1821110 (Refugee)

1821110 (Refugee) [2022] AATA 2661 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821110
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Roslyn Smidt
DATE:27 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 June 2022 at 9.30 AM

CATCHWORDS
REFUGEE – protection visa – Ghana – chieftaincy dispute – enstoolment of a Queen Mother – ceremonial sword – credibility concerns – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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 is a citizen of Ghana, applied for the visa on 20 May 2018. The delegate refused to grant the visa on the basis that she found his claims to lack credibility.
The applicant appeared before the Tribunal on 9 May 2022 to give evidence and present arguments.
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.
BACKGROUND
The applicant is a [age] year old man of Akan ethnicity and Christian religion from Ghana.
On 27 November 2017 he was granted a [specified] visa to travel to Australia to attend [an event] as [specified role]. He arrived in Australia [in] March 2018 and applied for protection on 20 May 2018.
Protection visa application
According to his protection visa application he was born in Kumasi and lived in [Suburb 1] in the Ashanti region of Ghana all his life. He attended a Methodist school until June [year] after which he attended [secondary school] until June [year]. Following that he worked in his father’s business and received support from his parents. He said that he could speak, read and write English.
According to the statement provided with that application his grandmother had been the Queen Mother before she passed away about 17 years earlier (about 2001). Before she died she gave him a golden sword which was needed to enstool a new Queen Mother and told him not to give it to members of another family. The position should have gone to his aunt but the Chief[1] wanted to enstool his sister and therefore wanted to sword. His aunt died in mysterious circumstances. The chief orchestrated some thugs to harm the applicant. He was kidnapped for two weeks and assaulted by kingmakers and people associated with the chieftaincy because he refused to surrender sword. The authorities would not protect him because because the chieftaincy forms part of the legal system in Ghana and the government is reluctant to interview in disputes. He could not relocated because he would not be safe from the chief anywhere in Ghana.
Delegate’s interview on 6 June 2018.
[1] The applicant’s refer to this position as King or Chief at different times. For clarity I have used Chief throughout.
According to the delegate’s decision, a copy of which was provided to the Tribunal when he applied for review, the applicant said that his grandmother’s sister had been the last Queen Mother. His grandmother was disabled and he stayed with her to take care of her. She died sometime in 2005. Prior to her death she gave him a ceremonial sword and a bracelet to keep in confidence so it could be used to enstool his aunt, but she died. No Queen Mother had been enstooled for about 13 years (since about 2005). He claimed for the first time that the bodies of his grandmother or the aunt remained in the morgue because they could not be given a royal burial until a new Queen Mother was enstooled.
The applicant also said that sometime after his grandmother’s death, 8 to 9 unknown men came to his home and beat him. His brother was present at the time but he was not beaten because the attackers knew that he (the applicant) had been living with his grandmother and therefore they assumed that he had the ceremonial items or knew where they were. When he regained consciousness following the beating he was in an abandoned house where someone found him. The men who held him captive kept asking him where he put the ceremonial items. The delegate asked when he was attacked and how long he had been in the abandoned house. He was unable provide the date of the incident but said attack was at about 7 pm and he was located around 4 to 5pm the next day.
After this incident, the applicant’s father took the ceremonial items for safekeeping and told him to leave the area for his safety and not return until the Chief had died or a decision had been made on his grandmother’s property.
The applicant was asked why he was seeking protection some 13 years after these problems occurred. He said that his main reason for seeking protection in Australia was that he was a Christian and he wanted to get married and have a life but he could not do so until a Queen Mother was enstooled within the community. He also said that he feared he would be beaten again if he returned to Ghana. He did not know what else would happen to him.
Post interview submissions
Shortly after the interview the applicant provided a photograph of a sword and other items which he said had been given to him about 9 months before his grandmother passed away in May 2005, photographs of a house which belonged to my family and a video of the same house which he said showed an altercation which occurred in April 2018 when followers of the King were ordered to demolish the house and locate the sword. He said that the attack had occurred after the King became aware that he had left Ghana and travelled to Australia and assumed that that he had left the sword behind in one of his family homes.
The applicant also provided links to articles regarding a dispute over the right of members of [a specified Royal Family] in Kumasi to be buried in [named] Mausoleum. According to the articles the dispute began 13 years earlier and was related to the swearing of a great oath forbidding their burial at the Mausoleum and the payment of burial fees. At the time of the articles the bodies of 18 members were being kept in the morgue and aggrieved family members were engaged in ongoing litigation and pleading with the government, parliamentarians, the clergy, human rights activists and particularly the Asantehene, Otumfuo Osei Tutu II, to intervene so their kinsmen would have a befitting burial. The articles do not suggest the dispute is related to the enstoolment of a Queen Mother or lack of a ceremonial sword. According to the applicant there was no mention of the ceremonial sword because the role of the sword is only known to members of the royal family and their close followers.
The delegate’s decision
The delegate found the applicant’s claims lacked credibility and refused to grant him a visa.
Submissions to the Tribunal
On 26 April 2022 the applicant provided a number of newspaper articles regarding a property dispute and issues relating to the burial of members of a royal family in Kumasi. According to the articles the bodies of thirteen members of the extended family have been denied burial as the result of the swearing of an oath and the dispute was the subject of ongoing litigation and negotiation. None of the articles mentions the applicant or suggests that the deceased people have been refused burial because of issues relating to the enstoolment of a Queen Mother. Some of the articles include picture of women he claims are his grandmother and his aunt. He also provided a number of photographs which he claims show members of his family, including one which he claims shows him as a young boy and an uncle and aunt who died in suspicious circumstances.
On 27 April 2022 he provided a video which shows a corrugated fence in front of a shop called [Shop 1] and other shops including a pharmacy. He claimed the fence was built because the chief wanted to demolish the buildings, but this was not done because his father swore an oath.
In a statement dated 3 May 2022 the applicant said that after re-reading his initial statement he realised that it contained a number of errors. He said that this occurred because of the language problems which existed at the time and issues relating to the solicitor who assisted him. He said that his grandmother had been next in line for the role of Queen Mother but she was ineligible due to her disability, so the position went to another family. However, there was an agreement that his aunt [named] should be next in line when the serving Queen Mother died. His grandmother was given the ceremonial items at that time. His aunt died in a suspicious house fire which was never properly investigated. According to the agreement whoever presented the ceremonial items would be the next Queen Mother. However, Chief who made the agreement with his family had died and the next king refused to honour the agreement. Contrary to the information in his initial application he had not been assaulted and kidnapped for two weeks. He was assaulted by men demanding the sword. He was with a friend. His friend was unharmed, but he was taken to an area where he could not be seen and beaten unconscious. He was unconscious for a week and came to in hospital. Before coming to Australia he was constantly moving and had to be careful.
While in Australia he remained in regular contact with his family in Ghana who told him that the issue was not resolve, the King’s family were still enquiring about him and his life would at risk if he returned.
The hearing on 9 May 2022
I noted that the applicant’s [specified] visa stated that he had lived in Accra prior to coming to Australia, but his protection visa application stated that he had always lived in [Suburb 1] in Kumasi. He said that the person who prepared his [specified] application had put the Accra address, but this was not correct. He always lived in Kumasi, but prior to leaving he moved between his parents’ house and his aunt’s house. He confirmed that he had been a student until 2005 and said that he had worked with his father at a [shop] in Kumasi from then until he left in 2018.
I noted that the applicant’s most recent submission stated that he had prepared his initial application with the help of a solicitor, but there was no mention of a solicitor on his application. He said that a solicitor had assisted him to prepare his statement after taking his claims by phone. The solicitor told him that he was not allowed to provide any other assistance and should not be named in the application.
The applicant said that his grandmother had died in 2005 and his aunt in 2010. He had difficulty recalling when he was assaulted, but he believed it was in about 2008. I noted that his earlier evidence suggested he was attacked shortly after his grandmother died. He said he it might have been earlier than 2008.
I observed that despite the fact that he had refused to hand over the items which his grandmother had given to him, he did not appear to have had any problems between 2008 and his departure for Australia and advised him that I had difficulty understanding why his home was suddenly attacked in 2018 after he left for Australia. He said that a lot had happened after the 2008 attack. He received death threats, he was chased and people sometimes picked fights with him when he attended sporting events. I asked why these problems had not been mentioned in his earlier submissions. He said that he had understood that he only needed to mention the worst incident and later said that he had not been questioned in detail in prior to the hearing.
I noted that the applicant had given differing accounts of his reasons for seeking protection. According to his initial statement his grandmother held the position of Queen Mother prior to her death in about 2001 and nobody had held the position since that time. In his later submissions he stated that his grandmother had never held the position of Queen Mother and had died in 2005. He also said that the position of Queen Mother had been vacant since about 2005. In his initial statement he was that he had been assaulted and held captive for two weeks sometime after his grandmother’s death, then told the delegate that he was beaten and held for a day, then stated in his recent written statement that he had been beaten and been unconscious for a week.[2] He confirmed that he there were differing accounts of events in his submissions, but maintained that this was due to problems with his solicitor who had taken his evidence by telephone and his lack of adequate English. With regard to the problems after his grandmother died he said that he had been held for a day, but he had been unconscious for a week.
[2] I initially suggested that he had claimed that he was held captive for a week in his most recent statement, but this was incorrect.
I advised the applicant that I had difficulty accepting that his problems related to lack of English as it was my understanding that the language of instruction in Ghana from Grade 3 onwards was English. I also observed that he could have read and corrected the statement prepared by his solicitor prior to lodgement if it was not correct. He confirmed that schools in Ghana taught in English, but said that Ghanaians did not speak English well and claimed that he could not write English before he arrived in Australia. He also claimed that he had not seen the statement prepared by his solicitor until he was given a copy by the Tribunal recently. I noted that according to his protection visa application he could speak, read and write English. He maintained that his problems were cause by lack of English and his solicitor.
I noted that the applicant had claimed for the first time during his interview with the delegate that the bodies of his grandmother and aunt were being held in the morgue because a new Queen Mother had not been enstooled and that he had later provided a number of articles regarding an issued relating to the burial of members of the royal family of [location]. I observed that the articles did not appear to relate to his family or to suggest that the bodies of those involved had not been buried because of issues relating to the entoolment of a Queen Mother. He maintained that his claims were true and that the articles related to his family. He said that he had provided a number of photographs of his family which proved that his association with the problems in the articles. I noted that the photographs could have been or anyone. I observed that the issues relating to the problems surrounding the burial had been widely publicised and it appeared that he may have used this information in an attempt to support his claim for protection in Australia. He said that this was not correct and his claims were true and his father had been involved in taking oaths to try and resolve the situation.
I noted that the applicant had told the delegate that the main reason he was seeking protection in Australia was because he could not get married and start a family until a Queen Mother had been enstooled. He said that this was not correct and claimed that he had been unable to marry because of the problems he faced due to the issues surrounding the enstoolment of the next Queen Mother.
I advised the applicant that it was my understanding that people who had problems relating to traditional issues such as those he described could avoid harm by relocating to another area and it appeared that he would be safe if he went to live in Accra. He said that he had relocated to another area for several months, and while he had not been harmed or threatened he had faced financial difficulties and had to return to Kumasi. I asked if he had looked for work during the time he was away from Kumasi. He said that he had not.
When asked if he wished to add anything the applicant spoke about his desire to remain in Australia with his partner and his child. I told him that while this was understandable, it was not a relevant consideration in his protection visa application.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, I did not find the applicant to be a truthful or a credible witness.
In the first place his evidence regarding his grandmother’s position in society and when she died was inconsistent. He initially claimed that she held the position of Queen Mother and died in about 2001, but later said that she never held that post and died in 2005. He claims that this inconsistency arose because of language problems and the failure of a solicitor who assisted him with his first statement to record his claims accurately. I do not accept this explanation. Students in Ghana study English for the first three years of school after which classes are taught in English[3] which means that the applicant was taught in English from grade three until the age of 20. In addition he stated in his protection visa application that he could speak, read and write English. In these circumstances it is clear the applicant spoke English sufficiently well on arrival in Australia to explain his claims to a lawyer or write his own statement or to check the statement prepared by his lawyer to ensure that it was accurate. And while I acknowledge that lawyers sometimes make mistakes when recording an applicant’s claims, I do not accept that even a lawyer of limited competence would not only have recorded his claims regarding his grandmother’s position and date of death incorrectly, but also have recorded that he was attacked at him home in the presence of his brother and held captive for two weeks when he was attacked elsewhere in the presence of a friend and held for a day or less (see below). I believe that the applicant’s evidence is inconsistent because his claims are untrue and he failed to recall his earlier evidence when questioned by the delegate and at the hearing.
[3] Language of Instruction Country Profile: Ghana (usaid.gov)

Secondly, I found the applicant’s evidence regarding the problems which he faced because he refused to relinquish the ceremonial sword entrusted to him by his grandmother inconsistent, vague and unpersuasive. He initially claimed that he was assaulted while at his home with his brother after his grandmother died in 2001 and held captive for two weeks. There is no mention of any problems following this his initial statement. He later told the delegate that he was assaulted and detained for a day in an unoccupied house sometime after his grandmother’s death in 2005. When asked why he was applying for protection some 13 years later, he claimed that he had not been able marry because a Queen Mother had not been enstooled and that he feared problems on return, but said nothing about any further problems prior to leaving Ghana. In his written and oral submissions to the Tribunal he said that he had been beaten unconscious when he was with a friend in about 2008 and had spent a week in hospital but made no mention of being detained for a week or a day. When I observed that he did not appear to have experienced any problems following the 2008 attack he claimed that he had received threats and people had picked fights with him, but failed to provide a convincing account of these events.
The applicant claims that the problems with his evidence regarding these matters arose because of his lack of English, problems with his first lawyer, because he was not aware that that he needed to give a full account of his problems and because he was not questioned in depth. I do not accept any of these explanations. As discussed above, I do not accept that he lacked a the ability to communicate in English or that his first lawyer was so incompetent that he failed to give a reasonably accurate account of his claims. Furthermore, I can think of no plausible reason why he would have believed this was unnecessary to provide a reasonably complete account of his claims, even if he was not asked specific questions about them. I believe that his evidence was inconsistent and unpersuasive because it was not an honest or accurate account of the problems he faced in Ghana.
Thirdly, I found the applicant’s evidence regarding his association with the royal family in [location] and the problems relating to burial of members of that family unpersuasive. There was no mention of his membership of the family at [location] or issues relating to the burial of his grandmother and aunt in his initial statement. Furthermore, while the articles he provided give a reasonably detailed accounts of the reasons for the dispute and the attempts to resolve it, none of them suggests that the bodies held at the morgue were there because of problems relating to a ceremonial sword or the enstoolment of a Queen Mother or that any body involved in dispute had been threatened or harmed in the manner claimed by the applicant. He claims this is because the role of the ceremonial sword was known only to members of the royal family. I do not accept this explanation. The articles not only fail to mention the sword or enstoolment issues, they give a completely different explanation for the problem. In these circumstances and in light of his failure to mention the burial issue in his initial statement and the other problems with his credibility set out above, I do not accept that his late grandmother and aunt have been denied burial because he refused to hand over ceremonial items needed for the enstoolment of a new Queen Mother.
After considering all of the relevant evidence, I do not accept that the applicant was attacked or threatened at any time because of his refusal to give a ceremonial sword entrusted to him sometime before his grandmother’s death to a Chief who needed to install a new Queen Mother. Nor do I accept that he had any involvement in the dispute regarding the burial of members of the [named] Royal family. I believe he concocted these claims to support his application for protection and obtain residency in Australia.
In reaching his conclusion I have considered the photographs and videos provided by the applicant. However, in the absence of any credible corroborating evidence they are nothing more than photographs of people who may or may not be his relatives and items which could easily be obtained and photographed and I have given them no weight.
I have also noted the applicant’s statements regarding the fact that he now has an Australian partner and child. However, he does not claim that he could face harm on return for this reason and it has no relevance to me decision.
There is no credible evidence before me which suggests that the applicant genuinely fears harm in Ghana for any reason or that he faces a real chance of experiencing serious or significant harm on return to Ghana for any reason.
CONCLUSION
I am not satisfied that he faces a real chance of experiencing serious or significant harm if he returns to Ghana now or in the reasonably foreseeable future for any reason. I am therefore not satisfied that he had a well-founded fear or persecution for any of the reasons in the s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Ghana there is a real risk that he will suffer significant harm.
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.
Roslyn Smidt
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 2661

27 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction