1826973 (Refugee)

1826973 (Refugee) [2023] AATA 1514 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mohammed Mirza (MARN: 0747557)
CASE NUMBER:  1826973
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Anne Grant
DATE:31 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 March 2023 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Ghana – political opinion – membership and activity in political party – party won election but applicant’s area a stronghold of other major party – applicant and family members attacked and friend killed in post-election violence – continued threats to applicant after returning from third country but no further harm to family members – no strong political views but campaigned as means of improving family’s situation – frank and plausible evidence – significant differences between written claims and evidence in interview with delegate clearly explained – country information, news and academic reports – local political vigilantism – chance of persecution relates to all areas of country and state protection not accessible – treaty right to reside in neighbouring countries limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (3)(c)(iii), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
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 3 September 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 22 May 2018. The delegate refused to grant the visa on the basis that they did not accept any of the applicant’s claims to fear persecution in Ghana.
This review was listed on four occasions but could not proceed on the first (9 August 2022) because the interpreter telephone connection was lost at the commencement of the hearing and could not be regained; and then on the second scheduled date (22 September 2022) because no interpreter was available. On the third listed date, an interpreter had been located but then failed to attend the scheduled hearing at all. At the first and third hearings, the applicant attended the hearing and I observed that his English language skills were not at a level where he could give evidence without the use of an interpreter.
An interpreter was located in early March 2023 and the matter was able to proceed. The applicant appeared before the Tribunal on 15 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hausa and English languages who attended by video link to the hearing room. The applicant was observed to clearly understand and respond to the interpreter and confirmed that he could hear and understand them properly.
The applicant was represented in relation to the review. The representative was unwell on the day of the final hearing and informed the hearings team that the hearing would be proceeding without him. However, the applicant failed to arrive at the scheduled time and the Tribunal hearings team liaised with him to locate the applicant. The representative later left the MS Teams meeting and did not re-join. The applicant confirmed that he was aware that his representative was not attending the hearing. Given the difficulties encountered in listing (and commencing) the matter, the hearing proceeded in the representative’s absence. I decided that it was appropriate to proceed given the history of the matter and the scarcity of Hausa interpreters.
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.
Claims and evidence
The issue in this case is whether the applicant is a refugee and, if not, whether he is a person who is owed protection pursuant to the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
At hearing, and at the delegate’s interview, the applicant had confirmed that the representative who had completed the application for protection had misunderstood some of what he told him, because they did not speak the same language. In summary, the applicant’s written claims were as follows:
- The Applicant is a [Age]-year-old from [Location 1] which is in the northern region of Ghana. The Applicant is from the [province] of [Location 2] of the [Location 3] tribe. The Applicant’s tribe is a minority within the Northern Region. Some of the people of the tribe that the applicant belongs to are close to the border between Togo and Ghana.
- The Applicant was a [Sport 1] player in the [Location 1] town and was the captain of the Youth Association.
- The ruling party and the opposing government that are the politicians in Ghana have been terrorizing people since the election. The applicant and a number of other people were used by the political parties because they could read, write and speak English to campaign for them. The applicant was used to campaign to the [Location 1] and [Location 2] community by the political groups because of his connections to the Youth Association and as the captain of a club.
- The applicant was used to go from house to house supporting the political party by sharing the political party T-shirts, flags and fliers, which ensured the support of the [Location 1] and [Location 2] communities. The political group agreed to help the applicant, but they did not. The Applicant comes from a poor family which requires support which is why he started working in the political area. The same politicians that put the Applicant in the situation were the same people who expelled him out of the country and told him to never return.
- The [Location 2] and [Location 1] share many similar values such as the festivals for thanking God for a good harvest and rainfalls for the coming year. The [Location 2]and [Location 1] tribes also share a very similar language, which is why both tribes join together and celebrate.
- In 1994, violence broke out due to a minor trade dispute, this minor trade dispute exploded into a large-scale violent attack that resulted in the death of 2000-3500 people. During the violence the applicant’s father was one of the people that died.
- Due to the applicant’s father dying during the violent trade dispute, the applicant grew up not liking the [Location 3] tribe. The Applicant never supported the National Democratic Congress (NDC) which was the ruling party of the country by then. The Applicant joined the New Patriotic Party (NPP) which was the party that opposed the NDC.
- In 2016, the Government of John Dramani Mahama which is the current ruling government lost the election to the party that the Applicant supports. All the Applicants family supported the NPP against the NDC which is the government that lost its power. John Dramani Mahama is from the Ganja tribe that supported the [Location 3]’s fight against the [Location 2] so the Applicant never liked or supported the NDC. When the NPP won the elections in 2016, tensions raised to the maximum and hundreds of supporters died and the [Location 1] province was under attack. Over 70,000 people were displaced while several hundred villages and farms were destroyed. The Applicants [sisters] were beaten and wounded.
- The Applicant’s life was at risk due to his involvement in the campaign that helped the NPP win the 2016 election. The Applicant could not leave through the Salaga province as the ex-president was from that area. The Ganja natives would not welcome anyone including the Applicants family. The Applicant was stuck with the [Location 2]. The head of the NPP campaign organiser sheltered the Applicant, his mother, [sisters] and brother. Before [Event 1] began in Australia, the NPP organizer could only help the supporters of the NPP, which was the Applicant by mixing them with the supporters the NPP (sic). The Applicant was told to never return once he left.
Prior to the delegate making their decision, the applicant had corrected some of the claims outlined above. By a notice of incorrect answers provided to the department on 24 May 2018, the applicant notified the Department of several errors of a clerical nature. On 26 May 2028, a second notice of incorrect answers included the following:
Give details of the incorrect information:
In the Applicants Submission, under the Applicants background and claims, it is stated that the Applicant is part of the New Patriotic Party, this is incorrect. In the Application, it states that the National Democratic Party is the current ruling party, this is
incorrect.
Give details of the correct information:
The Applicant is a member of the National Democratic Party and not the New Patriotic Party. The current ruling party is the New Patriotic Party.
Reason why incorrect information was provided:
The reason the wrong information was provided is that of the time constraint put on the migration agent to provide the applicant's story. There is also a language barrier between the Applicant and the migration agent which caused this misunderstanding to occur.
The delegate interviewed the applicant on 28 June 2018. In summary, the applicant told the delegate that:
- The representative who drew up his claims got the party information backwards. He was a member of the NDC and not the NPP.
- The NDC Party Chairman assisted him to leave Ghana and come to Australia at no cost to the applicant. The NDC gave him 3,500 USD to get established. He has a cousin in Adelaide and his cousin gave him assistance once he arrived in Australia. He has not confided in his cousin with respect to his fear of returning to Ghana, instead telling him that he is here for further education.
- He has a high profile in Ghana because he visited private homes as a political campaigner for the NDC and people know who he is. He helped to organise rallies, distribute propaganda and he used his skills in English and in the local [Location 1] language because the Party needed influencers.
- In Ghana he was attacked in his room and kicked from behind. They threw things through the window. His [sisters] and a brother were assaulted because the assailants wanted him to come out. He doesn’t know specifically who these people are, but he believes that they are NPP supporters
- He sold his land to go to [Country 1]. After that, they were texting his phone. He reported this harassment to police but the number doesn’t ring. The last time he had contact with NPP supporters was in August or September 2017 after he visited [Country 1].
- Relations between religious groups in Ghana are relatively peaceful, but there are issues.
- The 1994 conflict was caused by a disagreement over land rights. The fighting was resolved by the President Tom Wallace; his family has supported the NDC since then, but they are not highly political and don’t discuss politics.
In support of his application for protection the applicant had provided several documents:
·Submission from his representative provided on 23 May 2018;
·His Ghanaian passport;
·Letter from the [Branch 1] Constituency of the National Democratic Congress dated 9 July 2018. In this letter, signed by [Mr A], Constituency Secretary, the writer states that the applicant was one of the youth organisers of the NDC in the [Location 1 – misspelled](sic) Municipality in Northern Ghana. He had been campaigning for the party from 2016 until his departure in 2017. He was an active campaigner and well known in his community and an asset for the party. There has always been tension and ‘sporadic’ violence between the NDC and the NPP supporters, the situation escalated and deteriorated since the NDC lost the last election in December 2016. Since then some NDC supporters in Ghana have been detained, beaten up, assaulted and even killed. His family have gone their own way and ‘we believe they have left the country due to the risk to their life’. The applicant’s life is in danger because he is known as one of their main campaigners. When he was in Ghana he had been attacked by a machete, but fortunately survived the ordeal, resulting the NDC having to organise his safe passage out of Ghana.
·A Ghana criminal history check
At hearing, the applicant generally confirmed the evidence he had given to the delegate. He gave evidence that he fears that he will be harassed and/or killed by people affiliated with the NPP if he returns to Ghana. Before fleeing the country a second time, he moved to Accra but he received ongoing threatening texts and was chased by people affiliated with party enemies. His brother received a text whilst the applicant was in [Country 1], saying that it didn’t matter where the applicant went, they would find him. This was in early 2017. The applicant went to the police to report the threatening texts and they said they would investigate, but the police did nothing. He fears that some of the police are involved in the harassment and violence, though he agreed that some police would be supporters of his party also. He explained that the police in Ghana require payments to investigate offences.
The applicant gave evidence that he moved his children to Accra to be with his brother, because he wanted to keep them safe. His mother remains in [Location 1], but has indicated that she intends to move to Accra. The applicant said that [Location 1] is a small place with around 2,500 people living there. He was one of the captains of the local youth [Sport 1] team and this is why he was so well known. If he returns to [Location 1] or the area around it, people there will straight away know him and his political past. With an election coming up next year, the problems will become worse again, even though he would not participate or join any campaigns. I noted that there was an election in 2020 and so it seemed to me his involvement in an election in 2016 would most likely no longer be front of mind for the people who threatened him in the past. The applicant responded that a friend of his who worked on the same campaign as he had done moved to [Country 2] in 2017 to escape the violence but when he returned to Ghana three years later, he was killed. He believes it was because of his campaigning. This occurred a few years ago now.
I noted that, based on the election results alone, the country is roughly split with half of the people supporting the NDC and the other supporting the NPP. I also noted that my assessment of the country information suggested that whilst there are some acts of violence surrounding elections, there is nothing to suggest an ongoing, widespread, and targeted campaign of attacks (and murder) of political campaigners in Ghana such as the applicant claimed to fear. I put to the applicant that my assessment of the country information did not support his claim that political campaigners continue to be hunted and murdered for being involved in an election 7 years ago, or even the election in 2020. The applicant responded that it is true that the population is roughly split in favour of one of the two parties and therefore that there are many people who have worked on political campaigns who are not targeted. However, he claimed that amongst the poorer members of the community this sort of violence is continuing to happen and is just not reported. Nothing is done about it. It is a ‘tradition’ for the winners of an election to take on the supporters of the losing party. In rural areas, the winners take over important public spaces, such as the public toilets in [Location 1]. Everyone wants to control those resources. It is there that conflicts take place.
I referred the applicant to the letter he had sent in from the [Branch 1] Constituency. I asked why he had got that letter from there, rather than from the [Location 1] branch. He said that it was the [Branch 1] branch who helped him to flee the country. That is why he asked for them to help him provide the letter. He agreed that the [Location 1] name had been misspelt by the writer and he thought this was just a clerical error. Everything else in the letter he considered to be accurate.
The applicant said that he became involved with campaigning because the Party ‘helped’ people that supported it. His family was poor and that was why he became involved. He first became involved in [Year].

He was attacked after the election by a group of the other party supporters outside a public convenience when they claimed control of the area after the election. He said that this is the pattern; that some supporters of the winning party after an election always use threats and often violence to take over or maintain control of public areas. They attacked him with a cutlass, and he received a cut to his [Body part 1] and [Body part 2]. He did go to a hospital, but they treated him as an outpatient only. There is no formal record of that visit, but they dressed the wound and made him come back daily for about three weeks to have the wound cleaned and dressed. He was prepared to show me the scar on his body during the hearing, but I accepted that he had sustained a scar from a cutlass attack. He said the attack was a few months after the election. Another time, he was going to visit a person in the hospital and a group of men attacked them and beat them up very badly. He didn’t report this to police because their supporters were in power in government, and he knew nothing would happen.
After this second attack he went to [Country 1] for six months. At the end of that period, he thought things would have calmed down. When he came back, he didn’t go to [Location 1], just to Accra, but even so he started receiving threatening texts again. He reported those threats to police and was told they would investigate them. But the number making the threats was not registered to anybody, and, as he said before, the police did nothing. He found that people were still searching for him and he was not safe. He went instead to the party members in Accra who told him he should leave the country. The party members helped him to get a visa as part of [Event 1] to leave the country and told him not to return. He had no actual involvement in [Event 1], and in fact nothing was organised for his support when he got to Australia.
I asked the applicant if his family had received threats directed at or about the applicant in the years since he had departed. He said that his brother had received a text once, not long after the election, telling him that ‘it didn’t matter where the applicant went, they would find him’. This was in 2017. When I asked if his children, brother, or mother had been harmed or threatened by these people, the applicant said that they had not, and his brother was caring for his children. His brother works as [an Occupation 1]. He said that his brother is nonetheless afraid and is worried about the children. His mother wants to move from [Location 1]. He has [sisters] still living in [Location 1], and they have not been harmed since his departure.
If he returned, the applicant said that he would not be involved in political campaigns. However, in his view it didn’t matter because the people who want to harm him wouldn’t believe that he wasn’t still affiliated with the NDC party. He said that they killed his friend after three years. There is another election next year, and he believes the cycle of violence will continue.
The applicant was asked if he feared persecution because of his religion. The applicant said that religion has been brought into politics. He claimed that this was another reason why he feared harm in Ghana. The applicant is from a particular sect of Islam, (Al Sunna) and there have always been fights between that sect and other sects, such as the Shia and Sufi sects. When he was 25 or 26 years old, he was involved in a fist fight which was when two different religious sects of youths clashed. The applicant said that was the only time he experienced that, but he claimed to fear it may happen again.
He was asked if he feared persecution based on his tribe, noting that he had claimed in his written application that he feared persecution from the [Location 2 tribe], for example. The applicant responded that he is from the [Location 1] tribe. The applicant said that his tribe is mostly close with the [Location 2] tribe; they eat and pray together but sometimes there is problems. He has experienced verbal abuse in the past when he was young. Members of other tribes would call him names.
If he returns to Ghana, the applicant said that he fears that ‘they’ will come after him – (meaning his political enemies.) He feels that it is not safe for him in Ghana whilst the NPP is in power, because those people have impunity and could hurt him with no consequences.
The applicant gave evidence that he worked in Ghana as [an Occupation 2] before he sold up everything and moved to [Country 1] for his safety. He worked for some of his time in Australia as [an Occupation 2] when he had work rights. Now he does volunteer work for food.
The applicant was asked if he could relocate in Africa to another country using the ECOWAS agreement. He responded that he would never go anywhere else in Africa, because he doesn’t know what life would be like in another African country. His friend who tried that by moving to [Country 2] for three years was killed as soon as he returned to Ghana. He feels safe in Australia and the idea of returning to Africa frightens him.
I asked why the applicant could not go to police for support if he was threatened on his return. He agreed that he would do so, but he didn’t think they could do anything to protect him if his persecutors decided to harm him, and even if they did want to investigate it, they would want money to investigate, and he can’t afford that. Whilst some police may be NDC supporters (and therefore more receptive to his problems), when he goes in to report the threats or violence, he has now way of knowing who those police are.
Although there is a significant disparity between the written claims and the evidence given to the delegate, I am satisfied that the applicant has clearly explained that the mistaken written claims inverted the political parties due to communication and language difficulties and thus made those claims very confused. I am satisfied that the mistakes were rectified as soon as possible[1] and in fact that the applicant has otherwise, in his interview with the delegate and in evidence at hearing, provided consistent evidence about his history of political campaigning, his experiences of and his fear of political violence in Ghana. I found the applicant to be a credible witness and observed that his English skills are poor. In those circumstances and taking into account his frank and plausible evidence at hearing, I accept that the difference between his written and oral claims is not an indicator that his claims of experiencing and fearing political violence or his evidence overall are unreliable.
[1] By Notices of Incorrect Information dated 24 and 26 May 2018.
Fear of harm due to political profile and opinion
Having considered the applicant’s evidence, I am satisfied that the visa applicant worked on a political campaign in and around [Location 1], which is in the Northern Region of Ghana for the NDC political party. I accept that the applicant displayed familiarity about the area, the history of violent tribal disputes in the region and political violence, the manner in which the different political groups interacted in the Northern region and his own role during the 2016 campaign. I accept therefore that he distributed campaign materials in his region, visiting people at home and handing out flags, tee-shirts and campaign information to members of the [Location 1] community on behalf of the NDC political party. Although he does not appear to hold strong views about political issues, I accept his evidence that he believed that he would be rewarded for his role by the political party and that he undertook this work because his family was poor, and he saw it as a means of potentially improving their situation. I accept that the applicant has a profile as a former political campaigner for the NDC.
I informed the applicant that even if I accepted his evidence that he had suffered physical assaults by people linked to the NPP during and in the period after the election campaign prior to departing Ghana permanently, the country information that I had located did not generally support his claim that Ghanaian political activists were subjected to ongoing, incessant political violence, especially not six years after a person last had anything to do with political campaigning in Ghana, as he claimed was the risk he still faced.
At the time I discussed his claims with the applicant, I referred generally to the country information which suggested that Ghana is generally considered a stable, democratic country which has an established police and security force and a functioning justice system. In particular, I noted that there were reports of some violence around elections, but the general country information suggests that it is limited in nature and not sustained in the manner described by the applicant.
When this information was put to the applicant, he disagreed with the premise, noting that the political violence in Ghana has a long history, and does not end when an election is resolved – the winners always take on the losers, taking control of important social and community infrastructure (in [Location 1], the public conveniences) and brutally attacking those ‘on the other side’. He also responded that whilst violence against low level political operators like himself might not happen if they are from wealthy or connected backgrounds, amongst the poorer communities, (including his own) it has always taken place and would continue to do so, not subsiding just because of the election. The applicant gave evidence that the winners took advantage of their position of strength (and impunity) over the period of their party incumbency, brutalising those on the opposition side and doing so without fear of being held accountable.
Subsequent to the hearing, after considering the applicant’s evidence about the pattern of political vigilantism in Ghana, which was eloquently argued and compelling, I did some further research on political violence in Ghana and located several reports where the growth of political vigilantism is reported and considered to be of real concern in Ghana over the period since the applicant departed the country. In addition to several news and academic articles[2], I located a report by the Ghana Center for Democratic Development (the CDD) commissioned by the United Nations Development Programme, published in June 2020[3]. This report includes information related to the Northern region of Ghana where political vigilantism is described. I have had regard to these news and academic reports and in particular, found the CDD report to be valuable and informative. According to that report (bolding added):
Political vigilantism is not new in Ghana's political history. The violence and antagonism that characterized the activities of the then political vigilante groups littered the road to the country's independence and immediate post-independence period with the formation of the Action Troopers of the National Liberation Movement (NLM) and the Action Groupers of the Convention People's Party (CPP) (Allman, 1993). The formation of these political vigilante groups stemmed from what seemed to be tensions over political party formation and the national political philosophy - federalism versus unitary government (Attobrah, 1976). However, the activities of these earlier vigilante groups fizzled out following the overthrow of Ghana's first president, Osagyefo Dr. Kwame Nkrumah and his CPP-led government in a 1966 coup d'etat. Other forms of political vigilantism resurged during the long period of military rule, but these were quelled by the military regimes (Asirifi Danquah, 2008). The Fourth Republic has witnessed the gradual resurfacing of political vigilantism taking a pivotal role in Ghana's electoral politics. Ghana is nonetheless touted as a model of democracy and good governance. Characterizing this enviable feat since resumption of multi-party democracy in 1992, is a record of seven successive and generally peaceful elections that have culminated into three successful transfers of power from one party to another in 2001, 2009, and 2017 respectively. However, beneath these positive credentials are undercurrents of recurring low intensity electoral violence that has virtually marred every election cycle (Bob-Millar, 2014), although this has not blown out into a civil war as exemplified elsewhere on the continent (African Union (AU) and Government of Ghana, 2018). Indeed, none of the seven presidential and parliamentary elections, by-elections and re-runs was without violence, with the level of violence intensifying as electoral and political competition intensified with each election…
With reference to the Fourth Republican era, Edu-Afful and Allotey-Pappoe (2016) note that “Historically, in Ghana, political vigilante groups have emerged in response to the theft of ballot boxes, violence, and the inability of security agencies, mainly the police service, to provide adequate security, especially during electioneering periods.” Over time, a new dimension has been observed with vigilante group activities, in which there is an apparent penchant for patronage spoils following electoral victory of their party, often negotiated as an entitlement through exhibition of violence and acts of hooliganism. Post-election and transition periods marking transfer of political power from one political party to another – (2001: NDC handed over power to NPP; 2009: NPP handed over power to NDC; 2017: NDC handed over power to NPP) – witnessed NPP party footsoldiers in 2001 clashing with their counterparts in the NDC to seize control of lorry parks, and public places of convenience which were maintained by the latter. Similar acts of aggression and takeovers occurred when the table turned in 2009, 8 Edu-Afful & Allotey-Pappoe (2016) highlight the origins of the term 'party footsoldier(s)' from the work of Bob-Milliar (2012, 2013), as a term coined to represent a group of party loyalists who in 1996 supported the presidential ambition of NPP business economist and investment consultant, Andrews Kwame Pianim, during the party's primaries with the NPP relinquishing power to the NDC. Groups associated with the latter took control of public places of convenience, lorry parks, National Health Insurance Scheme (NHIS) offices, the then National Youth Employment Programme (NYEP) offices and Metro Mass Transit Limited. In some instances, these vigilante groups successfully ousted District Chief Executives (DCEs), managers and staff of state institutions such as the NHIS and NYEP (Armah-Attoh, 2017). The transition of NPP into office in 2017 was no different from previous times and marred the almost smooth process. NPP affiliated groups, mainly led by the Invincible Forces, Delta Force and Kandahar Boys plunged the nation into a series of unlawful invasions, seizures and forceful control of public assets and facilities – for example, public places of convenience, lorry parks, toll booths, Kintampo water falls, Tema Port and Harbour, Passports Office, School Feeding Program sites, Tamale Teaching Hospital, among many other public places[4]
[2] For example, see Political vigilantism threatens stability in Ghana - ISS Africa (26 October 2018) Institute of Security Studies; Ghana has a serious political vigilante problem. Here's why (theconversation.com) 31 March 2019; and an article from African Studies Quarterly Political Vigilantism in Ghana’s Democratic Consolidation: Critical Mass, Political Behavior, and Actor Choices – African Studies Quarterly (ufl.edu) 2020.
[3] Electoral Violence and Political Vigilantism in Ghana Research Paper 27, (2020) commissioned by the UNDP and prepared by the Ghana Center for Democratic Development. Available here: New COVER.cdr (undp.org)
[4] CDD report, pages 1 and 2.
I note that the key matters addressed in this report are remarkably consistent with the applicants’ account of the political violence he encountered in Ghana after the 2016 election. This report supports his evidence that political vigilantism has been present in Ghana over a long period, that it does not necessarily subside between elections, and that the perpetrators of violence before, during and after elections enjoy a level of impunity from accountability due to the party protection of the incumbent government over the term of that incumbency. Of concern too, is the organisation’s assessment that this type of political violence has been steadily increasing and presents a clear threat to democratic governance of Ghana, and that there appears to be very little will on the part of incumbent governments to tackle or take action meaningfully addressing this violence.
Country Information generally suggests that Ghana’s police force is functional, and that the country has an established justice system. However, there are also reports which support the applicant’s claim that the police in Ghana require payments to investigate crime, and are frequently suspected of being corrupt and involved in violent crime and fraud. I also note the following extract from the US Department of State 2022 Country Report on Human Rights Practices in Ghana, which places weight on the applicant’s claim that the police lack capacity or perhaps the will to properly investigate and hold to account those involved in political violence:
During the 2020 election period, authorities, media, and observers reported as many as eight killings, with at least two killed by the National Elections Security Task Force, composed of military and police units, and at least two deaths from civilian violence. Investigations into these deaths remained pending with little progress two years after the incidents (see section 3, Freedom to Participate in the Political Process).
Having considered the country information (including but not limited to that referred to above) and the applicant’s evidence, I make the following findings of fact:
·I accept that the applicant was a low-level campaign worker for the NDC with a relatively high community profile in the [Location 1] region during the 2016 election campaign.
·His political party was in power until that election, but was ousted with the NPP taking government in 2017.
·I accept that the applicant was harassed, threatened and attacked after the election by people affiliated with the winning political party whilst he was in [Location 1], including with a cutlass on one occasion where he sustained serious blade injuries requiring ongoing medical treatment in the months after the election; and another occasion where he and some of his friends were badly beaten.
·I accept that the applicant sold assets and moved temporarily to [Country 1] for six months because of his fear of being attacked or killed by the members of the NPP. I accept that on his return from [Country 1], he received threats via text message saying that he would be killed, even though he stayed in Accra and did not return to [Location 1]. I also accept that his brother had received a threat in early 2017 warning the applicant would be tracked no matter where he went.
·I accept that the applicant reported the threats to police, but no action was taken, partially because he lacked finances to pay the police to follow through on the applicant’s case.
·I accept that the applicant sought the support of his party and through their connections, was able to get a visa and depart the country in 2018 on the pretence of him being a member of the [Event 1 group].
·I accept that the applicant has experienced verbal harassment related to his [Location 1] tribal heritage and that he once was involved in a fist fight due to religious differences when he was around 25 or 26 years old.
·Based on his evidence, I find that the applicant’s tribe, the [Location 1 tribe], mainly get on well with the other dominant tribe in the region, the [Location 2 tribe], sharing community and cultural events and festivals. I accept that from time to time there have been tensions between the [Location 1 tribe] and other tribes and that a large scale ‘civil war’ erupted in 1994, described by in one report as follows:
The fighting started in the Bimbila district of the Northern Region on 3 February 1994 (Africa Research Bulletin 21 Mar. 1994, 11342; Ghana Broadcasting Corporation Radio Network 4 Feb. 1994; Keesing's Feb. 1994, 39848). It was triggered by a dispute in a market in Napayili (Bimbila) between a Konkomba and a Nunumba over the price of a guinea fowl (ibid; Ghana Broadcasting Corporation Radio Network 4 Feb. 1994). One of the root causes of the violence is believed to be the Kokomba's demands for land and a paramount chief to oversee their tribal and social affairs (IPS 29 Mar. 1994; Keesing's Feb. 1994, 39848; Reuters 22 Apr. 1994)[5].
·I accept that his father was killed during this violent period which involved different tribes clashing in 1994.[6] I also accept that tribal identity can become enmeshed with political affiliations, in the manner described by the applicant due to historical clashes between tribes and the people who calmed those clashes.
[5] Canada: Immigration and Refugee Board of Canada, Ghana: Information on violence between members of the Konkomba and Nunumba ethnic groups in February 1994, particularly in Adibo village, and the government attitude to this violence, 1 May 1994, GHA17486.E, available at: 31 March 2023]
CONSIDERATION
Is there a real chance that the applicant will be persecuted in Ghana due to his political opinion?

In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or is mere speculation’. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated: “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[7]
[7] Chan v MIEA (1989) 169 CLR 379 at 397
Evaluation of chance cannot be reduced to scientific precision. I have assessed whether there is a real chance of serious harm in the reasonably foreseeable future by considering the totality of the evidence including all the matters set out above considered cumulatively.
As discussed above, the general country information about Ghana suggests that it is an African democracy success story, where transfers of power have occurred relatively peacefully, (though acknowledging election related violence), and on my first assessment I considered that there was little support for the applicant’s claims. But I do note that even reports which describe the country as a ‘democracy success’ refer to ‘sporadic’ and disturbing examples of violence linked to democratic elections and party affiliations. I found the applicant to be firm and convincing in his description about the pattern of power-related violence he experienced, and his observations of the pattern of that political violence historically in his own community. I give considerable weight to the report from the CDD, referred to above, which is noted to be an independent organisation unaligned with any party which was in that report seeking to research and provide guidance on addressing political vigilantism in Ghana. In particular, I note how the descriptions of patterns of violence by party members against opposing party members in that report is strongly consistent with the patterns described and experienced by the applicant. I consider that it provides some weight in support of the applicant’s claims that he plausibly continues to face a real chance of persecution in Ghana due to his past political activities.
I have taken into account that the applicant was only a low-level political campaign member, but consider that he had some profile in the small community in which he lived during that campaign. I have considered that a significant period of time has passed since he had any presence in [Location 1] or indeed, in Ghana, and that he states he would not be involved in politics ‘ever again’ if he returned to Ghana. I have taken into consideration his experience of being targeted with violence and threatened with future violence, and also that members of his family have not been targeted or threatened by his enemies since 2017. I have taken into consideration his decision to move temporarily to [Country 1] in the hope that the threat to himself would subside with time, and his belief that it had not when he returned. I have taken into consideration that the applicant’s fear of persisting danger was later borne out with the murder of a fellow campaigner in 2020 when he returned from [Country 2]. I have given consideration to the country information as a whole which I consider lends plausibility to the applicant’s claims and therefore complement my assessment of his evidence.
I accept as plausible that the perpetrators of violence in the applicant’s case enjoy impunity from prosecution due to their political affiliation with the ruling government of Ghana. I consider that the chance of harm persists during periods of governance, and that with each election cycle, there is a real chance that there will be a renewal of the risk facing the applicant, even allowing for the passage of a substantial period of time since his last involvement in any political activities in Ghana. The applicant acknowledged that he might or would ‘probably’ be safe if the NDC were governing Ghana – but I consider that the outcome of closely balanced elections in Ghana cannot be predicted and may in fact trigger additional political violence in an attempt to influence or reject the outcome.
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
After considering all of these factors and the applicant’s fear of persecution, I am satisfied that there is a real chance that the applicant will suffer serious harm (being killed, attacked, harassed or threatened) now or in the reasonably foreseeable future from NPP political vigilante groups because of his involvement in a political campaign for the NDC in 2016 and his perceived political opinion in favour of the current opposition party (the NDC) in Ghana.
The essential and significant reason for the harm he fears is his political affiliation and opinion favouring the NDC, which is one of the reasons mentioned in paragraph 5J(1)(a).
I find that the persecution involves causing the applicant serious harm (being killed, assaulted or harassed).
In the past, the applicant was targeted systematically by his political enemies, and harassed due to his political opinion, preventing him from resuming his employment in his home area or settling peacefully even in a larger urban environment such as Accra. I consider that he faces similar obstruction to earning a livelihood or living safely in Ghana if he returns to the country. I find that the persecution also involves systematic and discriminatory conduct.
I conclude that the applicant’s circumstances satisfy subsection 5J(4).
Does the real chance of persecution relate to all areas of Ghana?
The applicant’s experience suggests that the real chance of persecution does relate to all areas of the country, even though it may be lower in more populous areas such as Accra. Nonetheless, I have accepted that even whilst living there, he was targeted with harm. I also note that, as referred to in the NDD report referred to above, that in 2019, serious political violence occurred within the Ayawaso West electorate in Accra during a by-election, suggesting that political violence occurs even in populous urban environments. I have considered and accept his evidence that one of his acquaintances, a friend who had moved to [Country 2] to avoid post-election violence returned to Kumasi but was killed while living there almost three years later. I am satisfied, in the circumstances of this case, and taking into account Ghana’s size and the widespread and persistent nature of political vigilantism, that the real chance of persecution in this case relates to all areas of the country.
State Protection
I consider that the country information and the applicant’s experience suggest that whilst Ghana does have a relatively effective police force and a functioning criminal justice system, a person’s access to state protection is limited by their political and economic circumstances. I consider that a person in the applicant’s position is therefore unlikely to be able to access state protection. Further, the actors of state protection, such as police and army, have proven incapable of preventing outbreaks of extreme violence such as that feared by the applicant, or of pursuing and prosecuting perpetrators of political violence. I find that effective protection measures are not available to the applicant in Ghana, and I find that subsection 5J(2) does not apply in this case.
I have considered the provisions of s.5J(3) and I note that the evidence before me suggests that the applicant has indicated that he would actually be prepared to conceal his political opinion and beliefs if he returns to Ghana and abstain from any future political campaigning, but I have accepted his claim that even if he did so, he would not be able to avoid the real chance of persecution because his persecutors would be unlikely to accept that he had genuinely changed his political opinion. Such a step would not, in any event, be an allowable modification of his behaviour given subclause (3)(c)(iii).
Therefore I am satisfied and find that the applicant has a well founded fear of persecution as described in s.5J because of his involvement in political campaigning for the NDC in Ghana in 2016.
The applicant’s faith and tribal claims
The applicant’s evidence is that he has experienced some minor name calling and even a fist fight as a young man linked to his faith and his [Location 1] tribal heritage.
In its 2021 Report on International Religious Freedoms, (published in June 2022) the US Department of States reports:
The constitution prohibits religious discrimination, provides for individuals’ freedom to profess and practice any religion, and does not designate a state 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. 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-operated 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, but these must follow the prescribed curriculum set by the ministry. International schools, including 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.[8]
[8] Ghana - United States Department of State Report on International Religious Freedom GHANA June 2022.
At hearing I generally raised with the applicant that the country information suggests that Ghana’s constitution provides for religious freedom and respect for religious differences. The applicant agreed with this proposition but said that there were still problems between faiths and even members of different religious groups (or sects) from time to time, though his evidence acknowledged it was at a pretty low level (involving arguments, name calling, or, on one occasion in his experience, a fist fight.)
Having considered his evidence, I am not satisfied that there is any basis on which I could be satisfied that the applicant has a real (or any) chance of experiencing serious harm on account of his Islamic faith or sect. I find that the applicant has not established that there is a real chance that he will suffer persecution because of his faith or his Islamic sect now or in the reasonably foreseeable future in Ghana.
I acknowledge that tribal disputes occur in Ghana for different reasons, and that they have in the past led to extensive violence and death in clashes between tribes, including that instance in 1994 where the applicant’s father died. The applicant’s evidence suggests that he himself has not experienced, and does not fear serious harm on account of his [Location 1] tribal heritage alone. However the applicant referred both in his written and oral evidence to tribal links to political parties which have an impact on the extent and vulnerability of a person to political violence. I accept that tribal identity is often entwined with party political affiliations in Ghana. Whilst I would not be satisfied that there is a real chance that the applicant will suffer serious harm due to his membership of the [Location 1] tribe from the Northern Region if that were the extent of his claims, when considered cumulatively with his political claims I consider that his membership of the [Location 1] tribe and derivation from the Northern Region would increase the real chance that the applicant will face persecution if he returns to Ghana due to his political opinion, because his tribal background is identified as having an allegiance to the NDC.
Third Party 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[9], 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.
[9] 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 Togo and Cote d Ivoire 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 three years, the COVID19 Pandemic has further significantly affected free movement within the ECOWAS community. The Tribunal notes that in a 2020 publication by Cambridge.org[10] 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.
[10] 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.) S.36(3) does not apply in this case.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
…

[2023] AATA 1514

31 March 2023

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Natural Justice

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