1823125 (Refugee)

1823125 (Refugee) [2021] AATA 4156 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1823125

COUNTRY OF REFERENCE: Ghana
MEMBER:Anne Grant
DATE:1 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 01 September 2021 at 10:35am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian – complementary protection – tribal dispute – refusal to assume tribal concoction maker role – physical assault – fear of arrest – fear of killing – state protection – third country protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
MIAC v SZQRB [2013] FCAFC 33
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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 20 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a citizen of Ghana, applied for the visa on 30 April 2018. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims as credible and found that there was not a real chance that the applicant will suffer serious harm in Ghana due to his Christian faith. In the alternative, the delegate found that there were not substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being returned to Ghana.
The applicant was invited to and attended a hearing on 19 May 2021 at the Tribunal at which he gave evidence. He was supported by his wife, who was present throughout the hearing. The hearing was assisted by an interpreter in the Twi language.
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 (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 applicant is a citizen of Ghana. He has produced a Ghanaian passport and his nationality is not in issue. The Tribunal finds that Ghana is the country of his nationality and the receiving country in considering his protection claims.
The issue in this case is whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of him being returned to Ghana.
The applicant claims to fear that he will be killed, beaten, tortured and harassed in Ghana because he refused to become the concoction maker in his tribal community of [Village 1] (also written by the applicant as [name] but referred to in this statement as [Village 1]) in the [Region 1] of Ghana. His uncle (his mother’s brother) died in [2017] after [period] in the role, aged [age], and the applicant was told that it was his role now, because he was next in line due to the role passing on the maternal side. It has been passed on through his maternal family line for over 100 years. He claims that initially, he thought it was just a ceremonial role and that he could help his tribe and so he agreed. He was living in Accra with the mother of his [children] when his uncle died. They had been together since about 2002. The applicant has [children born in specified years]. His partner’s family had always been against her relationship with him and when the ‘black magic’ role arose, they took her and his [children] away because they didn’t want her to have anything to do with it. They are no longer together, but he speaks to her and to the children regularly.
He has only one living sister, who is in Ghana and who has [children]. [Another sibling] lived in [another country] but [has] passed away. His mother and father are both dead but his father had nothing to do with the family at all, as he had left them many years before. Some of his mother’s family and his father’s family (siblings) are still in [Village 1]. He knows very little about them really, except that his father’s brothers have many children among them. There was never a good relationship between the families.
Because the role passes to the oldest son in the next generation of the maternal line, it passed to him. On his death, it would pass to his sister’s son.
The applicant claims that at the time of his uncle’s funeral he travelled to his tribal village, [Village 1], and even commenced instruction in concoction making. On the fourth day, the Fetish priest said that the applicant could not attend church, because being the role of concoction maker was inconsistent with being a Christian. The applicant had become a Christian in 2000.
The applicant claims that he decided that he could not continue in the concoction maker role and gave back the ceremonial implements. His uncles and cousins were very angry, as were other villagers. He was badly beaten by members of his community and hid in a forest nearby where they were afraid to enter. When he got to safety he reported it to police but they informed him that they could do nothing about Fetish matters and he should consider leaving the area.
Before going to [Village 1], he had been living in a suburb [in] Accra. He hoped to return there to live once things had calmed down but his housemate told him that threatening groups of men had visited his home on more than one occasion, forcing their way in, searching his belongings, and looking for him. His friend told him not to dare returning. So, he did not return. He went to Kumasi in the Ashanti region. He stayed for two days but left because there was too much violence and he was not familiar with the area. He went back to Accra to another suburb, where he lived temporarily in a partially constructed house of a church friend who helped him to get to Australia. The applicant claims that with the assistance of his Christian church, he stayed in hiding until someone helped him get a visa to come to Australia. He stayed in hiding until he left the country.
The applicant arrived in Australia [in] March 2018 [in an official capacity]. He acknowledges that he was not actually [genuinely accredited] in any way. Someone from his church made all the arrangements in order to get him to safety and to protect the applicant from his tribal persecutors.
The Tribunal member has listened to the interview between the delegate and the applicant. The Tribunal accepts the content of that interview which is summarised in the decision statement (provided by the applicant in lodging his review) as being a reasonable summary of the evidence given by the applicant during that interview.
In support of his application for protection, the applicant also provided the following additional information and evidence:
·In response to a request by the Department that he produce a police report about the incident reported in 2017, the applicant has advised that a friend has travelled to the village but the police there have repeatedly told him that they could not release that information to any third party apart from the applicant.
·On 12 May 2021, he provided a letter from his wife, [named], who is an Australian citizen. In this letter, [the applicant’s wife] confirms they have been married for two years. She reports that her husband suffers from ongoing nightmares and terrors almost nightly due to his experiences in Ghana. He has told her details of his beatings by the community, how he ran to the bushes to hide and how he was scared for his life. She confirms that the applicant is seeking treatment for his mental health from [Doctor A]. [The applicant’s wife]asks the Tribunal to grant her husband a protection visa.
·On 12 May 2021 the applicant also submitted a Letter from [Health Service 1] dated 29 April 2021. This letter is from [Doctor A], a Mental Health Nurse and Clinical Director at [Health Service 1]. He states that he has seen [the applicant] since early 2021 due to diagnoses of PTSD, anxiety, and depression. In this report, [Doctor A] reiterates the applicant’s life history and refers to the role of the concoction maker and ancestral responsibilities. He suggests that the applicant told him he had returned to Accra to attend church after completing a three day induction as concoction maker. He spoke to his local priest about the role. When he returned and refused the role, the Fetish priest and community were furious. He said that ‘the village’s young men reportedly plotted to abuse him and threatened to lynch him, prompting him to flee into the forest.’ The experience left him traumatised and he went into hiding before being given the opportunity to come to Australia. [Doctor A] said the applicant was referred by his GP [Doctor B] from [Health Service 2] for management of his psychiatric symptoms of recurrent episodes of low mood and reduced energy; flashbacks and nightmares; long lasting anxiety; negative ruminations; periods of agitation; appetite changes; fear of loss of control; suicidal ideation; headaches, palpitations and withdrawal. Treatment is via attending sessions with the report writer. Cognitive behavioural therapy is planned to help alleviate his symptoms. [Doctor A] says that the applicant’s symptoms for depression anxiety and stress were each at the ‘extremely severe’ level under the DASS-42 measures.
·On 12 May 2021, the applicant also submitted a Letter from [Mr A] In this letter, [Mr A] confirms that he is the applicant’s former housemate, and adds as follows:
I remember one mid-morning some strange looking men entered our house unannounced, amidst noise making and chanting of some words. Soon we would realise these are men sent from [the applicant’s] village. They started throwing tantrums about, asking for the whereabouts of [the applicant]; calling him by a certain native name I can’t remember.
They forced their way into his room scaring all co-tenants in the house. They looked everywhere inside for him but they couldn’t’ find him.
They turn the room into a mess. I think the motive was to find out whether he was hiding somewhere in there. It was a horrible experience because once they couldn’t find him in his room they force their way into everyone else’s room, turning things up and down to look for where he could be hiding. It was a very troubling moments for me because, I quite remember when [the applicant] returned from his village his body was bruised, he had skin rashes and it was evident this man had been beaten by a mob. He wouldn’t tell me everything right away, I remember him telling me ‘I can’t do this no more, I don’t ever want to be a concoction maker ever again, I won’t ever go back there, it’s evil, they are evil. Can you imagine I went to the police posts in my village only to be told they don’t handle spiritual issues’. Before they left the house his uncle who had visited him in the house before the incidence angrily left a message for him amidst shouting ‘Hey all of you listen to me, tell my nephew he can run but he can’t ever hide so he had better return to the village peacefully else we will come fish him out and teach him a great lesson’. Their appearance, mannerisms and message left us shivering with fear. They came back after a month or so and this time it was much terrifying because one of the warriors killed a fowl in front of [the applicant’s] door amidst chanting of war songs and incantation. Luckily for [the applicant] he had been hiding at [another location] since he first returned from the Village knowing his uncle might help the people in tracing his home in Accra.
I am really happy for him to have been able to run out of this country, his life was really in danger.
On 17 May 2021, the applicant submitted a statutory declaration in support of his claims and attached article with the response to hearing invitation. The content of the statutory declaration reiterated aspects of his claims and addressed concerns raised by the delegate in the decision under review. In summary, in this new declaration, the applicant:
·Gives details about the [Church 1] in [Suburb 1] and reiterates that he continues to attend at that church regularly, though there have been ongoing restrictions since around June 2020 due to the COVID19 pandemic. After restrictions lifted, he started attending Mass on Sundays and has attended every week since March 2021. In the period between, he participated in a [social media] group chat with other church members to pray together. He continues to do so.
·Referred to the delegate’s concern about him not being a ‘good Christian’ because he had been in a long term de facto relationship. The applicant does not agree that the relationship would be contrary to his faith. The important thing is whether or not you love the person and he did love [Partner A]. However, her family did not approve of him because of his tribe’s practices in black magic and worshipping idols.   This is common in Ghana where people look down on tribes who worship idols. He claimed that they had children together because they loved each other and hoped that her parents would eventually approve of him.
·Notes that the delegate did not accept that the applicant had been ‘recruited’ to be a concoction maker. He gives details of his family tree and further reiterates the importance of the role and how the role is passed down through the maternal side of the family. He adds “When I was growing up, I lived in Accra, the capital city of Ghana, and not the village. The village is [distance] drive from Accra. In fact, I did not even visit the village until 2000. However, I knew since I was 20 years old that I was the next in line because this was the role that my family played in the community – we always supplied the concoction maker for the village. Although I had other uncles on my mother’s side, they could not take the role because I was the next in line, because it passes down the matriarchal line.”
·Stated that his uncle had told him that he would learn the role as time passed and would often call the applicant and talk to him about it. The applicant did not mind because it sounded like helping people. When he came to the village he realised the role was not as good and helpful as his uncle had described.   It never occurred to him that he could not be a Christian and a concoctions maker.
·Stated that his uncle passed away [in] 2017. The applicant again describes how he went back to the village, ready to take on the role. He describes the duties of the role, including conducting libations at the idols of the village. It is believed this makes the spirits happy. If the villagers needed spiritual attention, he would talk to the fetish priest who would then talk to the spirits and decide how to help them. He would sometimes ask the villagers to bring a goat or a sheep for the rituals.
·Explained that his role also involved making concoctions for healing the sick, which could be drunk, applied to the body, or used in another way, depending on the need. The fetish priest would tell him to collect the herbs and make the concoction. The fetish priest also sometimes used the concoctions for voodoo. The applicant gives additional detail about the tasks of a concoction maker and the big jacket [which] is passed on from generation to generation. This is worn only for special occasions.   He took this back with him to Accra but it was later taken back by the people who came to his home.
·The applicant gives details about some of the people he tended to whilst concoction maker, including a young boy who had problems since birth. The parents thought it was a spiritual problem and the fetish priest could help them so that the spirit possessing the child would leave. The applicant mixed together herbs and massaged them onto the child and used a stick to bandage his leg. Although there were no other ‘spirit’ children apart from this boy when he was there, he has heard of cases where spirit children have been left to die or even killed. This was another reason why he did not want to continue in the role.
·Claims that because the applicant had refused to be concoctions maker, the next in line was his nephew. His sister had to make him leave Ghana because the tribe is looking for her son. She doesn’t speak to the applicant anymore because she blames the applicant.
·Claims that when he got to Australia, his friend in Ghana said there were many threats aimed at him from both the village people and also from the people of Accra who said he was a traitor and a fraud. Back then his friends and family and his [children] were telling him about the threats but he asked them to stop telling him.
·He did not return to his home in Accra, though he did return to Accra. He believes that there may have been an interpreting error in the interview which lead to some confusion at the departmental interview.
·When he travelled to [Village 2] in the Ashanti region, he only stayed two days. He saw people from the village on the first day that he arrived there. Two women recognised him as he was the ‘talk of the town’ and the village people did business in Ashanti. There may have even been pictures of him. He heard them say ‘is that not him, are you not the one who ran away’. A friend told him it’s not safe and he should leave, because it was not safe for him in Ashanti region and there was more violence than in Accra. The village people will find him anywhere in Ghana. They do business in Ashanti, and have relatives and children there.
·Referring to the Delegate’s finding that the applicant did not have a widely known profile because he did not experience harm between late [2017] and March 2018 while remaining in Accra, the applicant said that he had heard of cases where people would be tracked down no matter where they went. After all, the police told him the only option was to leave Ghana. He reiterated that he could not obtain a copy of the police statement he made when he was beaten by the villagers, though his friend had tried to do so.
·Referring to the delegate’s finding that he was not credible because he came to Australia [in an official role] when he was not actually [so accredited], the applicant stated that he left it to his friend [Mr B] who asked him to go into hiding and said he would help him. His friend found his passport at his former home and took it to [Mr B] and he organised the visa. He told the applicant that he would be leaving Ghana in March and told him to hide until then. [Mr B] said he will be a refugee, Australia is a good country, no one will get him.
·Referring to the delegate’s finding that the applicant’s work history suggested he was untruthful because he did not list the work he did for [a service business] in his application, the applicant states that he didn’t view it as employment, but as training. It was for one of his uncle’s family businesses. He wanted to go into the [service] business and thought he might learn about it. He believed he could do this while a concoctions maker, just like how his uncle was [an occupation 1] as well as concoctions maker.   He was not paid a wage but was given small sums to use on the weekend. It was really for experience only. Everyone in the village was doing this work.
·The applicant claims that he did not try to escape to any of the countries near Ghana because the border guards are very corrupt and a lot of them come from tribal villages in Ghana. The people in the villages believe that if one village has a case of bad luck it spreads to other villages nearby. They know about cases and ‘bad people’ from other villages and would stop him. He also believes he would still be tracked down in neighbouring countries.
·Since he has come to Australia, his name has been published on websites in Ghana, referring to [specified] visa frauds. He has provided copies of two articles.    The public call them racketeers and traitors to the country. He fears that if he returns, people will blame him for embarrassing Ghana and kill him.   He will be arrested at the airport for visa fraud and will go to jail. Immigration will know straight away and it is widely known that he was supposed to be a concoction maker and ran away instead. He believes his family will bribe the police to get to him, and the people from the village will kill him.
·He sometimes experiences memory loss as a consequence of the beatings he has received in Ghana. He askes that the Tribunal take this into account.
·Attached to the declaration is an article [details deleted]. This article specifically includes the applicant as one of the people [involved in corruption].    A second article is also attached on a website [details deleted]. In this article the applicant is also named as one of those [involved in corruption].
·The applicant also provided a [report] [details deleted]. Internet searches [confirm the source]. The report is as follows:
[Text of report deleted.]

The Tribunal has confirmed that this article was indeed published in [2018], including a full colour picture of the applicant [at] the location: [Source deleted.] It is still available online.
The same article was also re-published with the same photographs although with slightly different paragraph arrangements as a [Source 1] report [in] 2021[1]. At hearing, the applicant said he did not know who was behind the articles but suspects it was a [Relative A] of his who is sympathetic to his problems. His concern is that the publicity actually means that people throughout Ghana might recognise him if he returns and why he is in hiding.
[1] Available here: [Source deleted.]
At hearing, the applicant confirmed all of the information summarised above. He also gave the following additional information:
·The applicant was living in Accra with his partner, [Partner A] at the time his uncle passed away and his troubles began. They are now separated but he talks to his children and to [Partner A] regularly.    He was working as [an occupation 2].
·The applicant had first visited his tribal region in 2000 out of curiosity because he had never been there. He just went for a ‘tourist’ visit. At that time, the family there were very nice to him.   His uncle [named], the concoction maker, told him about the prestige of his role and that his was a well-respected position. He was told that they could even grant the concoction maker some land, and they would arrange wives for him. His uncle suggested that [Village 1] had earned respect from politicians, who sometimes came there to pay respects to the village leaders, and that his uncle was one of those leaders. When asked by the Tribunal if his uncle had mentioned problems with being Christian and a concoction maker, the applicant said that his uncle merely said, ‘there may be some problems at the start, but you’ll get over it.’ So, when the applicant first agreed to become the concoction maker, he took into consideration that it is considered a prestigious and important cultural role in his home area. He thought of it as a ceremonial role, really and thought he might be able to help his tribe. He had never had much to do with his family, and thought this might be an opportunity to connect with his tribe.
·However, a few days into his initiation, he went to church. The Fetish priest found out and told him that he could not be a Christian as well as concoction maker. The Fetish priest said that he could not ‘serve two masters’. The applicant thought this was wrong and said so, but the priest insisted. When the applicant refused, he claims that the priest became angry and pulled a [weapon], telling the applicant to ‘leave this place’. He went to his uncles, but they sided with the Fetish priest and became angry with him. They tried to convince him, and warned him to think deeply about what he was doing, and that this was ‘the least he could do’ for the community.
·The applicant said he was not prepared to cease practising his Christian faith. The next day, he told the people in his village that he would not take the role of concoction maker. He returned the ceremonial items and tools. This decision was not taken well by the fetish priest or members of the tribe. They started to beat him with [weapons] and chased him as he ran. He didn’t know the village really well and so he ran to a forest nearby. As it turned out, the villagers don’t enter the forest willingly, because they consider it an ‘evil’ forest. They stopped chasing him. He was badly beaten and they left him to die.
·He stayed in the forest for two days, getting sicker and sicker. He got something like [specified marks] on his body. He eventually struggled back to the village, but because of the marks on his body, and where he had been, (believing him cursed) the villagers initially left him alone. He went to the police. They said it was a spiritual matter and there was nothing they could do. Their advice was to leave the area. After he left the police, he tried to return to the village, but the people there threatened him with putting burning [a specific killing] to get rid of the evil spirits. He was refused food and water. Luckily, outside of town a [delivery] truck was passing by and picked him up. It took him to Accra.
·However, when he got to Accra he called his housemate who said he should not stay there as it would be too dangerous. The applicant travelled to Kumasi instead. Whilst he was in Kumasi, his housemate told him that people from his village had come to his former home and searched for him, making accusations that he had stolen [valuable things] from his village. His friend told the applicant not to return. His friend has told him that they were very menacing.
·The applicant said that he chose Kumasi as he knew people who lived there and thought he might be able to re-establish himself there. He thought because it was a city, he might be safe from the villagers and his [occupation 2] skills might allow him to find work. The applicant said that someone recognised him even in Kumasi when he went out to get food a couple of nights after he arrived there. There were a couple of ladies there who called out his name. It was put to the applicant that this seemed unlikely and implausible. The applicant said that he too was equally surprised and shocked.
·The applicant said that when he called [Partner A], she said that people had been looking for him, asking her questions about him. He had realised by now that it was a mistake to ever agree to be the concoction maker and that he would never have peace. He decided to go back to Accra where he hoped that he could be more anonymous in the larger city. He had friends in his church community at [Church 2] and he went to them for help.   When he called his friend there and told him what had been happening, he was told to hide and they would come and get him, which they did. They arranged for him to live in a partially completed house, owned by the family of one of his friends. That was a temporary solution to keep him safe. They bought him food and what he needed until he could leave. He had a phone so he could communicate with his children and with [Partner A]. During those few months in late 2017 and early 2018, people from his village still came occasionally to ask her where he was. His former housemate also told him that threatening men from the village forced their way into his house two or three times, looking for the applicant. They took anything that the applicant had with him when he fled the village, like the ceremonial cloak. They trashed his room. They told his housemate that the applicant had stolen stuff from them, that he was a criminal. He told his friend not to report them to the police, because he was afraid that might lead to his housemate being the subject of their attacks. Also, they were worried about reporting what was happening because police in Ghana are corrupt and might give information about the applicant’s whereabouts to the villagers. Meanwhile, his church friends made arrangements for him to leave Ghana.
·The applicant acknowledged that he came to Australia on a visa which was granted based on false information. He did not have a role in that arrangement but knew that it was happening because his friend wanted him to get out of Ghana to be safe. He says that he is sorry that he gave false information about himself (via his friend/agent) to get to Australia but is being honest about the information he has given about his personal history and fear of harm in Ghana.
·The applicant fears that if he returns to Ghana, he will be identified and harmed and or killed by the people from his home village who remain angry with him. As far as he knows, they do not have a new concoction maker. His sister is furious with him because him leaving had exposed her son to be potentially the next concoction maker and she has been trying to keep him safe.
·The applicant added that he could not get any support from his paternal uncles because they sided with the Fetish priest and wanted him to continue in the role. They thought he was a fool for turning it down. They are strong believers in black magic, and support things like hurting or killing children they consider to be possessed, such as albino children. The applicant said he would not have any part in that.
·The [media] story (published online) ran in Ghana about his problems. He believes one of his [relatives] initiated it. That one [Relative A] may have been opposed to the way the applicant was treated but he had told the applicant that no one was going to help him.
·The applicant did not consider moving to another country in Africa, within the ECOWAS zone. He was really in the hands of his friends who made all the arrangements while he was in hiding. It was them who got him a visa to Australia. He has never lived in any other country. He was unsure if he could do so. He has travelled to [Country 1] and [Country 2] in the past and even just going for a visit, he found he had to pay a bribe at the border.   He knows [an occupation 3] from [Country 1] from a prominent family who had a tribal problem in [Country 1] and came to Ghana to try and escape the problems. However, he was not safe in Ghana, because they followed him there. He had to escape further to [another country].   The applicant asked if someone with connections could not relocate safely within ECOWAS, how could someone like himself?   He felt that wherever he went in Africa, he would be living in hiding for the rest of his life.
·The applicant was asked if, with the passage of time, a new concoction maker might be installed and grievances wane. He said that as far as he is aware, there is no new concoction maker until the applicant does it or is dead.   So, the tribe will see him as having broken an old tradition of more than 100 years and be doubly angry. He said that he believed that they would remain angry for 1000 years.
·The applicant was asked if he considered that there was any real chance that he would suffer harm due to the ‘visa fraud’ he had perpetrated in coming to Australia on a visa that was not based on truth. He noted that it is possible that he will be jailed and prosecuted by the Ghanaian government. It was noted that there was no country information which suggested that a person involved in [this corrupt practice] would be persecuted in Ghana. The applicant said that he had heard that some of the people who arranged the [transaction] had lost their job and he might face some bad publicity in returning home so the government can save face. His village would potentially then hear of him returning, and he fears they will renew their targeting of him.
·The applicant claimed that he would be at risk from being identified and harmed throughout Ghana and would be living in constant fear. He has disappointed his community, and throughout Ghana people share the tribal beliefs in the power of Fetish priests. He believes that there is a high chance that he will be identified and be in danger in Ghana. The applicant is not afraid of harm from the police but does not believe that he is ‘important enough’ for them to provide him with protection from the members of his tribe. The Tribal members have close relations with politicians in Government.
·The applicant said that he fears that if he returns to Ghana, his children will be in danger due to being close to him. He doesn’t want to risk putting them in harms’ way. He has constant contact with them and sends money to Ghana for them whenever he can. He wants to be able to continue to care for and support them. He does not believe he would be able to do so in Ghana.
·The applicant said that he suffers from mental health issues but is able to work. He said that working helps him, otherwise he just spends time thinking about what he has been through. He is doing ok (in terms of his mental health) with the support of his wife. He confirmed that he had been able to put his arguments and evidence without hinderance during the hearing.
Concoction maker claims
The Tribunal notes, as is clear from the history of the applicant’s claims as given above, that the important details about the applicant’s claims have been given consistently in his written claims, in documents submitted in support of his claims, in the delegate’s interview and during the hearing. It is noted that there are some minor inconsistencies (such as whether he returned to his former home in Accra for even a brief period before fleeing to Ashanti region) but generally, the applicant has given very consistent evidence about his experiences and his fear of harm in Ghana. The Tribunal gives this consistency considerable weight and considers that it is suggestive of truthfulness on the part of the applicant. Additionally, the essential aspects of his claims are publicly corroborated by the news article which ran in both 2018 and 2021, and by his former housemate who experienced firsthand the menaces of the tribal ‘warriors’ seeking the applicant. The Tribunal has also taken into consideration that the applicant has told his mental health professional and his wife part at least of his history and what it is that he fears in Ghana.
The applicant claims to fear that he will be beaten and/or killed by people (including relations) from [Village 1] because he has insulted them by refusing the concoction maker role. They told him he must do it or he would ‘shorten his life’ and he believes that the threat will remain for his whole life. As far as he is aware, there is still no concoction maker in [Village 1]. They are now looking towards his nephew and his sister has moved him to safety and blames the applicant for him being ‘in the firing line’.
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2] The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[3]
[2] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[3] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204
This approach is supported in numerous judgements and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[4]
[4] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts: Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).
The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[5] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[5] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal has considered the credibility issues and claimed inconsistency in evidence raised by the delegate, some of which have been addressed by the applicant in his statutory declaration and in his evidence. Unlike the delegate, the Tribunal did not consider that minor inconsistencies were of a nature which suggested that the applicant was lacking in credibility, or that the [specified] visa he obtained suggested that he is lacking in credibility.
Overall, the Tribunal considers that the applicant’s claims were credible, consistently put and that the applicant has experienced targeted harm at the hands of his tribal community due to a dispute which arose when he refused to continue in a ceremonial ancestral role of concoction maker within the [Village 1] community in [2017].
The Tribunal accepts that the applicant was the next tribal ‘concoction maker’ in his maternal line, destined to take on the role once his uncle passed away in 2017. The Tribunal accepts that the applicant initially agreed and intended to undertake the role and travelled to [Region 1] to do so. The Tribunal accepts that he undertook some low level ‘induction’ but the Fetish Priest informed him that he was required to cease practising his Christian faith to continue in the role, and that the applicant was unable to accept this ‘ruling.’ He was unable to convince the Fetish priest to allow him to continue in the role if he continued as a Christian. The applicant then decided to refuse the role and returned the appointments of the role, including a robe and implements. This angered the local community. A mob of young men beat the applicant and drove him to run in fear to a local forest, considered ‘enchanted’ by the tribe members, to avoid his attackers. After some days he returned, covered in sores and blood from his beatings and went to the local police. The Tribunal accepts that the police informed the applicant that they could do nothing about the attack and could not protect him from more attacks and that the safest thing for him would be to get out of Ghana.

The Tribunal accepts that the applicant continued to receive threats of ‘lynching’ and that he hitched a ride on a truck out of the village and returned to Accra, temporarily. The Tribunal accepts that the applicant was too fearful to return to his home permanently and decided to try a move to the Ashanti province, namely to Kumasi. The Tribunal had some concerns, as it informed the applicant at hearing, about the plausibility that he was almost immediately identified as ‘the one who ran away’ in Kumasi on his second night there. Kumasi is reported on Wikipedia to have a population of more than three million people. The applicant has speculated that the events in [Village 1] were of interest to all tribal communities in the area, and would have been the talk of those tribal communities. People from his village did business in the Ashanti province, where Kumasi is located. His picture may have been circulated by the people who were looking for him. He does not know how they knew it was him. After considering this aspect of his evidence in the context of his overall evidence, the Tribunal finds it must give him the benefit of the doubt and accepts that the applicant believes he was recognised in Kumasi and believed it was too dangerous for him to remain there where he had no familiarity with the city and was away from his friends and family, that he chose to leave there and return to Accra (population of approximately 4.2 million) where he hoped to have some anonymity, given its’ distance from [Village 1] and larger population.
The Tribunal accepts that the applicant was unable to return to his former home out of fear of being discovered there. The Tribunal accepts that he went into hiding in a partially completed home owned by family of one of his church friends. The Tribunal accepts that men from his tribal village attended his former home on at least two occasions, threatening his friend and warning of their intention to track him wherever he has gone. The Tribunal also accepts that they made multiple enquiries of his former partner in an attempt to locate the applicant.
In relation to the applicant’s arrival in Australia, the Tribunal accepts that the details of his visa were arranged by friends who sought to protect him from harm. The Tribunal accepts that he had no official [capacity]. The Tribunal notes that the applicant applied for protection as soon as his [temporary] visa had ended. The Tribunal gives some weight to the applicant’s evidence that he always intended to seek protection in Australia and that he did so as soon as he could.
The Tribunal has examined the internet site of [Source 1] and is satisfied that a news article outlining his situation was published (for a second time) as recently as [2021] and that it describes people and relatives from the applicants’ home area clearly stating that he must accept the concoction maker role or ‘face the consequences.’ The Tribunal is also satisfied that the article first appeared in an online [article] in [2018] on a different site. Accompanying both of these reports is a childhood photo of the applicant and a full sized and relatively recent photograph of him. The [social media] account of [Source 1] has around 116,299 followers. [Another of its accounts] has nearly 19,000 followers. These numbers are low, when considering Ghana’s population, but they are not negligible. The Tribunal is struck by the fact that the author of the article had clearly consulted with the applicant’s uncles in [Village 1] and were aware of details of his relationship with [Partner A], who is not quoted in the article but is referred to as ‘leading him astray’. The publication of this article in 2018 and again in 2021 adds some weight to the credibility of the applicant’s claims and also to his claim that the real chance of harm he faces is ongoing and has not necessarily waned in his absence from Ghana. The Tribunal is satisfied that the publication of these articles may have been orchestrated by someone who supports the applicant and wants to draw attention to his plight, but considers that the applicant would actually prefer that they had not been published. The articles may have low circulation but they do draw attention to the applicant and decrease his possible ‘anonymity’ in Ghana, particularly when accompanied by full sized colour pictures of himself.
In addition, the applicant has been named in articles about [specified] Visa fraud. There have been several reports about [these corrupt activities] and the desire of the Ghanaian Government to put a stop to such activities and to punish those who have been a part of [this case][6]. There has been less publicity of this issue since 2019, during which some officials lost their jobs for their role in [this case]. The Tribunal considers that there is some chance that the applicant will be of interest to the Government of Ghana on his return due to ongoing investigations into the [corrupt activity] and his identification in those breaches. Whilst the Tribunal is not satisfied that there is a real chance that he will face serious harm from Government [officials] or the police due to his visa ‘fraud’, the Tribunal considers that his return would potentially be publicised and this would draw attention to the fact that the applicant is back in Ghana, increasing the risk that he will be again targeted by people from his village.
[6] See for example: [Source deleted.]
General country information about Ghana confirms that tribal rituals and beliefs are widespread, and can trigger conflict at times when tribal roles (such as a chieftaincy) are vacant. Some tribal disputes have taken decades to be resolved.[7]
[7] See for example: Canada: Immigration and Refugee Board of Canada, Ghana: Information on the chieftaincy dispute in Bimbilla, including the process for choosing a chief (1999-April 2017), 27 April 2017, GHA105791.E, available at: 26 August 2021] also: GHANA-POLITICS: Chieftaincy Dispute Sparks Bloody Riots | Inter Press Service (ipsnews.net)
The USSD (United States State Department) human rights report for 2019 stated:
‘Chieftaincy disputes, which frequently resulted from lack of a clear chain of succession, competing claims over land and other natural resources, and internal rivalries and feuds, continued to result in deaths, injuries, and destruction of property. According to the West Africa Center for Counter Extremism, chieftaincy disputes and ethnic violence were the largest sources of insecurity and instability in the country.
‘The 17-year-old contested leadership succession for the Dagbon traditional area, one of Ghana’s most prominent and long-running chieftaincy disputes, was peacefully resolved in January.
‘Throughout the year disputes continued between Fulani herdsmen and landowners that at times led to violence. Clashes erupted intermittently between two factions over land in the Chereponi district, killing three persons and displacing almost 2,000 residents, according to the National Disaster Management Organization. Police and military deployed personnel to the township.
‘There were frequent reports of killings of suspected criminals in mob violence. Community members often saw such vigilantism as justified in light of the difficulties and constraints facing the police and judicial sectors. There were multiple reports police failed to prevent and respond to societal violence, in particular incidents of “mob justice.”’[8]
[8] USSD, '2019 Human Rights Practices Report, Ghana'’ (section 6), 11 March 2020
The Tribunal has also noted that, consistent with the applicant’s report and concerns about the requirements of the concoction maker role and the Fetish priest, the UK Home Office has reported that children with disabilities do face abuse and sometimes death at the hands of families, including as part of ritual beliefs about demonic affliction.[9]
[9] As above at section 6.
Having accepted the applicant’s claims, and taking into account his experiences in Ghana prior to travelling to Australia, the publicity surrounding [instances of visa fraud] and the articles published in Ghana identifying him and his history, the Tribunal considers that the applicant has established that there is a real chance that the applicant would be identified and subjected to harassment, beatings and potential murder by members of his tribal community and family if he returns to Ghana, because he has refused to undertake a traditional role as concoction maker in [Village 1] village.
The reason for the harm he fears is personal to the applicant. He would be persecuted because he has rejected a ceremonial role in his tribal village. His reasons for refusing the role were linked to his faith; but the Tribunal finds that he is not being persecuted because he is a Christian, rather, because he has offended and disrupted the ritual and tribal practices of his traditional community, which is seen as a huge offence to that community, potentially weakening their local standing and bringing harm to the village. The Tribunal has considered whether the applicant belongs to a particular social group. Whilst theoretically, the applicant may belong to a particular group of Ghanaians which could be described as “persons who refuse traditional roles in tribal communities” or “Christians who refuse to accept Fetish priest direction”, his membership of such tenuous social groups is not the essential and significant reason for the persecution he fears. It’s because he refused a role particularly intended for himself due to his lineage. He is likewise not being targeted because he is a member of a particular or rival family or tribe. The Tribunal is not satisfied that the essential and significant reason for the persecution the applicant fears due to his refusal to become the concoction maker is for one or more of the reasons in s.5J(1)(a).
Christian Claims:
As discussed with the applicant at hearing generally, the country information does not reflect that Christians face persecution in Ghana because of their faith. In its 2020 Report on International Religious Freedoms, the US Department of States reports:
The U.S. government estimates the total population at 29.3 million (midyear 2020 estimate). According to the 2010 government census (the most recent available), approximately 71 percent of the population is Christian, 18 percent is Muslim, 5 percent adheres to indigenous or animistic religious beliefs, and 6 percent belongs to other religious groups or has no religious beliefs. Smaller religious groups include the Baha’i Faith, Buddhism, Judaism, Hinduism, Shintoism, Eckankar, and Rastafarianism…
The constitution prohibits religious discrimination and provides for individuals’ freedom to profess and practice any religion. These rights may be limited for stipulated reasons including defense, public safety, public health, or the management of essential services.
Religious groups must register with the Office of the Registrar General in the Ministry of Justice to receive formal government recognition and status as a legal entity, but there is no penalty for not registering. The registration requirement for religious groups is the same as for nongovernmental organizations. To register, groups must fill out a form and pay a fee. Most indigenous religious groups do not register.
According to law, registered religious groups are exempt from paying taxes on nonprofit religious, charitable, and educational activities. Religious groups are required to pay taxes, on a pay-as-earned basis, on for-profit business activities, such as church-run private schools and universities.
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-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.
The applicant accepted that he belonged to a Christian church and was able to practice his faith prior to coming to Australia. He conceded that Christianity is practiced freely in Ghana and he did not fear persecution because he was a Christian – just because of the tribal dispute. Taking into account his evidence and the country information, the Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution in Ghana due to his Christian faith.
The applicant has stated that he does not fear persecution from the government of Ghana due to obtaining his Australian visa under false premises but considers that it may publicise his return, putting him in danger from his tribal community.
No other claims arise on the information and evidence before the Tribunal.
The Tribunal concludes that the applicant does not have a ‘well-founded fear of persecution’ under s.36(2)(a) of the Act because he does not fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Complementary Protection
The Tribunal has found that the applicant has a real chance of suffering serious harm from members of his [Village 1] tribal community because he has refused the inherited position of concoction maker.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal finds that there is a real risk that the applicant will be harassed, beaten, or killed by members of his tribal community (including his extended family) if he is returned to Ghana because of the tribal dispute he has been involved in.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
The Tribunal finds that the harms feared by the applicant (and of which he faces a real risk) includes him being arbitrarily deprived of his life or subjected to cruel or inhuman treatment or punishment (such as being beaten, harassed and subjected to tribal punishments). The Tribunal thus concludes that there is a real risk that the applicant will suffer significant harm in Ghana. In this case, the act of removing him to Ghana would lead to the identification of his visa status as a [specified] visa holder and would draw him to the attention of the immigration authorities in Ghana. Based on past reports of deported visa holders [in similar cases], there is a real risk that his return would similarly be publicised.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Even though the Tribunal does not consider that the applicant will be seriously harmed by the Ghanaian government or authorities due to his visa status on return, the potential for publicity of his return does increase the likelihood of him being targeted by members of his tribal community, because they would be alerted to his return. Consequently, and bearing in mind the publicity of his circumstances already in the articles about both his tribal dispute and his visa status, overall the Tribunal is satisfied that the applicant’s real risk of significant harm relates to all areas of Ghana, and that there is no part of the country where there would not be a real risk that he will suffer significant harm.
Based on the general country information, the applicant’s experience about police capacity and interest in protecting him and the added complication of his public visa ‘fraud’ charges, the Tribunal finds that the applicant would not obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm.
The Tribunal also finds that the real risk of significant harm is one which is faced by the applicant personally and not by the population of Ghana generally.
The Tribunal concludes that the applicant is a person in respect of whom Australia has protection obligations because that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Ghana, there is a real risk that the applicant will suffer significant harm. Subject to what follows, the applicant satisfies s.36(2)(aa).
Third Country Protection
According to s.36(3), Australia is taken not to have protection obligations in respect of a person who has not taken all possible steps to avail himself of a right to enter and reside in, whether temporarily or permanently and however that right arose and is expressed, any country apart from Australia. The Tribunal has therefore considered whether the applicant could obtain third country protection from countries in Africa with close ties to Ghana.
According to Department of Foreign Affairs and Trade[10], the Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted. Countries in ECOWAS are largely grouped on Anglophone, Francophone and Lusophone bases. The Anglophone countries within the region are The Gambia, Ghana, Liberia, Nigeria and Sierra Leone. The goals of ECOWAS suggest ease of travel, residence and trade between member countries – although various reports generally suggest there have been significant limitations imposed by member countries on multiple aspects of residence and travel rights.
[10] Department of Foreign Affairs and Trade Thematic Report: Economic Community of West African States (ECOWAS) December 2020.
DFAT reports that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of community members between ECOWAS countries.
Notwithstanding that all states have ratified the Free Movement Protocol, and there are gradual efforts to progress implementation, there have been a number of implementation challenges. A key challenge is inconsistency between ECOWAS Protocols and national laws and policies. Some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion. This is consistent with the applicant’s own evidence about being required to pay bribes to enter [Country 1] and [Country 2] in the past.

Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws particularly as each State determines the admissibility of non-citizens. Commentators have suggested that until States agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by States' recourse to overly broad or arbitrary grounds of inadmissibility. A now somewhat outdated report commissioned by the UNHCR detailed inadmissibility provisions in ECOWAS countries. According to the report, 'the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would-be migrants seemingly without need of explanation or process'. The report suggests that most countries require some form of medical or health certificate.
Some countries require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission. Further, a non-citizen's right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.
The Ghana News Agency, in a report appearing on the Government of Ghana Official Website, refers to a meeting between 'Representatives of civil society, the private sector and the media from the ECOWAS member-states' held in Accra, Ghana, that attempted 'to fashion out practical ways to stem harassment on the highways and borders within the region'. The report commented on restrictions to 'free movement' between ECOWAS member states, such as 'illegal barriers and roadblocks', 'the extortion of money from travelers', 'systematic racketeering', and some 'immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document'.
A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments.
National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”
Over the past 18 months, the COVID19 Pandemic has further significantly affected free movement within the ECOWAS community. The Tribunal notes that in a recent publication by Cambridge.org[11] it was noted as follows:
In the ECOWAS context, restrictions on the right to enter have led to a progressive disintegration of the legal regime of free movement of persons. A number of factors have contributed to this development.
According to the Dakar Protocol, the right of entry implies the guarantee that ECOWAS citizens can enter the national territory of all ECOWAS member states without a visa. The only condition is possession of valid travel documents. This is a first and indispensable step for making the free movement of persons effective because it conditions the expression and the effectivity of the other rights (namely of residence and establishment). For example, Nigerian nationals can only exercise their rights of residence and establishment in Ivory Coast or in Senegal if they have been authorized to enter the territory of those states. However, under pressure of the coronavirus, 66 percent of the 352 points of entry within the ECOWAS space were closed altogether, and 26 percent were only open to transport of goods and/or returning nationals.8 This constitutes a substantial obstacle to the right of entry. …
COVID-19 measures have merely amplified the obstacles to the community principle of free movement, handicapping the integration dynamic which relies on the practices and realities of peoples in West Africa.
[11] Free movement of persons in West Africa under the strain of COVID-19, American Journal of International Law, 9 November 2020
Allowing for the restrictions, requirements and permits in place across ECOWAS both before and now as a consequence of the pandemic, the Tribunal is not satisfied that the applicant has a presently enforceable right to enter and reside in any third country within the ECOWAS. There is no suggestion in this case that the applicant has a right to enter and reside in any other country (apart from ECOWAS countries.)
The Tribunal concludes that s.36(3) does not apply in the applicant’s case.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Anne Grant
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.
…

[2021] AATA 4156

1 September 2021

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Jurisdiction

Natural Justice

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