creating special courts for gender-based violence, though such services reportedly suffer from insufficient resources.’ [47]
[47] Freedom House, 2019 Freedom in the World Report, Ghana, February 2020
A WHO survey suggested laws against sexual assault were being enforced, except for sexual assault within marriage[48] although this can now be prosecuted.[49]
[48] World Health Organisation, Ghana Africa region Violence Info, September 2010,Violence Info – Republic of Ghana (who.int)
[49] Domestic Violence Act, 2007, (Act 732)
In regards to women’s’ rights generally, an article in 2020 in the Conversation evaluated the World Economic Forum 2017 Global Gender Gap Report and found that ‘there is extensive legislative and international treaty support for women’s rights and empowerment in Ghana. These range from the constitution, through to formal affirmative action programmes for women and the endorsement of International Labour Organisation conventions.’ The article suggested that gender objectives have gained recognition and public policy momentum and there had been some progress but there were still ‘big gaps’.[50]
[50] The Conversation, Women in Ghana: progress, but important challenges remain (theconversation.com), 6 March 2020
The Tribunal acknowledges under-resourcing of protection mechanisms but also that efforts have been made to improve this. However, given the country information set out above the Tribunal does not accept that the government of Ghana is complicit in any sexual assault, as it does not encourage, condone or tolerate the harm amounting to persecution.[51] The Tribunal does not accept therefore that there is any discriminatory withholding of state protection. Although there is some under-resourcing, significant efforts have been made.
[51] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]
Is there systematic and discriminatory conduct?
Persecution must involve systematic and discriminatory conduct.[52] Systematic and discriminatory conduct is conduct which is deliberate rather than random and applied discriminatorily for one of the reasons set out in the legislation.
[52] S.5J(4)
In Chan v MIEA, McHugh J suggested in his reasoning that it was not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’:
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.[53]
[53] Chan v MIEA (1989) 169 CLR 379
In MIMA v Haji Ibrahim[54], McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.
[54] 2000 [HCA] 55
Studies on crime,[55] indicate that there are multiple motivations for criminal conduct and that crime is often opportunistic, rather than caused by a desire to inflict harm on a particular group.
[55] US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, >
The World Health Guidelines for Medico-Legal Care of Sexual Assault Victims refer to academic texts about sexual assault and state that:
the driving forces behind, and the motivations for, sexually aggressive behaviour have been analysed by several researchers and can be summarized as follows:
● Sexual violence is an aggressive act. The underlying factors in many sexually violent acts are power and control, not, as is widely perceived, a craving for sex. Rarely is it a crime of passion. It is rather a violent, aggressive and hostile act used as a means to degrade, dominate, humiliate, terrorize and control women. The hostility, aggression and/or sadism displayed by the perpetrator are intended to threaten the victim’s sense of self. Sexual violence violates a victim’s sense of privacy, safety and well-being.
● Work with sexual offenders has confirmed that the motivating factor for sexual violence is not sexual desire. Although sexuality and aggression are involved in all forms of sexual violence, sex is merely the medium used to express various types of non-sexual feelings such as anger and hostility towards women, as well as a need to control, dominate and assert power over them. Not all perpetrators have the same motivations for committing sexual violence, nor are they similar in the way that they commit sexually violent acts. Anger, power and sexuality are nevertheless elements that are always present, irrespective of the reason for the sexual violence or the nature of the act committed.
● Unravelling the reasons why a given individual should choose to commit a sexually violent act is a complex matter. Some common themes have, however, emerged. According to Groth, sexual violence “serves to compensate for feelings of helplessness, to reassure the offender about his sexual adequacy, to assert his identity, to retain status among his peers, to defend against sexual anxieties, to achieve sexual gratification, and to discharge frustration.[56]
[56] World Health Organisation, Sexual violence: prevalence, dynamics and consequences, in Guidelines for Medico-Legal Care of Victims of Sexual Violence,

100. The Tribunal is not satisfied that the persecution would involve systematic and discriminatory conduct as required by s.5 J(4), given that crime (other than marital rape which does not apply here) is usually random, opportunistic[57] and non-selective and the motivations for sexual assault are often to do with power and control rather than ‘selective harassment’[58] .
[57] US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, Chan v MIEA (1989) 169 CLR 379
Is there a real chance of serious harm on the basis of stigma or being unable to subsist?
101. The Tribunal accepts that the applicant may face social stigma due to having given birth to children outside of marriage who were the products of sexual assault[59] and for the sexual assault itself[60]. A 2013 article notes that there is considerable social stigma to bearing a child outside marriage and as a result of rape, for both the mother and her family:
[59] Ghana Journal of Development Studies, African Journals Online (AJOL), Violence Against Women During the 1991 Ethnic Conflicts of the East Gonja District of Ghana, 2013, p.49,
[60] Women's Health & Urban Life, I Was Raped: The Psychological Effects of Rape Among Liberian & Ghanaian Women in Ghana, May 2013, pp.100-101
In view of this cultural determinant, bearing an illegitimate child (outside marriage) classifies women as loose, frees the family from any responsibility to provide for her and protect her, and also carries considerable social stigma against her family (Jefremovas 1991:383). In this context, surviving rape and bearing the rapist’s child means loss of family support, community’s respect and livelihood. This compels women to conceal their experiences of sexual assault if it is possible for them to do so (Turshen, 1998). The victimized women are mostly reticent; they do not speak about sexual violence or report incidents of sexual abuse when victimized. This may be so because, many times, when such a crime becomes known, they can be ostracised or treated with contempt Ekeyor, 2002)[61].
[61] Ghana Journal of Development Studies, African Journals Online (AJOL), Violence Against Women During the 1991 Ethnic Conflicts of the East Gonja District of Ghana, 2013, p.49

102. The Tribunal notes that the applicant left her hometown, leaving her children with her parents because of extensive stigma. She has persuasively spoken of feeling that her classmates were ‘higher’ than her and that she socially isolated herself because of stigma. She has said that if she returned to Ghana, she would not want to go out to the market and would be isolated. She said that this could lead her to harm herself. The Tribunal is satisfied on the basis of her experiences and the sources above (while not recent), that she may suffer some ostracism and stigma on return. The Tribunal acknowledges that she may feel socially isolated but is not satisfied that social ostracism and stigma reach the level of ‘serious harm’ as envisaged by the legislators, given the indicative examples set out in the legislation.[62] The Tribunal notes also that the applicant is older than when she left, and has more experience than she did as a young girl and may be better equipped to face societal ostracism than she once did, particularly with her family support. Furthermore, interestingly while there is no doubt stigma towards rape victims, in Boateng’s study on why women did not report rape, he found that the most common reason for not reporting rape was that the perpetrator was known to the victim; this was cited by approximately 35% of victims who did not report to the police. Other reasons cited include that their family solved it (24%), and that they felt the incident was not serious enough to be reported (20%). Stigma was not provided as a reason, although Boateng has said that seeking help from family may be because they do not wish to bring shame on themselves.[63]
[62] S. 5J(5) of the Act
[63] Boateng, F; Victims of sexual assaults: The experiences of Ghanaian women, International Review of Victimology 2015, Vol. 21(3) 343–360
103. The applicant has submitted that it would be a difficult environment for a woman on her own with four children in Ghana, and the Tribunal accepts that this is the case. The Tribunal is not satisfied however that the applicant would face discrimination generally as a woman, or a woman without male protection, to the level of serious harm, given that she has family in Ghana and country information about the treatment of women. Although not always enforced, there are laws protecting the rights of women in Ghana, as stated in the United States Department of State Report on Human Rights Practices, ‘The constitution and law provide for the same legal status and rights for women as for men under family, labor, property, nationality, and inheritance laws. While the government generally made efforts to enforce the law, predominantly male tribal leaders and chiefs are empowered to regulate land access and usage within their tribal areas. Within these areas, women were less likely than men to receive access rights to large plots of fertile land. Widows often faced expulsion from their homes by their deceased husband’s relatives, and they often lacked the awareness or means to defend property rights in court.’[64] The Tribunal accepts that financially it may be difficult for the applicant, however she does have a husband in Australia who can provide support and she also has family in Ghana. The Tribunal is not satisfied therefore that she would be unable to subsist in Ghana.
[64] United States Department of State, Country Report on Human Rights Practices, Ghana, 2019, 2020
104. The Tribunal is not satisfied therefore that the applicant has a real chance of serious harm based on discrimination or inability to subsist.
Findings on the refugee criteria
105. While the Tribunal accepts that sexual assault is a serious social problem in Ghana and she may face stigma and some discrimination, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for membership of a particular social group of ‘women in Ghana’ or ‘women in Ghana without male protection’ or any of the reasons set out in the legislation.
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).
Does the applicant meet the complementary protection criteria?
107. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if 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 criterion’).
108. ‘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.
109. 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. The Tribunal has accepted that the applicant was sexually assaulted on a number of occasions while living in Ghana. However, the Tribunal is not satisfied that there is a real chance of serious harm in the form of sexual assault or on the basis of being unable to subsist, for reasons set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
110. The Tribunal is satisfied that the applicant would face stigma and ostracism as a victim of sexual assault, and as a person who has had children out of wedlock. Sources relevant to this are referred to earlier in this decision. The Tribunal is not satisfied however that stigma and ostracism reach the level of significant harm envisaged by the legislation. It would not amount to torture, arbitrary deprivation of life or torture. Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The Explanatory Memorandum states that the first type of cruel or inhuman treatment or punishment, an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, refers to an act or omission which would normally constitute torture, but which is not inflicted for one of the purposes or reasons under the definition of ‘torture’.[65]
[65] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [16].
111. The structure of the definition suggests that the requirement of severity is linked to the pain or suffering, rather than the nature of the act or omission which causes it. Consistently with this, the Complementary Protection Guidelines state that the assessment is subjective, in that it depends on the characteristics of the victim (such as gender, age and state of health).[66] The Complementary Protection Guidelines also provide examples of treatment which are ‘very likely’ to constitute breaches of art 7, including rape, female genital mutilation, forced abortion and forced sterilisation and, in some cases, circumstances arising from a forced marriage and domestic violence.[67]
[66] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.5.2 and 3.4.5.3, as re-issued 29 February 2020..
[67] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.7.3 and 3.4.7.4, as re-issued 29 February 2020. See also FMN17 v MICMSMA (2020) 274 FCR 612
112. The Tribunal has taken into consideration the fact that the applicant is a victim of sexual assault, and has four children, including two very young children. The Tribunal is not satisfied however that the acts of stigma would reach the level of severe pain or suffering or pain, or suffering which was cruel or inhuman, given the requirements of significant harm. Furthermore, it is a long time since she has been in the country when the crimes took place such that it is far less likely that people would take interest in her past, she is currently married to the father of her two young children, and the applicant has family in Ghana with whom she can live.
113. The definition of degrading treatment or punishment in s 5(1) is specific as to the level of humiliation which must be evoked by the particular act or omission. It requires ‘extreme humiliation which is unreasonable’. Drawing upon international jurisprudence, the Complementary Protection Guidelines, which provide some guidance, state:
Treatment may be degrading if it ‘humiliates or debases an individual, showing a lack of respect for, or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’. In this regard, humiliation may be in either the eyes of others, or the eyes of the victim themselves. Treatment may also be said to be degrading if it grossly humiliates a person in front of others, or drives the person to act against their will or conscience…

114. The assessment of the minimum level of severity necessary to constitute ‘extreme humiliation’ will depend on all the circumstances of the case, including the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the gender, age, state of health or other status of the victim.[68] In this case, the Tribunal has taken into consideration the length of time since the sexual assaults which would mean that it can be assumed that there would be less interest in the events than if they were recent, the fact that the applicant is older now and likely to have more resistance, and the fact that she is currently married and has family with whom she can live.
[68]Department of Home Affairs, Complementary Protection Guidelines, section 3.4.6.2, as re-issued 29 February 2020
115. While ostracism or stigma at any level can be particularly unpleasant, the Tribunal is not satisfied that it would reach the level of ‘cruel or inhuman’ or that it would cause extreme humiliation which is unreasonable.
Findings on complementary protection
116. The Tribunal is not satisfied 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.
REFERRAL FOR MINISTERIAL INTERVENTION
117. Under s.417(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 on the basis of public interest.
118. The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in departmental policy, ‘Minister’s guidelines on Ministerial Powers (s351, s417 and s501J)’. The applicant is a lawful non-citizen who does not appear to have other visa pathways available to her except for going offshore and applying for a partner visa. This would be difficult for her to do, given restrictions due to the COVID-19 pandemic, and the fact that she has a young child and is expecting another. The Tribunal respectfully refers the matter to the Minister as the case has unique or exceptional circumstances as described in the Ministerial Guidelines, for the reasons set out below.
119. Firstly, the Tribunal is of the view that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens. The applicant’s child is an Australian citizen. He is only [age]. The applicant is expecting another child, who will also be an Australian citizen by virtue of the child’s Australian father. Her husband, the father of her child, with whom she has been together with for five years, is also an Australian citizen. They state that they are a very close family and that the applicant is integral to the family unit. Her departure would cause her husband significant sadness and distress. If the children were to travel with her, which would be likely, considering their age, this would cause both the father and the children significant distress as they would be separated from their father, and they would also be denied the quality of life they could expect as Australian citizens living in Australia. The applicant’s representative submitted that ‘if the Applicant is forced to re-locate to Ghana, irrespective of whether she re-locates to Ghana with the children or not, the children’s livelihood, daily routine and environment will be permanently altered. It goes without saying that it would be in the best interest of the children for their mother to be permitted to remain in Australia so that they enjoy the benefit of living in a stable and familiar environment with both their parents.’
120. Although the applicant’s family are in Ghana, it is anticipated that financially it would be difficult for the family in Ghana. The applicant would need to care for two young children so it would be hard for her to work. There is also some stigma and ostracism which she would face, as she was sexually assaulted as a young woman.
121. Secondly, there are circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair and unreasonable results. Although the applicant is clearly in a partner relationship (she has been with her husband for five years, has one child with him and is expecting another), she was refused a partner visa as she had arrived on a boat and did not have a substantive visa. It would be currently very difficult for her to travel, given her pregnancy and the COVID-19 pandemic, in order to apply for a partner visa offshore.
122. The applicant is committed to Australia having lived in the country for ten years and has complied fully with Australian laws during this time. She has integrated into Australia, speaks English, is close to her neighbours, has friends in the community and until the COVID-19 outbreak, attended church regularly. She is in a prayer group and is a member of [a] Church, where she has held the position of Women’s Secretary. She works as [an Occupation 2] with [Employer 2]. She has also worked [in a specified field] in the past and was an [Occupation 1] in Ghana. She said that there are certain [clients] who ask for her specifically and they will not [accept other staff] as she has built trust with them. She finds it very rewarding. She has also done [Work Sector 1] volunteering work.
CONCLUDING PARAGRAPHS
123. The Tribunal is not satisfied that the applicant meets the refugee criterion in s.36(2)(a) of the Act.
124. 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).
125. 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 the criterion in s.36(2).
DECISION
126. 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.
…

[2021] AATA 1425

19 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal