1821738 (Refugee)

[2019] AATA 6699

1821738 (Refugee) [2019] AATA 6699 (4 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821738

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 November 2019 at 3:23 pm (WA time)

DATE OF WRITTEN RECORD:                20 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a).

Statement made on 20 February 2020 at 10:05am

CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds – subject of attempted abductions – state protection – rule of law society – reasonably effective police force – deference to traditional customary law – internal relocation – networks of influence and cooperation among the leaderships of tribal groups – reasonable modification of behaviour – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA [2003] 216 CLR 473

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 July 2018 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 4 November 2019.

   DECISION

4. The Tribunal remits the decision under review with the direction that applicant satisfies s.36(2)(a).

   Dr Colin Huntly
   Member

   
   

   ‑Corrected Transcript‑

   ORAL DECISION OF MEMBER HUNTLY  [2.56 PM]

   Introduction

5. MEMBER:  The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Regulations.  The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds.

6. Where relevant the Tribunal has taken into account the policy guidelines prepared by the department on refugee law and complimentary protection together with any country information assessment prepared by the Department of Foreign Affairs and Trade in accordance with Ministerial Direction.

7. Much of the country information that has been considered with respect to this applicant has been sourced externally from the Department of Foreign Affairs and Trade country information assessment, as DFAT has not issued such an assessment with respect to Ghana.

   Background

8. The applicant appeared before the Tribunal on two occasions to give evidence and present arguments.  Firstly, on 3 October 2019 and then again on 4 November 2019. The applicant was not represented in this application by a registered migration agent and the hearings were held in the English language.

9. According to his movement record, [in] 2018 the applicant arrived in [Australian State 1], Australia as part of the Ghanaian official delegation for [specified event].  He arrived as a member of the [Occupation 1] contingent to the Ghanaian delegation.

10. On 7 April 2018 the applicant lodged an application for protection.  This application for protection was deemed to be invalid on 8 May 2018 as a result of biometrics not being secured from the applicant.  On 7 May 2018 another protection application was lodged by the applicant and this was valid.

11. The applicant appeared for an interview with the delegate on 17 May 2018.  The delegate of the Minister for Immigration refused to grant the applicant a protection visa by a decision dated 12 July 2018.  The applicant applies to this Tribunal for a review of that decision.

12. The applicant provided the department with a copy of his passport, Ghanaian passport, with his application.  On the basis of the evidence before it the Tribunal finds that the applicant is a citizen of Ghana, which is also his receiving country for the purposes of the Refugee and Complimentary Protection Assessments. 

13. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of section 36(3) of the Act.

    Claims

14. At the first hearing with the Tribunal on 3 October 2019 I explained to you the documents that I had in my possession.  I asked you if there is any information in those documents that should be changed.  You clarified some points about your claims relating to the access of tribal kingmakers to the Gods, and made it clear that you believed that they had networks of influence around Ghana and motivated adherents who would be able to locate you anywhere in that country.

15. Besides this, you indicated there was nothing in the documents before me that should be changed.  I also asked you if there was anything you’d like to add to your claims and you said “No”.  I asked you if I could proceed on the basis of the information I had before me and you said “Yes”.

16. At the second hearing of the Tribunal on 4 November 2019 I reminded you of your answers to those questions and on both occasions I read to you a copy of protection claims, as summarised by the delegate in part 4 of your decision record, at page 2 of that document. 

17. This was a document that you provided to the Tribunal with your application for protection.  Your protection claims are summarised in a series of dot points as follow:

    ·     The applicant is a [Occupation 1] employed by [Employer 1].

    ·     The applicant is a member of the [Tribe 1] family in Ghana.

    ·     The applicant’s uncle being the brother of his father [Mr A] assumed the throne as [Chief 1] in December 2008 following the death of [Chief 2].

    ·     Due to concerns regarding [Chief 1] and claimed inappropriate financial dealings he was destooled by kingmakers in the tribe in August 2011.

    ·     [Chief 3] was installed in an acting capacity in 2014 until a substantive chief could be installed.

    ·     As the first born son of his father and the eldest grandson of the late [Chief 2] the applicant is the substantive candidate for the throne of [Area 1] and overlord of [Area 2] in Ghana, which is traditionally ruled by members of the [Tribe 1] family.

    ·     The applicant’s father fled Ghana to escape the same situation facing the applicant.

    ·     As a Christian the applicant rejects particular traditional practices which he will be obliged to perform or participate in or have practised on him, if he was to accept instalment as the tribal chief.

    ·     The applicant will have a wife chosen for him.

    ·     Two attempts have been made to kidnap the applicant in order to oblige him to accept the throne, however he was able to escape unharmed both times.

    ·     The applicant was forced to relocate within Ghana and keep his whereabouts secret.

    ·     The kingmakers are able to locate people by consulting the Gods.

    ·     Authorities are unable by law in interfering in traditional succession matters.

    ·     The kingmakers attempted to capture the applicant while he was leaving Ghana for Australia.

    ·     The kingmakers now know the applicant’s workplace.

    Country Information

18. I note the delegate’s record of decision has analysed available politically related country information from Ghana involving the situation relating to chieftaincy disputes in Ghana and State protection for individuals who do not comply with chieftaincy rules and traditions.  In particular there is detailed consideration of State protection issues throughout the country.

19. I note that my own survey of country information, including the country information provided to the Tribunal by you supports many of the findings of the delegate with respect to country information and State protection. 

20. However, my personal reading of the country information is somewhat ambivalent.  It is clear that Ghana is a rule of law society with a reasonably effective police force and an appropriate criminal law and reasonably efficient and effective judicial proceedings and judiciary.  Accordingly, by international standards it does appear to be an appropriate rule of law society.  Having said that, all of the country information that I have been able to access, including that which I have particularly had regard to, including information published by the Immigration Board of Canada in 2012 as updated in 2017, indicates that there is a degree of deference in terms of agencies of State protection to traditional customary law, and that this traditional legal system tends to be supported by the police and legal systems within Ghana.

21. This non-interventionist policy by the State gives rise to the very real possibility that tribal retribution is to some extent condoned or tolerated beyond what would normally be expected in a rule of law society.

    Evidence and findings

22. We discussed your claims for protection at the second hearing and your evidence to me was straightforward and credible.  Therefore, like the delegate before me I find that you are a Christian; that you originate from [a specified] region in Ghana; which is your traditional tribal homeland.  I find that you were employed by the [Employer 1] as a [Occupation 1]; that you are the presumptive heir to the leadership of your tribal group as the eldest grandson of your late grandfather.

23. I find that your father was also previously a person identified as a suitable successor to his father (your late grandfather), and that he fled Ghana for a period of time to live in [Country 1] in order to avoid being installed as the leader of your tribal group.[1]

    [1] [Source deleted].

24. I find that country information which I have accessed does identify you as the preferred candidate of the kingmakers in your tribal group and that this has been made common knowledge within your tribal group in Ghana.  Accordingly, I find your claims to be credible in all relevant respects.

25. I further find that you were the subject of attempted abductions before you departed Ghana and that you lived effectively in hiding for the four months before you left Ghana as a delegate of [Employer 1].

26. I accept your claims that you reported this matter to police in Ghana but were not given any kind of protection by the police on the basis that it was a matter of inter-tribal affairs.

27. There may be a number of ways of characterising your claims for protection.  They involve customary law.  They involve the politics of your tribal group.  They involve your religious beliefs because I believe that this objection which you hold to being elected and installed as the leader of the tribal group is based in your religious beliefs. 

28. I find that it is most appropriate to characterise your claimed fear as being a fear of persecution for the essential and significant reason that you are member of a particular social group, namely, tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds.

29. I further find that there are common innate or immutable characteristics of all members of the particular social group, which are also shared by you, and are not a fear of persecution.  I accept that you would be unable to live openly as you wished to live in Ghana now or in the reasonably foreseeable future without fear of persecution in that country for the essential and significant reason of your membership of that particular social group.

30. I note in particular that an applicant for protection does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.  For example, depending on the circumstances an applicant who belongs to a persecuted group might establish a well-founded fear even though an applicant has not personally suffered harm in the past.  Having said that, I do accept that you have been targeted for harm by agents in that country.

31. I also find that the agents of harm you fear are not merely the kingmakers of your tribal group but also your competitors or perceived competitors for the tribal chieftaincy, including one who has been rejected by the kingmakers and one who asserts rights to the vacant position within your tribal group.  These people are all motivated to harm you, together with their adherents.

32. I note in passing that an applicant who has not been persecuted in the past might establish a well-founded fear because their own circumstances have changed or because circumstances have changed in the applicant’s country during their absence.  I also note that country information shows that there is still a vacancy in this Tribunal position as at the date of this hearing.

33. I find that the harm you fear is both systematic and discriminatory and amounts to serious harm for the purposes of s.5J(4) of the Act.  I also find on the basis of relevant country information that because of the networks of influence and cooperation among the leaderships of tribal groups, which are formalised in Ghana in a way that’s not readily appreciated in an Australian context, the existence of a real chance of significant physical harassment and significant physical ill treatment in Ghana of members of a particular social group tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds in contested tribal instalment controversies is a real chance of significant harm which exists throughout that country.

34. I note that how an individual chooses to respond to a given chance of significant physical harassment and significant physical ill treatment does not determine whether there is a real chance of such harm will occur.

35. On the basis of the credible country information I have referred to already, I find that effective protection measures are not available to members of the particular social group tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds being innate or immutable characteristics of the applicant, which are shared with members of the particular social group.  This is because effective protection measures are not available to members of this group as adequate protection against persecution either cannot or will not be provided to members of the particular social group by the Ghanaian State.  Credible country information raises doubts about whether the Ghanaian State is willing and able to offer such protection for the purposes of s.5LA of the Act.

    Summary

36. Accordingly for the purposes of s.5J of the Act, on the basis of country information I find the applicant would face a real chance of significant physical harassment and significant physical ill treatment in Ghana now and for the reasonably foreseeable future for the essential and significant reason that he is a member of the particular social group tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds being innate or immutable characteristics of members of the group that are shared by the applicant.

37. I note in particular that harm from non-State agents may amount to persecution for the purposes of the Act, if the motivation of the non-State actors relates to one of the reasons contained in s.5J(1)(a) of the Act and the State is unable to provide adequate protection against the harm where the State is, for example, complicit in the sense that it encourages, condones or tolerates the harm.  The attitude of such a State is consistent with the possibility of there being persecution.

38. Where a State is willing but is not able to provide protection the fact that 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 protection.  In such cases a person will not be a victim of persecution unless it is concluded that the government would not or could not provide citizens in that position with the level of protection that they are entitled to expect according to international standards.

39. Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, so as to avoid a real chance of persecution in the receiving country.  However, I note that this does not apply to a modification that would conflict with the characteristic that is fundamental to a person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require a person to alter their religious beliefs, their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

40. In the context of what is reasonable, I note that the well-founded fear of persecution cannot be regarded as being restricted to a single part of a receiving country if relocating carries with it the need to avoid persecution by living discretely or otherwise being invisible.  In this respect I refer to McHugh and Kirby JJ’s comments (in the context of the prior Convention framework for protection) in Appellant S395/2002 v MIMA [2003] 216 CLR 473:[2]

    The Refugee Convention from which the present statutory definition is derived would give no protection from persecution for reasons of religion or political opinion 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. 

    [2] At [40].

    Conclusions

41. I have considered each of the integers of your claims for protection individually and then cumulatively.  On the basis of my earlier findings, taken together with relevant country information referred to above, I find your evidence is credible and supported by country information.  I find that therefore you do have a well-founded fear of persecution in Ghana now or in the reasonably foreseeable future for the essential and significant reason that you are a member of a particular social group tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds being innate or immutable characteristics shared by members of the group including yourself.

42. I further find that this fear of persecution is for the essential and significant reason of grounds articulated in s.5J(1)(a) of the Act as discussed above.  On the basis of country information there is a real chance of significant physical harassment and significant physical ill treatment, which is systematic and discriminatory to you, if you returned to Ghana now or in the reasonably foreseeable future, and this real chance relates to all areas in Ghana.

43. Pursuant to s.5J(3)(b) of the act it would not be reasonable to require you to be invisible or discrete in order to reduce your real chance of significant physical harassment and significant physical ill treatment due to your membership of this particular social group tribal chieftaincy recusants in Ghana opposed to instalment by kingmakers on religious grounds.

44. I further find that you would not be able to secure effective State protection for the purposes of s.5LA of the Act.  Accordingly, I find that you are a person in respect of whom Australia has protection obligations given that you satisfy the criteria set out in s.36(2)(a) of the Act.

    Decision

45. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Act.

    END OF ORAL DECISION  [3.23 PM]