1820624 (Refugee)

1820624 (Refugee) [2022] AATA 1200 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820624
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:1 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2022 at 1:01pm

CATCHWORDS
REFUGEE – Protection Visa – Ghana – refusal to succeed uncle as chieftan – against religious beliefs – threats to applicant and family – burning down of applicant’s church – credibility issues – inconsistencies in evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 11 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 27 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 provides the following information. He was born on [date] in Kumasi, Ashanti region, Ghana. He speaks Akan and speaks, reads and writes English. He is a Christian. He has never been married. His parents have both passed away. In Ghana he has a brother who lives in Kumasi. Prior to coming to Australia he lived his entire life at [a particular address]. From [September] 1995 to [May] 2018 he worked as [an Occupation 1] of [a business] in [Kumasi]. In June 1994 he completed a course in [Subject 1] at [Educational institute 1]. He arrived in Australia [in] March 2018 as the holder of a Temporary [visa]. He travelled on his passport issued by the Republic of Ghana [in] 2017
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     He left Ghana for [an event] and to apply for protection based on a fear of persecution in Ghana.
·     He is a professional pastor who was ordained [in] 1999. He had his own church called [name deleted]. He operated this church since 2013.
·     Recently, his family and the community where he comes from wanted him to inherit his uncle and be enstooled as King. His uncle passed away.
·     His faith and pastoral duties do not allow him to be King. He declined to be chief.
·     The community threatened to kill him if he did not accept their wish.
·     Following his refusal his church was burned down.
·     He received threatening messages, assault and intimidation. The people who make the threats are the community and the people surrounding the chieftaincy. They see his refusal as disrespect and want to teach him a lesson.
·     He felt his life was in danger.
·     His family’s life has been threatened.
·     The authorities will not intervene in these matters of traditional religion.
·     He cannot relocate because he may be in the sights of those who want to harm him.
·     If he returns to Ghana he might be assaulted, intimidated, threatened and his property damaged.
The interview
The applicant attended an interview with the Department on 7 June 2018. He chose not to use an interpreter for the interview. During the interview, he provided further information about his claims and made the following additional claims:
·     He moved from Kumasi to the village of [Village 1] which is on the outskirts of [Town 1] in 2013 when he began his ministry.
·     He studied at [Educational Institute 1] in Kumasi and finished in 2001. He attended [Church 1] in Kumasi.
·     His uncle died in early 2017. His funeral was held about three months later in[Church 2] in Kumasi.
·     His uncle was a lower-level chief in [Town 1] with a spiritual role assisting the chief of [Town 1]. As chief he was called [Name 1].
·     After his uncle was buried, the elders called the applicant to the palace and told the applicant that he was the successor to his uncle and he should take up the position of chief. They threatened him many times with harm if he did not take up the position. The applicant refused because his Christian faith does not allow him to take up the position.
·     He did not leave his village despite the verbal threats because he had a divine calling to minister in the village and wanted to stand his ground.
·     His church was burned down in early March 2018, about two weeks before his departure from Ghana.
·     After the church burned down he contacted one of his church members who was a businessman and he loaned the applicant the money for his visa. He paid US[amount] for his visa.
·     His maternal cousin will be installed as chief if the applicant does not return to Ghana by the end of 2018.
In the interview the applicant provided a certificate from [Educational Institute 1] dated [2001] indicating he had achieved the requirements of Minister of the Gospel.
The delegate’s decision
On 11 July 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not accept the applicant’s claims as credible in light of the lack of consistent and persuasive evidence for his late uncle’s chieftaincy, the internal inconsistencies in his evidence and the lack of corroborating country information about forced chieftaincy appointments in Ghana. The delegate was not satisfied that the applicant would be targeted in Ghana for the reasons claimed and that he is likely to face persecution or serious harm on his return there. The delegate found the applicant’s claims for protection are not credible.
Evidence before the Tribunal
The review application
On 16 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided the Tribunal with a copy of the delegate’s decision.
The hearing
The applicant appeared before the Tribunal on 17 February 2022 and 23 February 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearings by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video having regard to the nature of this matter and the individual circumstances of the applicant. 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 and video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages. 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 Republic of Ghana 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 a person who he thinks was a dual Ghanaian/Australian citizen helped him to fill out his protection visa application form. He was introduced to this person by a Ghanaian woman he met at a church he attended. This man, whose name he thinks was [name], explained to the applicant what he had to do to be able to stay in Australia and the applicant provided his information to the man who entered it into the form on the applicant’s behalf. The applicant confirmed that everything he had put in his protection visa application form was true and correct and there were no mistakes he wanted to point out.
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 new claims made by the applicant in the Tribunal hearing. Overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns are discussed below.
First, discrepancies in the applicant’s evidence about his church being burned down raises concerns for the Tribunal.
In his protection visa application form the applicant claims that the church he established was burned down following his refusal to take up the position of chief after his uncle died. He does not say when this occurred.
In the interview with the delegate, and as noted in the delegate’s decision, he gave evidence that his church was burned down in early March 2018, around two weeks before he left Ghana. This was done to threaten him because he refused to take up the position of chief.
In the Tribunal hearing, the applicant initially had difficulty remembering when his church burned down but finally said it was in late December 2017 or early January 2018. Later in the hearing when discussing the claimed events that led to the church being burned he said that it happened about one month after his uncle’s funeral which took place [in] July 2017. He gave evidence that about four weeks after the funeral, the date arrived for him to go to the village and start the formal preparations for him to succeed his uncle, but he didn’t go. He went to his church premises to get his bible and on the way back he met someone from the village. This person told him that he needed to find somewhere to hide because he was in danger as someone had set fire to the church in an attempt to threaten or harm him. After that he ran away and went to live with a friend. The Tribunal suggested to the applicant that on this version of events the church would have burned down in August 2017. The applicant agreed with this.
The Tribunal put to the applicant its concern about the very different timeframes he had given the delegate and in his evidence to the Tribunal about when the church burned down and that this raised concerns for the Tribunal about the truthfulness of his evidence. The applicant responded that with all the challenges and trauma he had been through it might be his dates do not add up. The Tribunal asked him what he meant by this and he explained that he could have been in the church when it burned down and he would have been dead, and he has his child in Ghana to take care of.
The Tribunal does not accept the applicant’s explanation for the discrepancy in the dates. The Tribunal does not accept that the applicant’s claim to feel traumatised or upset by the thought of being burned in the church can account for the very large discrepancies in his evidence about when the claimed event took place. The Tribunal acknowledges that suffering trauma can in some circumstances affect a person’s memory of events, however the Tribunal does not accept this as an adequate explanation for the extent of the discrepancies in the applicant’s case. The church burning down is the applicant’s key claim of harm and a very significant event in the context of his claims. The Tribunal finds it difficult to believe that he would not be able to remember, for example, whether it happened very shortly before he left Ghana (in March 2018), or in August 2017 around one month after his uncle’s funeral and at the time he was due to commence the preparations to become a chief, or close to Christmas/New Year 2017/18 which is an important time in the Christian church calendar. The fact that he has given such different timeframes for when the church was burned down, including different versions in the Tribunal hearing, raises serious concerns for the Tribunal about his credibility and whether his evidence has been fabricated for the purpose of his protection claim.
Secondly, there were discrepancies in the applicant’s evidence relating to the threats he received after his uncle died relating to his refusal to take on the position of chief, which raise concerns for the Tribunal.
In his protection visa application form, he claimed that he received threatening messages, assault and intimidation from people surrounding the chieftaincy because of his refusal to take on the position of chief. He claimed his church was burned down. He claimed his family’s life had been threatened. He did not say over what period of time these threats occurred.
In the interview with the delegate, and as reflected in the delegate’s decision, the applicant claimed that soon after his uncle’s funeral in mid-2017 he received verbal threats of harm in person from the elders connected with the chieftaincy and that over time, before the church was burned down in March 2018, he also received threats by text message. The delegate confirmed with the applicant that he lived in his village for about eight months from the time the first threat was made to when the church burned down. He agreed and said he had a divine calling to minister in the village and wanted to stand his ground.
In the Tribunal hearing, the applicant gave evidence that one week after his uncle’s funeral, which took place [in] July 2017, he was called to meet with the elders and again one week after that. After the second occasion, the elders were angry at his refusal but his life was not in danger. The elders fixed a date 10 days later for the applicant to go to the place where he would start his isolation for preparation for succeeding his uncle. They told him and his brother and sister that the applicant had to obey his uncle’s request or it could bring severe consequences. This is when he realised things were getting serious. Threats were made to his sister about what they would do to the applicant if he did not take his uncle’s place and people came to the church office to try to harm him but he was not there. When the date arrived, he did not go to the required place and that is when his church was burned down. The Tribunal clarified with the applicant that on this basis, the period of time he was talking about was around one month and so the church burned down in August 2018. He agreed with this.
The Tribunal put to the applicant that the different timeframes he had given to the delegate and the Tribunal leading to the church being burned down, namely, August 2017, late December 2017/early January 2018 and March 2018, raised concerns about the truthfulness of his claims. The Tribunal also expressed its concern about differences in the applicant’s evidence about the nature of the threats that were made. The applicant responded that he was quite traumatised by the threats and the church burning down and that might be why the dates don’t correspond. The Tribunal does not accept this explanation. The applicant’s version of events to the delegate and the Tribunal are sufficiently different in detail and timeframe that the Tribunal does not accept that claiming to feel traumatised or worried about the church burning down can account for these discrepancies.
The applicant’s evidence to both the delegate and the Tribunal is that the threats began soon after his uncle’s funeral in mid-2017. He told the delegate that the threats took place over an eight month period until his church was burned down in early March 2018 and he left Ghana about two weeks after. He said he was initially threatened verbally and then by text message. In his interview with the delegate, he did not refer to the burning of the church being connected to his failure to turn up to start the process for succeeding his uncle or that other family members were threatened. His evidence in the Tribunal hearing was that the threats took place over a one month period and the church being burned down was connected to him not turning up at the required time and to the place to start the preparations for succeeding his uncle. He gave evidence to the Tribunal that verbal threats were made to him, his brother and his sister, and that people came to the church office to try to harm him. He did not refer to being threatened by text message. The Tribunal notes that the applicant also claimed at an earlier point in the Tribunal hearing that the church was burned down in late December 2017/early January 2018 but did not repeat this claimed timeframe.

These discrepancies in the applicant’s evidence about the length of time over which the threats took place, who was threatened and the nature of the threats, raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, the applicant made a new claim in the Tribunal hearing that he had been in hiding before coming to Australia, which raises concerns for the Tribunal.
The applicant did not mention in his protection visa application or in his interview with the delegate that he had been in hiding in Ghana.
In the first Tribunal hearing, the applicant gave evidence that when the events happened he hid himself in the [countryside]. His time in hiding included the time from when he got his visa in February 2018 to when he departed Ghana in March 2018. In the second Tribunal hearing, the applicant gave evidence that after the church burned down in August 2017 he ran away and went to live with a friend [in] Kumasi for about two and a half months. After that, he discussed what to do with an elder in his church who said he would help the applicant hide himself until everything calms down. When he saw an advertisement for the [event] that is what encouraged him to come to Australia.
The Tribunal put to the applicant that he had made a new claim in the Tribunal hearing about being in hiding and explained that the fact he did not mention this in his protection visa application form or in his interview with the delegate raised a concern for the Tribunal about whether it was true. The applicant responded that at that time he did not understand the language very well, he didn’t have an interpreter and didn’t understand English very well like he does now. The Tribunal does not accept this explanation.
The applicant gave evidence that he was assisted in filling out his protection visa application form by a Ghanaian/Australian man. The applicant said he told the man his information and the man entered the applicant’s information into the protection visa application form. The Tribunal is prepared to accept this. The Tribunal considers the written English in the applicant’s protection visa application form to be perfectly adequate. This suggests to the Tribunal that even if the applicant had difficulty with English, the person assisting him had a reasonable command of the language. The applicant’s evidence is that this person entered the information told to him by the applicant. The applicant did not suggest that he had difficulty communicating his information to the man who helped him fill in the form. The Tribunal does not accept that the applicant’s claimed lack of understanding of English accounts for why he did not include in his protection visa application form his claim about being in hiding if it is true, given he included various other claims about what happened to him in Ghana and why he fears returning. Further, the Tribunal has listened to a recording of the applicant’s interview with the delegate. The applicant confirmed to the delegate at the start of the interview that he had chosen not to have an interpreter. The Tribunal does not consider that the applicant had particular difficulty discussing his claims with the delegate or answering questions. The Tribunal considers that the applicant had the opportunity to mention to the delegate in the interview that he was in hiding before leaving Ghana, but he did not do so.
The applicant’s failure to mention in his protection visa application form and in the interview with the delegate that he was in hiding in Ghana before coming to Australia raises concerns for the Tribunal about whether this claim is true. In addition to the fact that the applicant only raised this claim for the first time in the Tribunal hearing, he also gave two different accounts in the Tribunal hearing about where he was hiding and for how long, which further strengthens the Tribunal’s concerns about the veracity of his claims and his credibility more generally.
Fourthly, there were discrepancies in the information provided by the applicant about his uncle’s name which raises concerns for the Tribunal.
The applicant did not name his uncle in his protection visa application form. In the interview with the delegate, and as set out in the delegate’s decision, the applicant said that before being made chief his uncle was called [name] or [name] and after he was made chief he was called [Name 1].
In the Tribunal hearing, the applicant gave evidence that both before and after being made chief his uncle was known as [name]. The applicant said as chief his uncle was also sometimes known by the name of [Name 2].
The Tribunal put to the applicant that he had told the delegate that after being made chief his uncle was known as [Name 1] and asked him whether he could explain this difference in his evidence. The applicant suggested there might have been a problem with the spelling. He said there was no interpreter to help and he may have spelled [Name 2] incorrectly.
The Tribunal does not accept this explanation. The Tribunal has listened to the recording of the applicant’s interview with the delegate and he clearly told the delegate that after being made chief, his uncle was called [Name 1] and he spelled “[name]” for the delegate. The Tribunal does not accept that the lack of an interpreter or a problem with spelling accounts for this discrepancy in the applicant’s evidence about his uncle’s name after being made chief. This raises concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Fifthly, there were other discrepancies between the information provided in the applicant’s protection visa application form, what he told the delegate in the interview and the evidence he gave to the Tribunal which raise further concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Church service following the death of the applicant’s uncle
The applicant told the delegate that his uncle, who was the chief, died in early 2017. He said the funeral was held about three months later and the funeral service was held [Church 2] in Kumasi.
The applicant gave evidence in the Tribunal hearing that he could not remember when in 2017 his uncle died. He said the funeral was not held in a church but about two months after his uncle died there were two church services thank people and they were held in Methodist churches in the towns of [named town] and [Town 1].
The Tribunal put to the applicant its concerns about the discrepancies in his evidence between what he told the delegate and what he told the Tribunal about the church services. The applicant asked to be pardoned and said that when he told the delegate what took place he was confused and may have mistakenly said [Church 2] but he meant the Methodist church. The Tribunal does not accept this explanation. The Tribunal has listened to the recording of the applicant’s interview with the delegate and does not consider that he was confused when he spoke about his uncle’s funeral service. The applicant’s evidence to the delegate was specific about a single funeral service taking place in a particular church and location. The applicant’s evidence to the Tribunal referred to two church services of thanks taking place in Methodist churches in completely different locations from what he told the delegate. This discrepancy in the applicant’s evidence raises concerns for the Tribunal about the applicant’s credibility.
Where the applicant lived in Ghana
The applicant told the delegate that before he came to Australia he was living in [Village 1] which is on the edge of [Town 1] and he moved there in 2013 when he established his church. Before that he lived in his family home in Kumasi at the address in his protection visa application form. The applicant told the Tribunal that before he came to Australia he was living in [Town 2] which is another part of Kumasi, and he moved there in 2015 from his family home Kumasi at the address in his protection visa application form.
The Tribunal put to the applicant its concern about the discrepancies in his evidence about where he lived. The applicant responded that they are small towns close to each other and he meant sometimes he could go from [Village 1] to [Town 2] and sometimes from [Town 2] to [Village 1]. The Tribunal does not accept this explanation. According to the applicant, [Town 2] is an area in the city of Kumasi and [Village 1] is a small village on the outskirts of a town called [Town 1]. According to Google maps, [Village 1] and [Town 2] are around [number]km apart.[1] The applicant’s response that he could go from one place to another does not explain why he gave different evidence to the delegate and the Tribunal about where he lived and when he moved there, and this raises concerns for the Tribunal about his credibility.
[1] [Source deleted].
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 refusal to succeed his uncle as a chief and the threats which followed, including his church being burned down. 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 also does not accept the applicant’s remaining claims which flow from his central claims.
The Tribunal accepts that the applicant was born in Kumasi, Ghana. The Tribunal accepts that he has a brother, sister and a [child] in Ghana and that his parents have passed away. The Tribunal accepts that he completed vocational college in the field of [Subject 1] and that he worked as [an Occupation 1] in Kumasi. The Tribunal accepts that he undertook study at [Educaitonal Institute 1] in Kumasi, as reflected in the certificate he provided to the Department. The Tribunal accepts that the applicant was ordained as a pastor in 1999 and that he was connected to [Church 1] in Kumasi. The Tribunal finds that sometime between 2013 and 2015 the applicant was involved in establishing a church in the village of [Village 1] on the outskirts of [Town 1]. The Tribunal accepts that he shared preaching duties in this church with three other people. The Tribunal finds that before he came to Australia he was living in [Town 2], Kumasi and he moved there in 2015 from his family home in Kumasi. The Tribunal accepts that the applicant had an uncle who passed away in 2017. The Tribunal accepts that the uncle’s funeral service was held at [Church 2] in Kumasi. The Tribunal accepts that the applicant left Ghana on a Temporary [visa] connected with [an event]. The Tribunal accepts his evidence that he did not come to Australia for the [event] and this visa was simply a way for him to leave Ghana. The Tribunal accepts that a member of his church loaned him the money to pay for his visa.
The Tribunal does not accept that the applicant moved to the village of [Village 1] when he began his ministry. The Tribunal does not accept that the applicant’s uncle was a King or a chief or an oracle to a chief in [Town 1] or anywhere else. The Tribunal does not accept that after becoming chief the applicant’s uncle was known as [Name 1] or [Name 2]. The Tribunal does not accept that after his uncle died, the applicant’s family and the community where his uncle was a chief wanted the applicant to inherit his uncle’s position. The Tribunal does not accept that after his uncle was buried, the elders called the applicant to the palace or anywhere else on one or more occasions and told him that he was the chosen successor to his uncle. The Tribunal does not accept that the elders or anyone else threatened the applicant with harm if he did not take up the position. The Tribunal does not accept that the applicant declined to be chief because of his religious faith and duties or for any other reason. The Tribunal does not accept that the applicant received verbal or text message threats, or attempted threats, or was assaulted or intimidated by elders or other people connected to the community surrounding the chieftaincy or by anyone else. The Tribunal does not accept that members of the applicant’s family were threatened. The Tribunal does not accept that these threats took place over a one month period or an eight month period or over any other period of time. The Tribunal does not accept that the people saw his refusal to accept the position of chief as disrespect and wanted to teach him a lesson. The Tribunal does not accept that despite verbal threats the applicant stayed in his village because he had a divine calling to minister there and wanted to stand his ground against the threats.
The Tribunal does not accept that due to his refusal to succeed his uncle, the applicant’s church was burned down. The Tribunal does not accept that due to the applicant not turning up at the specified time and place to start the process of succession his church was burned down. The Tribunal does not accept that his church was burned down in August 2017 or late December 2017/early January 2018 or early March 2018 or at any other time. The Tribunal does not accept that before or after the church was burned down the applicant went into hiding. The Tribunal does not accept that a member of the applicant’s church loaned him the money for his visa after the church burned down, as the Tribunal does not accept that the church burned down. The Tribunal does not accept that the applicant felt his life was in danger or that his family’s life was threatened due to his refusal to succeed his uncle. The Tribunal does not accept that the applicant’s maternal cousin was to be installed as chief if the applicant did not return to Ghana by the end of 2018. Based on the Tribunal’s findings above, it follows that the Tribunal also does not accept that if the applicant returns to Ghana before October 2022 they will force him to be enstooled in late his uncle’s position. It also follows that the Tribunal does not accept that if the applicant does not return to Ghana before October 2022, another male relative will be enstooled as chief instead of the applicant. The Tribunal does not accept that the applicant left Ghana because he feared for his safety or that he cannot return for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application form, the applicant claims that he fears persecution if he returns to Ghana. He claims that he might be assaulted, intimidated, threatened and his property damaged and he might be killed because he refused to inherit his uncle’s position as chief. In the interview with the delegate, the applicant claimed that he feared returning to Ghana because his life will be in danger because of his refusal to take up his late uncle’s position of chief, but that if he did not return by the end of 2018 someone else would be enstooled. In the Tribunal hearing, the applicant claimed that if he returns to Ghana his life will be in danger because he disrespected the offer to be enstooled as chief to replace his late uncle. He claimed it is planned that a relative will be enstooled in October 2022 and if that happens it will be safe for him to return after that because there will be a new chief, but if it does not happen he will still be in danger. Based on the Tribunal’s findings above that the applicant’s late uncle was not a chief, the applicant was not informed by the elders that he was the chosen successor to his late uncle, the applicant did not refuse to succeed his uncle as a chief, he was not threatened in the ways he claims or at all as a consequence of his claimed refusal, including having his church burned down, and that if he returns to Ghana before a male relative is enstooled in his place he will not be forced to be enstooled, 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.
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,[2] 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).
[2] 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 1200

1 March 2022

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Immigration

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