1824045 (Refugee)

1824045 (Refugee) [2022] AATA 1976 (13 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824045
HOME AFFAIRS REFERENCE(S):          BCC2018/2567561
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tania Flood
DATE:13 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2022 at 3:28pm
CATCHWORDS
REFUGEE – protection visa – Ghana – fear of harm from family for refusing traditional leadership role – abuse and threats – credibility – inconsistent claims and evidence – delay in departing after visa granted – passage of time since claimed events – country information – scope of role and likelihood that it has been filled by someone else – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 1 August 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 9 July 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 her claims of threats of violence against her due to refusing to be enstooled as the Queen Mother.
The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) 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 she returns to Ghana for reason of her 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 her being removed from Australia to Ghana there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
According to information contained in her application for a protection visa, the applicant is a [Age]-year-old citizen of Ghana. She was born in Accra, Ghana. Before coming to Australia, she resided [Location 1] Kumasi, Ashanti Region in Ghana from [Birth] to 2018. She completed middle School in [Location 2], Brong-Ahafo in Ghana. Her mother, father and [daughters] all reside in Ghana. The applicant was self-employed in Ghana trading in [Product] from 1997 to 2018. The applicant indicates on her visa application form that she has been unemployed since arriving in Australia.
The applicant arrived in Australia [in] March 2018 as the holder of a [temporary visa] which was granted on 7 December 2018. She lodged an application for a protection visa on 9 July 2018. On 1 August 2018, a delegate of the Minister refused her protection visa application.
The applicant made the following claims on the statement attached to her visa application form:
The applicant stated that she refused to inherit the stool of Queen of [Location 3] formerly held by her grandmother as the position and its practices are not in agreement with her religious faith.
The applicant fears that she will be forced to undertake the duties and that if she does not she may experience harm, such as poisoning. She states that to date she has been humiliated, insulted, and threatened as she is perceived to have brought shame and reproach upon the family due to her refusal of the stool.
The applicant states that persons who have refused such positions have been ‘eliminated in one way or the other’ and that law does not permit the appointment of another successor unless the identified successor becomes deceased.
She states that she must seek refuge in a developed country as in the ECOWAS countries there are no work opportunities, and they will either not accept refugees, or government will not provide money to cater to asylum seekers.
Protection Visa Interview
The applicant attended an interview with a delegate of the Minister of Home Affairs. She stated that the Chief and Queen of her clan had both passed away. Her grandmother was the Queen Mother and before her death two years prior she appointed the applicant as her successor. She did not want to take up the position because she does not like the ceremonies which include killing animals and humans and smearing the blood on the stool. She said that this is against her Christian beliefs.
Because she refused the position of Queen Mother her family do not like her and they have threatened her and have been verbally abusive toward her. They think that she has brought shame on the family. They attempted to get her landlord to evict her so that she would go back to the village. If they find her they can forcefully take her to be enstooled as the Queen Mother.
She fears she will be humiliated or poisoned or raped or eliminated in some other fashion by her family if she returns to Ghana now. She cannot relocate within Ghana because the family will look for her and will find her.
The applicant stated that if she does not return the family will eventually find somebody else to assume the appointment and for this reason she is seeking permission to remain in Australia for a while longer.
Documents submitted to the Tribunal
During the course of merits review the applicant provided a written statutory declaration dated 19 April 2022 addressing her claims and copies of five colour photographs. The statutory declaration states:
Her family inherits the [Stool] as the occupants of [Location 4] Krontihene. They serve Nana Asantehene. The [Chief and Queen] are her family property and the family produce a human head if any big Chief dies. All the cutlasses to severe a human head are kept in her family house.
About nine years ago her family members appointed her to occupy the [Stool] and initially she agreed with them and went to a place to take medicine to protect herself.
Later on her family explained things to her about the Stool, such as severing human heads and she was afraid and decided not to occupy the Stool again. She is a Christian and cannot kill a human being.
Since she disagreed with her family about occupying the Stool all her family members have fought with her and she decided to leave her family and continue with her life elsewhere.
Since she refused to occupy the Stool her family members have been fighting with her mother and because of that her mother was ejected to the next town [Town 1] which is near to her hometown [Town 2].
COUNTRY INFORMATION
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 remainder adhering to indigenous beliefs or other religious groups. Many individuals who identify as Christian or Muslim also practise some aspects of indigenous beliefs.
It is further reported by the US Department of State that chieftaincy disputes and ethnic violence are the largest sources of insecurity and instability in Ghana. The government generally seeks to dampen down violence and encourages dialogue and peaceful resolution of disputes. There are reports of killings of suspected criminals in vigilante or mob violence which is often seen as justified given difficulties and constraints facing judicial and police sectors. There is nothing in the report which suggests that individuals are likely to be harmed for refusing a traditional role or that human sacrifice is commonplace.
According to an academic consulted by the Immigration and Refugee Board of Canada in 2017, the Ghanaian press loves to report scandalous rumours of infant deaths related to supposed sorcery, and this possibility cannot be ruled out, but human sacrifice or ‘ritual killing’ is not part of a chief’s burial rites in modern Ghana. This view was supported by another academic from Ghana who observed that while there were rumours of such killings, there was no evidence that it occurred. Another Ghanaian academic said that such ritual killings were a criminal act strongly opposed by the state, but they did occur in secret.
An Immigration and Refugee Board of Canada report from 2006 states that there is no practice of punishing persons for running away before being offered a position as a chief or elder, including female positions such as Queen Mother. There is no need for state protection because there is no punishment. The disappointed elders may express their irritation but it happens so often they usually sigh and are resigned to the fact.
Similarly, the Department of Foreign Affairs and Trade (DFAT) reported in 2006 that if a woman refuses to become a Queen Mother, nothing happens to her. Her family may be disappointed with her refusal but there are no legal or customary sanctions against her. When she returns to her hometown several years later nothing or no sanctions await her. She will be as free as anybody else and she would not be forced to become Queen Mother. Also, Queen Mothers have the right to abdicate without punishment.
A more dated IRBC report from 1995 states that the position of the Queen Mother rests in the royal line, which is traced matrilineally among the Akan. It is an inherited position only insofar as the women of the royal family are the only potential candidates; however, the Queen Mother is appointed from amongst all of the eligible family members of the royal line. Often the position goes to an older woman, although, more recently, a younger woman with financial capabilities can be chosen because of the wealth and education she is expected to bring to the position. The choice of Queen Mother is a very political decision …. In view of the power and responsibilities of the position. Thus, political jockeying occurs among the potential candidates in order to establish their capabilities. The ability of a candidate to demonstrate support amongst the people of the community is an important factor in the selection process. The actual decision is usually made by the women elders of the royal family; however, wealthy people outside the family can also influence the process. The Queen Mother remains in the position for life or until “she messes up” and is subsequently dismissed if the serving Queen Mother decides to step down, she would be able to influence the selection of her successor; however, she would not be influential if she is forced to step down for reasons of misconduct.[1]
[1] ‘Ghana: Information on the role of the Queen Mother in the Brong tribal group, on how the position is inherited, on the duties and obligations of the position, on whether the role of Queen Mother can be refused by the incumbent, and on whether the authorities would intervene in circumstances where illegalities are committed by the Queen Mother in the executing of her responsibilities’, IRBC, 1 December 1995
Tribunal Hearing
The applicant appeared before the Tribunal on 11 May 2022 to present arguments and evidence in support of her case. The Tribunal discussed with the applicant her background in Ghana, the reasons why she departed Ghana and her fears of returning to Ghana. Her testimony is summarised below in the Tribunal’s analysis of the available evidence.
FINDINGS AND REASONS
Country of reference
The applicant has produced her Republic of Ghana passport as proof of her identity and nationality. On this basis the Tribunal accepts she is a national of Ghana.
Fear of harm from family for refusal of appointment as Queen Mother
For the following reasons the Tribunal did not find the applicant to be a credible witness.
In the first place, the applicant has, in the Tribunal’s view, given an inconsistent account of the timing and the way in which she was selected to be the next Queen Mother.
In her testimony before the delegate the applicant stated that her grandmother decided that she would be the person to assume the Queen Mother role when she died. When the applicant appeared before the Tribunal she stated that when her grandmother died her uncle was insistent that she will be the one to take over the position of Queen Mother. She said that her late uncle was previously the chief but in his absence her other uncles decided the matter.
In addition to these differing accounts the Tribunal found the applicant’s evidence in respect of the process of appointment to be at odds with independent country information which indicates that the role of Queen Mother is traced matrilineally, with the matter of succession usually being decided by the women elders of the royal family.
When these matters were discussed with the applicant, she stated that it is true that her grandmother nominated her but afterwards she had to report to her uncles for them to decide the matter. She also stated that there are many different tribes and each has their own way of doing things.
The Tribunal has considered her responses but notes she has produced no independent evidence to support that the practices of the Ashanti tribe are distinct from other tribal groupings in Ghana. The Tribunal has placed weight on the independent country information outlined above and in any event remains concerned that her previous evidence made no mention of the role played by her uncles in the appointment process.
In the Tribunal’s view the applicant has also given an inconsistent account of the timing of her appointment to the role. During the protection visa interview she informed the delegate that she was appointed Queen Mother when her grandmother died. She advised that her grandmother died two years before the date of her protection visa interview. The Tribunal concludes on that basis that her evidence at that time is that she was appointed in 2016 as the delegates decision was made in 2018. On the contrary the statutory declaration dated 19 April 2022 which she produced to the Tribunal in support of her claims indicates that she was appointed to the role of Queen Mother about nine years ago which would have been in 2013. When this was discussed with the applicant during the Tribunal hearing she stated that she is not very literate and in Ghana not much emphasis is placed on dates. While the Tribunal accepts there might be some merit in what the applicant states it nevertheless notes that her claimed fear of serious harm rests squarely on her refusal to accept the appointment of Queen Mother. The Tribunal considers it reasonable to assume the applicant would have a clearer idea of when this important event occurred.
Furthermore, the applicant claimed in her written application and in her oral evidence to the delegate and the Tribunal that she categorically refused to accept the appointment of Queen Mother as she does not abide by certain of the traditional practices attached to the role. She stated that human sacrifice, among other abhorrent practices, is a feature of their traditions and her Christian beliefs and lack of courage preclude her from participating in such practices. In her statutory declaration of 19 April 2022 the applicant states to the contrary that she initially agreed to accept the appointment and that she then went to a place to take some medicine to protect herself. She states that later on when her family explained everything to her she became afraid and decided not to continue in the role of Queen Mother.
When this was discussed with the applicant during the hearing she said that she did not ever say that she accepted the appointment. She argued that what she said was that if she accepted the appointment she was going to have to go through certain rituals that she did not agree with and could not do. She gave evidence that the statutory declaration of 19 April 2022 was prepared by a typist in Ghana whom she phoned and provided her information to. She said she does not know how the statement was interpreted into English and the difference is probably due to miscommunication.
The Tribunal has considered the evidence and the applicant’s response but is not persuaded by it. The Tribunal does not consider the difference to be the result of miscommunication. She outlines in some detail in her statutory declaration the measures she took after accepting the appointment, including taking medicines to protect herself, and the reasons why she changed her mind and later declined the appointment. Nor does the Tribunal consider the difference can be put down to interpretation problems given the significantly different account of events she has provided.

The Tribunal is also concerned about other aspects of the applicant’s evidence.
Firstly, the applicant states in her statutory declaration of 19 April 2022 that because she refused to occupy the Stool her family members fought with her mother and ejected her from their hometown to the neighbouring town of [Town 1]. When the Tribunal asked her during the hearing whether any other members of the family had suffered harm for her refusal to occupy the role of Queen Mother she mentioned for the first time in the proceedings that the family was experiencing ongoing pressure from the townsfolk to fill the role of Queen Mother. Upon further questioning she said that her mother is still under a lot of pressure from other family members to bring her daughter to the throne. At no point, despite being specifically asked whether her mother had suffered any harm due to her refusing to accept the appointment, did she mention that her mother had been ejected from her hometown.
In addition, the Tribunal also put it to the applicant that her earlier evidence is that she has had no contact with anyone in the family for years other than one sister who is currently caring for her [children] and with whom she never discusses the matter of the Queen Mother appointment. The Tribunal questioned how the applicant could know that her mother was experiencing such problems. She then stated that she was referring to what had happened before she left Ghana. Even if that where the case the Tribunal notes this information about her mother being ejected from the town was never introduced in either her written submissions or her evidence to the delegate.
Also, the applicant claims that if she returns to Ghana her family with be still be so upset and angry with her they will possibly kill her for her refusal to accept her appointment as Queen Mother. However, the Tribunal notes and finds it significant that according to Departmental records the applicant was granted a visa to come to Australia on 7 December 2017 yet only entered Australia [in] March 2018. As discussed with the applicant during the hearing this causes the Tribunal to doubt that she feared for her personal safety in Ghana. The applicant at first disagreed and stated that the visa was only granted in February 2018 and she left a month later. She later stated that the friend who helped her to secure the visa only informed her that the visa was granted in February 2018. The Tribunal formed the impression that the applicant was changing her evidence to overcome the problems presented to her in respect of her evidence and remains concerned about her willingness to remain in Ghana for several months after securing a visa to enter Australia.
In addition, at the outset of the hearing the Tribunal discussed with the applicant where she lived in Ghana. She gave some historical background about her birthplace and her parents places of residence in Ashanti Region. She also advised the Tribunal that she moved to a rented house in a suburb of Kumasi in around 2009 before moving to [Country] in 2015 for three years. She stated that she lived in the house in Kumasi with her [children] and when she left for [Country] her sister moved into the house to care for the children. When she was asked about the treatment she encountered from her family when she refused to accept the appointment as Queen Mother she said there were many fights and quarrels with her uncle and he told her she would see what was going to happen to her. She said she felt scared and this is when she moved to Kumasi. She then stated that one day when she returned to her rented home she found her room had been ransacked and her possessions destroyed. She said that she had no quarrel with any other person other than her uncle and that she believes he was responsible for the damage. She stated that she could not remember the exact date of this incident but noted it was in the same week that she made the move to Kumasi. She confirmed that no further incidents occurred thereafter.
The Tribunal pointed out that her evidence is that she moved to Kumasi in 2009 where she stayed until 2015 and that even if it was her uncle who broke into her house her evidence is that this occurred almost immediately after she moved and nothing further happened in the space of six years. The Tribunal put it to the applicant that it could conclude from this that her family were not interested in locating and harming her for her refusal to accept the appointment of Queen Mother. She then stated that after the incident in 2009 when her house was ransacked she did not stay in that house again. She said she left the children in her sister’s care and moved to a small cottage in [Location 5] where she lived with a friend and tried to undertake some farming work. When the Tribunal expressed surprise that she did not provide any of this detail when first asked about her residential history in Ghana she responded that she didn’t consider this type of detail to be important.
The Tribunal was not persuaded by the applicant’s responses. The Tribunal considers that if the applicant had in fact only lived in the rented house in Kumasi with her children for a few weeks in 2009 she would have said as much and not indicated that she lived at that location for six years. Again, the Tribunal formed the view that the applicant changed her evidence in the course of the hearing in order to overcome the problems the Tribunal detected in her evidence.
The Tribunal also does not consider the applicants claims are well supported by the independent country information outlined above regarding the consequences of refusing to accept a traditional role such as Queen Mother. While it appears people who inherit these positions may face some pressure from family or elders, the evidence does not suggest that they are likely to be seriously harmed or that they would be pursued throughout the country to force them to accept the position or to punish them for not doing so.
Furthermore, the applicant maintains that her biggest objection to accepting the role is her unwillingness to take part in human sacrifice rituals. The Tribunal also does not consider that this claim is well supported by the independent country information above which suggests there is little evidence to support such practices are either commonplace or part of the burial rites for chiefs as was claimed by the applicant.
The Tribunal acknowledges the applicant’s responses to these concerns, namely that while she agrees there is no formal punishment for those who decide not to accept traditional roles, her fear relates to her family. However, the Tribunal has placed weight on the independent country information outlined above which presents a strong argument against the applicant’s assertions.
The Tribunal also considers, based on the available information, that it is likely the Queen Mother position might have been filled by now by a member of the applicant’s family. During the hearing the applicant stated that if the position remains unfilled there is a possibility that her family could lose the right of occupancy of the Queen Mother role and the property that is attached to the role and she argued that this is another reason why her family are so upset with her. The Tribunal agrees that would be a strong motivator for appointing somebody as Queen Mother from within the applicant’s family. Relevantly, the applicant advised the Tribunal that she is part of a large extended family and it can be assumed that there are numerous other women in the family who could and might also want to assume the position even if her other sisters are unsuitable for one reason or another as she contends. The Tribunal informed the applicant that this situation, together with country information which indicates such positions are generally hotly contested, is even more reason to believe that the position might already have been filled.
In reaching this conclusion the Tribunal notes the applicant’s evidence to the delegate which is that she herself believes her family will find a replacement person for the role of Queen Mother in due course if she does not return. When discussing this with the applicant during the hearing she claimed that the interpreter that was used during her protection visa interview was not from her region and couldn’t accurately interpret what she wanted to say. She said that because she cannot speak English she could not bring this to the attention of the interviewer. The Tribunal does not accept this. As discussed with the applicant the Tribunal listened to the audio recording of that interview and at no point did she raise a problem with the quality of the interpretation. The Tribunal does not accept that she needed fluency in English to do this as she could have expressed this view through the interpreter. In any event, the Tribunal pointed out to the applicant that she mentioned more than once during the protection visa interview that it is likely her family would find somebody else to fill the role of Queen Mother if she did not return home.
Based on her testimony the applicant was put forward for appointment to the role of Queen Mother up to nine years ago and the Tribunal is not satisfied for the reasons given that it is likely the position remains vacated.
Lastly, the Tribunal notes that there are various other inconsistencies between the information contained in the application for the Protection Visa and the applicant’s oral evidence. For instance, in the application form it is noted that the applicant was born in Accra, in the Greater Accra Region of Ghana whereas she informed the Tribunal that she was born in [Location 6] in the Ahafo Region of Ghana. Additionally, her written application indicates that she resided in Kumasi from [Birth] until 21 March 2018 whereas she advised the Tribunal that she moved to Kumasi around 2009 and lived there until she departed for [Country] in 2015. When the Tribunal discussed the first of these discrepancies with the applicant during the hearing she stated that it is possible the person who filled in the form on her behalf made some mistakes. The Tribunal is not persuaded that such glaring errors can be accounted for in this way particularly as she advised the Tribunal that she narrated her information to the person who took down her information. While the Tribunal acknowledges these are minor details and that it would not have rejected the applicant’s claims for this reason alone, it nevertheless finds it to be a further indication that she has not provided an honest or accurate account of her situation in Ghana or the problem she faced there or fears on return to Ghana.
After considering all of the relevant evidence the Tribunal finds that the applicant has not provided an honest or an accurate account of her reasons for leaving Ghana and seeking protection in Australia. The Tribunal does not accept that the applicant was chosen to be the Queen Mother, either by her grandmother or her uncle/s in her traditional area or that she refused such an appointment. Nor does the Tribunal accept that she was humiliated, threatened, was at risk of being poisoned, killed or raped by anyone to force her to take this role or to punish her for not doing so or that she was forced to relocate to Kumasi and/or [Country] or Australia to avoid these problems. The Tribunal considers the applicant has fabricated these claims to support her claim for protection in Australia. It follows that the Tribunal does not accept the applicant will suffer serious harm on return to Ghana for the reasons claimed.
In reaching this conclusion the Tribunal has considered the photographs provided by the applicant as evidence of her claims. However, as discussed with her during the hearing at most they show that some Ghanaians, who may or may not be her family members, continue to follow traditional practices such as wearing traditional attire. With regard to the claimed location of the applicant’s house there is nothing in the pictures which confirms the geographical location of the applicant’s hometown and/or traditional area despite her indicating the presence of a quarry in the background of one of the photographs.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if she returns to Ghana now or in the reasonably foreseeable future for reason of her race, religion, nationality, membership of a particular social group or political opinion. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons already 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 she 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 1976

13 May 2022

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