1820819 (Refugee)

1820819 (Refugee) [2022] AATA 1763 (28 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820819
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tania Flood
DATE:28 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 April 2022 at 9:44am
CATCHWORDS
REFUGEE – Protection visa – Ghana – land dispute – father gifted land to applicant and mother – disputed by uncles and brothers – sale of half of land by town Chief – threats from land guards – death of cousin – credibility issues – 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 27 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana, applied for the visa on 10 May 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Ghana.
The applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments in support of his case.
Criteria for a protection visa
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Ghana for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ghana there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa the applicant is a [age]-year-old male from Ghana. He is of [a certain] ethnic group and is a Christian. He provided a postal address in Accra for his previous address in Ghana. He also listed a residential address in South Africa where he resided from May 2015 until March 2017 and an address in [Country 1] where he resided from December 2017 to March 2018. At question 67 on the application form he states he went to South Africa and [Country 1] for holidays. The applicant stated he completed high school and previously worked in [an industry] in Accra from January 2006 until December 2009. The applicant states he has the right to enter or reside in Togo and Ivory Coast under the ECOWAS Free Trade Zone.
The applicant was granted a [temporary] visa on 19 December 2017. He arrived in Australia [in] March 2018. He applied for a Protection visa on 10 May 2018.
The applicant claims that he went to South Africa but could not secure protection there as they do not give asylum to West Africans. Also, he could not remain in [Country 1] as they did not consider his situation to be sufficiently serious. He therefore decided to come to Australia in the hope of having a better chance of securing his safety.
He states that he cannot return to Ghana out of fear for his life. He will most likely be attacked and killed by his father’s family as they have tried to do previously over his inheritance which they claim is theirs. Since his father died those relatives have laid claim to their lands and their home. They even killed one of the workers on the land.
He states he was driven from his home and asked to hand over the land documents which were held by a friend. Without that they cannot develop the land. In his will his father clearly stated that all the property belongs to him and his mother. He and his mother were physically abused. He has also received several death threats over the phone from hidden numbers.
He states that in Ghana there is a lot of corruption and the police accept bribes to delay or refrain from taking action over complaints. When he tried to report his relatives the police said he had no evidence to implicate his uncles.
He states that he cannot consider a return to Ghana unless he forfeits his inheritance.
He states he can travel to other countries in the region but only temporarily and he cannot afford to do that continually.
In a letter provided alongside the application form he provides additional information:
He was left a sizeable property of two buildings and a huge piece of land in [an] area in the central region of Ghana which his father wanted to use for commercial farming. His father died in 2010 and since then he has had to deal with his relatives and brothers who have made life miserable for him and his mother.
He has several times tried to develop the land but was met with violence and attacks from people suspected to work for his uncle. He has also received calls and death threats and been asked to provide the land document but he did not heed their threats.
His mother advised him to leave those properties but they cannot survive without them and he doesn’t intend to lose what is legally his. His father’s lawyers tried to help but to no avail.
He was told an international company made his uncle an offer for the land to use as a factory. He offered some meagre amount to release the land but he refused in 2011 and ever since he has not been able to rest. He put up fencing around the land but it was destroyed by unknown people and reports to the police did not bring any response.
Information provided to the Tribunal
In an email to the Tribunal dated 1 February 2022 the applicant provided a copy of a Deed of Gift between himself and his father for the land in question. He further states that the King of the town sold half of the land to a company to establish a [factory]. That led to a lot of litigation over the land. The owner of the company also brought in land guards to fight him if ever he steps foot on the land.
He further states that his cousin/friend was murdered when they followed him to the land. Six months after the funeral his cousin decided to go to the land and check what was going on. The land guards saw him and beat him seriously. They warned him not to step foot on the land again. They also told him to inform him they will kill him if they see him. He and his cousin went to the police station to report the matter but the police couldn’t help with the situation.
Also attached graphic photographs which the applicant claims are proof that his cousin was badly beaten by the land guards and photographs of the funeral of his cousin/friend.
Tribunal hearing
The Tribunal used the opportunity of the hearing to discuss with the applicant his background in Ghana, his reasons for departing Ghana and for fearing a return to Ghana. His testimony and responses to issues put to him by the Tribunal is summarised as follows:
He was born in Accra, Ghana. For approximately the last fifteen years before his departure from Ghana he also resided in Accra with his maternal uncles. Whilst at school he resided in Kumasi. His mother resides in [a nearby location] which is now effectively an outlying part of Accra.
He travelled to South Africa in 2015 to escape the troubles he was experiencing in connection with his land. He remained there for approximately two years before returning to Ghana in March 2017. He stated that in December 2017 he travelled to [Country 1] for the purpose of trying to obtain asylum but this did not work out for him. He returned to Ghana after approximately three months where he spent about ten days before travelling to Australia.
His mother owns and operates a [store]. His father died in 2010 from an illness. He is single and has no family in Australia.
He completed secondary school in Ghana and thereafter worked in [an industry] until about 2015. In Australia he works as [an occupation].
He fears returning to Ghana because of a land dispute. He said that his father gave him the land in question but his uncles want the land to sell to investors. He said his uncle requires the land title document to do so but he has refused to hand over it over. He then said that the Chief of the area sold half of the land to a [company] and that company hired land guards and whenever he went there he was threatened with harm. He said that his uncle is a friend of the Chief and he does not know whether he also profited from the sale of half of the land. He also said his uncle wants all of the land returned to him. He said that more recently his mother informed him that the Chief had taken possession of the remaining half of the land.
He began receiving threatening calls from unknown numbers in 2011 advising him to not step foot on the land. He said he received many calls between 2011 and 2015 but he does not know the names of any of the callers. He said he believes his uncle was responsible for organising those threatening calls. He said the situation became worse when he was followed to his home and asked to hand over the land title document which he did not do as a friend was holding those documents for him. He said that one day in 2013 he went to visit the land with his cousin and a friend and the land guards came towards them and they ran away. He said his friend was badly hurt and died and he injured his leg trying to escape. He said he went to the police but the system in Ghana is corrupt and you cannot defend yourself against people with money. He also said he had no evidence to prove who his aggressors were. He confirmed that he has received no threatening calls since his arrival in Australia.
The Tribunal put it to the applicant that the persons making the threatening calls, namely persons acting for his uncle, might surely have been able to locate him as he was staying with family in Accra. He said that is correct but then stated for the first time in the proceedings that he hired a single room in another place to avoid them.
He said that his father left him the land in his will after his death. The Tribunal put it to the applicant that the document he has provided indicates that the land was gifted to him by his father in 1998 and therefore it does not make sense that his father indicated in his will that the land should go to him because he was already in possession of the land since 1998. He replied that his father gave him the land when he was young and that when he said “will” he was referring to the same document. When the Tribunal pointed out that his evidence to the delegate is that he inherited the land after his father’s funeral and not in 1998 he said that is when he was first given the land title document.
The Tribunal asked the applicant why he did not produce those documents as evidence earlier in the proceedings. He replied that he did not have the documents in his possession until recently as he had left them with a friend to safeguard.
When asked how much land he inherited he said it is [number] acres. When asked why he was unable to provide this level of detail during his protection visa interview he said it is because he did not have the papers with him at the time.
The applicant was asked if he has ever sought a legal or customary remedy to the land dispute and he said he has not. He said that out of fear he chose to leave the country instead.
When asked what he intends to do if he is required to return to Ghana he said that seeking a customary remedy is not possible as the Chief is involved so he will go to the court. The Tribunal discussed with the applicant country information which indicates that persons involved in land disputes can appeal to the court for a resolution in a judicial system which is reportedly stable and is well respected. The applicant responded that the person with the higher economic status will be given more consideration and it requires money to hire lawyers. He further stated that his life might be at risk if he takes that course of action. When asked why he would bother to do it at all if that is the case he said it won’t matter either way because the people who want the land will think he might do so and attempt to kill him before that happens.
The applicant was asked whether he has engaged a lawyer in the past to assist with a resolution of the land dispute and he said he has not because he is outside the country. The Tribunal put it to the applicant that his inaction to date could cause it to conclude he will not be motivated to take legal action if he returns to Ghana. He then said he has not done anything to date because he doesn’t want his aggressors to get his contact details or to know that he is in Australia.
The applicant was asked how he managed to get a visa to come to Australia. He said that a friend contacted him while he was in [Country 1] and said that he could help him to come to Australia. He said that he spent around [amount] to travel to Australia and before that he spent about [amount] to travel to [Country 1]. The Tribunal put it to him that he could have used that money to hire a lawyer and fight for his land. He replied that he didn’t do that because he was being hunted and decided it was better to leave the country. The Tribunal pointed out that his evidence is that nothing serious happened to him between 2011 and 2015 when he left for South Africa and that this doesn’t support that he was being hunted. He said the situation got worse whenever he visited his land.
The applicant was asked why he could not relocate to another part of Ghana to avoid harm from his aggressors. He said that due to extended family and friendship networks there is a lot of communication flowing in Ghana which will make it easy to find him wherever he is. He said that he could only find work and re-establish himself in Accra.
The applicant was asked to explain the significance of the photographs tendered in support of his claims. He said that the person who is badly beaten is his cousin. He said that incident occurred after the funeral of his friend who was killed in 2013. The Tribunal pointed out to the applicant that the photographs depict a funeral and a badly injured person but do not assist the Tribunal to determine who the people in the photographs are, what happened to them or whether it was in connection with the land dispute. The applicant reiterated that the injured person is his cousin.
The Tribunal asked the applicant why he informed the delegate during his protection visa interview that he wants protection for a short term only because after a few years the matter will be settled and he could go back to Ghana. He said he thought that his uncle would give up but recently he found out the situation had gotten worse when the Chief took the remaining half of his land.
The Tribunal put it to the applicant that it is concerned that on the available evidence he did not seek protection when he went to South Africa, that he returned to Ghana from South Africa of his own accord and also did not seek protection when he travelled to [Country 1]. He replied that he thought the situation would have calmed down while he was in South Africa and that is why he returned to Ghana. However, he said his presence was noticed and the threats started again and so he went to [Country 1]. As to why he didn’t then apply for protection in [Country 1] he again said he thought the situation would calm down. He also said that he was not planning to apply for asylum in [Country 1].
FINDINGS AND REASONS
Country of reference
The applicant has produced a Republic of Ghana passport which verifies his claimed identity and nationality. Based on this, the Tribunal accepts the applicant is a national of Ghana.
Claimed fear of harm arising from a land dispute
Having carefully considered the available evidence the Tribunal has formed the view that the applicant’s claims lack credibility. The Tribunal’s reasons are as follows:
Firstly, the applicant has presented what appears to the Tribunal to be inconsistent accounts of the manner in which he became the rightful owner of his father’s land. In his written claims for protection the applicant states that his father left him and his mother all his land and property in a will which came into force upon his death in 2010. Prior to the Tribunal hearing the applicant tendered as evidence of his claims a copy of a Deed of Gift made between him and his father which transfers ownership of the land to the applicant in 1998, some twelve years before his father’s death. As discussed with the applicant during the hearing, the Tribunal finds it implausible that the applicant’s father then made provisions in his will for the applicant to inherit the land seeing as how he had already been the rightful owner of the land for some twelve years. The applicant attempted to explain the differing accounts by stating that he only received the Deed of Gift after his father’s funeral and by implying that the two documents were one and the same. If the Deed of Gift is indeed a genuine document, then the Tribunal accepts the applicant was only [a child] when the land was first given to him and he might not have been aware of the transfer of title at that time. However, by the time his father died he had reached [age] years of age and the Tribunal considers it likely he would have been aware of the situation well before then. Therefore, the Tribunal can see no reason for any confusion as to how and when the applicant came to be the owner of the land.

As noted above, at the time of execution of the Deed of Gift the applicant was [a child] and when questioned about his signature on that document he claimed during the hearing that someone else must have signed the document on his behalf. This document was purportedly executed by the Solicitor of the Supreme Court in Ghana and as discussed with the applicant the document does not stipulate, as could reasonably be expected in such a legal document, that the deed was executed by a third person acting on behalf of a minor. This, together with the above concern and the late introduction of this evidence, raises concerns for the Tribunal about the genuineness of the Deed of Gift.
Also, the applicant’s written claims state that his father willed the land to both him and his mother but the Tribunal notes that the Deed of Gift, which the applicant claims is one and the same as his father’s will, confers no ownership rights to his mother.
Having carefully considered the available evidence the Tribunal concludes that the applicant has provided false information, in the form of the Deed of Gift, in a bid to overcome the concerns raised by the delegate about the lack of verifiable evidence to support his claims.
Furthermore, the Tribunal considers the applicant has also provided a confusing and unconvincing account of who coveted his land and who threatened him and why.
For instance, in his written application, the applicant states that he encountered problems with his father’s brothers who want to sell the land to an investor. He claims he refused to hand over the land title and this led to his relatives threatening him. His most recent evidence to the Tribunal is that the King or Chief of the town sold half of the land to a company to establish a [factory] before he departed Ghana and that the owners brought in land guards who threatened him when he attempted to visit the land and also killed one of his friends. In addition, he stated during the hearing that the Chief has now also appropriated the remaining half of the land. Somewhat confusingly, despite these developments, the applicant maintains that his uncle is still fighting for the land while at the same time speculating that his uncle might have received a cut of the profits from the sale of the first half of the property as he and the Chief are friends. In the Tribunal’s view the applicant failed to convincingly explain the relationship between the Chief and his uncle and the circumstances in which he claims his land has been appropriated, by whom and when. He also gave, in the Tribunal’s view a vague and confusing account, of his uncles ongoing intentions in circumstances where he now claims all the land has been stolen.
Further, throughout the proceedings the applicant has claimed that the police are unable to help him as he cannot identify his aggressors. Whilst this might be true in the case of the alleged anonymous phone threats he received it cannot be said that he is unable to identify the land guards whom he claims are responsible for threatening him and the violent death of his friend. According to the applicant these land guards are stationed on the land. The Tribunal notes the applicant’s assertion that there is corruption within the police force but there is no convincing evidence before the Tribunal to support that persons involved in land disputes are denied help. Indeed, as discussed with the applicant during the hearing there are reportedly multiple mechanisms available in Ghana to assist persons to resolve land disputes.[1]
[1] ‘Indigenous conflict resolution in Africa – the case of Ghana and Botswana’, Kofi Annan International Peacekeeping Training Centre, 2012; Alternative dispute resolution by chiefs and Tendamba: A case study of Kumasi and Wa Traditional Areas, Elias Danyi Kuusaana et al, The Ghana Surveyor, December 2013; The Chieftancy Institution in Ghana – Causers and Arbitrators of Conflicts in Industrial Jatropha Investments, Benjamin Betey Campion and Emmanuel Acheampong, Sustainability, September 2014; The role of chiefs in large-scale land acquisitions for jatropha production in Ghana: insights from agrarian political economy, Abubakari Ahmed, Land Use Policy, April 2018
The applicant has also claimed throughout that the reason his uncle has been continually threatening him is to obtain the land title, without which he can do nothing about selling the land. However, the Tribunal finds it significant that according to the applicant the Chief, acting either alone or in conjunction with his uncle, has already sold half of the land to a company without access to the land title.
Notwithstanding the above, the applicant claims that he cannot return to Ghana because of the prolonged threats to his safety by either his uncles or the land guards acting for the company which now owns half of his land. Relevantly, the applicant claims these problems commenced in 2011 and did not abate for four years until he departed for South Africa in 2015. During this time the applicant claims he was living with his maternal uncles in Accra and yet suffered no physical harm in all that time. As discussed with the applicant during the hearing the Tribunal considers at the very least his uncles would have had no difficulty locating him in Accra given he was living with family if they were motivated to harm him. He agreed with the Tribunal’s observation but then stated that he rented a room in the capital to avoid being found. The Tribunal noted that at the commencement of the hearing a discussion was held with the applicant about his residential history in Ghana and at no point in that discussion did he indicate he ever lived alone in rented accommodation in Accra. The Tribunal formed the view that the applicant’s response was fabricated to overcome the concerns expressed about his evidence and finds this concerning. The Tribunal considers the applicants relatives had the ability to locate and harm him in Ghana if they were intent on doing so. That they did not adds to the Tribunals concerns about the veracity of the applicants claims.
The Tribunal acknowledges the photographic evidence provided by the applicant which he claims supports the violent actions of the land guards toward him and others. However, as discussed with the applicant during the hearing the Tribunal is unable to deduce from this evidence alone that the injuries and funeral of the deceased person depicted in the photographs are related to the applicants claims. The Tribunal has afforded the evidence no weight.
Based on the available evidence and having considered the applicants responses, the Tribunal is not persuaded that the applicant was the victim of any threatening behaviour from either his relatives or other persons seeking to appropriate his land.
In forming the above opinion, the Tribunal has also had regard to, and placed weight on, the applicant’s behaviour following his decision to leave Ghana out of fears for his safety. As discussed with him during the hearing the Tribunal is very concerned that the applicant did not make an application for protection in South Africa and then returned to Ghana of his own accord where he remained for several months before his subsequent departure to [Country 1] where he again did not make an application for protection.
In his written claims the applicant states that he went to South Africa but could not secure protection there as they do not give asylum to West Africans. Further, he stated that he could not remain in [Country 1] as they did not consider his situation to be sufficiently serious. When the Tribunal discussed these events with the applicant during the hearing he provided a different account. He stated that he did not attempt to seek protection in South Africa because he thought the situation would have calmed down while he was in South Africa and he could return. He said that on this basis he returned to Ghana. As to why he didn’t apply for protection in [Country 1] he again said he thought the situation would calm down. He also said that he was not planning to apply for asylum in [Country 1].
The Tribunal considers the applicant’s written evidence indicates that he considered making applications for protection in South Africa and [Country 1] whereas his oral evidence indicates he had not such intention. The Tribunal considers the differing evidence concerning. In any event, the Tribunal considers the applicants inaction in seeking protection in South Africa and [Country 1] and his voluntary return to Ghana from South Africa and [Country 1] to be inconsistent with his claimed fear of harm in his country. Even if he believed the situation might have calmed down during the two years he was in South Africa he claims that he once again had to depart Ghana due to the resumption of threats. The Tribunal finds it doubly concerning that he did not attempt to seek protection in [Country 1] at that stage. The Tribunal considers the applicant has not provided a consistent or satisfactory account for why he did not pursue the options which were available to him to seek protection in two different countries. The Tribunal is of the view these circumstances undermine his claims to fear harm in Ghana.
Having carefully considered the available evidence the Tribunal is not persuaded that the applicant’s claims in respect of the land dispute can be believed. The Tribunal does not accept that the applicant possesses land in Ghana which is the subject of dispute between himself and his father’s relatives and/or the Chief of the local town or a private company. The Tribunal does not accept the applicant, his mother or any of his associates were threatened or harmed in connection with the claimed land dispute or that the applicant fled Ghana on any occasion due to fears for his personal safety. The Tribunal does not accept that the applicant fears returning to Ghana for this reason. The applicant has not indicated to the Tribunal that he fears returning to Ghana for any other reason.
In view of the above, the Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Ghana now or in the reasonably foreseeable future for the reasons claimed or for any other reason.
CONCLUSIONS
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). For the same reasons already articulated 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. Accordingly, 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.
Tania Flood
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 1763

28 April 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice