1827716 (Refugee)

1827716 (Refugee) [2022] AATA 2850 (20 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827716

COUNTRY OF REFERENCE: Ghana
MEMBER:Rachel Da Costa
DATE:20 July 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 July 2022 at 9:28am
CATCHWORDS
REFUGEE – protection visa – Ghana – political opinion – National Democratic Congress (NDC) – destruction of property – physical violence – fear of killing – criminal gang – mental health issues – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 235 ALR 609
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 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 15 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born in Accra, Ghana in [year]. He has never been married. In Ghana, he has his mother, father and brother who live in the town of [Town 1]. In Ghana, he always lived at the same address in [Town 1], Brong Ahafo region. He speaks Akan and speaks, read and writes English. His religion is Christian. He has never visited any other countries. Prior to [year], he was studying. He completed high school in June [year] in Sunyani and [between specified years] he studied [occupation 1] at [a named college] in Kumasi. From [a specified year] to February 2009 he was employed as [an occupation 1] by [Employer 1] in [Town 1]. From January 2009 to April 2018 he was self-employed in the [occupation 1] industry.
He arrived in Australia [in] March 2018 as the holder of a [temporary] visa, travelling on his Republic of Ghana passport issued [in] 2016.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     He left Ghana for [an event] and also to seek protection because his life is in danger.
·     He was harmed by the entire party members and other people who associate themselves with the party. He has been wounded and assaulted badly due to his influential stand in the party. His property was damaged and his relatives have been harmed because of him.
·     He did not try to seek help because the other party’s agents are all over the country and seeking help will be useless.
·     He did not try to relocate because it will not stop the harassment, assault and destruction of life and property. His property has been destroyed and he stood the chance of being killed.
·     If he returns, the perpetrators will continue to hunt him down. He has a scar on his head from one of these incidents. The mob attacks are so violent that it always resulted in hectic violence.
·     If he returns, he will be harmed by the entire party members and other people who associate themselves with the party.
·     If he returns, the authorities cannot protect him because the authorities on whose bidding these violent members operate are reluctant to see its demise. They prey on people they think are attempting to denigrate their party and their chances of staying in power.
·     As a leading member of the opposition party, he is at the forefront of these skirmishes. Appearing on TV to advocate his point of view is seen as damaging to the other party, hence the incessant threats and fear of persecution.
·     He cannot relocate because it will not stop the harassment, assault and destruction of life and property. His property has been destroyed and he stood the chance of being killed.
The interview
The applicant attended an interview with the Department on 14 June 2018. During the interview he provided the following additional information about his claims:
·     He is married and he and his wife have one child;
·     To apply for his visa to come to Australia he went to Accra from Kumasi and was introduced to a person and told them his story about what happened to him;
·     He applied for his visa in January or February 2018;
·     In Ghana he was involved in politics as a [Position 1] in the National Democratic Congress (NDC) which is the main opposition party in Ghana;
·     He was a good speaker and the NDC people said he was good so he used to speak [in the media]. He spoke [in the media] about a policy which the ruling government didn’t deliver. After the [media appearance], ruling party members came on motorbikes his office to ask why he spoke against the government and he said he has the right to. They assaulted him and he had a laceration on his head.
·     The [Position 2] went to the police and made a statement and the applicant went to the hospital. When the applicant left the hospital he went to the police and made a statement. Nobody was arrested because the attackers were from the government. They were still looking for him and that is why he left.
·     These attackers also went to his house and destroyed things when he reported the case to the police. They were continuously threatening him. They threatened his wife.
·     The people who will attack him are a gang called [Gang 1] who are young men in the NPP. They come and get you if you speak against the government.
·     He was beaten up at an assembly meeting.
Documents provided after the interview
On 16 July 2018, following the interview, the applicant provided a number of documents in support of his claims:
·     Document with heading The Medical Officer’s Report, with handwriting on it dated [in] January 2018 and time 1515h. The written report refers to [an age] year old male in good health who was physically assaulted by a known individual for an unknown reason and sets out the injuries sustained.
·     Document entitled Ghana Police, Extract From Station Diary dated [in] January 2018 at 1.20pm with handwritten report referring to an assault without provocation on [the applicant] that took place on [that day in] January 2018. The report says the applicant came to the police station with a friend called [Friend A] and reported that on [that day in] January 2018 at 1.30pm he was chatting with a friend called [Friend B] at [Town 1] [Location 1] and a person called [Person A] and 4 others came and assaulted him without provocation and he needed police assistance. The document goes on to state that a police medical form was prepared and issued to the complainant to attend hospital for treatment and report for further actions and an extract of the occurrence was prepared from the station diary and issued to the complainant to be handed over to Divisional Headquarters at [Town 2] for further actions.
·     Document entitled Medical Form from [Town 1] Police Station dated [in] January 2018 to the Medical Officer at [Hospital 1], requesting examination of the applicant who complains that he was assaulted. The document states that the patient was sent to hospital at 1.20pm on [that day in] January 2018.
·     Document on letterhead of National Democratic Congress [Constituency 1] dated 7 June 2018, referring to the applicant being a [Position 1] of the NDC and that he was assaulted by the NPP [Gang 1] regarding comments he made against the government. It says the NPP Party [Gang 1] stormed the NDC office and assaulted the applicant. It says the [Position 2] reported this incident to the police for necessary action. Signed by [Mr A], [Position 3], [Constituency 1], Ghana.
·     Ultrasound images dated [in] January 2018 of pregnancy and an obstetric ultrasound scan report from [Hospital 2] of the same date.
The applicant also provided separately:
·     Document which states ‘Some YouTube videos and articles about [Gang 1] [details deleted] to proof that Ghana police and politicians are afraid of this group and my life is at risk in the if I go back to Ghana’. The document contains some links to various videos and articles about [Gang 1].
·     Report dated 3 July 2018 from [Health Service 1] referring to the results of a scan on the [applicant].
·     Printout of an article dated 15 July 2018 entitled ‘Enough is enough, we will deal with you ruthlessly – Hohoe NDC to NPP’. The source of this document is not clear.
·     Undated and unsourced photograph of the back of a man’s head with an injury.
·     Copy of an identification card from [Agency 1] identifying the applicant as an assemblyman for [Constituency 1].
The delegate’s decision
On 31 August 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate found that the applicant’s knowledge of political affairs was not consistent with his claimed leading role and involvement in politics and found that his claims in this regard had been embellished or fabricated. The delegate found that the applicant had no particular public political profile and was not a target of politically motivated harm as a result. The delegate was not satisfied by the applicant’s evidence about the attack that took place shortly before he left Ghana and found that the applicant did not have any particular association with the NDC or that he was attacked in their offices. The delegate also considered country information about politically motivated violence in Ghana and found that it did not support the applicant’s claims to have suffered harm as a low-level individual opposition party supporter. The delegate also considered country information about the availability of fraudulent documents in Ghana and expressed concern about the authenticity of documents provided by the applicant in support of his claims, as well as concerns about their content. The delegate did not accept the applicant’s claims of involvement with the NDC or that he fears harm from the [Gang 1] or opposition party supporters in Ghana. The delegate found the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 21 September 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal prior to the hearing.
Documents provided prior to the hearing
On 5 March 2022, the applicant provided a number of documents to the Tribunal in support of his claims:
·     Statement on letterhead of [Constituency 1], [Area 1] Electoral Area dated 24 February 2022 from [Member A], Assembly Member, which states that on [a day in] May 2017 an incident occurred at the Assembly. It states that the applicant was an Assembly member for the [Area 2] Electoral Area. It states that because some supporters of the ruling party thought that the applicant had influenced some people to vote against the government nominee for a position, the applicant was physically assaulted by angry supporters of the ruling party members and was hospitalised for some days. After his release he was chased by some of the supporters and his life was threatened. He had to run away from his country. Those angry supporters are still looking for him and have vowed to harm him.
·     Statement on letterhead of [Constituency 1] Municipal Assembly dated 16 February 2022 from [name], Municipal Coordinating Director, stating that the applicant was an Assembly Member for the [Area 2] Electoral Area from 2015 to 2018, that in 2017 during a confirmation process in the Assembly, confusion broke out and the applicant was physically assaulted by an assailant. This led him to give up his position and leave the country.
·     Statement on [Council 1] letterhead dated 23 February 2022 from [Mr B], stating that on 27 May 2017 during the nomination for a position in the [Constituency 1] Municipal Assembly, the ruling party supporters, known as [Gang 1], thought the applicant had influenced members to vote against the government nominee. They attacked him and he was severely beaten and collapsed. [Mr B] was one of the people who took the applicant to the hospital and he was admitted. After his discharge, the supporters chased him to be killed and his life was at risk which prompted him to flee the country.
·     Statement on letterhead of NDC [Region 1] dated 22 February 2022 from [Mr A], Regional Secretary, [Town 2], stating that the applicant was a member of the NDC since 2014 and he led a small group of the youth members in the [Town 1] community. It says the applicant spoke on behalf of the NDC [publicly] at the youth level and led the youth during the party campaign. [Mr A] states he is aware that NPP members, also known as [Gang 1], assaulted the applicant after a [media appearance]. He made a report to the police but the police refused to arrest these people because they are in government. He states that the applicant’s life is in danger because these people are still looking for him and he can speak well for the NDC.
·     National Democratic Congress Party Membership Card for the applicant, showing he has continued to pay his membership each month in 2017, 2018, 2019 and 2020.
On 11 March 2022, the applicant provided a number of documents to the Tribunal in support of his claims, which in his email he stated prove he was an elected assembly member for the [Area 2] electoral area in [Town 1], [Constituency 1] Municipal Assembly:
·     Attendance lists from Meetings of the [Constituency 1] Municipal Assembly dated 15 December 2015, 30 December 2015 and 29 December 2016. The applicant’s name appears on these lists.
·     Invitation on letterhead of [Constituency 1] Municipal Assembly dated 1 September 2016 to attend a committee meeting on 2 September 2016. The applicant is named on the distribution list.
·     Invitation on letterhead of [Constituency 1] Municipal Assembly dated 8 July 2016 to attend an event for a visit by [a named official] on 11 July 2016.
·     Undated photo of people in a group which the applicant states shows [Official A], and in which the applicant has identified himself.
On 12 March 2022, the applicant provided further documents:
· Article from [a news source] dated [in] September 2018 about the NDC Youth Wing in [his region] asking for more police security at a voter registration exercise.
· Article from [another news source] dated [in] September 2010 about some NDC members turning against each other. The victim says she was attacked because she did not advise her son not to go [public] to speak against rot in the NDC.
Additional submission provided by the applicant prior to hearing
On 14 March 2022, the applicant provided a submission in which he critiques the delegate’s findings and provides the following additional information:
·     He is a member of the NDC and became a [Position 1] in the [Town 1] community under the [Constituency 1] Municipal Assembly. He was an elected assembly member from 2015 to 2018.
·     As a community leader, his role is to motivate youth and garner support for the party. It is not necessary to have an in-depth knowledge of the party and its formal aspects and rules.
·     Tensions exist between NPP and NDC supporters in small villages but might not be reported in the media.
·     His now former wife was assaulted by the attackers who went to his house to look for him after the January 2018 attack.
·     He went to the party office after the [media appearance] and while in front of the office the attacker pursued him and he ran to the [Location 1] which is in front of the party office to get away and the attackers pursued him there. The police report supports this. This incident occurred on [a day in] January 2018.
Documents provided after the first hearing
On 24 March 2022, the applicant provided additional documents in support of his application:
·     Undated photographs which he says show political violence in the [identified] by-election.
·     Undated screenshots of photographs and articles that relate to violence during [another] by-election.
·     Undated screenshot of an article dated 21 December 2020 entitled ‘Techiman South election day shooting: the incident that led to death of persons at collation centre’.
·     Letter dated 22 March 2022 from [Psychologist A], clinical psychologist, stating that he has seen the applicant for counselling after the applicant was referred by his General Practitioner in June 2019 following a workplace assault on the applicant which caused him trauma. He said the applicant engaged well with treatment and by the end of 2019 did not require further treatment. In 2020 and 2021, he met with [Psychologist A] three times to update him on his progress. [Psychologist A] states that the applicant has also informed him about being physically assaulted in Ghana on 2015, 2017 and 2018 and even though the applicant does not require further regular treatment he is still deeply distressed and disturbed with the experience he has gone through.
Documents provided during and after the second hearing
At the second hearing, the applicant provided some medical records relating to the health of his current wife in Australia.
On 2 April 2022, the applicant provided a referral letter dated 2 April 2022 from his General Practitioner to [Psychologist A], clinical psychologist, “for assessment and management regarding his co of poor memory, feeling anxious and always angry. He related his symptoms to an incidents in ghana when he was beaten on three occasions in 2015, 17 and 18”.
On 6 May 2022, the applicant provided a document dated 6 April 2022 which purports to be a medical report from the [Hospital 2] in [Town 2] about the applicant’s treatment for the claimed assault [in] May 2017.
On 28 May 2022, the applicant provided the Tribunal with a report from his clinical psychologist, [Psychologist A], in which [Psychologist A] provides an opinion about the applicant’s mental health situation. This is discussed and considered in more detail below.
Applicant’s post-hearing submission about his mental health situation
On 11 June 2022, after the second hearing, the applicant emailed the Tribunal and stated as follows:
·     He was severely assaulted by ruling government members ([Gang 1]) in Ghana in 2015 and 2017 due to his political affiliation. The assaults were quite serious in nature, involving hospital treatment in Ghana.
·     After these assaults, he has been experiencing post-traumatic stress symptoms such as flashbacks, nightmares, severe anxiety, as well as uncontrollable thoughts about the brutal assaults that occurred in Ghana as well as the assault in Australia.
·     He is currently having mental health problems, such as anxiety, fear, depression and difficulty concentrating.
·     He has been trying to avoid thinking or talking about the traumatic events by avoiding places, activities or people that remind him of these traumatic events.
The hearings
The applicant appeared before the Tribunal on 15 March 2022, 29 March 2022 and 5 July 2022 to give evidence and present arguments. Where it is necessary to distinguish between these hearings for clarity, the Tribunal has referred to them in these reasons as the ‘first hearing’, ‘second hearing’ and ‘third hearing’ respectively. The Tribunal notes that the third hearing was specifically to discuss matters raised by the psychologist’s report the applicant provided to the Tribunal on 28 May 2022, a few weeks after the second hearing.

The Tribunal notes that the 5 July 2022 hearing was originally scheduled for 21 June 2022. On the way to the Tribunal on 12 June 2022, the applicant was involved in a car accident. He called the Tribunal to inform the staff that he would be a few minutes late. When the applicant arrived, he informed the Tribunal staff that he wished to proceed with the hearing. The Tribunal held a brief hearing with the applicant to discuss this with him. The applicant was visibly upset and said he had a headache. The Tribunal informed the applicant that in its view, given what had happened to him on the way to the Tribunal, it was not appropriate or fair to proceed with the hearing at that time. The applicant said that he was sorry about what happened and would like to proceed. The Tribunal explained to the applicant that in order for him to have a fair hearing, he needed to be in a more settled state and that the Tribunal was not prepared to go ahead given what had happened, but it understood he was keen to proceed and so it would set a new date for the hearing very soon. It also suggested that he should consider seeking medical attention. The applicant accepted this and the hearing was adjourned. As mentioned above, it was held on 5 July 2022.
The Tribunal hearings were conducted with the assistance of an interpreter in the Akan (Ghana) and English languages. The interpreters participated via telephone. The Tribunal notes that at times during the hearings, the applicant spoke in English. The Tribunal found his spoken English and his English comprehension to be good.
The day after the second hearing, on 30 March 2022, the applicant contacted the Tribunal and informed the Tribunal officer he spoke to that he was unhappy with the interpreter from the second hearing and that the interpreter from the first hearing was much better. He said the interpreter in the second hearing had told him at times that he was talking too fast and it distracted him from what he was saying. The applicant also said that he did not properly understand the questions being relayed by the interpreter. He said this distressed him and he now feels depressed. The applicant did not provide any specific examples in support of his complaints.
The Tribunal has carefully considered the applicant’s concerns about the interpreter in the second hearing. In both the first and second hearings, and in the interview with the delegate,[1] the applicant had difficulty at times limiting the length of his responses to questions and had to be reminded by the Tribunal member or the interpreter (with the agreement of the member or delegate) to try to break up his sentences to enable the interpreter to perform their role. Even with these reminders, the applicant continued to have difficulty with this at times. The Tribunal agrees that in the second hearing, the interpreter asked the applicant at times to slow down and to speak in shorter sentences. At times, the Tribunal asked the applicant to pause.
[1] The Tribunal has listened to a recording of the interview.
At no time during the second (or first) hearing, did the applicant express concern to the Tribunal about being distracted by the interpreter, and the Tribunal did not have a sense from the applicant’s answers to questions that he was distracted about what he was saying or that he did not understand the Tribunal’s questions and provide all the evidence he wished to in response. The Tribunal considers that it gave the applicant ample time and opportunity to answer its questions fully and to say everything he wanted to say which, at times, was lengthy. At times, the applicant asked for clarification of a question, which the Tribunal provided, and at times the Tribunal repeated or rephrased a question if it considered that its original question was not clear. Based on its interactions with the applicant in the second hearing and considering the answers provided by the applicant to the Tribunal’s questions, the Tribunal does not have a sense that he did not properly understand the questions being asked.
The Tribunal acknowledges that some applicants find using an interpreter difficult and understands that after a hearing, an applicant may reflect on certain answers they gave to questions and wish they had expressed themselves differently, particularly perhaps in response to concerns raised by the Tribunal about their case. However, the Tribunal does not accept that in the applicant’s case the challenges he claims to have had with the use of the interpreter in the second hearing prevented him from being able to participate in the hearing in a meaningful way.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments and that he was able to participate meaningfully in the hearing.
The applicant’s mental health situation is discussed later in these reasons.
Nationality
The applicant claims to be a citizen of Ghana and provided to the Department a copy of his Ghanaian passport issued on [in] 2016. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Ghana. The Tribunal finds Ghana is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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. The Tribunal notes there is no Department of Foreign Affairs and Trade Country Information Report on Ghana.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that a Ghanaian Australian man called [Mr C] helped him to fill in his protection visa application. He said the people he was staying with introduced him to [Mr C]. He doesn’t know whether [Mr C] is a lawyer and he wasn’t charged any money. [Mr C] asked the applicant questions and the applicant responded with the information. The Tribunal asked the applicant whether everything in the form was true and correct and whether there were any mistakes he wanted to point out or correct. The applicant responded that he found out at the interview with the delegate that [Mr C] had put in the form that the applicant [appeared in one type of news media] and this was not correct because it was [in another type of media]. He told the delegate this. The Tribunal asked the applicant why [Mr C] would have put wrong information in the form if he put the information the applicant told him. The applicant said he did not know and he told [Mr C the correct information].
The Tribunal asked the applicant whether anyone helped him write his submissions that he provided to the Tribunal on 14 March 2022. The applicant said that a person called [Ms A] helped him. He thinks she is an advocate. He was introduced to her by the pastor at his church. He did not pay her.
The applicant gave evidence that since making his protection visa application, he has divorced his wife in Ghana and he remarried in Australia [in] May 2021 to a woman who is an Australian citizen. He showed the Tribunal a copy of his certificate of marriage.
During the hearings, the Tribunal discussed with the applicant his family, education, employment, political involvement, where he lived in Ghana, his migration history, his mental health, the problems he experienced in Ghana and why he fears returning to Ghana. The Tribunal has concerns about discrepancies between the information contained in the applicant’s protection visa application form, what he told the delegate in his interview and the evidence he gave to the Tribunal in relation to various matters. The Tribunal also has concerns about certain claims the applicant only raised for the first time in the Tribunal hearings and the content of some of the documents the applicant provided in support of his claims.
The Tribunal’s concerns about the applicant’s claims and evidence are discussed below.
First, the applicant raised a number of new claims in the Tribunal hearing which raises concerns for the Tribunal.
Applicant’s claim to have been in hiding in Ghana
In his protection visa application form, the applicant did not mention having been in hiding in Ghana.
In his interview with the delegate, the applicant did not mention having been in hiding in Ghana.
In the Tribunal hearing, in the context of being asked about how he obtained his visa, the applicant gave evidence that when things got heated in his locality following the first attack in 2017 after the assembly confirmation process, he relocated to Kumasi and stayed with his brother who hid him for some time because it wasn’t safe. He gave evidence that he spent about four months hiding at his brother’s place, until September, then he went back to his place in [Town 1]. After the second attack following the [media] interview in January 2018, he went back to Kumasi to hide again and he stayed in Kumasi until he left Ghana.
The Tribunal put to the applicant its concern that he had not mentioned his claim about being in hiding at his brother’s place until the Tribunal hearing and that this raised a concern for the Tribunal about whether it was true. The applicant responded that he did not do his protection visa application by himself and the person who helped him may have omitted those things. He said he should have found a lawyer to help him but he didn’t know how to get help. The Tribunal does not accept this response. The applicant’s written claims in his protection visa application form are generally vague and lacking in detail. Despite the applicant’s explanation for this, which is that it is the fault of the person who helped him fill in the form, the fact that the applicant’s claims do not include any mention of him spending time in hiding from the people he claims to fear, which is a significant claim, concerns the Tribunal. This concern is compounded by the fact that the applicant did not raise this claim to have been in hiding during the interview with the delegate. The Tribunal has listened to a recording of the interview and considers that in the context of the questions being asked by the delegate, including about how the applicant obtained his visa and the harm he suffered in Ghana, it is surprising that the applicant did not mention that he had spent several months in hiding staying with his brother in an effort to avoid harm. In this context, the fact that the applicant only raised this claim for the first time in the Tribunal hearing raises concerns for the Tribunal about his credibility and the genuineness of his claims.
The 2015 attack
In the Tribunal hearing, the applicant also raised for the first time an assault that he claims took place [in] September 2015. He gave evidence that he was running as an NDC candidate for the assembly. He was at the [Location 2]. Some NPP members were telling people not to vote for the applicant and he approached them and asked them why they were doing that and they attacked him. He was beaten and was given over-the-counter medication for treatment. In the context of the applicant’s evidence in the Tribunal hearing and his submission referred to in paragraph 20, the Tribunal understands the applicant’s claim to be that it was people connected to the NPP [Gang 1] who attacked him, and who also attacked him again later.
The Tribunal put to the applicant its concern that he had not mentioned this claim previously which raised a concern about whether he was telling the truth. The applicant responded that it is true he did not mention it earlier but he swears he is telling the truth.
In the Tribunal hearing, the Tribunal raised with the applicant its concern about the lack of detail in his protection visa application form and the fact that he did not mention any specific incidents of harm. The applicant said that the person who helped him fill out the form asked him his reasons for protection and he told him, and he is not sure why that aspect was not included in the form. He also said this person didn’t tell him he needed to give a detailed description of what happened and told him that when he came for the interview he would be asked details. The Tribunal explained to the applicant that it was his protection visa application, not his friend’s, and it was his responsibility to ensure that the information he provided was complete and correct and that the fact that there seemed to be significant information missing was a concern for the Tribunal. Further, in response to the Tribunal’s concern about the lack of detail in his protection visa application form about any specific incidents of harm, the applicant responded that he mentioned in the interview he was beaten several times but not specific incidents. Having listened to the recording of the interview with the delegate, the only incident the applicant talked about in some detail in response to the delegate’s question about why he left Ghana was the claimed attack after the [media] interview in 2018. Other than that, he said he was beaten up at an assembly meeting, but provided no further detail. He did not raise any other incidents despite being asked by the delegate whether anything else happened.
The fact that the applicant only raised the 2015 incident for the first time in the Tribunal hearing, despite having had the opportunity to raise it earlier but failing to do so, is a concern for the Tribunal and raises doubts about his credibility and the genuineness of his claims.
Secondly, discrepancies in the applicant’s evidence about how he obtained his visa raise concerns for the Tribunal.
By way of background, and as set out in the delegate’s decision, documents show that the applicant arrived in Australia on a [temporary] visa issued in connection with [an event] in [Australia]. The visa was issued on 27 November 2017 and the applicant arrived in Australia on [a day in] March 2018.
In his protection visa application form, the applicant states that he left Ghana for [the event] and also to seek protection. He does not refer to how he obtained his visa.
In his interview with the delegate, the applicant told the delegate that he applied for his visa in January or February 2018 because before then he was being threatened continuously. He said that he went to Accra from Kumasi and was introduced to a person and told them what happened to him. The person told him he could stay in Ghana and maybe be threatened or killed and so it was better for him to leave the country for his safety. He didn’t pay any money for the visa; he was just helped.
In the Tribunal hearing, the applicant gave evidence that when he relocated to his brother’s place in Kumasi after the first attack in 2017, his brother was scared for him and a friend of his brother had mentioned there was an opportunity to get the visa. The Tribunal asked the applicant how he got the visa and who arranged it for him. He said he does not know the actual process. While he was hiding at his brother’s place, his brother asked for his passport, which his (now ex) wife brought to him, and then his brother arranged everything so he could leave. The Tribunal asked the applicant why, if the visa was issued on 27 November 2017, he did not leave Ghana earlier. The applicant said that he is not sure when the visa was issued. His brother and he went to Accra to get the visa and that is when the applicant left Ghana.
The Tribunal put to the applicant its concern that the evidence he had given to the delegate and to the Tribunal about how he obtained his visa was different. The Tribunal reminded the applicant that he told the delegate he went to Accra and told his story to someone who he had been introduced to and that person helped him get this visa, but he told the Tribunal that his brother organised his visa for him. The applicant responded that the interpreter may not have interpreted what he said correctly. He said that when he spoke about Accra (to the delegate), that was when his brother told him his visa was ready, but for the whole process his brother did not let him know who was involved so he didn’t know who organised it. The Tribunal does not accept this explanation. The Tribunal has listened to a recording of the applicant’s interview with the delegate. The applicant told the delegate that he went to Accra and spoke to someone about his situation and this person helped him to get the visa. The applicant did not mention anything to the delegate about his brother being involved in the process of arranging his visa. The Tribunal finds this surprising, given the applicant’s evidence to the Tribunal that his brother was entirely responsible for the process and the applicant did not know what was happening. The applicant also told the delegate that he applied for his visa in January or February 2018, but he told the Tribunal that his brother spoke to him about it and started arranging it in 2017 while the applicant was hiding.

The Tribunal considers these differences in the applicant’s evidence between what he told the delegate and what he told the Tribunal about how he obtained his visa, go to the applicant’s credibility. The Tribunal does not consider these differences to be ‘information’ for the purposes of s 424A as they do not in their terms contain a rejection, denial or inherently undermine the applicant’s claims to be a person to whom Australia owes protection obligations.[2]
[2] SZBYR v MIAC (2007) 235 ALR 609
These difference in the applicant’s evidence about how he obtained his visa raise concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, discrepancies in the applicant’s evidence about the 2017 and 2018 attacks raise concerns for the Tribunal.
May 2017 Municipal Assembly attack
As mentioned above, the applicant did not mention any individual attacks in his protection visa application form.
In the interview with the delegate, the applicant said he was beaten up at an assembly meeting, but provided no further information about this. The Tribunal infers that this is a reference to the claimed 2017 attack.
In the Tribunal hearing, the applicant gave evidence that [a leader] of the Municipal Assembly, from the NPP, had nominated an NPP member as candidate for the [Official B] position. Someone said they had heard the applicant had gone to another community and spoken against the candidate. On the day of the confirmation election the NPP could not get the numbers for their candidate to be appointed and they presumed the applicant was the cause of the defeat. That is why they attacked him. The Tribunal asked the applicant who attacked him. He said it was NPP boys who were part of the [Gang 1] from various areas. The Tribunal asked the applicant what they did to him. He said they slapped and hit him from all directions and he had severe pains in the body. This happened in [Location 3]. The Tribunal asked the applicant whether anyone intervened and whether anyone else was injured. The applicant said no. The Tribunal asked the applicant what happened after the attack. He said that he collapsed and one man called [Member A] helped him and took him to hospital. He was released from hospital the same night and went immediately to Kumasi to his brother’s place (which is where the applicant had previously told the Tribunal he hid after this attack). This incident happened [in] May 2017.
The Tribunal noted that the applicant had submitted various documents about this incident to the Tribunal but it was not mentioned in his protection visa application and he did not discuss it with the delegate in any detail. The Tribunal asked him why this was. The applicant responded that when he arrived in Australia he didn’t know the process and so [Mr C] helped him fill out the form and take the documents when he was invited to the interview. The Tribunal reminded the applicant that it was documents about the 2018 [media] interview assault that he provided to the delegate, and not documents about the 2017 assembly incident. The applicant said he didn’t tell the delegate about it because [Mr C] didn’t put that in the documents to the delegate, but he made the delegate aware they had attacked him more than once. The Tribunal does not accept the applicant’s response as it does not adequately explain why, despite being given the opportunity, he did not provide information or more detail about this particular claim of harm to the delegate despite being invited to discuss his claims. This raises concerns for the Tribunal about his credibility.
The Tribunal raised with the applicant broad concerns it had about the genuineness of the documents he provided in relation to the claimed May 2017 attack. The Tribunal discussed with the applicant country information that indicates fraudulent documents are easy to obtain in Ghana.[3] It put to the applicant that in light of this country information, the fact he provided the documents a long time after the claimed events took place and its concerns about the credibility of aspects of his evidence, it might not accept those documents as genuine. The applicant responded that the documents are genuine and he did not know he had to send the documents ahead of time.
[3] Canada: Immigration and Refugee Board of Canada, Ghana: Availability of fraudulent identity documents, including instances of officials issuing fraudulent documents, including passports (2008-2013), 3 January 2014, GHA104710.E (accessed 23 February 2022); (accessed 2 March 2022); (accessed 2 March 2022)
The Tribunal also put to the applicant that it had particular concerns about differences between some of the information in the written statements he provided in support and oral evidence he gave to the Tribunal about what happened after the [May] 2017 attack, such as how long he was hospitalised for. The applicant responded that he was beaten and taken to the hospital and the Tribunal can rely on those statements. The applicant’s response does not alleviate the Tribunal’s concerns. For example, the applicant told the Tribunal that he was helped and taken to hospital by one man, [Member A], and he was released the same night. The statement from [Member A] dated 24 February 2022 about this incident says that the applicant was physically assaulted and ‘hospitalised for some days’. The statement from [Mr B] dated 23 February 2022 states that the applicant was severely beaten and collapsed and [Mr B] was one of the people who took the applicant to the hospital, which is not consistent with the applicant’s oral evidence about who took him to hospital.
Even if the Tribunal accepts these written statements as genuine, the differences between the applicant’s oral evidence to the Tribunal and the content of the statements of [Member A] and [Mr B] about who took him to hospital and how long he remained in hospital, along with the Tribunal’s concerns about the length of time that has passed between the claimed incident and the statements being provided, all contributes to doubts about the reliability of the information these documents contain. This is particularly the case with the statement of [Member A] which seems to suggest the applicant was hospitalised for longer than the applicant himself claimed in his oral evidence to the Tribunal.
During the Tribunal’s discussion with the applicant in relation to this claim of harm, the Tribunal asked the applicant whether he had any medical records about his hospital treatment. The applicant said he could provide them. The Tribunal indicated to the applicant that it was up to him, but it explained that given the length of time that has passed since the claimed incident, the country information about the availability of fraudulent documents in Ghana and its concerns about the credibility of aspects of his evidence, if he did provide any records the Tribunal might not give them any weight. As referred to in paragraph 18 above, on 6 May 2022, the applicant provided a document dated 6 April 2022 which purports to be a medical report from [Hospital 2] in [Town 2] about the claimed assault [in] May 2017. The documents states that the applicant reported to the hospital [in] May 2017 with abrasions and bruises on account of being assaulted. He was treated in the out-patient’s department and discharged. The Tribunal notes that the information in this document is broadly consistent with the applicant’s oral evidence to the Tribunal.
The 2018 attack after the [interview]
As mentioned above, the applicant did not mention any individual attacks in his protection visa application form.
In the interview with the delegate, the applicant said he was a good speaker and the NDC people thought he was good so he used to speak [in the media]. He spoke [in the media] about a policy which the ruling government didn’t deliver. After the [media appearance], ruling party members came on motorbikes to the office to ask why he spoke against the government and he said he has the right to. They assaulted him and he had a laceration on his head. The [Position 2] went to the police and made a statement and the applicant went to the hospital for treatment. When the applicant left the hospital he went to the police and made a statement. Nobody was arrested because the attackers were from the government. They were still looking for him and that is why he left. The people who attacked or threatened him were a gang called [Gang 1] who are young men in the NPP who come and get you if you say something against the government.
In the Tribunal hearing, the applicant gave evidence that on [a day in] January 2018 he went to a [media outlet] in [Town 2] to do an interview and then he returned to the NDC party office in [Town 1]. His friends there congratulated him. At about 2pm to 2.30pm when he was outside the party office, which is near the [Location 1], he saw a group approaching and heard them say something bad about what he had said [in the media]. The applicant attempted to run but one of the group tripped him and he fell and they started beating him and kicking him and hit his head with something. They left him and a nearby taxi driver came and took him to the hospital. He was admitted to hospital and stayed there for three days. After he left the hospital, the [Position 2] picked him up and they went to the police station to make a complaint that [Gang 1] had attacked him and he had been admitted to hospital. The [Position 2] had gone to the police station on [that day in] January to report what happened. After the applicant finished at the police station, his [brother] came and picked him up and took him to Kumasi and he didn’t return to [Town 1] again.
The Tribunal put to the applicant that it had concerns about his story in light of discrepancies between the documents he provided about this incident, what he told the delegate and what he told the Tribunal. The Tribunal put to the applicant that the police report suggested he went to the police first before going to the hospital. The applicant responded that he was very weak after being beaten and had to go to the police after the hospital. The Tribunal noted that the medical examination form also suggested that he went to the police first because it is dated [on that day in] January 2018. The applicant responded that in Ghana they often use the date of the incident to create the report rather than the date of the reporting (ie, they backdate documents). The Tribunal expressed its doubt about this. The Tribunal also put to the applicant that there is nothing in the police and medical documents to support his claim that he was admitted to hospital for three days and subsequently went to the police, and he did not tell the delegate that he had been hospitalised for three days. The applicant responded that he is telling the truth.
The Tribunal has considered the applicant’s evidence and the documents he provided in support of this claimed attack, and has concerns. As set out in paragraph 7 above, around one month after the interview with the delegate, the applicant provided to the Department a handwritten police report entitled ‘Ghana Police, Extract From Station Diary’, a document entitled ‘Medical Form’ from [Town 1] Police Station to the Medical Officer at [Hospital 1] referring the applicant for examination, and a handwritten document with the title ‘The Medical Officer’s Report’ purportedly assessing the applicant. All these documents are dated [on that day in] January 2018.
The ‘Extract From Station Diary’ dated [on that day day in] January 2018, states that on [that day] at 1.20pm, the applicant and a person called [Friend A] came to the police station and reported that on [that day] at 1.30pm, the applicant was chatting with a friend at the [Town 1] [Location 1] and he was assaulted by a person called [Person A] without any provocation and the applicant needed police assistance. The report states the applicant had scratches on the left leg and complained of bodily pains. The report states that a Police Medical Form was prepared and issued to the applicant to attend hospital for treatment. The Report states that an Extract of Occurrence was prepared and issued to the applicant to be taken to Divisional Headquarters [Town 2] for further action.
The ‘Medical Form’ from [Town 1] Police Station dated [that day in] January 2018 requests the Medical Officer at [Hospital 1] examine the applicant who complains that he was assaulted. The document states that the patient was sent to hospital at 1.20pm on [that day].
The document with a printed heading ‘The Medical Officer’s Report’ is handwritten. It is dated ‘[the same day] @ 15 15 hours’ and says ‘seen and treated accordingly’. The written report, which is difficult to read in parts, refers to [an age] year old male alleged to be in good health until he was physically assaulted by a known individual for an unknown reason, and sets out the symptoms sustained. The document mentions symptoms of ‘headache’ and ‘body wounds’ and goes on to refer to ‘sustained multiple body abrasions with no obvious bleeding’, ‘musculoskeletal pain’ and ‘stable’. The Medical Officer’s Report does not mention anything about admitting the applicant to hospital or him requiring further treatment.
The Tribunal has carefully considered these documents and the applicant’s oral evidence to the Tribunal. The Tribunal considers it is fair to presume that when applicants provide documents to the Tribunal it is because they believe the documents support their claims. On the face of the documents provided by the applicant, there is nothing to suggest that he went straight to hospital after the claimed attack on [a day in] January 2018 and then attended the police station to make a report three days later. The documents appear to show that after the claimed attack on [that day], the applicant went and reported the attack to the police, he was referred by the police for a medical examination and he attended that medical examination and received treatment, all on the same day. The Tribunal notes the ‘Extract From Station Diary’ gives the report time as 1.20pm and states that the applicant claimed the assault took place at 1.30pm, which is presumably an error, however the Tribunal also notes that the applicant told the Tribunal that the attack took place at around 2pm to 2.30pm. Further, the applicant’s evidence to the Tribunal in the hearing was that the [Position 2] reported the incident to police on the day it happened and he also accompanied the applicant to the police station to make his statement after he was released from hospital three days later. In the statements from [Mr A] dated 7 June 2018 and 22 February 2022 provided by the applicant, [Mr A] states that he is the NDC official who reported the assault to the police, which would suggest that he is the person who attended the police station with the applicant after he was released from hospital. This does not match the details in the police report which state that the applicant attended the police station with a person called [Friend A].
These discrepancies between the applicant’s oral evidence to the Tribunal and the documents he provided in support of this claimed assault about who first reported it to the police, whether he went to the police before having a medical examination, whether he was hospitalised for three days and who accompanied him to the police station and when, all raise concerns for the Tribunal about his credibility and the genuineness of his claims. Even if the Tribunal accepted the applicant’s suggestion that the police in Ghana often backdate documents, which it does not, this would not resolve the discrepancies in his story and the content of the police and medical reports would not make sense. The Tribunal considers that the applicant made the suggestion about backdating in an effort to respond to the Tribunal’s concern about the lack of evidence to support his claim of hospitalisation prior to reporting to the police.
Consideration of documents provided by the applicant
As set out above, the applicant has provided a large number of documents in support of his claims which the Tribunal has considered.
Based on the applicant’s evidence to the Tribunal, it is prepared to accept that a number of the documents he has provided are genuine:
·     documents provided on 11 March 2022 which indicate the applicant was an assembly member of the [Constituency 1] Municipal Assembly.
·     copy of an identification card from [Agency 1] identifying the applicant as an assemblyman for [Constituency 1] and the National Democratic Congress Party Membership Card for the applicant.
·     ultrasound images dated [in] January 2018 and obstetric ultrasound scan report from [Hospital 2].
·     report dated 3 July 2018 from [Health Service 1] with results of a scan on the [applicant].
·     medical records relating to the health of his current wife in Australia.
The Tribunal finds that the medical records about the applicant’s current wife (whom he has married since coming to Australia, rather than his ex-wife in Ghana) are not relevant to his claims of harm and gives these no weight.
The applicant provided a number of undated and unsourced photographs to the Tribunal. As the Tribunal is unable to verify the source and content of these documents it does not accept them and gives them no weight:
· photograph of the back of a man’s head with an injury;
· undated and unsourced photographs which the applicant says relate to the [identified] by-election.
As discussed in paragraph 11 above, on 5 March 2022, the applicant provided a number of written statements in support of his claim to have been assaulted [in] May 2017. The Tribunal’s concerns about the applicant’s evidence relating to this claim, including discrepancies between the content of the documents and oral evidence given by the applicant to the Tribunal, the length of time between the claimed events taking place and the documents being provided to the Tribunal, are discussed in paragraphs 61 to 68 above. In light of these concerns, the Tribunal is prepared to accept these documents are genuine but gives their content no weight in assessing the applicant’s claims of harm. In respect of the statement in the letter from [Member A] that the people who harmed the applicant are still looking for him, the Tribunal does not accept as plausible that the people who the applicant claims harmed him in May 2017 would still be looking for him so many years later when he has been absent from politics and his area since early 2018. The Tribunal considers that this statement has been made by someone who clearly wishes to support the applicant in his protection visa application and that [Member A] has exaggerated his statement for the applicant’s benefit. The Tribunal’s view is strengthened by country information discussed below which indicates that [Gang 1], which is the group the applicant claims attacked him, no longer exists.
As discussed in paragraph 7 and 11 above, on 16 July 2018 and 5 March 2022, the applicant provided a number of written statements in support of his claim to have been assaulted on [a day in] January 2018. The Tribunal’s concerns about the applicant’s evidence relating to this claim, including its concerns about discrepancies between the applicant’s oral evidence to the Tribunal, the content of the written statements provided in support, and the content of the police and medical records provided by the applicant are set out in paragraphs 69 to 78 above. In light of these concerns, the Tribunal is prepared to accept these written statements as genuine but gives their content no weight in assessing the applicant’s claims of harm. In respect of the statement in the letter from [Mr A] discussed in paragraph 11 that the people who harmed the applicant are still looking for him, the Tribunal does not accept as plausible that the people who the applicant claims harmed him in January 2018 would still be looking for him so many years later when he has been absent from politics and his area since shortly after that time. The Tribunal considers that this statement has been made by someone who clearly wishes to support the applicant in his protection visa application and that [Mr A] has exaggerated his statement for the applicant’s benefit. The Tribunal’s view is strengthened by country information discussed below which indicates that [Gang 1], which is the group the applicant claims attacked him, no longer exists.

The Tribunal is prepared to accept that the police report entitled ‘Ghana Police, Extract From Station Diary’, the document entitled ‘Medical Form’ from [Town 1] Police Station to the Medical Officer at [Hospital 1] referring the applicant for examination, and a handwritten document with the title ‘The Medical Officer’s Report’ are genuine. The Tribunal also accepts the medical report provided on 6 May 2022 about the [May] 2017 attack, in paragraph 18 above, is genuine.
Other country information provided by the applicant is considered below.
The applicant’s mental health
On 24 March 2022, after the first hearing, the applicant provided to the Tribunal a letter dated 22 March 2022 from [Psychologist A], clinical psychologist, stating that he has seen the applicant for counselling after the applicant was referred by his General Practitioner in June 2019 following a workplace assault on the applicant which caused him trauma. He states that the applicant engaged well with treatment and by the end of 2019 did not require further treatment. [Psychologist A] states that in 2020 and 2021, the applicant met with him three times to update him on his progress. [Psychologist A] states that the applicant has also informed him about being physically assaulted in Ghana on 2015, 2017 and 2018 and even though the applicant does not require further regular treatment he is still deeply distressed and disturbed with the experience he has gone through.
In the second hearing, the Tribunal told the applicant it had read the letter from [Psychologist A] and asked the applicant whether there was anything he wanted to tell the Tribunal. The applicant said the psychologist takes care of him and he has told him about the things that happened and have affected him.
As discussed in paragraph 24, the day after the second hearing the applicant contacted the Tribunal to complain about the interpreter in the second hearing and said that the situation distressed him and he felt depressed.
On 2 April 2022, after the second hearing, the applicant provided a referral letter dated 2 April 2022 from his General Practitioner to [Psychologist A] for assessment and management “regarding his co of poor memory, feeling anxious and always angry. He related his symptoms to an incidents in ghana when he was beaten on three occasions in 2015, 17 and 18.” On 4 April 2022, the applicant informed the Tribunal that he would be seeing the psychologist after Easter.
On 4 May 2022, the applicant informed the Tribunal that he had scheduled an appointment to see [Psychologist A] on 7 May 2022 and that he would provide a copy of [Psychologist A’s] report to the Tribunal. That report was provided to the Tribunal on 28 May 2022.
In the report, which is dated 20 May 2022, [Psychologist A] provides the following relevant information:
·     The applicant’s most recent appointment was on 7 May 2022;
·     Over the past couple of sessions, the applicant opened up about the details of assaults he experienced in Ghana between 2015 and 2017. The assaults were quite serious in nature, involving hospital treatment and were related to his political activities;
·     Following the assaults in Ghana, the applicant would have met DSM V criteria for post-traumatic stress disorder (PTSD);
·     It seems that the assault that happened at work triggered the applicant’s PTSD symptoms and led to him re-experiencing intrusive images and thoughts associated with the previous assaults. The applicant had mostly recovered from the work-related incident but recent thoughts about a possible return to Ghana have exacerbated thoughts about previous assaults and resulted in a return of trauma-related symptoms.
·     The applicant has symptoms related to PTSD, such as severe anxiety and low mood.
·     The applicant has been prescribed medication for his depression and remains in need of psychological care for his PTSD symptoms. Forcing the applicant to return to Ghana would result in a significant exacerbation of his symptoms due to the very real danger he would face upon his return due to his political affiliations.
As mentioned in paragraph 20, on 11 June 2022, the applicant emailed the Tribunal and a made a submission about his mental health which essentially repeats material from the psychologist’s report.
In the third hearing, which was to discuss issues around the applicant’s mental health claims in light of [Psychologist A’s] report, the Tribunal asked the applicant whether it was after the second hearing, which was when he sought the new referral from his GP to the psychologist, that he had started experiencing symptoms again. The applicant said that since he received the letter to come to the Tribunal he has not been himself and when he came to the Tribunal he had difficulty relating easily what he wanted to say and he forgot some dates.
The Tribunal is prepared to accept the psychologist’s diagnosis that the applicant suffers from symptoms consistent with PTSD and accepts that after the second hearing, the applicant sought further help for his mental health situation from his GP and [Psychologist A] and has been placed on medication to assist with treatment of depression.
The Tribunal has considered whether the applicant’s mental health situation affected his ability to participate in the hearings in a meaningful way. The applicant did not claim in the first or second hearings that his memory had been affected by claimed events in Ghana and that this affected his ability to recall details or give evidence or to participate in the hearing. The Tribunal had no sense during the hearing that this was the case. Nor did he claim that feelings of anxiety or anger or depression affected his ability to give evidence, or express himself, or participate in the hearing, or the fact that he had been assaulted in a workplace incident in 2019 affected his ability to give evidence. The Tribunal does not accept that the applicant’s mental health issues affected his ability to give evidence to the Tribunal or to participate meaningfully in the hearings.
The Tribunal has considered whether the applicant’s mental health situation affected the nature of the evidence he gave to the Tribunal. The applicant has claimed that due to his mental health situation he has trouble remembering details like dates. The Tribunal is prepared to accept this, but observes that many people who do not suffer from mental health conditions can also have difficulty remembering dates and the issue of dates was not a particular concern for the Tribunal in assessing the credibility of the applicant’s claims. The Tribunal also observes that many people, regardless of whether they suffer from a mental health condition, can feel anxious about giving evidence in a Tribunal hearing and the Tribunal takes this into account. The Tribunal’s sense of the applicant’s oral evidence was that he had a great deal to say about the claimed events and did not appear to have difficulty recalling details, and he provided more information to the Tribunal than he did in the interview with the delegate, which does not suggest his memory has been particularly adversely impacted by his mental health situation at least insofar as it relates to his claims. As discussed above, in broad terms, the Tribunal’s concerns about the applicant’s evidence relate to claims that he only raised for the first time in the Tribunal hearing, and discrepancies between oral evidence given by the applicant about claimed events and documents he provided in support. The Tribunal does not consider that these concerns are attributable to the applicant’s mental health situation.
In terms of assessing the credibility of the applicant’s claims, despite its concerns set out above, the Tribunal gives weight to the fact that according to [Psychologist A’s] letters, the applicant had mentioned during his counselling sessions being assaulted in Ghana. However, this does not fully alleviate the Tribunal’s concerns set out above in relation to the credibility of the applicant’s claims and does not mean that the Tribunal unreservedly accepts all the applicant’s claims.
Findings
Having carefully considered all the applicant’s claims and evidence, the Tribunal is prepared to accept some of his claims, but not all. For example, as discussed above, the Tribunal has concerns about discrepancies between the applicant’s oral evidence to the Tribunal and some of the documents he has provided in support of his claims. It also has concerns about claims the applicant made for the first time in the Tribunal hearing and differences in aspects of his oral evidence to the delegate and to the Tribunal. While the Tribunal gives weight to the fact that the applicant has mentioned events in Ghana to [Psychologist A] during counselling sessions, it also considers that some aspects of his claims have been exaggerated or embellished.

100. The Tribunal accepts the applicant was born in Accra, Ghana and that in Ghana he lived in the town of [Town 1] which is in the Brong Ahafo region. The Tribunal accepts that in Ghana, the applicant has [specified family members] and an ex-wife. The Tribunal accepts that in Ghana he had a child who died and that his ex-wife suffered a miscarriage after the applicant came to Australia. The Tribunal accepts that in Ghana the applicant trained and worked as [an occupation 1].
101. The Tribunal accepts that in Ghana, the applicant became involved in politics through a friend and his parents. The Tribunal accepts that the applicant was a [Position 1] in the NDC and that from 2015 to 2018, when he left Ghana, the applicant was an Assembly Member in the [Constituency 1] Municipal Assembly. The Tribunal accepts that as part of his political activities and responsibilities the applicant attended assembly meetings and other gatherings, campaigned on behalf of the NDC and promoted its policies and did [media interviews] from time to time to promote the party.
102. With some hesitation, the Tribunal is prepared to accept that the applicant was beaten in [Location 2] [in] September 2015 by some NPP [Gang 1] members when he was running as an NDC candidate for the assembly. The Tribunal accepts that he was given over-the-counter medication for treatment. The Tribunal does not accept that he required treatment in hospital.
103. The Tribunal is prepared to accept that the applicant was attacked and beaten during an assembly meeting [in] May 2017 by people connected to the NPP [Gang 1] because they suspected him of campaigning against an NPP nominee for a particular position. The Tribunal accepts that one or more people took the applicant to hospital for treatment and that he was treated as an out-patient and released the same night. The Tribunal does not accept that the applicant was so badly beaten that he required hospitalisation for some days. The Tribunal finds that after this incident, the applicant continued with his political activities.
104. The Tribunal does not accept that after being discharged from hospital the applicant went to hide at his brother’s house in Kumasi for around four months until September 2017 and that he then returned to his place in [Town 1]. It follows that the Tribunal does not accept that during this time in hiding, the applicant, in consultation with his brother, decided it was not safe for him to stay in Ghana and that he needed to leave. The Tribunal does not accept that the applicant’s brother arranged everything in relation to the applicant’s visa so that the applicant could leave Ghana. The Tribunal also does not accept that the applicant went from Kumasi to Accra and was introduced to a person to whom he told his story and that person helped him to get his visa. The Tribunal does not accept that the applicant applied for his visa in January or February 2018. The Tribunal does not accept that the applicant was being constantly threatened and harassed in connection with his political activities. The applicant’s claim in the Tribunal hearing was that he was attacked and beaten three times in Ghana and this is consistent with what he told his psychologist. He did not claim that between these attacks he experienced constant threats and harassment and the Tribunal does not accept that he did.
105. The Tribunal is prepared to accept that in January 2018, the applicant spoke [publicly] in his area against NPP policies as part of his role as an assembly member. The Tribunal accepts that on [a day in] January 2018, after speaking [in the media] and criticising the NPP, the applicant was attacked and beaten outside the NDC party office in [Town 1] by some NPP [Gang 1] members as a result of his [interview] earlier that day. The Tribunal finds that after this incident, the applicant went to the police station with a friend and reported what happened. The Tribunal finds that the applicant was referred to the hospital for examination and treatment. The Tribunal finds that the applicant was treated and released from hospital the same day.
106. The Tribunal does not accept that after the attack the applicant was so weak that he had to be taken straight to hospital and that he was hospitalised for three days. The Tribunal does not accept that the [Position 2] went to the police and made a statement. The Tribunal does not accept that after being released from hospital three days later, the [Position 2] took the applicant to the police station where he made a report about the incident. The Tribunal does not accept that after he finished at the police station, having been released from hospital after three days, the applicant’s brother came and picked him up and took him to Kumasi for further treatment and he hid at his brother’s place again until he left Ghana. In light of the Tribunal’s concerns discussed above about the applicant’s credibility and its finding that the applicant has exaggerated or embellished aspects of his claims, including in relation to the attack after his [media interview], the Tribunal does not accept that the NPP [Gang 1] attackers went to the applicant’s house after he had been released from hospital to look for him again and when they could not find him they damaged his house and assaulted his wife. The Tribunal is prepared to accept that the applicant’s wife was pregnant in January 2018 and that she had complications with her pregnancy which ended in a miscarriage around two months later. However, given the Tribunal does not accept that the applicant’s wife was assaulted by [Gang 1] members, the Tribunal does not accept that her miscarriage was caused by the assault. The Tribunal is prepared to accept that the problem with the applicant’s [body] reported in the scan referred to in paragraph 8 was caused by one of the attacks.
Does the applicant meet the refugee criterion?
107. In his protection visa application form, the applicant claims that he fears returning to Ghana because the perpetrators will hunt him down and he will be harmed by party members and others who associated themselves with the party. The Tribunal understands this to be referring to fear from people associated with the government (NPP) party rather than members from the applicant’s own party, the NDC. In the interview with the delegate, the applicant stated that if he goes back his life will be in danger from a gang called [Gang 1] because he speaks up against the government. In the Tribunal hearing, the applicant gave evidence that he fears returning to Ghana because the people who attacked him in the past are still around and if he goes back they will harm or kill him. These people are the [Gang 1] and if the applicant continues to speak up they will attack him.
108. As set out above, the Tribunal has accepted that when he was in Ghana the applicant was attacked by [Gang 1] members in 2015, 2017 and 2018 in connection with his political activities. However, despite accepting these aspects of the applicant’s claims, the Tribunal does not accept that the applicant faces a real chance of serious harm from people connected to the NPP [Gang 1] if he returned to Ghana in the reasonably foreseeable future, for the reasons explained below.
109. The Tribunal has accepted that the applicant was involved in politics in Ghana as a [Position 1] in the NDC and that he was an NDC Assembly Man in the [Constituency 1] Municipal Assembly from 2015 to 2018 when he left Ghana. The Tribunal has considered whether the applicant would involve himself in politics again if he returned to Ghana and whether he would face harm as a result. In the Tribunal hearing, the applicant was asked whether he would involve himself in politics again if he returned to Ghana. He said that he will still speak and help his party because despite the threats of death and beating he wants to tell the people the truth of what is going on with the ruling party. The Tribunal is prepared to accept that the applicant’s interest in politics is genuine and that if he returned to Ghana in the reasonably foreseeable future he would involve himself in activities in support of the NDC. Tribunal finds that if he returned to Ghana, the applicant would return to live in the same area as he did before coming to Australia (locality of [Town 1]), which is where his friends and political connections are based. The Tribunal is prepared to accept that the applicant would seek an elected role again, although whether he would succeed in being chosen as a candidate and elected to office is obviously speculative. The Tribunal has accepted that as an elected assembly member, the applicant attended assembly meetings and other gatherings, campaigned on behalf of the NDC and promoted its policies and did [interviews] from time to time to promote the party. The Tribunal is prepared to accept that if the applicant were elected again, his activities would be similar to those he engaged in in the past. Therefore, the Tribunal has considered whether the applicant would face harm as a result of actively involving himself in politics in Ghana in the reasonably foreseeable future.
110. In his protection visa application form, the applicant claims that he fears returning to Ghana because the perpetrators will hunt him down and he will be harmed by party members and others who associated themselves with the party. As mentioned above, the Tribunal understands this to be referring to fear from people associated with the government (NPP) party rather than members from the applicant’s own party, the NDC. More specifically, and in the context of the applicant’s evidence in the interview with the delegate and to the Tribunal, the Tribunal clearly understands the applicant’s claims to be that he fears harm from people in the NPP [Gang 1] as they are the people who attacked him in the past. The applicant did not suggest, and the Tribunal does not accept, that he fears harm from NPP members or supporters more generally.
111. The applicant claims that he fears harm from a gang called [Gang 1]. He told the Tribunal that [Gang 1] are in almost every community and are aligned to the NPP and he believes they are the people who will harm him. Country information indicates that [Gang 1] was a political vigilante group associated with the NPP.[4] As discussed with the applicant in the hearing, country information indicates that both the NPP and the NDC had their own vigilante forces in the past who have engaged in acts of violence against political targets.[5] Country information also indicates that since the 2016 election, the main political parties have taken significant steps to rein in political vigilante groups, and vigilantism was not a problem in the most recent 2020 elections.[6] While up to eight deaths occurred in connection with the 2020 elections, these were isolated incidents and none is attributed to the activities of vigilante groups.[7] In June 2020, the NDC agreed to a Roadmap and Code of Conduct designed to eliminate political vigilante activities to which the ruling NPP had already agreed. Both parties have taken significant steps to disband vigilante groups and eliminate politically motivated violence.[8] There are now laws in Ghana that stipulate 10 to 15 year sentences for soliciting or engaging in political vigilante activity.[9] Country information indicates that [Gang 1] no longer exists[10] and the types of violent incidents they used to be involved in are no longer taking place. The Tribunal put to the applicant that credible country information indicates that since he left Ghana, the situation in terms of political violence has greatly improved and there are now laws in place against political vigilante activity which both sides of politics support. The applicant responded that he has been attacked in the past and beneath the surface there are things that are not right and the country information may not reflect what is happening on the ground. The Tribunal does not accept the applicant’s response as it is not supported by the country information.

[4] [Source deleted.]
[5] Canada: Immigration and Refugee Board of Canada, Ghana: Information on changes in the New Patriotic Party (NPP) leadership; treatment of members of the NPP members by authorities, National Democratic Congress (NDC) supporters, and intra-party conflict, 27 May 2016, GHA105550.E (accessed 14 February 2022) (accessed 9 May 2022)
[6] US Department of State Country Reports on Human Rights Practices: 2021 Ghana [Source deleted.]
[7] US Department of State Country Reports on Human Rights Practices: 2021 Ghana US Department of State Country Reports on Human Rights Practices: 2021 Ghana [Source deleted.]
[9] (accessed 9 May 2022); (accessed 11 July 2022)
[10] [Deleted.]
112. The Tribunal has considered the country information provided by the applicant in support of his claims to fear harm from [Gang 1]. The Tribunal does not accept the YouTube videos and articles about [Gang 1] provided by the applicant[11] as they are out of date in light of the more recent country information about [Gang 1] referred to in paragraph 110 above. The Tribunal also does not accept the other articles about the activities of NDC members,[12] an article[13] and screenshots from the applicant’s phone about unrest and disputes between NPP and NDC supporters in various location in Ghana.[14] The Tribunal asked the applicant about the relevance of these materials and he said he wanted to show that Ghana is not as peaceful as people think. The Tribunal has considered this information but does not accept it. The Tribunal notes that the events referred to in these articles took place before the improvements in Ghana relating to political vigilante activity referred to above, and some of the events referred to did not involve the [Gang 1] in any event, and are not relevant to the applicant’s claims. The Tribunal is not able to verify the source of the screenshots from the applicant’s phone and does not accept them. On this basis, the Tribunal does not consider these articles and other documents to be relevant to assessing the applicant’s claimed fear of harm and does not accept them.
[11] See paragraph 8
[12] See paragraph 13
[13] See paragraph 8
[14] See paragraph 15
113. In light of the country information that indicates the situation in Ghana in relation to political vigilante groups and their violence has significantly improved since the applicant lived in Ghana, the fact that [Gang 1] no longer exists and does not carry out the types of activities it used to in the past, and the fact that the types of activities it used to engage in are now banned, the Tribunal finds that even if the applicant returned to Ghana in the reasonably foreseeable future and actively involved himself in politics again, he would not face a real chance of serious harm arising from these circumstances.
114. For completeness, the Tribunal does not accept that if the applicant returned to Ghana that he would face a real chance of serious harm from the people who harmed him in the past. There is no evidence to suggest that he was harmed for reasons unconnected to his political activities or that these people would continue to have an interest in him so many years later. On this basis, the Tribunal finds that if the applicant returned to Ghana in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
115. As the Tribunal has accepted that the applicant suffers from symptoms consistent with PTSD and he has recently been placed on medication for depression, the Tribunal has considered the consequence of this if he returns to Ghana in the reasonably foreseeable future. As discussed with the applicant in the hearing, country information indicates that in Ghana access to mental health services and medicine can be a challenge for the whole community, but services are available. Since Ghana introduced a Mental Health Act in 2012 which is intended to underpin its mental health system, it has made significant progress in the treatment of mental health.[15] Services are mostly delivered by mental health nurses who operate from district hospitals, and by community mental health officers.[16] There are three main hospitals in Ghana that provide psychiatric services for patients.[17] All regional and district hospitals provide mental health services. There is an online service which people can use to be referred to healthcare, as well as non-government organisations that provide support in the community and work to reduce the stigma around mental health and improve help-seeking.[18] Treatment for mental disorders is free at the public psychiatric hospitals and through services provided by community psychiatric nurses, however if public services are not accessible or medications are unavailable, patients much purchase these privately.[19] In terms of access to medicine, procurement and supply can be unreliable but it is generally available through hospitals and primary care facilities and a range of antidepressant drugs are available.[20] Adequate funding from government continues to be an issue.[21]
[15] (accessed 11 July 2022); (accessed 11 July 2022)
[16] As above.
[17] As above.
[18] (accessed 11 July 2022); (accessed 11 July 2022)
[19] (accessed 11 July 2022)
[20] (accessed 11 July 2022); (accessed 11 July 2022)
[21] As above.
116. Country information indicates that people with visible or conspicuous symptoms of mental illnesses such as psychosis or schizophrenia may be poorly treated and stigmatised.[22] There are reports of people being restrained and detailed in spiritual healing centres known as “prayer camps”. While there are laws that provide for monitoring of these camps and bar forced treatment, they are not well-enforced.[23] The Tribunal does not accept that this situation applies to the applicant on the basis of his diagnosis, which does not indicate that he is suffering from this type of mental health condition.
[22] (accessed 11 July 2022)
[23] (accessed 8 July 2022)
117. In terms of access to treatment, the applicant stated that in theory these things exist but this is not what is happening in reality. He said he does not know what will happen to him if he goes back and he is worried his symptoms will get worse and he doesn’t know if there would be enough services to help him. The Tribunal has considered the applicant’s response. The Tribunal finds that based on the country information, there is a real chance the applicant would experience difficulty in accessing services and medication in Ghana in respect of his mental health, which could result in harm to him, however this would be due to limited resources. The Tribunal finds that any such harm the applicant faced in this regard would not be for reasons of his race, religion, nationality, membership of a particular social group or political opinion, as required by s 5J(1)(a) and would therefore not amount to persecution.
118. The Tribunal notes the conclusion drawn by the psychologist, [Psychologist A], which states that forcing the applicant to return to Ghana would result in a significant exacerbation of his symptoms due to the very real danger he would face upon his return due to his political affiliations. For the reasons set out above, the Tribunal does not accept that the applicant would face a real chance of serious harm due to his political affiliations if he returned to Ghana. For the reasons discussed in paragraph 117 above, the Tribunal finds that an exacerbation of the applicant’s PTSD symptoms if he returned to Ghana would not amount to persecution.
119. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Ghana now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
120. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
121. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
122. The complementary protection criterion requires that 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 the applicant will suffer significant harm: s 36(2)(aa).
123. In relation to the applicant’s claims of harm relating to his political activities and people from the [Gang 1], as the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[24] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm arising from these circumstances.
[24] MIAC v SZQRB [2013] FCAFC 33
124. In relation to the applicant’s access to mental health services and medication in Ghana, and an exacerbation of his PTSD symptoms if he returns to Ghana, as discussed above, the Tribunal has found that there is a real chance that the applicant would experience difficulty in accessing services and medication, and his symptoms could exacerbate, which could result in harm to him. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[25] the Tribunal finds that this element of the complementary protection criterion is satisfied.
[25] MIAC v SZQRB [2013] FCAFC 33

The next question for the Tribunal is therefore whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

126. There is no evidence before the Tribunal to suggest that the applicant will be arbitrarily deprived of his life or the death penalty will be carried out on him. The Tribunal also does not accept that the applicant would be tortured, or be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment, as there is no evidence to suggest that any harm he might suffer because of his mental health situation would be intentionally inflicted on him.
127. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm for any reason. 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).
Conclusion
128. For the reasons given above, the Tribunal is not satisfied that the applicant is 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). 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

131. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 2850

20 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice