1821506 (Refugee)

1821506 (Refugee) [2022] AATA 2352 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Alison Battisson Solicitor
CASE NUMBER: 1821506

COUNTRY OF REFERENCE: Ghana
MEMBER:Alan McMurran
DATE:26 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 May 2022 at 4:21pm

CATCHWORDS
REFUGEE – protection visa – Ghana – religion – conversion from Christianity to Islam – pressure to maintain the family shrine – physical assault – fear of killing – refusal birthright as the designated family priest – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MICA [2003] HCA 71
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 lodged 25 July 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 23 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 14 May 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criterion. The delegate did not accept that the applicant had established a well-founded fear of persecution, and would suffer harm because of his religious conversion, that relates to all areas of the receiving country (Ghana).
The delegate further found that the applicant would be able to relocate to an area of the country where there would not be a real risk that he will suffer significant harm, and that it would be reasonable for him to do so.
The applicant appeared before the Tribunal on 19 May 2022 to give evidence and present arguments. The Tribunal conducted a virtual hearing by video with the assistance of an interpreter in the Ga and English languages. The applicant was at home in Melbourne.
The applicant was represented in relation to the review by a solicitor and registered migration agent who also attended the hearing from the solicitor’s location in Sydney.
No issues were raised concerning the hearing, and the applicant preferred to give his evidence in English. No request was made for an adjournment, the applicant indicating he was ready and able to proceed with the hearing as scheduled.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
Refugee
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Complementary protection
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.
Nationality
It is accepted that the applicant is a national of Ghana on the basis of his passport submitted to the Department with his biometric record, and his oral evidence, and the Tribunal will assess the applicant’s claims on that basis.
The Tribunal further accepts that the applicant does not have the right to reside in any country other than Ghana. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and Ghana is the receiving country for the applicant for the purposes of s 36(2)(aa).
The Issue
The issue in this case is whether the applicant meets the refugee criterion, because of a well-founded fear of persecution. The persecution must involve ‘serious harm’ to the person. The Tribunal must consider all claims and integers of any claims.
‘Serious harm’, without limitation, includes a threat to the person’s life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
If the applicant is not a refugee, the Tribunal must consider whether there are substantial grounds for believing that the applicant meets the complementary protection criterion, and that there is a ‘real risk’ that the applicant will suffer ‘significant harm’.
‘Significant harm’ is defined to mean: the non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subject to torture; or the non-citizen will be subject to cruel or inhuman punishment; or the non-citizen will be subject to degrading treatment or punishment.
The Tribunal has had regard to the Act and Regulations as set out in the attachment, Department policy, and to the applicant’s provided information and the oral evidence from the Tribunal hearings referred to below.
Country and independent Information
In general, information on Ghana shows that it is an ethnically diverse country with over 100 ethnic groups. Ghanaian cultural emphasis is given to individual conduct and behaviour “which has a direct impact on the society and family”.[1]
[1] Lamar Soutter Library, University of Massachusetts,-general cultural information-facts and statistics
The country has the highest number of Christians in West Africa comprising approximately 71% of the population. Muslims comprise approximately 18-20%, and the balance are other religions including traditional African practices.
Family is regarded as a strong bond in the primary source of identity, loyalty and responsibility and Ghanaians “emphasise communal value such as family, respect for the elderly, honouring traditional rulers, and the importance of dignity and proper social conduct.” The report continues that “individual conduct is seen as having an impact on an entire family, social group and community; family obligations take precedence over everything else in life. Individuals achieve recognition and social standing through their extended family. The entire family shares any loss of honour, which makes the culture a collective one. In order to protect the sense of face there is a need to maintain a sense of harmony.”[2]
[2] Ibid ->
DFAT reports that Ghana has 10 indigenous languages in addition to English and has one of the highest GDP per capita rates in West Africa with abundant natural resources, and Australia has resident accreditation through its High Commission in Accra. Ghana is recognised as having an ethnically diverse culture with a high degree of religious tolerance.
A US Department of State report[3] on international religious freedom reports that:
“The Ministry of Education includes compulsory religious and moral education in the national public education curriculum. There is no provision to opt out of these courses, which incorporate perspectives from Christianity and Islam. There is also an Islamic education unit within the Ministry of Education responsible for coordinating all public education activities for Muslim communities. The ministry permits private religious schools; however, they must follow the prescribed curriculum set by the ministry. International schools, such as those that do not follow the government curriculum, are exempt from these requirements. Faith[1]based schools that accept funds from the government are obliged to comply with the directive that states students’ religious practices must be respected. The country is a party to the International Covenant on Civil and Political Rights.”
[3] International Religious Freedom Report for 2020 United States Department of State • Office of International Religious Freedom
The US report further notes that: “There is no significant link between ethnicity and religion, but geography is often associated with religious identity. Christians reside throughout the country; the majority of Muslims reside in the northern regions and in the urban centers of Accra, Kumasi, and Sekondi-Takoradi. Most followers of traditional religious beliefs reside in rural areas.”
The current President, Akufo-Addo is a Christian and the Vice President, Mahamudu Bawumia is a Muslim who have “continued to emphasise the importance of peaceful religious coexistence in public remarks”. The US report quotes the president as recently commenting (2020) that “we are a country where even though the overwhelming majority are Christian, we have a significant Muslim population, and there are still a few who are committed to the old gods. They make up the population and we live here in harmony and in tolerance of each other. It is one of the distinctive features of this country and it is one we want to preserve”.[4]
[4] Ibid at p 4
Claims
The applicant has set out his claims in his Statutory Declaration made 10 May 2022, and which repeats the matters set out in the statement made with the application lodged with the Department.
The applicant has updated his claims to include the fact of his recent marriage and separation, and events since arriving in Australia.
He claims in summary that he has converted from Christianity to the Muslim faith in 2016, following the death of his parents. His uncle then became his next of kin and had authority over him, including to direct him as to the maintenance of the family shrine and traditions, which included both Christian beliefs and traditional African practice.
The applicant claims to have rejected a direction from his uncle that he renounce his Muslim faith and become the family “priest” to maintain the shrine in the family home. The applicant absconded after being threatened and beaten on two occasions by his father and has refused to return. The applicant was “adopted” by a Muslim congregation in [Suburb 1], a suburb of Accra, and maintained a low profile to avoid his family and discovery. A friend from the mosque and the Imam arranged for the applicant to obtain a visa to travel to Australia in March 2018 [details deleted].
The applicant claims he was unaware of any detail as to the obtaining of the visa including its cost and how it was done. He was given last-minute notice to board an aeroplane for Perth and provided with a small amount of cash and a backpack. The applicant claims he has not been in communication with his relatives who do not know where he is, except for his sister with whom he remains close. He is estranged from his elder brother who remains in Accra.
The applicant claims to have been threatened and beaten on two occasions by his uncle. He fears that on his return he will be discovered and either forced to renounce his Muslim faith and adopt the duties attached to the family traditions, which include some idolatry and sacrificial obligations, or else be severely punished, harassed, or even killed.
The applicant maintains he has refused and will continue to refuse to obey the family, directed by his uncle or to abandon his Muslim faith.
The applicant claims he is unable to return to Accra, or anywhere in Ghana, for fear of being discovered by his family.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background - applicant’s oral evidence 19 May 2022
The applicant is [an age]-year-old citizen of the Republic of Ghana.
The applicant attended an interview with a department officer on 25 June 2018. The applicant by choice gave his comments for that interview in English, with an interpreter also present in the Ga language.
The Tribunal asked questions at the hearing about his previous statement and the record of interview. The applicant confirmed that his evidence was all correct and he did not seek to make any changes, either to his statement or his prior oral evidence.
The Tribunal asked about his family background. The applicant confirmed his mother had passed away in 2015 and his father in October 2016. He has [a] brother and also a younger sister. He does not know his brother’s whereabouts as they are estranged. He said his brother used to have a business as [an Occupation 1]. He speaks with his sister once every two months or so. Both his siblings have left the family home in the nearby village of [Village 1], where the applicant was raised.
The applicant gave evidence that his family had been close and no issues had arisen before the deaths of his parents. He had attended high school, where he met friends who were Muslims and which attracted him to that religion. He had discussed religion with his parents who he thought did not take seriously his interest in Islam. He said the family was raised as Christian, but also retained traditional religious and cultural practices including idol worship. He said the family shrine was located in the family home and was maintained by family members.
On the death of his parents, according to tradition, the applicant’s uncle became his “father”, whom he referred to as “dad”. He said his uncle had lived with his parents in the family home together with his 3 daughters and the familial progression meant his uncle became the family head. He said his uncle was also an important village elder. The applicant was obliged to respect and obey his uncle while living in the family home. This included responsibility as the youngest son to tend to the family shrine and related religious observations. This included on occasion celebrations which involved animal sacrifice and practices which the applicant said he did not accept nor appreciate and was another reason for him to be attracted to Islam.
The applicant explained he had an altercation with his uncle in about November 2016, shortly after his parents had died. This occurred when his uncle confronted him about being a Muslim, which he had heard from others in the village. The applicant explained the background as follows. He said he had not informed his parents about his conversion to Islam as this did not occur for him formally until after his parents had died. The applicant said he was in mourning for his parents and thought a formal conversion to Islam would “bring me joy”. He provided a certificate of his religious conversion, from the [named] Mosque in Accra, issued [in] November 2016.
He said the village was a small community and other people would have known of and spoken about his interest in Islam, which the village did not accept due to its Christian and traditional African beliefs. The applicant did not know who told his uncle. He said it may have been some of the boys he played [sport] with whom he had already talked to about having “accepted Islam”. The applicant said he knew his family would have trouble accepting his conversion to Islam and he intended to hide it from them.
He said his uncle confronted him and took him by surprise when he said to him “is it true what I heard?” The applicant’s admitted he was a Muslim but said his uncle gave him no chance to explain. They both became angry and the applicant was “pissed off” because he was unable to explain himself. He said his uncle started throwing punches and the applicant immediately left the house. He said he stayed away for about two days and then returned. He said when he returned he was attacked again so he left.
He went to [Suburb 1], which is a suburb in the main city of Accra, approximately [number] km distant. [The suburb] has a predominantly Muslim community and a mosque. The applicant said he stayed at the mosque sometimes sleeping outside and was assisted by other Muslims. He said he stayed away for about 10 days and then went home, unobserved, where he had a shower and changed his clothes. He said at the time he was unemployed, which was not unusual for young Ghanaian men at his [age]. He said he went back and forth between [Suburb 1] and the family home several times for about a month.
In early 2017, he met his uncle in the house by happenstance when he had returned. He said his uncle greeted him, was pleasant and “normal” and offered to feed him. He went to his room to shower and change then returned for the meal. He said he noticed the cat, who had been sniffing around his plate of food, and which contained fish, was dead. He assumed the cat had been poisoned from eating the food.
He said he shouted at his uncle as he was furious and they had an argument. He said his uncle grabbed a piece of timber and hit him on the back of his head. He said he was struck several times and was bleeding. He said he went to the police station later after leaving the house to report the attack. The police subsequently came to the family home but indicated it was a family dispute and they should sort it out between themselves. The applicant determined there was nothing he could do as culturally the elder person in the family is traditionally “always right” and must be given respect.

This was the second occasion of a serious argument between the applicant and his uncle, now father. The applicant determined it was not safe for him to return to the family home and he went back to [Suburb 1] and living at the mosque, sleeping outside, and finding odd jobs so he could feed himself. He said he met a man named ‘[Mr A]’ at the mosque who offered to help him. He found him some casual work in the market, carrying things for people and other odd jobs. He explained his circumstances to [Mr A] who offered to help him and said he could help him “travel out of the country”, because it was unsafe for him to return home. The applicant explained that he had seen his father on one occasion in [Suburb 1]. He thought this odd and found it threatening because his father had no business in [Suburb 1] and did not usually go there from the village. The applicant believed his uncle was looking for him. This attracted him to leaving the country for his own safety. He said there was nowhere else for him to go other than his home village or to remain in Accra. He said if he went anywhere else he would be seen as an outsider and would attract attention when his aim was to ‘lie low’.
The applicant said he did not return home. He remained living in and near the mosque until early 2018, when [Mr A] told him he could arrange for him to travel to Australia. He asked the applicant for his passport, which the applicant gave to the Imam. The applicant explained that he had no funds himself, no savings, and no ability to travel to Australia. He said he knew nothing about [an event] in [Australia] when he handed over his passport. All he knew was that this ‘[Mr A]’ had informed him he would make arrangements for him. The applicant maintained he had no knowledge of those arrangements, what had been done on his behalf and how much had been spent in that regard. He said all he knew was that members of the mosque had been asked by the Imam to assist him and provide for him.
The Tribunal asked the applicant if he thought it strange he was being helped by people he did not know. He said it was the Imam who asked others in the mosque to assist the applicant by providing for him as fellow Muslims are required to do. He said he had no knowledge of what arrangements had been put in place either by [Mr A] or by the Imam or anyone else, but he knew they were trying to help him including to arrange for him to leave the country. He did not find this unusual because he was afraid for his safety, which was also accepted by the mosque community, who wanted to protect him. He said he knew nothing about any visa fraud involving the [specified event] and visas provided for Ghanaian [travellers], or what costs were involved.
The applicant said in early 2018, [Mr A] returned his passport and not long after told him he had arranged a visa for the applicant to travel to Australia with other Ghanaian [travellers]. He said he was given approximately $110 in cash and a small carry-on backpack with some clothes. He said he had a meal at the airport and boarded the plane with the other [travellers], arriving in Perth [in] March 2018. He said he was not given any contact information and the other Ghanaian passengers left him at the airport to take another flight to [city name].
The applicant approached a black man at the airport who said he might assist him and rang someone who came to the airport and met the applicant. He said this man was [from Country 1] who took him to a Perth mosque at [location] where he was introduced to other [Country 1 people] and Muslims from [Country 2]. He said he also met another Ghanaian Muslim named [Mr B] who lived in a share house and provided him with accommodation. He said ‘[Mr B]’ was [an Occupation 2] who would be away for two weeks at a time. The applicant said he did some work for 3 or 4 days casually and stayed at [Mr B’s] house until June 2018 when he left for Sydney. He had been told he might find more work in Sydney.
In the meantime, the applicant had been introduced by his new Perth Muslim contacts to his migration representative, whom he contacted from Perth, and who assisted him to make his protection application which was lodged on 14 May 2018. The applicant has been represented by the same agent since lodging his protection application and for this review.
The applicant arrived in Sydney [in] June 2018 where he stayed until [date] July 2020. He said in this time he found work through a contact he had been provided with at [Suburb 2] for a [specified business]. He said the work was casual 2 or 3 days a week sometimes longer. He said he also did some [Occupation 3 work] from about September 2018 through until he left Sydney. Again, that was casual work 3 or 4 days a week but provided him with enough for him to survive. He said he lived in a share house at [Suburb 3] in the period, at which time he also met his wife online. This was in about March 2019 and she was living in Melbourne. She came to visit the applicant in Sydney in about April 2019 and for her daughter’s birthday. She invited the applicant to live with her in Melbourne, but he informed her as a Muslim, he could not live with her without being married. He said they married [in] November 2019 after he had moved to Melbourne and completed some casual work in Sydney in about July 2020. He said differences arose between them because of his Islamic faith which he practised regularly, praying 5 times per day. He said they are still married but separated [in] November 2021, due to their differences. He does not know whether they could reconcile but his wife has said she will make application to divorce him. He said he has taken no steps to do so himself. He said his wife had offered to sponsor him for a partner visa which he had refused, believing that a review of the Department’s decision to refuse the protection visa had some prospects for success.
The applicant is still living in Melbourne and working in a [business]. He is supporting himself. He has said he will provide his residential details to the Department. His representative also undertook to do so. He has maintained the same current email address.
The applicant was asked about returning to Ghana. He said he was afraid to go back to his home village. He said it was a small community in and everyone would know him if he returned. He has spoken regularly since 2020 with his sister. She supports him and has told him not to return. She said his uncle does not know he has gone to Australia or where he is living, but believes he is still looking for the applicant. She said it would be unsafe for him to return to the country.
The Tribunal asked why he could not return to Accra and to [Suburb 1], where he was living amongst the Muslim community. He has said it was safe living amongst them, while he was undiscovered. He said however he believes his uncle would find him. He relies upon the information from his sister that he is still being sought, and the fact it would be difficult for him not to be discovered in Accra. He said his father could find him and believes he has attempted to do so and will again. He believes his father wants him to return to the family home to be the family priest to maintain the shrine in the household and prosecute their traditional African beliefs, alongside Christianity. He said it is the duty culturally of the youngest son to carry on that tradition. He said he will not do it and refuses the role and that is likely to anger the family, and his uncle who he believes would harm him physically and possibly kill him as a consequence. He said his brother will not protect him as he now has “disowned” him because he has caused the family shame, and from whom he is estranged. He said he argued with his brother around the time of his parents’ death in November 2016 when he revealed his conversion. He said his brother thought he had bought disgrace upon the family and was very angry with him and they have not spoken since.
The applicant was asked why the police authorities may not assist him, but he insists it would be regarded as a family issue and they will not intervene. He said he would not be able to travel to other parts of the country, because he has no contacts there, no family or relatives, the languages are different together with the customs and lifestyles. Without contacts and experience in those areas, it would be impossible for him either to find work or to subsist, and he would not survive. He said other villages would know he was Muslim and word would spread or travel that he was escaping from his family and his village. Sooner or later, his father, and other family members who support his father, would hear of his whereabouts, and find him. For those reasons, he maintains he would not be safe living anywhere in the country, let alone in Accra or on returning to [Village 1].
The applicant explained that it was no longer just his uncle who threatened him, but also the community in the village which is threatening to him. This is because his uncle was an elder and village leader and they would respect and follow him against the applicant. He said effectively they will do whatever he wants. His sister has told him his role as the chief priest for the family shrine and cultural tradition is already determined and cannot change. His uncle will not accept his refusal to accept the role.
The applicant was asked if he wished to make any further comments or submissions either about his fear of returning to Ghana, and his uncle finding him, or of relocating elsewhere in the country. The applicant said he had told the Tribunal everything he could think of and answered the questions honestly. He said by way of conclusion to his remarks that he came from a traditional household in Africa. He acknowledged Ghana is a peaceful country and there are no evident problems between Muslims and Christians as might exist elsewhere. He said however he is particularly at risk, not because he has converted his faith to Islam, but because he is “running from my birthright” as the designated family priest, obligated to perform traditional rights and sacrifices. He does not wish to worship idols or be involved in such practices. He said this differentiates his circumstance from a person simply having converted his religion, to one being persecuted because of his refusal to follow tradition which is offensive not only to his ‘father’, but to members of his family and the village community in general. He said his religious conversion has turned him into “something else” which is unacceptable in his community. He said turning his back on Christianity and his traditional upbringing effectively marks him as a disgrace to his community and family. He said his fear arises not because he is now a Muslim in a Christian community but because he has changed “from what I was traditionally to become something else”. He fears the family members will support his uncle as their leader and out of respect, and he will be seriously harmed or even killed for his disobedience.
Applicant’s submissions
The Tribunal has been assisted by references provided by the applicant’s representative as attached to submissions made 10 May 2022.
Those submissions set out in summary that the applicant is a refugee for reason of being an observant Islamic man who has rejected Ghana’s majority religion and his family’s Christian faith and customary African tradition.
It is further submitted the applicant lacks family or social support and an ability to subsist as a consequence, and also suffers significant mental health issues leading to a real risk of further suffering and significant harm and being subjected to cruel, inhuman or degrading treatment or punishment if returned to Ghana.
Tribunal’s findings - assessment
On the basis of the credible country information referred to above and as discussed at the hearing, the Tribunal finds that effective protection measures are not available to the applicant from members of his extended Christian family, being the particular social group to which he is connected, and as a person who has renounced his family’s traditional upbringing and responsibilities. The family is violently opposed to his disobedience and for renouncing Christianity and family tradition.
The applicant refuses to change his Muslim beliefs or to conceal his practice such as praying 5 times a day and which is an immutable characteristic of the applicant and his belief in Islam, and there is a real chance of him being persecuted accordingly and for not modifying his behaviour.
There is information available which demonstrates that adequate protection against persecution either cannot or will not be provided to the applicant as a member of the family from other family members by the Ghanaian State for the purposes of s.5LA of the Act. The Tribunal accepts that it is likely that State authorities will regard the matter of the applicant’s religious conversion and filial disloyalty as a family issue and refuse or fail to intervene.
Accordingly, on the basis of the credible country information the Tribunal finds that the applicant faces a real chance of significant physical harassment and significant physical ill treatment in Ghana at the hands of other family members, now and for the reasonably foreseeable future. This is for the essential and significant reason that the applicant is a member of a particular family social group, has renounced his traditional upbringing, and is violently opposed by his uncle, the family elder and leader, who threatens the persecution which the applicant fears, and which the Tribunal finds is ‘well-founded’ for the purposes of s.5J of the Act.
Where the State is willing but not able to provide protection, the fact that the authorities, including the police and the courts, may not be able to provide an assurance of safety so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection. In such cases a person would not be a victim of persecution unless it is concluded that the government would not or could not provide citizens in the position of such a person with the level of protection that they are entitled to expect according to international standards.
The evidence is, which is accepted, that the applicant has attempted to obtain effective State protection from Police in [Village 1], while in Ghana. His credible personal experience demonstrates that the appropriate level of State protection was not accessible to him and was refused and is likely to remain the circumstance on his return. There is no evidence the Tribunal has been able to find from the available country information that might demonstrate otherwise.
The Tribunal found the applicant to be a witness of truth. He did not equivocate or contradict his earlier statements or position, although he provided more information than he had previously. This no doubt followed his realisation of the importance of explaining the basis of his fear, whether it was well-founded, and whether it related to the whole of the country of Ghana, and with the assistance of able and skilled representation.
As was found by the delegate following the Department interview, the Tribunal has accepted that the applicant is now a practising Muslim and has converted from the Christian faith and his traditional African culture. The Tribunal is satisfied on the evidence that his religious conversion has triggered the basis of enmity towards him from his family members and local community, not only because of the religious conversion itself, but because of the perceived rejection of the social group from which he emanates and in which he was brought up.
The Tribunal finds it is satisfied there is a real chance that if the applicant were returned to Ghana he genuinely fears harm for reason of his religious belief and rejection of his traditional upbringing and culture. The applicant has no familial support or from the community and faces the risk of unemployment, constant harassment, and an inability to defend himself from persecution, in part due to the requirement to respect his ‘father’ and elders who are in a position of authority and control over him, and from inadequate State protection.
The Tribunal accepts that it would not be reasonable for the applicant to relocate to other parts of Ghana for reason that different dialects and languages in other areas would isolate him, he would be recognised as a Muslim stranger in a largely Christian population, and as someone trying to avoid his family and authority and it is unlikely he would find work or means of subsistence to support himself. It is likely he would be discoverable to his father and family members searching for him. He would be the odd person out in another community, in the country, easily recognisable and discoverable as an outsider, and which may expose him to the risk of serious harm in the form of physical harassment, ill-treatment, and economic hardship. The Tribunal finds it is satisfied that there is a real chance of persecution which relates to all areas of the country, not just Accra and the suburb of [Suburb 1], and in the family village at [Village 1].
As explained in the High Court decision in AppellantS395/2002 v MIMA[5] the Refugee Convention (from which the present statutory definition is derived) would give no protection from persecution for reasons of religion or membership of a particular social group, if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors.
[5] Appellant S395/2002 v MICA [2003] HCA 71; 216 CLR 473 at [40], per McHugh and Kirby JJ.
It would not be reasonable to expect that, on his return, as he was doing previously when living in [Suburb 1], the applicant would be expected to ‘lay-low’ to avoid discovery, to try and remain ‘invisible’ for the purpose of not being found by his uncle or other family members including his brother, and where it would be improbable that his identity would not be revealed were he to move to another part of the country.
On the basis of the above, the Tribunal finds that the applicant has a well-founded fear of persecution in Ghana from non-State agents of harm for the essential and significant reason of his religious conversion, and membership of a particular social group, his direct and extended family, as a person who has renounced his traditional values and upbringing, that being a ground at s.5J(1)(a) of the Act.
After considering the country information and the evidence of the applicant and submissions, the Tribunal is satisfied that there is a real chance of significant physical harassment and significant physical ill treatment, which is systematic and discriminatory, and for the relevant purpose of meeting the refugee criterion, and which relates to all areas of Ghana.
The Tribunal finds that the applicant is a refugee for the purposes of s.5H(1)(a) of the Act, given that he is outside his country of nationality, has a well-founded fear of persecution in the relevant sense, and is unable or unwilling to avail himself of the protection of that country.
The Tribunal has found for the purpose of s.5J(3)(b) of the Act that it would not be reasonable to require the applicant to hide in plain sight or to remain discreet or to live an itinerant life, in order to reduce the real chance of significant physical harassment and significant physical ill treatment, for the essential and significant reason that he is a member of the particular social group, and for reason of having converted his religion in Ghana, with violently opposed immediate and extended family members directed at him.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alan McMurran
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 2352

26 May 2022

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