1819296 (Refugee)

1819296 (Refugee) [2022] AATA 890 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819296
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:4 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2022 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – father forced to accept position as village chief, with applicant next in succession – expected to cease Christianity and adopt traditional religion – psychological and emotional harm – credibility – inconsistent claims and evidence – timing and circumstances of father’s succession – existence and details of village – family’s reaction to applicant’s refusal – authenticity of supporting documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana, applied for the visa on 8 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form the applicant provided the following information. He was born on [Date] in [Town 1], Ghana. In Ghana, he has his mother, father, sister and daughter. He has never been married. He speaks, reads and writes English and Twi (Akan). He is a member of the Wesleyan Methodist Church. Prior to coming to Australia, from May 2016 he lived in [Location 1], Accra, Ghana. From June 2008 to May 2016, he lived in [Location 2], Accra. From April 2004 to June 2008, he lived in Kumasi. Prior to that he lived in [Town 1]. In Ghana, he was employed by [Employer 1] as [an Occupation 1] from November 2014 to March 2017. He was employed by [Employer 2] from April 2013 to November 2014 and by [Employer 3] as [an Occupation 1] from September 2011 to March 2013. Prior to that he was studying. He completed High School and in 2011 he obtained his Diploma in [Subject 1].
He unsuccessfully applied for visitor visas to [Country 1] on 1 January 2016, [Country 2] on 1 January 2017 and [Country 3] on 1 October 2017. He arrived in Australia on 14 March 2018 as the holder of a [specified] visa, travelling on his Republic of Ghana passport issued [in] 2017.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     He left Ghana out of fear of religious persecution.
·     He is a Methodist Christian. He has been a Methodist Christian since a young age.
·     His father was forced into the leadership position of Chief of Bodwesango town. Bodwesango town is roughly 30 km from his family’s home town.
·     In April 2016, the applicant’s father and uncle (his father’s elder brother) were contacted by their uncle who asked them to travel to Bodwesango town. Their uncle was chief of Bodwesango town.
·     The chief was growing old and was looking for the next most senior male in the family to replace him.
·     The chief knew the applicant’s father was a Methodist and the applicant’s uncle was an elder in the Pentecostal church. Being an elder, he was deemed not suitable for the role of chief.
·     The applicant’s father was forced to take over the position of chief of Bodwesango within one month of their visit.
·     The applicant’s father returned home and informed the family of his new responsibility and relocated to Bodwesango town where he now lives as the chief.
·     The applicant understood that he would inherit this obligation one day.
·     He was surprised his father threw away his faith so quickly for the chief’s demands.
·     After his father relocated, the applicant understood the consequences of rejecting the position and realised his life was in danger as the day would come when he had to support his father and take over the position of chief.
·     He began to apply for countries such as [Country 1], [Country 2] and [Country 3] to have a secure path to depart the country but he was unsuccessful.
·     In August 2018[1] his father asked the applicant to visit him in Bodwesango to discuss something. The applicant was reluctant but he went. When he arrived he could see traditional religion was prominent in the area and this was very foreign to him.
·     His father asked him to relocate to help him. His father said his duties were draining and seeing as the applicant would take over one day he should cease his Christian faith and practice and begin accepting and adopting the traditional religion and the duties that come with it.
·     At this time the applicant realised the only way to survive was to escape. He made urgent enquiries and was able to get in touch with someone who was travelling to Australia for [Event 1].
·     The applicant suffered a mix of psychological and emotional harm seeing his father being forced into his role and being removed from their lives, and the way his father spoke to him when the applicant visited.
·     The applicant’s father was not acting like he had before and he made it clear that if the applicant resisted the responsibility his father would take serious action. He said the applicant did not have a choice and neither had he. His father said he would be dead if he was not doing the chief’s work now and the same would go for the applicant. He said if the applicant did not begin to adopt traditional religion he would be punished.
·     It is not possible for the applicant to seek help from the authorities because they don’t involve themselves with traditional religion.
·     The applicant cannot relocate because his father and traditional religion believers are all over the country and even though they are a small number their actions are loud. They will target and kill him for not accepting his duties.
·     The applicant will be found regardless of where he travels. The Ashanti region has many powerful people working within in and locating an individual through corruption is easy.
·     If he does not accept his position and begin working to support his father as chief and eventually take over the position he will be killed. He does not want to be forced to harm others and do practices that he does not agree with. He is a Christian and will not change that. He does not want to involve himself with traditional religion.
The interview
[1] The delegate noted that this is an error and should say 2017
The applicant attended an interview with the Department on 25 May 2018. During the interview he provided further information in relation to his claims and made the following new claims:
·     His father was appointed chief in Bodwesango in September 2015.
·     There are two Bodwesango towns in Ghana. One in the Adansi North district and one in the Afigya Kwabre district. The town in the Afigya Kwabre district has about 800,000 people and that is the town of which his father is chief.
·     The applicant’s uncle (his father’s older brother) was the chief of Bodwesango for 18 years before the applicant’s father. He had to step down because of health reasons and because he was involved in some issues relating to property dealings where he had done the wrong thing.
Documents provided following the interview
After the interview and prior to the delegate making their decision, the applicant submitted the following documents:
·     Undated photographs of a person in traditional dress who the applicant claims is his father conducting his duties as chief of Bodwesango.
·     Undated page with location co-ordinates for the town of Bodwesango where the applicant claims his father is chief.
·     Satellite image of a map identifying the area that the applicant claims is Bodwesango in the Kwabre district.
·     Hyperlink to a video of the swearing in of applicant’s father as chief in 2015 (the delegate was unable to access this file).
The delegate’s decision
On 7 June 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate found that there was a lack of convincing evidence for the applicant’s father being chief of Bodwesango town and a lack of evidence for his claims that family members and other parties are willing and capable of targeting him in Ghana for persecution or serious harm. The delegate did not accept the applicant’s claims as credible and was not satisfied that he would be targeted in Ghana for the reasons claimed or that he is likely to face persecution or serious harm on his return there.
Evidence before the Tribunal
The review application
On 3 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the delegate’s decision with his application for review.
Additional documents
On 23 February 2022, the applicant submitted the following documents to the Tribunal:
· Photograph of a letter dated 16 February 2022 from [Mr A], [Official], Afigya Kwabre South District Assembly, confirming the existence of Bodwesango Community as part of Afigya Kwabre South District and attaching the Bodwesango Local Plan.
· Photographs of a map entitled Revised Bodwesango Local Plan, Physical Planning Department, Afigya Kwabre South District which shows a map of a coloured area that purports to be Bodwesango community.
The hearing
The applicant appeared before the Tribunal on 25 February 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by video having regard to the nature of this matter and the individual circumstances of the applicant, including that he lives in regional New South Wales several hours’ travel from Sydney. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of Ghana and provided to the Department a copy of his Ghanaian passport issued [in] 2017. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Ghana. The Tribunal finds Ghana is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that his migration agent helped him to fill in his protection visa application form and write his claims. The applicant said he provided his migration agent with the information based on the questions he was asked. He confirmed that the information contained in his protection visa application form was true and correct. He gave evidence that since he filled out the form, he now has a partner and they live together and he has completed a TAFE Diploma in [Subject 2].
During the hearing, the Tribunal discussed with the applicant his family, education, religion, employment, where he lived in Ghana, his migration history, the problems he experienced in Ghana and why he fears returning to Ghana. The Tribunal has concerns about discrepancies between the information contained in the applicant’s protection visa application, what he told the delegate in his interview and the evidence he gave to the Tribunal in relation to various matters, as well as about the existence of the town where he claims his father is chief. Overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns are discussed below.
First, discrepancies between the applicant’s evidence in his protection visa application, what he told the delegate in his interview and his evidence in the Tribunal hearing about the circumstances in which his father became chief raise concerns for the Tribunal.
In his protection visa application form, the applicant claims that in April 2016, his father and his father’s older brother were asked by their uncle, who was the chief of Bodwesango, to travel to Bodwesango town. The chief was growing old and he was looking for the next most senior male in the family to replace him. The chief knew the applicant’s father was a Methodist and the applicant’s uncle was an elder in the Pentecostal church. Being an elder, the applicant’s uncle was deemed not suitable for the role of chief. The applicant’s father was forced to take over the position of chief of Bodwesango within one month of their visit.
In the interview with the delegate, the applicant said that his father was appointed chief of Bodwesango in September 2015. The applicant said that when his father’s uncle died, he was succeeded as chief by his father’s older brother (the applicant’s uncle). The applicant’s uncle was chief for 18 years until his father replaced him. The applicant’s uncle had to step down as chief because he was unwell after a stroke and he was rejected by the community because he had done some illegal things like selling off traditional land for residential use that was supposed to be used for social amenities like schools.
In the Tribunal hearing, the applicant gave evidence that his father was made chief of Bodwesango on 25 November 2017. He said the previous chief, who was his father’s uncle, died in 2015. The elders were looking at possible heirs and in 2016 they informed his father that he had been chosen as the next person. After considering the matter for some time, the applicant’s father accepted the position of chief in late 2016 or early 2017. The applicant’s father did not have any brothers still alive. His only brother had died in 2008. After the applicant’s father was enstooled there was a mess he had to sort out with another branch of the family who had sold off part of the traditional lands which they did not have the right to do. Only the chief has the right to do that.
In the hearing, the Tribunal put to the applicant its concern that he had given several quite different versions of the circumstances surrounding his father becoming chief in his protection visa application, in his interview with the delegate and in the Tribunal hearing. The Tribunal gave the applicant some specific examples such as whether it was his father’s uncle or brother who was the chief immediately before his father, whether or not the previous chief had died before his father took up the position, why the previous chief stood down and when it was that his father took on the role. The applicant did not have a clear response to the Tribunal’s concerns. He said his father had been contacted by his uncles about inheriting the position of chief of Bodwesango. He said maybe he hadn’t been consistent with the date and year. He said the former chief is dead now. He said it is hard to respond and a lot has happened in the past years. He said he asked his dad who said they were brothers. The Tribunal accepts that the passage of time can cause memories to fade, but it does not accept the applicant’s explanation as adequate to explain the significant discrepancies in his evidence relating to this claim.
For example, in his protection visa application form the applicant said the previous chief was his father’s uncle who was still alive when his father took over the position in about May 2016. In the interview with the delegate, he said the previous chief was his father’s older brother who was still alive and stepped down when his father took on the position in September 2015. In the Tribunal hearing, he said that the previous chief was his father’s uncle who had died in 2015 and that his father was made chief on 25 November 2017 after a lengthy period of deliberation.

In his protection visa application form, the applicant said the previous chief (his father’s uncle) stood aside because he was old. In the interview with the delegate, the applicant said the previous chief (his uncle) stood down because he was unwell and had been rejected by the community. In the Tribunal hearing, he said that the previous chief (his father’s uncle) had died in 2015.
In his protection visa application form, the applicant said his father’s elder brother was deemed to be an unsuitable successor to their uncle because he was an elder in the Pentecostal church. In the interview with the delegate, the applicant said his father’s elder brother was the chief and had been in the position for 18 years before stepping aside for the applicant’s father. In the Tribunal hearing, he said that his father’s only brother had died in 2008 and his father did not have any other brothers.
The Tribunal considers the discrepancies in the applicant’s evidence relating to the timing and circumstances in which his father became chief, including who it was that his father succeeded as chief and why, to be considerable and to cast significant doubt on his credibility and the genuineness of his claims.
Secondly, the Tribunal has concerns about the applicant’s evidence relating to the existence of the town of Bodwesango where he claims his father is chief.
In his protection visa application form, the applicant claims that Bodwesango is a town roughly 30km from his family’s home town.
In the interview with the delegate, and as reflected in her written decision, the applicant claimed that his father is the chief of Bodwesango town which is located in the Afigya Kwabre district of the Ashanti Region of Ghana. He said the town had around 800,000 inhabitants and it was outside Kumasi and near Afrancho. The delegate put to the applicant that Google Maps showed only one town called Bodwesango in Ghana and it was located in the Adansi North district of the Ashanti Region. The applicant gave evidence that there are two Bodwesango towns in Ghana. After the interview, the applicant provided some co-ordinates and a satellite image to the Department indicating the claimed location of Bodwesango town. The delegate noted in her decision that this was not consistent with the information the applicant gave during the interview about the location of the town. The delegate also noted that open-source country information does not refer to a Bodwesango town in the Afigya Kwabre district and the capital of the district only has a population of 136,000 people and on this basis she would have expected to find a reference to it. The delegate found that the absence of evidence for the existence of this place raised a material doubt about the credibility of the applicant’s claims.
In the Tribunal hearing, the applicant gave evidence that the town of Bodwesango where his father is chief is located in the Afigya Kwabre South district near the city of Kumasi. He provided the documents referred to in paragraph 10 above in support of this. The Tribunal asked the applicant how far Bodwesango is from his family’s home town of [Town 1] and he said it was about 70 to 80km. The Tribunal put to the applicant that he had said in his protection visa application form that it was around 30km from his family’s home town. The applicant said that was not correct. The Tribunal put to the applicant that Google Maps shows that from [Town 1] to Kumasi is about 140km and as a qualified [Occupation 1] it would expect the applicant to have been more accurate about the distance from [Town 1] to Bodwesango. The applicant responded that he had only been to the place once around the time his father was enstooled in November 2017 and so he was estimating. The Tribunal asked the applicant how many people are in Bodwesango. He said it is a small town of 3,000 to 5,000 people. The Tribunal put to the applicant that he had told the delegate it was a town of 800,000 people. The applicant responded that the region does not have that many people and maybe that was wrong information. He stated that he did not remember saying that to the delegate. The Tribunal put to the applicant that the only town called Bodwesango it could find on Google Maps is in the Adansi North district, and even using the co-ordinates provided by the applicant to the delegate[2] the Tribunal could not find evidence of a place or area called Bodwesango. The applicant responded that there are places in Ghana that are not on the map and can be hard to locate.
[2] See paragraph 7 above
The Tribunal put to the applicant its concerns about the discrepancies between the evidence in his protection visa application form, what he told the delegate and his evidence in the Tribunal hearing about the size and location of Bodwesango in the Afigya Kwabre South district and that it shared the delegate’s concern about whether the place exists given it had not been able to find any independent information to support its existence. The applicant responded that he had been there once and was not very familiar with it. He stated that small towns are not easy to find on the map. He said that most of the information he provided to the delegate was an assumption or estimate about the area but the information he has provided now is authentic and from the government. The Tribunal does not accept this explanation.
The applicant claims that this town of Bodwesango is the place where his father is the chief, which means it is also the place he has rejected becoming chief of in the future and it is therefore important and central to his claims. On this basis, the Tribunal would expect the applicant to have better knowledge about this place and to have been able to give more consistent and accurate information about its distance from his home town, its size and its location, particularly given he is a qualified [Occupation 1]. For example, the Tribunal finds it implausible that the applicant would be so unfamiliar with the place that he would estimate to the delegate that his father was chief of a town of 800,000 people and then correct that figure in the Tribunal hearing to only 3,000 to 5,000 people. Further, even if the Tribunal accepts the applicant’s assertion that small towns are not easy to find on the map (which it does not necessarily accept), the fact that neither the delegate nor the Tribunal have been able to find any independent information[3] to corroborate the applicant’s claim about the existence of this place, raises doubts for the Tribunal about the applicant’s credibility and the genuineness of his claims. These concerns are strengthened by the Tribunal’s broader concerns about the applicant’s credibility discussed above.
[3] For example, the Composite Budget for 2019 for the Afigya Kwabre South District Assembly refers to the top ten communities in the district, the smallest of which has a population of 2,952. This is smaller than the size of Bodwesango claimed by the applicant in the Tribunal hearing and there is no mention of a place called Bodwesango on this list or elsewhere: (accessed 2 March 2022). See also the delegate’s decision.
The Tribunal discussed with the applicant the letter and map he provided to the Tribunal on 23 February 2022 in support of his claim about the existence of Bodwesango in the Afigya Kwabre district, as described in paragraph 16 above. The applicant said his father obtained the documents for him from the Afigya Kwabre District Assembly. The Tribunal put to the applicant that country information indicates it is not difficult to obtain fraudulent documents in Ghana[4] and the Tribunal might find that in light of this, combined with the doubts the Tribunal has about the truthfulness of his evidence to the delegate and the Tribunal about Bodwesango, it might not accept these documents as genuine. The applicant responded that he had sworn to tell the truth. He stated that initially in the interview he was asked to provide the location. Getting the information from Ghana was difficult and took a while but it is correct and true. The Tribunal does not accept the applicant’s response. It is not possible to tell from the map of Bodgwesango provided by the applicant to the Tribunal whether it is located within the area identified by the co-ordinates provided by the applicant to the delegate. It is also not possible to tell where it is located in relation to other larger towns such as, for example, Kumasi. The applicant’s response, combined with the country information about the availability of fraudulent documents in Ghana and the Tribunal’s broader doubts about the applicant’s credibility discussed above, does not allay the Tribunal’s concerns. Accordingly, the Tribunal gives these documents no weight.
[4] Canada: Immigration and Refugee Board of Canada, Ghana: Availability of fraudulent identity documents, including instances of officials issuing fraudulent documents, including passports (2008-2013), 3 January 2014, GHA104710.E (accessed 23 February 2022); (accessed 2 March 2022); (accessed 2 March 2022)
Thirdly, discrepancies between the applicant’s evidence in his protection visa application, what he told the delegate in his interview and his evidence in the Tribunal hearing about his father’s reaction when he declined to be his father’s successor as chief raise concerns for the Tribunal.
In his protection visa application form, the applicant claims that when he rejected his father’s request to join him and start preparing to take on the chief position in the future, his father made it clear that he would take serious action against the applicant, including threatening to punish him for not taking on traditional religion and threatening his life for not accepting his duties.
In the interview with the delegate, the applicant said that his father told him that one day the applicant would inherit the throne from him and when the applicant refused his father and others were not happy. His father told the applicant that the community was looking up to him and wanted someone educated to be his father’s successor and he was the only suitable male successor.
In the Tribunal hearing, the applicant gave evidence that his father and mother were supportive of his choice not to succeed his father as chief but everyone else in the family was against his decision. The applicant stated that his father was supportive of his decision to leave Ghana and had never put pressure on the applicant to inherit the chieftaincy from him.
The Tribunal put to the applicant its concern that in his protection visa application form and in the interview with the delegate, the applicant had given evidence that his father was not at all happy with his choice about not succeeding him as chief, but that he had told the Tribunal that his father did support his decision and it was other family members who were not happy. The applicant responded that initially they had a discussion and his father did not support him because he was thinking of lineage but as they talked further he understood the applicant’s position. The Tribunal does not accept this explanation. The applicant’s claims of harm in his protection visa application form and in his evidence to the delegate are based on him fearing harm from his father and members of his extended family or elders because they oppose him refusing to inherit the position of chief in the future. The fact that the applicant changed his evidence to claim in the Tribunal hearing that his father ultimately supported his choice and had never put pressure on him undermines his original claims and raises concerns for the Tribunal about his credibility.
Fourthly, the Tribunal discussed with the applicant the other documents he had provided in support of his claims. As mentioned in paragraph 7, after the interview with the delegate the applicant submitted a number of documents. The Tribunal has considered these documents and discussed them with the applicant during the hearing.
The applicant provided a number of undated photographs of a person in traditional dress who the applicant claims is his father conducting his duties as chief of Bodwesango. The Tribunal put to the applicant that given there is nothing to verify the identity or location of the person in the photographs it might not be able to take these images into account. The applicant responded he understood. Accordingly, the Tribunal gives these photographs no weight.
The Tribunal has already referred above to the documents provided by the applicant that purport to contain location co-ordinates and a satellite image of the location of Bodwesango. The Tribunal has examined the area defined by the co-ordinates on Google Maps and, like the delegate, could not find mention of a place called Bodwesango in that area. The Tribunal put this to the applicant and expressed its concern about the existence of the place. The applicant responded that Ghana does not have good technology for identifying streets and areas. He said he prepared those documents himself but he has subsequently provided documents from the Assembly (as referred to in paragraph 39 above). The Tribunal does not accept this explanation. In light of the Tribunal’s concerns about discrepancies in the evidence given by the applicant in his protection visa application, what he told the delegate and his evidence in the Tribunal hearing about the location and size of Bodwesango, and combined with the Tribunal’s broader concerns about the applicant’s credibility, the Tribunal gives these documents no weight.
The applicant provided a hyperlink to what he said was a video of the swearing in of applicant’s father as chief in 2015. In her decision, the delegate notes that she was unable to access this file and therefore gave it no weight. The Tribunal also attempted to view this file but it was not accessible. The Tribunal explained this to the applicant and indicated that it could not take the video into account. The applicant said he understood.
Having considered all the applicant’s evidence, for the reasons set out above the Tribunal does not accept the applicant’s central claims which relate to his father becoming chief of the town of Bodwesango, the applicant refusing to succeed his father and the applicant being threatened as a result. In light of this, and in light of the Tribunal’s concerns about the applicant’s credibility and the truthfulness of his evidence more broadly, the Tribunal does not accept the applicant’s remaining claims which flow from his central claims.
The Tribunal accepts that the applicant was born in [Town 1], Ghana. The Tribunal accepts that in Ghana he has his mother and father, his sister and a child from a past relationship. The Tribunal accepts that he completed High School and that he completed a Diploma in [Subject 1] in Ghana at the tertiary level. The Tribunal accepts that prior to 2004 he lived in [Town 1], from 2004 to 2008 he lived in Kumasi and from 2008 onwards he lived in Accra until he left Ghana. The Tribunal accepts that from 2011 to 2013 he worked as [an Occupation 1] for [Employer 3], from 2013 to 2014 he worked in [work sector] as an assistant [Occupation 1] and from 2014 to 2017 he worked as [an Occupation 1] for [Employer 1]. The Tribunal accepts that in 2016 and 2017 he applied unsuccessfully for visitor visas to [Country 1], [Country 2] and [Country 3], but it does not accept that he applied for these visas for the reasons claimed. The Tribunal accepts that he came to Australia on a [specified] visa connected to [Event 1] and that he did not attend the [event]. The Tribunal accepts that the applicant is a Christian. The Tribunal accepts that he mainly attended Methodist churches in Ghana and that he continues to follow his religion in Australia. The Tribunal accepts that the applicant’s father had one brother who passed away in 2008 and that his father had no other brothers.
The Tribunal does not accept that a town or area or community called Bodwesango exists in the Afigya Kwabre South district of the Ashante Region in Ghana. It follows from this that the Tribunal does not accept that Bodwesango in the Afigya Kwabre South district is around 30km or 70km or any other distance from the applicant’s home town of [Town 1] or that it has a population of 800,000 or 3,000 to 5,000. The Tribunal accepts that there is a town called Bodwesango in the Adansi North district of the Ashante Region but this is not the town the subject of the applicant’s claims.
The Tribunal does not accept that the applicant’s father is or ever has been a chief. As the Tribunal does not accept that a town or area or community called Bodwesango exists in the Afigya Kwabre South district of the Ashante Region in Ghana, it follows that the Tribunal also does not accept that the applicant’s father is or ever has been chief of Bodwesango. The Tribunal does not accept that the applicant’s father was forced into or chose, willingly or unwillingly, to accept the position of chief of Bodwesango. The Tribunal does not accept that the applicant’s father became chief in 2015, 2016, 2017 or at any time. The Tribunal does not accept that the applicant’s uncle (his father’s brother) or his father’s uncle were the chief of Bodwesango before the applicant’s father. The Tribunal does not accept that the applicant’s uncle was chief of Bodwesango for 18 years or that he had to step down for health reasons and because he had been involved in some property dealings where he had done the wrong thing. The Tribunal does not accept that in April 2016 or at any other time, the applicant’s father and uncle were asked by their uncle, who was chief of Bodwesango, to travel there because the chief was looking for someone to replace him because he was getting old. The Tribunal does not accept that the applicant’s uncle was deemed unsuitable for the role because he was an elder in the Pentecostal church. The Tribunal does not accept that the applicant’s father was forced to take on the role of chief within one month of this visit or at any other time. The Tribunal does not accept that the applicant’s father returned home to inform his family of his new position and relocated to Bodwesango soon after. The Tribunal also does not accept that the applicant’s father gradually relocated to Bodwesango over time and now lives there as chief.
The Tribunal does not accept that the applicant understood he would inherit this obligation one day. The Tribunal does not accept that after his father relocated, the applicant understood the consequences of rejecting the position and realised his life was in danger as the day would come when he had to support his father and take over as chief. The Tribunal does not accept that in August 2017 or at any other time, the applicant’s father asked him to visit him in Bodwesango to discuss something with him. The Tribunal does not accept that the applicant’s father asked him to relocate to help him and told the applicant that he should cease his Christian faith and adopt traditional religion and the duties that come with it. The Tribunal does not accept that the applicant realised he needed to escape to survive. As the Tribunal does not accept that the applicant’s father is chief of Bodwesango, it follows that the Tribunal does not accept that the applicant suffered a mix of psychological and emotional harm seeing his father forced into the role, being removed from their lives and because of the way the applicant’s father spoke to him. The Tribunal does not accept that the applicant’s father told him that if the applicant resisted his responsibility and did not adopt traditional religion his father would take serious action. The Tribunal does not accept that the applicant’s father said he would be dead if he was not doing the chief’s work now and the same would go for the applicant. The Tribunal does not accept that the applicant was threatened by his father or other family members due to his refusal to succeed his father as chief when the time comes. As the Tribunal does not accept that the applicant’s father is chief of Bodwesango, it follows the Tribunal does not accept that the applicant’s mother and father were supportive of the applicant’s choice to leave Ghana and not to succeed his father as chief, or that everyone else in the family was against the applicant’s decision. It also follows that the Tribunal does not accept that as chief, the applicant’s father has been threatened and pressured by other members of the family to get the applicant to return and accept his position or because of his involvement in sorting out some problematic land dealings by other members of the family. The Tribunal does not accept that the applicant left Ghana in fear of his life or that he fears returning for the reasons claimed.
Does the applicant meet the refugee criterion?

In his protection visa application form, the applicant claims that he left Ghana out of fear of religious persecution. As the delegate explained in her decision, the applicant confirmed that the only reason he sought protection in Australia was his claimed fear of persecution or serious harm on the basis of his forced succession to the chieftaincy in Ghana. This is consistent with his evidence in the Tribunal hearing. The applicant’s religious beliefs are the main reason why he claims he does not want to succeed his father as chief but he does not claim to fear persecution on the basis of his religious beliefs as such. The reason he claims to fear persecution is because he has refused to succeed his father as chief. In any event, as discussed above, the Tribunal accepts the applicant is a Methodist. Country information discussed with the applicant in the hearing indicates that the vast majority of people in Ghana are Christian and it does not suggest that Christians, including Methodist Christians, face persecution for their religious beliefs.[5] Accordingly, the Tribunal finds that the applicant does not claim that he left Ghana out of fear of religious persecution and that as a Methodist Christian the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Ghana in the reasonably foreseeable future.
[5] US Department of State Report on International Religious Freedom 2020, Ghana 23 February 2022)
In his protection visa application form, the applicant claims that if he returns to Ghana he will be targeted and killed for refusing to accept his duties in anticipation of one day succeeding his father as chief. In the interview with the delegate, the applicant claimed that he will be threatened or killed for not accepting his role as next-in-line for his father’s chieftaincy. In the Tribunal hearing, the applicant claimed that he fears being killed if he returns to Ghana because of the threats made to him by extended family members due to his refusal to accept inheriting the chieftaincy from his father when the time comes. Based on the Tribunal’s findings above that the applicant’s father is not and never has been chief of Bodwesango, that the town of Bodwesango in the Afigya Kwabre South district does not exist, and that the applicant was not threatened by his father or other family members due to his refusal to succeed his father as chief when the time comes, the Tribunal does not accept the applicant’s claims. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Ghana in the reasonably foreseeable future.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Ghana now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[6] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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 that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[6] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2022] AATA 890

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness