1822577 (Refugee)

1822577 (Refugee) [2022] AATA 2500 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Samuel Wellington (MARN: 1383180)
CASE NUMBER: 1822577

COUNTRY OF REFERENCE: Ghana
MEMBER:Tania Flood
DATE:16 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2022 at 6:00pm
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christianity – particular social group – fetish animist priesthood – refusal to perform rituals – physical violence – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 31 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 21 May 2018. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Ghana, on the basis of death threats received owing to his practice of Christianity and his refusal to accept successorship of the fetish priest position in his village.
The applicant appeared before the Tribunal on 1 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend A], a friend of the applicant in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Ghana for reasons of race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ghana there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is [an age]-year-old citizen of Ghana. He was born in Accra in Ghana. Before coming to Australia, he resided at [Town 1], Brong-Ahafo Region in Ghana from [specified year] to 2018. He completed schooling at [a named] High School in [Town 2] in [year] and obtained a qualification in [a specified subject] at [College 1] at [Town 3], Accra in [year]. His [children], mother, father, [and specified family members] all reside in Ghana. The applicant was self-employed at [Business 1] from [year] until 2018. He visited [Country 1] from [in] June 2016 to attend a Trade Exhibition and he travelled to [Country 2] as a tourist [in] July 2008.
The applicant arrived in Australia [in] March 2018 as the holder of a [temporary] visa. He lodged an application for a protection visa on 14 April 2018 that was deemed invalid on 26 April 2018. On 18 May 2018 the applicant lodged an application for a protection visa and this application was refused by a delegate of the Minister on 31 July 2018.
The applicant made the following claims on the statement attached to his visa application form:
The applicant claims he is unable to return to Ghana because he fears being persecuted because of his Christian religion and his reluctance to accept an appointment by his relatives to become a fetish animist priest.
He states that at [age] he received a visit from his uncle who wanted him to become the next fetish priest of his family. He states that his uncle attempted to give him cowrie shells for protection against evil spirits but he first declined the gift due to his Christian beliefs which made his uncle angry. He ultimately accepted them and then threw them away. He claims that his uncle visited him repeatedly thereafter asking about the cowrie shells but he lied about them out of fear of his uncle’s reaction.
He claims his uncle explained the matriarchal lineage in his family and the importance of the fetish priesthood. He stated that his family was responsible for the position in their village and that the applicant would serve under the current fetish priest and inherit the position when the incumbent died. He was told to prepare for the Afahye festival which would formalise the intended succession.
The applicant says that he refused the request and that his uncle swore to kill him as he had disgraced his family. He left for Accra, then returned to visit his family, whereupon [in] October 2017 his uncle threatened to kill him again and gave him 3 days to present himself for the commencement of the festival. The applicant states that he hid at a friend’s house at [Town 4] about [distance] from his village. He claims that on the third day he attended local church instead and that when he returned to his village a week later, his uncle pursued him with a machete and no one intervened to try to stop him.
The applicant then moved to Accra and made a complaint to local police, who did not investigate as ‘it was a fetish matter’. He states that his uncle travelled to Accra again in January 2018 to try convincing him once again. He retained his oppositional stance and his uncle threatened to return again to teach him a lesson.
The applicant states that he has let down his family and made enemies amongst his relatives as a result of his decisions. He says that his siblings are ‘divided on the issues’ but agree with him as they are all practicing Christians, and that his mother supports him but will not speak against his uncle. The applicant claims that his uncle is aware that he left for Australia and has vowed to kill him when he returns. He states that in Ghana he must become the ‘chief priest’ or die and he wishes to remain in Australia where his religious rights are protected and he can practice his religion without fear.
The applicant states that police in Ghana will not protect him as they do not want any trouble from the current fetish priest and/or traditional rulers of the land.
Documents submitted to the Department
Applicant Passport – Travel ID [number] – Issued [in] 2021, expiry [date], place of issue is Accra.
Attachment A – 3-page statement of claims accompanying protection application.
Statutory declaration dated 25 May 2018 – [Friend B] – States that [Friend B] knew the applicant from Church and gave him shelter in her two bedroom unit with her daughter due to his not having work rights. She states that his presence is inconvenient and financially difficult and hopes that he will be granted work rights so that he can support himself.
[Bank 1] transaction listing dated 25 May 2018.
UNHCR Report – Ghana: The distinction between a fetish priest and chief/chieftain, especially regarding which is more privileged in the community; likelihood of physical punishment or reprisals for refusing to accept the position of fetish priest 20/07/2004.
Immigration and Refugee Board of Canada – Ghana: Consequences of refusing a fetish priest of chieftaincy position, and whether there is state protection available 06/08/2012.
UNHCR – Ghana: Presence of cults or sects and consequences for refusing to join a cult; government attitude or response towards cults and/or any abuses committed by sect members (2004-2006) 11/10/2006.
Certificate of baptism.
Documents submitted to the Tribunal
Various photographs mostly of persons, unspecified.
Photograph of a ‘fetish priest licence’ of [Uncle A].
1x video 7mins 26 seconds – depicts a group of individuals in a green walled building, speaking in an unspecified language.
Statutory Declaration by [Uncle B] 21/04/2022 – He stated he is a member of [Uncle A’s] family of [Town 5] of Ahafo, Ghana and that he is an uncle of the visa applicant. He states that [Uncle A] is the current fetish priest of the maternal family of the visa applicant. He states that the applicant was chosen as the next fetish priest, that he is a devout Christian and refused the successorship and was nearly killed consequently. He states that the visa applicant fled to Australia for [a visit] in 2018 and that most family members support his decision to stay in Australia.
Tribunal hearing
When the applicant appeared before the Tribunal he provided the following oral testimony:
He was born in Accra and is a citizen of Ghana. He lived in Accra from around late 2016/early 2017 with a friend. Prior to that he resided in Kumasi from around 2006 until 2016 with his sister. Before that he lived in his home area, [Town 1].
He became a Christian at age 14. He practiced Christianity freely from then on but when his family called him to be the fetish priest he encountered problems. He has other family members who are Christian and others are traditionalists. Those other members of the family who are Christian are free to practice their beliefs because they have not been called on to be a priest. He previously attended [Church 1] which has a branch in [Town 1] and Accra. His church is charismatic.
In Australia he has attended a church [named] and now attends [Church 2]. If he is not working he attends weekly.
He married in Australia and he has one child. In Ghana he was not married but he and his former partner had [children]. [Details of children deleted]. They live in Accra with their mother. He and his former partner initially lived together but as her family were Christian and his family was pressuring him to be the fetish priest her family disapproved of their relationship. When he moved to Kumasi his former partner and children remained in [Town 4] which is close to [Town 1].
His father lives in Accra but his mother is deceased. He has a sister in Kumasi and a [sibling] who lives and works as [an occupation 1] in [Country 3]. He has aunts and uncles in [Town 1], [Town 5] and Kumasi. He has contact with his sister, father and an uncle who is a church elder.
He is a qualified [occupation 2]. In Kumasi he worked [in another job]. He also had a business importing and selling [products]. When in Accra he relied solely on this business for his income.
He continues to fear returning to Ghana because his uncle has threatened to kill him for refusing to become the fetish priest. He asked his sister and his uncle from the church to meet with the family and try to find a way out of his predicament but they did not succeed. His uncles maintains that he has been chosen by the Gods for the role.
After the death of his mother in 2017 the land which was allocated to her by the family was withdrawn and he can no longer work those lands. When he went to visit the land his uncle and some other elders came to attack him. His relatives told him that if he refuses to be the fetish priest he can no longer enjoy access to the land. He reported the attack to the police but they said they do not get involved in religious disputes.
His [Uncle A] is the current fetish priest. He is about [age] years old now and he has been chosen to be his successor.
He was first approached about assuming this role when he was 17 years old. His uncle came to visit him at school and said that the Gods had selected him to replace him as fetish priest. He told his uncle he was Christian and couldn’t accept the role. He later saw his uncle was getting angry and he agreed to accept his traditional offerings.
Thereafter he was invited every year to attend family meetings to persuade him to accept the position. He kept refusing. In such cases the family will keep on insisting until the chosen one either accepts the role or dies in which case they will find another person for the role.
He said the Christian members of the family support his decision not to accept the role.
When he continually refused to accept the role the family withdrew their support for him. He was forced to move out of the family home and live with friends in [Town 4].
In October 2017 he went to visit his wife and children. At that time he also went to visit his family home to speak to those uncles who supported him. On that occasion he was attacked by his uncle, the fetish priest. He said there was conflict and his uncle tried to cut him with a knife but he managed to escape. After that he went back to Kumasi and he never returned to [Town 1] again. He went again to the police but they told him the same thing, that they do not get involved in religious matters. Later he moved to Accra to avoid further threats.
In around March 2018 his uncle came to Accra to issue him with a last warning. Either accept the position or be killed. He does not know how his uncle found him in Accra. He has the ability to track him anywhere in the country. It might be the case that his uncle contacted his friends in [Town 1] and [Town 4] for information about his whereabouts.
As to why he did not seek protection in [Country 1] when he travelled there in 2016 he said he didn’t have an opportunity as he was deported back to Ghana on the very day he arrived in the country.
A member of the Ghanaian parliament who knew about his situation helped him to come to Australia. He was included [in a visiting group]. He did not attend or participate in the [group] in anyway as he decided he did not want to go back to Ghana.
As to why he could not live in Accra again he said that when traditional rulers have an issue with you they have the power to do whatever they want with you and the police and the government have no authority over them. In any event, human beings need peace of mind and he would never have it even if he lived in Accra.
Regarding the photographic evidence submitted to the Tribunal he explained that he is the baby in one of the photographs and his uncle the priest kept that photo of him in his room since he was baby as he was chosen from a young age to be his successor. The other photographs show him attending church services and supervising the construction of a new church.
Regarding the video clip submitted to the Tribunal as evidence he said it is a video of a family meeting following his request to his sister to try to find a way for his uncle to agree to him not being his replacement.
He is currently having problems with [specified medical] issues and he doesn’t know if these problems are related to his uncle’s threats of retaliation.
As to the information contained in the delegates decision about his use of a different identity in former immigration matters he said he didn’t know anything about this at the time of his last interview. Afterwards he remembered that some years back he gave his passport and some money to a man in Accra who offered to get him a visa to [Country 4]. After the interview with the delegate he called that man and he confirmed he used the different identity ([Alias A] DOB [specified]) for that purpose.
Additional evidence provided to the Tribunal
On the day of the hearing the applicant produced a letter from [Lawyer A] of [Court 1] dated [in] May 2022. The letter states that the applicant’s life is in real danger and that various communities in Ghana have their unique customs and culture which have the backing of the law. [Lawyer A] states that disobedience to custom and culture has severe repercussions as the offender is punished at both the traditional level and by a court of law. In addition the person chosen to be priest will be put under a spell through rituals and the chosen person will be first segregated from his family, made to go through rituals and if that person refuses he will be kept at a place for days until he agrees to become a priest.
[Friend A], who attended the Tribunal hearing, stated that he has known the applicant since 2018 through the church. He stated that he visited Ghana last January and on that occasion he visited the applicant’s former partner and children in Accra. He stated that the applicant’s former partner confirmed to him the claims made by the applicant.
Additional documentation presented to the Tribunal includes:
-    Certificate of Baptism from [Church 1] indicating the applicant was baptised [in] March 2000.
-    2 x photographs of the applicant as a baby.
-    1 x photograph of the applicant at a church service in Ghana
-    4 x photographs of a construction activity
-    A statutory declaration from [Ms A], the traditional wife of the applicant in Australia which states their intention to formally marry.
-    A letter dated 27 May 2022 from [a named] Civil Marriage Celebrant, which indicates a Notice of Intention to Marry has been signed.
-    1 x photograph of the applicant’s Australian born baby
-    1 x photograph of the applicant, [Ms A] and their newborn baby.
-    1 x photograph of the applicants remaining children in Ghana.
-    1 x photograph of the late child of the applicant.
COUNTRY INFORMATION

The Department of Foreign Affairs and Trade has not provided a country information report on Ghana.
According to the US Department of State 2020 Report on International Religious Freedom: Ghana, some 71 per cent of Ghana’s 29.3 million population is Christian, 18 per cent is Muslim with the remained adhering to indigenous beliefs or other religious groups. Many individuals who identify as Christian or Muslim also practise some aspects of indigenous beliefs. There is nothing in the report which suggests that individuals are likely to be harmed for refusing the role of chief or priest or that human sacrifice is commonplace.
According to reports prepared by the Research Directorate of the Immigration and Refugee Board of Canada (IRBC)[1] chiefs and fetish priests are different roles and the situation for both varies according to ethnic group or clan. Chiefs operate in the public sphere in a political role, although they may have some involvement in religious or ritual activities. The Chieftaincy Act gives them power to mediate local matters and enforce customary tribal laws dealing with such matters as divorce, child custody and property disputes, although their power has waned in recent years. The more important and powerful chieftainships are often held by educated and wealthy persons many of whom are Christians. Priests generally operate in the more private, religious sphere.
[1] IRBC report, ‘Ghana: the distinction between a fetish priest and chief/chieftain, especially regarding which is more privileged in the community; likelihood of physical punishment or reprisals for refusing to accept the position of fetish priest’, 20 July 2004 GHA42842.E, ‘Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available’, 16 August 2012, GHA104154.E, ‘Ghana: State involvement in chieftancy matters, such as blood rituals for deceased chiefs and their successors, including legislation: consequences of divulging a secret ritual to another member of the same ethnic group, including the Kotokoli in the Volta region’ state protection available to individuals that do not comply with chieftaincy rules and traditions’, 2014-2017, GHA105792.E
According to IRBC reports cited above priests are selected from a family believed to be ‘possessed’ by a god or become priests after being possessed by a deity who revealed itself perhaps in a dream. They are usually associated with a particular shrine. They perform rituals to consult and seek the favour from the gods associated with that shrine and serve as mediators between the gods or spirits and living people.

65. According to IRBC reports dated 2004, 2012 and 2017 views on the consequences of refusing the position of chief vary. However, none of them suggest that refusal to take on the role of chief would place someone at risk of death or serious harm throughout Ghana. According to an academic consulted in 2017 candidates are free to accept or refuse a chieftaincy position in any part of Ghana. Other observers note that candidates who refuse to take on the role may face significant pressure from their clan family and by clan members who fear losing the status and benefits associated with the position. According to some, candidates who wish to avoid being selected often leave the area and can usually return after the position has been filled without experiencing serious problems. Candidates who remain in the area but refuse position are not punished but may need to offer a sheep for sacrifice to pacify annoyed ancestors. The disappointed elders may express their irritation, but it happens so often, they usually sigh and are resigned to the fact.

The consequences for individuals who refuse to take on the role of priest appear to be similar to those which apply to chiefs. In 2004 an academic observed that it would be difficult for someone who rejected the position of priest to remain in the area as they would be blamed for all the misfortunes which befell their extended family, although they were unlikely to be at risk of physical harm.

67. A senior lecturer at the University of Ghana’s Department of Sociology advised “there is no physical punishment for refusing a traditional position”.[2] Similarly, a 2009 Operational Policy Guidance Note published by the UK Home Office reported that ‘there is no specific evidence that individuals who claim they are persecuted by family, community or tribal leaders to become the next chieftain or priest in fact encounter mistreatment’.[3]
[2] IRBC, ‘Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation, 2 May 2017
[3] UK Home Office, Operational Guidance Note: Ghana, 29 January 2009
FINDINGS AND REASONS
Country of reference

The applicant has produced his passport which is issued by the Republic of Ghana and which verifies his claimed identity and nationality. On the basis of this information and in the absence of any information to the contrary the Tribunal accepts the applicant is a national of Ghana.
Claims in respect of the applicant being chosen to be the next fetish priest in his local area
For the reasons which follow the Tribunal has concerns about the applicant’s credibility.
Firstly, the Tribunal considers the applicant has given an inconsistent account of the incident in which it is claimed his uncle attacked him with a cutlass and threatened to kill him in October 2017. In his written claims the applicant states that after he left for Accra, he made a return trip home to visit his family, whereupon [in] October 2017 his uncle threatened to kill him and gave him 3 days to present himself for the commencement of a festival. The applicant states that he hid at a friend’s house at [Town 4] about [distance] from his village. He claims that on the third day he attended local church instead and that when he returned to his village a week later, his uncle pursued him with a machete and no one intervened to try to stop him. The applicant’s oral evidence to the Tribunal differs from this account in significant ways. The applicant made no mention in his oral evidence of his uncle demanding that he attend a festival or having to hide at a friend’s place in a neighbouring village and nor did he indicate that the attempted attack on him by his uncle with a machete occurred some three days after his visit to the family home.
When the above concern was put to the applicant during the hearing he responded that he has had some health concerns ([specified medical] problems) for some time now and feels sick and has difficulty remembering things. While the Tribunal does not discount the possibility that the applicant may have some physical health problems there is no evidence before the Tribunal to support that this would interfere with his memory. Further, the Tribunal explored the details of this incident in some detail with the applicant and even gave him a second opportunity to repeat in as much detail as possible the sequence of events he claims occurred. In light of this and given the significant discrepancies between the two accounts the Tribunal does not accept that his evidence in this respect can be believed and in the Tribunal’s view this casts doubt on his credibility.
Secondly, as the delegates decision which is before the Tribunal indicates when the applicant was questioned during the protection visa interview about his lack of attempts to secure asylum in either [Country 1] or [Country 2] he stated that he did not have the opportunity to apply for protection in those countries as he had to return from [Country 2] due to the passing away of [a family member] and that he had to return from [Country 1] due to the passing away of [another]. In his oral evidence to the Tribunal the applicant stated that he was deported back to Ghana on the very day that he arrived in [Country 1] and this is why he could not seek protection there. When the Tribunal pointed out that he informed the department that his reason for departing [Country 1] was because his child had died he then agreed that his daughter died but repeated his assertion that he was turned back at the airport. While it might be the case that his daughter passed away around this time the Tribunal nevertheless remains of the view that the applicant has provided different information in respect of the circumstances of his departure from [Country 1] to the department and the Tribunal and this further causes the Tribunal to have concerns about the reliability of the applicant’s evidence.
Thirdly, the Tribunal is concerned about the applicant’s responses in respect of the information first put to him by the delegate about his alleged use of an alternative identity for immigration matters. When this information was presented to the applicant during the protection visa interview he said that he did not remember ever possessing identity documents in the name of [Alias A]. His oral evidence to the Tribunal is that he remembered after the interview with the delegate that he had once given his passport and some money to a man in Accra to obtain him a visa to [Country 4] and that after being presented with the information by the delegate he made a phone call to that man who confirmed to him that the documents he obtained on his behalf were under the identity of [Alias A]. The Tribunal found the applicant’s explanation to be rehearsed and unconvincing. The Tribunal also finds it farfetched and convenient that he only remembered this information after the conclusion of the interview with the delegate and not at the time he was confronted with the issues. It is the Tribunal’s view that the applicant has fabricated this alternative response in the time between the interview with the delegate and the Tribunal in a bid to overcome the concerns expressed about his credibility. The Tribunal considers this also reflects poorly on his credibility.
While the Tribunal would not have rejected the applicant’s claims solely for reason of his evidence in respect of the circumstances of his departure from [Country 1] and the alternative identity issue, it finds it to be a further indication that the applicant is not a credible witness.
Fourthly, the applicant’s claims regarding the problems that he faced in Ghana are not closely aligned with independent reporting on the consequences of refusing to accept a traditional role such as priest or chief in Ghana. As discussed with the applicant during the hearing while it appears people who inherit these positions may face some pressure from family or tribal members, the evidence does not support that they are likely to be physically harmed or killed or that they would be pursued throughout the whole country to force them to accept the position or punish them for not doing so. The Tribunal acknowledges that the letter of support from [Lawyer A] suggests otherwise but the Tribunal notes this evidence is, according to the applicant, from a friend of the applicant’s family and in the circumstances the Tribunal prefers the information outlined above from a variety of independent sources. In any event, as discussed with the applicant during the hearing certain information contained in [Lawyer A’s] letter, namely that persons selected for a traditional role such as fetish priest would be segregated from family, made to go through rituals and if the position is refused the person would be kept in seclusion until such time as they agree to take on the role, does not sit well with his evidence. While the applicant maintained that he has been continually pressured and threatened to accept the fetish priest role for some thirty years, it has never been claimed that he was physically restrained or forced into submission as [Lawyer A’s] letter suggests would likely occur. The Tribunal has placed weight on the independent country information outlined above which further causes it to doubt that the applicant’s claims can be believed.
The Tribunal has considered the oral evidence of the applicant’s friend [Friend A] and the written statement from his uncle [Uncle B] but both parties are personally connected to the applicant and are not disinterested parties. In any event their evidence does not overcome the Tribunal’s concerns regarding the applicant’s truthfulness regarding his claimed problems in Ghana.
The Tribunal has also considered the photographic and video evidence presented to the Tribunal. While the applicant claims the photo of himself as a baby was kept in the room of his uncle the fetish priest there is no independent evidence to verify this claim and in any event it does not provide proof that the applicant was chosen to be the next fetish priest. Similarly, the video clip is untranslated and the only account of what is depicted in that video is that provided by the applicant himself. The Tribunal has given this evidence little weight.
After considering all the available evidence the Tribunal is not persuaded that the applicant has provided an honest or accurate account of his problems in Ghana or his fears on return to his homeland. The Tribunal does not accept that the applicant was selected as the person to replace his uncle who is the current fetish priest in his local area or that he was threatened or harmed by his uncle or other family members in a bid to get him to take up the role or to punish him for not doing so or that he was forced to relocate within Ghana to avoid these problems. Nor does the Tribunal accept that the applicant’s mother was mistreated by her relatives because her son refused to take up the role of fetish priest. The Tribunal considers the applicant has fabricated these claims in order to achieve a migration outcome in Australia.
The applicant claims he was continually pressured and threatened with harm for refusing to take on the role of fetish priest. He also claims that his mother was denied use of family land and that he was assaulted when visiting his mother’s land for the same reason. The applicant states that he fears returning to Ghana because his uncle has threatened to kill him for refusing to become the next fetish priest and he will also face difficulties because he too will be denied access to family land. However, for the reasons discussed above the Tribunal does not accept these claims.
The applicant’s Christianity
For completeness, the Tribunal accepts the applicant is a Christian on the basis of his evidence and information which was not available to the delegate. According to the applicant the only problem he faced in Ghana on account of his religion was in connection with his refusal to accept the role of fetish priest which the Tribunal rejects. The abovementioned country information indicates that the majority of Ghanaians are Christian and that religious freedom is generally respected by the state and community. There is no suggestion, and nor does the Tribunal accept that the applicant faces persecution in Ghana merely for being and wishing to continue being a practicing Christian.
There is no suggestion that the applicant fears returning to Ghana for any other reason.
CONCLUSIONS
On the available evidence the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Ghana now or in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion. Accordingly, the Tribunal is not satisfied that he has a well-founded fear of persecution in Ghana. Therefore, he does not satisfy the criterion in s36(2)(a) of the Act.
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). On the evidence before the Tribunal and for the same reasons articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2500

16 June 2022

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