1820514 (Refugee)

1820514 (Refugee) [2022] AATA 3110 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kathryn Rose Viegas
CASE NUMBER:  1820514
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:15 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 July 2022 at 11:41am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian convert – declined chieftaincy of hometown after conversion to Christianity – royal lineage – particular social group – people who have undergone the customary and traditional rites to be made chief and have a direct rival who has also undergone the customary and traditional rites to be made chief in respect of the same skin or stool – people who have refused chieftaincies in Ghana – intended tribal chiefs who are opposed to enskinment on the basis of their religion – chieftaincy dispute – threats of harm by clan and community – Economic Community of West African States (ECOWAS) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 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 9 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 this protection visa application form, the applicant provides the following information. He was born in [Village 1], Northern Region, Ghana in [year]. He has also been known by his Muslim name [Mr A]. He speaks, reads and writes English and he speaks Twi and Gonja. His religion is Christian and his occupation is [Occupation 1]. He is married. In Ghana he has his wife, [children], his mother, step-father and step-brother. He has previously been granted a visa for [Country 1], where he visited in October 2013, and in 2014 he was refused a visa for [Country 2].
From 1998 to 2014, he lived in [location], Accra. From 2014 to 2019, he lived in [Town 2], Accra. He completed secondary school in Accra in [year] and studied [subject] at [a college] in Accra from 2000 to 2002. From 2003 to 2018 he was employed by [Employer 1] as a [Occupation 1]. From July 2017 to November 2017, he was also employed by [Employer 2] as a [Occupation 1].
He arrived in Australia as the holder of a Visitor visa [in] March 2018, travelling on his 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 because his life was under threat and he was going to be killed.
·     He violated the religious and cultural practices of his tradition that has brought shame to his family and the community.
·     He received delegations from his village calling on him to rescind his decision. They said his decision amounted to the breaking of the traditional oath of secrecy and was an abomination.
·     Plans are far advanced to get him captured during the Damba Festival which is celebrated in May/June every year in the Northern Region.
·     The government and state have no hand in matters that involve religious and traditional customs and ethnic values. The state has no control on matters of this sort and will not be able to protect him.
·     He did not try to move to another part of the country because the dialogue was still ongoing and he could not move because of his work and the day to day running of [his workplace] rests of him and he had to be present at the office each day.
·     If he returns to Ghana, his life would be terminated or possibly a charm used on him to make his life miserable. He fears that his family and his town community will harm, mistreat and even kill him because they feel he has shamed them for declining to be chief of the town.
·     His work has brought him into the limelight and so he cannot relocate without a trace. He will be exposed.
In a written statement attached to his protection visa application form, the applicant makes the following additional claims:
·     At birth, the applicant was given the Muslim name [Mr A]. He was raised as a Muslim.
·     His mother’s family are of royal lineage. The current chief of [Village 1] is his uncle. The [Village 2 chief], late [Village 3 chief] and late [Village 4 chief] are all from his mother’s family.
·     In the absence of the [Village 5 chief], the [Village 2 chief] sits as an interim chief with the [Village 6 chief].
·     The traditional area is in turmoil since 2017 because the [Village 5 chief] died and there is difficulty with the enskinment of a new chief.
·     The applicant’s mother remarried a Christian man. At around [age], the applicant moved to Accra to live with them and took the family name of his step-father. He changed his name to [applicant name]. This is a Christian name, but the applicant continued to practice his Muslim faith.
·     The applicant received a lot of education on the necessary rites he had to go through to become a chief.
·     His educational background and career as a [Occupation 1] meant his community carried him in high esteem.
·     The applicant experienced divine spiritual intervention and became a born-again Christian in Accra.
·     The applicant told his mother about his conversion to Christianity and she told the traditional authorities.
·     A lot of effort was made to persuade the applicant to change his mind and to inherit the chief position from his uncle who was unwell and unable to carry out his traditional functions.
·     The applicant has declined these delegations because he does not want to undergo any cultural practices or forego his Christian religion and values.
·     The current plan is for them to ambush him and remove his shoes and slippers and take him to unknown destination for the chieftaincy rites or a possible termination. There are various schemes to get him on to the throne or to terminate his life because they believe he is now privy to most of the secrets around the chieftaincy and he can’t turn his back.
·     The other concern is that his mother’s clan will lose the chieftaincy title to a different gate and therefore to them his action is an embarrassment.
·     If he returns to Ghana and refuses to give up his Christian religion to accept the position of Chief, the family elders will pursue him to kill and use his blood to pacify the gods because he has brought disgrace and calamity and disrespect to the gods and the family. It will also give way for them to nominate another person as the chief.
·     He fears his family members and the community will do anything to punish him when he returns to Ghana. If he returns to Ghana he will be subject to persecution and mistreatment because of his Christian beliefs and his stand against the traditional beliefs.
Documents provided to the Department prior to interview
Prior to the interview with the delegate, the applicant provided a number of documents to the Department in support of his application. These included letters of support from the pastors of the church he attended in Accra and the church he attends in Sydney, many links and printouts of articles naming and providing photographs of the applicant in his role as a [Occupation 1] at [his employer] in Accra, articles relating to violence associated with chieftaincy disputes in Gonjaland, and various photographs which are undated and unsourced, some of which appear to show the applicant involved in work activities. He also provided documents relating to his identity and the identity of his step-father, some ultrasound images and medical reports relating to the pregnancy of his wife in Ghana, his birth certificate and that of his daughter, and various letters and contracts relating to his employment in Ghana as a [Occupation 1].
The interview
The applicant attended an interview with the Department on 8 June 2018. During the interview he provided further detail about his claims, including:
·     The discussions about him becoming chief of [Village 1] began in 2015. He consented in November 2015 to take on the role. After that he went through the initiation process.
·     He was introduced to the community as the next chief in September 2016.
·     He became a Christian at an Easter Convention he attended in April 2017 when he was touched by the holy spirit. Since then, he started attending church in Accra with his wife who is a Christian.
·     He changed his mind about becoming chief after his conversion to Christianity.
·     After this he experienced a lot of pressure from his family to rescind his decision. They kept telling him what might happen to him.
·     He found out that he was going to be enstooled in May 2018 at the Damba festival. They were going to capture him and forcefully make him chief.
·     Now he is not in Ghana, rituals will take place to punish and ostracise him.
·     They will perform rituals to pacify the gods and wash away the misfortune. Then they can go ahead and choose a new person.
The delegate’s decision
On 5 July 2018, the delegate made their decision. The delegate did not accept that the applicant is a member of a particular social group comprising people who have refused chieftaincies in Ghana and found that the applicant does not have a well-founded fear of persecution in Ghana. The delegate considered country information regarding the consequences of refusing a chieftaincy in Ghana and found that the country information did not support the applicant’s claim that he would be harmed or killed as a result of his decision not to be chief. The delegate found that the applicant may be ostracised or isolated, but this would not amount to significant harm. Accordingly, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 14 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Pre-hearing submissions and documents – 18 January 2021
On 18 January 2021, the applicant provided a submission to the Tribunal dated 14 January 2021. In this submission, the applicant reiterates his background and aspects of his claims and addresses aspects of the delegate’s findings. In this document, he engages in lengthy discussion of aspects of Gonja customs relating to chieftaincies and provides some attachments. The Tribunal notes that much of the information in the applicant’s discussion is unsourced. In these submissions, the applicant also notes that his uncle, from whom he was to inherit the role of chief, has passed away.
The applicant provided a number of documents to the Tribunal along with his submission including:
·     Photographs that are undated and unsourced, some of which appear to have been taken in Ghana;
·     Documents about his practice of Christianity in Australia and a baptism certificate;
·     Documents and certificates relating to his study and work in Australia;
·     Articles from 2016 and 2017 about chieftaincy clashes in [Village 5] and boundary conflicts and links to articles from 2019 and 2020 about chieftaincy clashes;
·     Letter dated [in] 2017 from Yagbonwura, the King and President of Gonja Traditional Council, to [Village 2 chief], appointing him as a member of the [Caretaker Committee] of the [Village 5] Skin, following the death of the [Village 5 chief];
·     Letter dated [2018] from [Village 2 chief] to the King. He states that his nephew (the applicant) has gone through all the customary and traditional rites and is therefore the chosen chief of [Village 1] and his nomination was accepted by the late [Village 5 chief]. He states that before being introduced to the committee of chiefs in March 2018, the applicant absconded. The purification rites have been performed but not the banishing rites. The [Village 2 chief] explains that the self-proclaimed [Village 5 chief] has nominated [a named person], without the involvement of the Kingmakers of [Village 1], to be the new chief. He states that this is a breach of Gonja customs and tradition, especially as the applicant is still alive and the legitimacy of the [Village 5 chief] is contestable. He asks the King to use his good office to address this issue before there is bloodshed and chieftaincy conflict in the town;
·     Letter dated [in] 2019 from Yagbonwura, the King and President of Gonja Traditional Council, stating that the purported self-enskinment of [Chief B] as [Village 5 chief] is not in accordance with Gonja customs and traditions and should not be recognised. It also states that peace should prevail in towns (including [Village 1]) where the self-styled [Village 5 chief] has nominated and enskinned chiefs.
Further pre-hearing submissions – 14 April 2022
On 14 April 2022, the applicant’s representative provided submissions in support of the applicant’s application for review. The submissions provide background on the applicant’s case, address aspects of the delegate’s decision, make submissions in relation to why the applicant has a well-founded fear of persecution and why he faces a real risk of significant harm if he returns to Ghana. The submissions also refer to and attach country information about chieftaincy disputes in Ghana and the types of problems they can create for those involved, and in the Savannah Region in particular, corruption in Ghana and why third country protection in another country that is a member of Economic Community of West African States (ECOWAS) is not available to the applicant. The submissions link to a range of documents including the US Department of State Human Rights Report 2021, Ghana and the DFAT Thematic Report – Economic Community of West African States (ECOWAS).[1]
[1] 3 December 2020
The submissions also attach a statutory declaration sworn by the applicant on 12 April 2022. In that document, the applicant reiterates his claims relating to his family history, being chosen to succeed his uncle as chief of [Village 1], his conversion to Christianity, his change of mind, the pressure he faced as a result of his decision, what he thought was going to happen to him if he stayed in Ghana and why he fears returning to Ghana. He also attached links to various articles to support his claims. In his statutory declaration, the applicant also provides additional detail in response to some of the delegate’s questions and findings relating to his conversion to Christianity, his name change, the initiation rites he underwent, his contact with his mother, the actions of his uncle [Village 2 chief] and why third country protection in an ECOWAS state is not possible for him.
The hearings
The applicant appeared before the Tribunal on 22 April and 26 May to give evidence and present arguments.
The Tribunal was assisted by an interpreter in the Akan and English languages. The interpreter attended by telephone each time. The Tribunal notes that the applicant speaks fluent English and he often addressed the Tribunal in English in the hearings. The applicant gave evidence that he wrote his own statements in English, apart from his most recent statutory declaration sworn 12 April 2022 for which he had assistance from his lawyer. The Tribunal considers that the applicant was able to participate meaningfully in the hearings with and without the assistance of the interpreter.
The applicant was represented in relation to the review and his representative attended the hearings.
Post-hearing submissions
After the second hearing, the applicant was invited to provide post-hearing submissions, including on the question of whether he would be regarded as a parallel or second chief of his village given his evidence that he had not been formally enstooled/undertaken the adoring process by the time he left Ghana.
On 9 June 2022, the applicant’s representative submitted two articles relating to problems that have arisen in the applicant’s region of Ghana in the past where there have been two parallel chiefs claiming ownership of one stool or skin. A further article relates to similar problems in another region of Ghana. Also submitted was an academic article from 2020 relating to chieftaincy disputes in Gonjaland and referring to the types of problems that arise when there are competing claims to a particular skin and how this can become violent.
The submissions also included documents and a statutory declaration from the applicant’s mother in response to concerns raised by the Tribunal about the accuracy of information contained in birth certificates submitted by the applicant for himself and his daughter.
Additional post-hearing submissions
On 6 July 2022, the applicant’s representative submitted a decision of the Supreme Court of Ghana[2] which, among other things, addresses the concept of who is to be regarded as a chief and the process someone goes through to be made a chief.
[2] The Republic Vrs Central Regional House of Chiefs (J4 8 of 2008) [2009] GHASC 26 (14 January 2009)
Nationality
The applicant claims to be a citizen of Ghana and provided to the Department a copy of his Ghanaian passport issued on 27 November 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.
The Tribunal notes there is no Department of Foreign Affairs and Trade Country Information Report on Ghana, however there is a Thematic Report on the Economic Community of West African States (ECOWAS) from December 2020 to which the Tribunal has had regard.
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 matter should be remitted for reconsideration.
In the hearing, the Tribunal discussed with the applicant his family, his education, his employment, his religious beliefs, what he claims happened to him in Ghana, his reasons for leaving and why he fears returning. In assessing the applicant’s evidence, the Tribunal found his evidence to be mostly consistent and credible and accepts the applicant’s core claims that this decision turns on. While the Tribunal finds that some of the country information the applicant sought to rely on about the chieftaincy situation in his district and village is out of date, this does not ultimately affect the Tribunal’s conclusion.
On the basis of the evidence provided by the applicant, the Tribunal accepts the applicant was born in the village of [Village 1], which is in the [Village 5] district, and that his mother’s family are of royal lineage. The Tribunal accepts that at birth, he was given the Muslim name [Mr A] and that he was raised as a Muslim. The Tribunal accepts that the applicant’s mother remarried and converted to Christianity. The Tribunal accepts that when the applicant was around [age] years old he went to live in Accra and took the name of his step-father, who was a Christian. The Tribunal accepts that the applicant took the name [applicant name], but he continued to practice his Muslim faith. The Tribunal accepts that in Ghana, the applicant worked as a [Occupation 1] and lived in Accra. The Tribunal accepts that he had a level of public profile in [Occupation 1] in Ghana. The Tribunal accepts that he was married to a woman who was a Christian. The Tribunal accepts that the applicant is no longer in a relationship with his former wife. The Tribunal accepts that she lives in Accra with their [children]. The Tribunal accepts that the applicant is still in contact with his mother and ex-wife and children.
The Tribunal accepts that the applicant has family members on his mother’s side who have been chiefs. The Tribunal accepts that the [Village 2 chief] is a close relative of the applicant’s mother. The Tribunal accepts that in around 2015, the applicant was approached about being the next chief of [Village 1], as his uncle who was the current chief, was getting old and unwell. The Tribunal accepts that in late 2015 or early 2016, he consented to take on the role and commenced the traditional initiation processes. The Tribunal accepts that the applicant completed the traditional initiation processes in early 2017, and the only step which remained to be undertaken was his enstoolment and presentation to the paramount chief, which was due to take place at the Damba festival in May 2018.
The Tribunal accepts that in April 2017, while attending an Easter Convention as a guest related to his work, the applicant had a divine experience which resulted in him converting to Christianity. The Tribunal accepts that as a result of his conversion to Christianity, the applicant changed his mind about becoming chief of [Village 1] because he considered the traditional functions and practices he would have to carry out to be incompatible with his Christian beliefs. The Tribunal accepts that the applicant’s mother supported his decision, but that other family members, including the [Village 2 chief], were not happy and people from his clan applied a lot of pressure to the applicant via visits and phone calls to persuade him to change his mind and threatened to harm him for letting down the community. The Tribunal accepts that due to this pressure, the applicant took steps to leave Ghana before the planned time for his formal enstoolment as chief in May 2018. The Tribunal accepts that the applicant did not experience any harm before he left Ghana.
In terms of the current situation in the village of [Village 1], the applicant claims that there has been the enskinment of a new chief of [Village 1] by a self-imposed paramount chief of the traditional area whose legitimacy is being and has been contested. He also claims that his uncle, the [Village 2 chief], is sitting as an interim chief because the [Village 5 chief] is dead and the area is in curfew because of an ongoing problem with the chieftaincy.[3] As discussed with the applicant in the hearing, more recent country information indicates that the dispute about who was the paramount chief of [Village 5] (the [official title of Village 5 chief]) was resolved in July 2020 and [Chief B] was confirmed as the [Village 5 chief], and he is still the [Village 5 chief]. Country information also indicates that the area is no longer under curfew and that by [July] 2019, a new chief of [Village 1] had been enstooled and the position of chief is not currently vacant or regarded as being in dispute.[4] Despite being given the opportunity by the Tribunal to provide further country information in relation to the current situation in [Village 1], the applicant did not do so. Accordingly, the Tribunal finds that the dispute about who was the [Village 5 chief] has been resolved and there is currently no active dispute about the position of chief of [Village 1]. The Tribunal accepts that the current chief of [Village 1] is not from the same family group or clan, as the applicant.
[3] Applicant’s statutory declaration made 12 April 2022
[4] [Sources deleted]
The Tribunal accepts the identity documents provided by the applicant in support of his claims, and the letters referred to in paragraph 14, as genuine.
Does the applicant meet the refugee criterion?
From his various written submissions and oral evidence to the Tribunal, the applicant’s reasons for claiming to fearing harm if he returns to Ghana can be summarised as follows:
· by refusing to take up the position of chief of [Village 1], he has brought shame to his family and the community and they now see him as an enemy and will try to harm or kill him;
· because another person has been installed as chief of [Village 1], if the applicant returns to Ghana his presence will ignite a clash of clans because there will be two parallel chiefs and his life will be in danger.
The Tribunal has considered the applicant’s claim that because another person has been installed as chief of [Village 1], if the applicant returns to Ghana his presence will ignite a clash of clans because there will be two parallel chiefs from different clans. He claims that even though he does not want the position of chief, his clan will rise up against the clan of the current chief of [Village 1] to try to reclaim what they have lost, and in order for the current chief to continue to rule without contest, the fighting will lead back to the applicant.
The applicant has provided country information to support his claim that despite the fact he did not undergo the enstoolment and presentation to the paramount chief, he is still considered to be a chief. The Supreme Court of Ghana in The Republic Vrs Central Regional House of Chiefs[5] explains:
In areas where the custom of swearing in is said to be an integral part of the installation, it is argued that the installation ceremony will be incomplete until the chief elect has been sworn in. That cannot be correct because such swearing in ceremony will only enable the chief to perform certain customary or statutory duties. The fact of his not being sworn in cannot have the effect of unmaking him as chief. In such areas, the fact will remain that the person to be sworn in becomes a chief before he is sworn in and he will continue to remain a chief of his people even if the swearing in does not take place for one reason or the other.
[5] (J4 8 of 2008) [2009] GHASC 26 (14 January 2009)
The Tribunal accepts this explanation and considers it applicable to the applicant’s situation, and therefore accepts that the applicant is regarded as a chief. The Tribunal has found above, that following the applicant’s departure from Ghana a new chief of [Village 1] has been enstooled and that person is from a different clan or family from the applicant. Therefore, the Tribunal accepts that there are two chiefs of [Village 1].
The US Department of State 2021 Country Reports on Human Rights Practices: Ghana[6] states that:
Chieftaincy disputes, which frequently resulted from lack of a clear chain of succession, competing claims regarding land and other natural resources, and internal rivalries and feuds, continued to result in deaths, injuries, and destruction of property. According to the West Africa Center for Counter Extremism, chieftaincy disputes and ethnic violence were the largest sources of insecurity and instability in the country. The government generally sought to tamp down violence and encourage dialogue and peaceful resolution of disputes.
[6] (accessed 12 July 2022)
More specifically, country information, including country information provided by the applicant, indicates that violence can erupt between rival groups in chieftaincy disputes, including where there is more than one chief in a town or village. Violence, including death and injury, was a feature of the dispute that arose about the installation of the new [Village 5 chief], resulting in the imposition of a curfew on the [Village 5] township that lasted for around one year, as discussed in paragraph 37 above.[7] This dispute arose because there were two chiefs who had claims to the [Village 5] skin. [Village 5] is in the same district in which [Village 1] is located.
[7] [Sources deleted]
While country information indicates that parties to such disputes are encouraged by the authorities to resolve their issues through peaceful means,[8] country information indicates that this does not always happen. The Tribunal asked the applicant what difference he said it would make to the situation if he returned to Ghana, given he does not want to take up the position of chief of [Village 1]. He responded that while he is not in Ghana, his clan is calm but if he returns, his presence will give them energy to try to get back what they have lost and people will want to eliminate him. Based on country information referred to above about the potential for violence associated with chieftaincy disputes, including in the [Village 5] area, and the fact that the Tribunal accepts the applicant would be regarded as a parallel chief of [Village 1] alongside the current chief who is from a different clan, the Tribunal is prepared to give the applicant the benefit of the doubt. The Tribunal is prepared to accept that if the applicant returned to Ghana in the reasonably foreseeable future, his presence in Ghana as a parallel chief of [Village 1] would have the potential to ignite (or reignite) a dispute about the position of chief of [Village 1]. This dispute would have the potential to involve violence and as the person, or one of two people (along with the other chief), at the centre of the dispute, the chance of the applicant being subjected to serious harm cannot be dismissed. Therefore, based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that if the applicant returns to Ghana in the reasonably foreseeable future, he faces a real chance of serious harm arising from these circumstances.
[8] (accessed 12 July 2022)
The applicant submits that he would be persecuted for the essential and significant reason that he is a member of a particular social group, namely, “intended tribal chiefs who are opposed to enskinment on the basis of their religion.” It is submitted that
members of this particular social group share innate and/or immutable characteristics, apart from a fear of persecution. The fact that the applicant was expected to become a chief, his refusal to do so and that this refusal related to his belief in Christianity relate to immutable characteristics that he shares. He would be unable to live his life openly and in line with his personal convictions (including his religious beliefs) without fear of persecution in Ghana for the essential and significant reason of his membership of this particular social group.[9]
[9] Submissions dated 14 April 2022
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
The Tribunal does not intend to make a finding on whether “intended tribal chiefs who are opposed to enskinment on the basis of their religion” is a particular social group as the Tribunal does not consider that this is the reason why the applicant faces a real chance of serious harm if he returns to Ghana in the reasonably foreseeable future.
As discussed above, the Tribunal considers that the particular circumstances in the applicant’s case that put him at a real chance of serious harm are the fact that if he returned to Ghana he would be regarded as a parallel or second chief of his village, which could spark a fresh dispute about who is the rightful chief. The Tribunal has accepted that despite the fact the applicant does not wish to take up the position of chief, this would not prevent him from potentially being ensnared and seriously harmed in any such dispute.
The Tribunal finds that people who have undergone the customary and traditional rites to be made chief and have a direct rival who has also undergone the customary and traditional rites to be made chief in respect of the same skin or stool in Ghana, are a particular social group as defined by s 5L. This is because the characteristic of being initiated and having a rival who has also been initiated is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic in this circumstance is not a fear of persecution.
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his membership of the particular social group of people who have undergone the customary and traditional rites to be made chief and have a direct rival who has also undergone the customary and traditional rites to be made chief in respect of the same skin or stool in Ghana. The Tribunal finds there is a real chance the applicant would be persecuted for reason of his membership of this particular social group if he returned to Ghana in the reasonably foreseeable future. The Tribunal accepts that the applicant would live in Accra if he returned to Ghana in the reasonably foreseeable future and finds that he would resume his career as a [Occupation 1]. The Tribunal finds that as a [Occupation 1], and as a former [Occupation 1] with a level of media-profile in Ghana, and the fact that the applicant remains in contact with members of his family, even if the applicant relocated to another area of Ghana he would still face a real chance of serious harm. Accordingly, the Tribunal finds that the real chance of persecution relates to all areas of Ghana.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his membership of the particular social group described above, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to his life.
Country information indicates there are no particular protection systems in place for individuals who refuse to accept a chieftaincy position. Country information also indicates that traditional matters relating to chieftaincy are to be decided by Regional and National Houses of Chiefs and the government is not supposed to interfere, however if there is a dispute which results in a threat to law and order the government may send in the police to ensure that life and property is not being destroyed.[10] Logistical problems, such as the police being under-resourced, as well as political factors and corruption, may result in any such response being insufficient or too late and deaths and violence continue to occur in chieftaincy disputes.[11] On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Ghana.
[10] Canada: Immigration and Refugee Board of Canada, Ghana: State involvement in chieftaincy matters, including state protection available for people involved in chieftaincy disputes, 1 October 2013, GHA104608.E , available at: (accessed 14 July 2022); Canada: Immigration and Refugee Board of Canada, Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation; consequences of divulging a secret ritual to another member of the same ethnic group, including the Kotokoli in the Volta region; state protection available to individuals that do not comply with chieftaincy rules and traditions, 2 May 2017, GHA105792.E, available at: 14 July 2022)
[11] (accessed 14 July 2022); (accessed 14 July 2022); (accessed 14 July 2022); (accessed 14 July 2022)

The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Ghana because a modification would require him to alter his religious beliefs by renouncing his religious conversion or ceasing to be involved in the practice of his faith. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of the particular social group described above in Ghana.
The Tribunal has considered the applicant’s submissions in relation to the availability of third country protection from a country in the ECOWAS. Information sources which the Tribunal has consulted indicate that the ECOWAS Protocols have made legal progress in establishing freedom of movement and residency between ECOWAS member states, including Ghana. However, it appears to the Tribunal that implementation challenges persist, including full freedom of movement and rights to reside being limited by the independent laws and restrictions of individual states, as well as potential administrative harassment, and extortion on the part of member states. In reality, it appears that there are a number of limitations within the individual member states that have affected this right to reside. Given these shortcomings regarding the implementation of the ECOWAS Protocols, the Tribunal is not satisfied the applicant does, at the time of this decision, have a meaningful right to enter and reside in any other ECOWAS member state (s 36(3)).
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa). It is also not necessary for the Tribunal to consider the other reasons why the applicant claims to fear harm if he returns to Ghana in the reasonably foreseeable future.
Conclusion
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 3110

15 July 2022

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