1829739 (Refugee)

[2022] AATA 2176

1829739 (Refugee) [2022] AATA 2176 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829739

COUNTRY OF REFERENCE:                   Ghana

MEMBER:L. Symons

DATE:12 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 May 2022 at 12:08pm

CATCHWORDS

REFUGEE – Protection visa – Ghana – a victim of fraud – Australian visa scandal – Tribunal is not satisfied that the applicant is at risk of serious harm – delay in lodging the visa application – applicant is not a witness of truth –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424AAA, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 September 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Ghana, arrived in Australia on [date] March 2018 as the holder of a [temporary] visa. This visa expired on 15 May 2018 and he thereafter remained in Australia as an unlawful non-citizen. On 21 May 2018, he was granted a Bridging C visa. On 25 May 2018, he was granted a further Bridging C visa which remains current.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 19 May 2018. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 11 October 2018, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via video, on 10 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hausa and English languages.

5. The applicant was represented in relation to the review by his migration agent, Mr Samuel Wellington.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

13. The applicant’s claims in his application for Protection visa filed on 19 May 2018 are summarised as follows:

    ·He was born on [date] at Accra in Ghana and is a Ghanaian citizen. He has a limited education. He was a business owner in [Ghana].

    ·He is seeking protection in Australia for reason of being a member of a particular social group “Ghana National Sports Authority 21st Commonwealth Games visa scandal caused by its official agents of who deceptively provided Australian visa to me and others” (sic).

    ·In October 2017, he was approached by a well-dressed man who introduced himself as [Mr A] who claimed that he worked for the Ghana National Sports Authority and they were recruiting people to travel to Australia to support the Ghanaian athletes at the 21^st Commonwealth Games. He informed him that he worked for top officials organising the visas, they would provide him with free tickets for the Commonwealth Games and he would have to pay $[amount] to travel to Australia as the visa would allow him to stay in Australia indefinitely for a better future.

    ·He asked for a week to think about it. He sold his stock and business for [amount], gave [Mr A] [amount] and his passport and used the rest of the money to purchase a ticket and for pocket money. In early January 2018, [Mr A] gave him the visa and returned his passport.

    ·When he arrived in Australia, he realised that he had been misled and was not the only one. He is now stuck in Australia and fears returning to Ghana where people in power and protectors are prepared to do anything sinister to shut him up for fear of revealing how they got their Australian visas. The Ghanaian government is also threatening to prosecute those who travelled to Australia posing as game’s officials. He did not leave Ghana assuming he was a Games official. He thought he was an ordinary Ghanaian travelling to Australia to attend the Commonwealth Games and support Ghanaian athletes.

    ·He did not suffer any harm in Ghana but now faces a real risk of harm if he returns to Ghana because of information he has against officials who provided him with the visa to travel to Australia.

    ·He did not seek help in Ghana because of the threat to his personal safety and fear for his life. Two friends who travelled with him to Australia were deported to Ghana and their lives and the lives of others are in danger due to what they know and their preparedness to give evidence against the officials and suspended official who provided them with the visas. Bodyguards and political party thugs are threatening the lives of his friends and have told them to shut up or they would kill them. The government is now investigating everyone involved in the scandal and using people like him as scapegoats to hide the facts.

    ·If he returns to Ghana political thugs protecting [Mr B] and [Mr C] will put his life in danger and will stop at nothing to silence him. His friends are in fear of their lives because of threats they have received. He is likely to be harmed and mistreated if he returns to Ghana and has no means of protecting himself. If the government prosecutes him, he will not keep quiet and this would put his life in danger.

    ·The Ghanaian authorities will be unwilling to provide adequate protection to him. The government is looking forward to prosecuting him and others who travelled to Australia. He does not believe he will be able to relocate anywhere in Africa and the only safe place he has is Australia.  

14. On 26 June 2018, the applicant provided the Department with another Statement of Claims dated 26 June 2018 which appeared to be identical to his previous Statement of Claims. It was referred to as the “corrected typographical errors version” and was accompanied by a request to disregard his previous Statement of Claims attached to his visa application.

15. The applicant provided the Department with a certified copy of his Ghanaian passport issued [in] 2017 and valid until [2022]. He also provided the Department with country information on Ghana including a report Freedom in the World 2018 – Ghana published by Freedom House and the 2015 Country Reports on Human Rights Practices – Ghana published by the US Department of State and media reports from Ghana.  

16. The applicant attended an interview with the Departmental delegate on 27 June 2018. He was assisted by an interpreter in the Ewe and English languages. The delegate found that he is not a person in respect of whom Australia has any protection obligations and his application for a Protection visa was refused on 17 September 2018. 

17. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 September 2018 and the bio data page of his current Ghanaian passport issued [in] 2022 at the Accra Passport Office and valid until [2022]. He also filed with the Tribunal copies of a 2021 Report from Amnesty International and the Amnesty International Report 2017/18 – Ghana.

    Receiving country

18. The applicant claims to be a citizen of Ghana and has provided a certified copy of his Ghanaian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Ghana. The Tribunal finds that Ghana is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.

    Third country protection

19. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Ghana, why he left Ghana, the circumstances in which he obtained the visa for Australia and why he fears returning to Ghana. The Tribunal found aspects of his evidence to be implausible and unconvincing. There were significant inconsistencies between his evidence to the Department and his evidence to the Tribunal. His actions were not consistent with his claims and some of his claims were not consistent with the country information. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

21. First, in his Statement of Claims, the applicant claimed that in October 2017 he was approached by a man named [Mr A] who claimed that he worked for the Ghana National Sports Authority, told him that they were recruiting people to travel to Australia to support the Ghanaian athletes at the 21^st Commonwealth Games (on the Gold Coast), offered to obtain an Australian visa that would allow him to stay in Australia indefinitely for $[amount] and free tickets for the games. He claimed that, after thinking about it for a week, he sold his stock and business [amount], gave [Mr A] his passport and $[amount] and used the rest of the money to purchase a ticket and for pocket money. He claimed that in early January 2018 [Mr A] gave him the visa and returned his passport.

22. The Tribunal discussed these claims with him during the hearing and he gave a different version of events. He stated that he obtained a passport in [2017] in case he needed to travel. He owned a business in [Accra]. In 2017, a man went to his shop, introduced himself as [Mr A], told him he was with the Sports Council and the Commonwealth Games were coming up. He told him he could get him an Australian visa through the Sports Council to come to Australia as an official to support the Ghanaian team and that it would cost him US$[amount]. He took [Mr A]’s telephone number and told him he would think about it.

23. The applicant gave evidence that he spoke to his friends about [Mr A]’s offer and they convinced him that it was genuine. He contacted [Mr A] after a few weeks and told him he would like to go ahead with it. [Mr A] asked for his passport and US$[amount] with the balance to be paid when he obtained the visa. He had savings of almost US$[amount] and he gave [Mr A] US$[amount] from his savings together with his passport. When asked how he was able to save US$[amount], he responded from [his business]. He continued working in his business until he obtained the Australian visa.

24. The Tribunal asked the applicant whether he checked [Mr A]’s identity and he responded no. When asked whether he checked whether he was from the Sports Council, he responded no. When asked whether he ever met [Mr A] at his office, he responded no. His friends convinced him that [Mr A] was genuine and he was eager to come to Australia so he did not do any investigations. When asked whether he provided [Mr A] with any information (besides his passport), he responded no. He did not sign any documents or see his visa application. He then started selling stock to colleagues who were in the same business.

25. The applicant stated that one or two weeks later [Mr A] showed him his visa and passport but “did not put it in my hand”. He then made arrangements to sell his business to a colleague in the same business. A month later he was able to pay the balance and obtained his visa and passport in March 2018. When he obtained the visa, he did not look at it. When asked what type of visa it was, he responded that he did not know. When asked about the conditions attached to the visa, he responded that he did not know. When asked how long the visa was valid for, he responded that after he came to Australia, he found out that it was a 3 month visa. He travelled to Australia with other Ghanaians who were all on the same type of visa.  

26. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 September 2018. It indicates that he attended an interview with the Departmental delegate on 27 June 2018 and, during that interview, stated that a man approached him in public and told him he worked for the government. He stated that he sold all his stock and his business for a total of $[amount] and used this money to pay for his travel arrangements to Australia. He stated that the $[amount] was the entirety of all the money he had. He stated that he gave his passport and $[amount] to this man (to obtain the visa). This evidence is significantly different to the evidence he gave the Tribunal.

27. The Tribunal finds it implausible that the applicant would have been randomly approached by a stranger who offered to get him an Australian visa. The Tribunal also finds it implausible that he would have handed over his passport and a substantial amount of his life’s savings to a total stranger without having undertaken any due diligence to check the credentials of the stranger or obtained any guarantee that he would get what he was paying for.

28. Further, the inconsistencies in the applicant’s evidence in relation to whether he met [Mr A] in a public place or at his shop, how he obtained the money to pay for his visa, whether the money for the visa was paid in instalments or in one lump sum, whether the proceeds from the sale of his stock and business was the entirety of all the money he had or whether he also had savings of almost US$[amount] and when he obtained the visa from [Mr A] raise issues in relation to his credibility and the veracity of his claims.

29. The Tribunal raised as an issue with the applicant the credibility of his claims that he was approached by a stranger, offered a visa for Australia and he sold his business and/or handed over his life savings and his passport to a total stranger based on his word. The Tribunal noted that it may find that he employed a fraudster to obtain a visa that he was not entitled to so that he could come to Australia and live and work here.

30. The applicant responded that after [Mr A] approached him, he consulted his friends and they convinced him that [Mr A] was alright. He did not check out [Mr A] and was convinced by his friends to go ahead. They gave him the confidence and told him the deal was genuine. He was eager to come to Australia so he did not investigate it. He was also scared to investigate because the more he investigated they would get scared and would not do it. That is why he did not investigate it. He should have investigated it himself.

31. The Tribunal does not find this explanation to be convincing and does not accept it. His explanation does not alleviate the Tribunal’s concerns.

32. Second, in his Statement of Claims, the applicant claimed that he did not leave Ghana assuming he was a Games official. He claimed that he thought he was an ordinary Ghanaian travelling to Australia to attend the Commonwealth Games and support Ghanaian athletes. He claimed that after he came to Australia, he realised that he had been misled. This is not consistent with his evidence to the Tribunal that when he first spoke to [Mr A], he told him that he worked for the Sports Council and could get him an Australian visa through the Sports Council to come to Australia as an official to support the Ghanaian team (at the Commonwealth Games on the Gold Coast). He gave evidence that he was never an official in Ghana.

33. Further, the applicant’s evidence is that [Mr A] obtained the Australian visa for him but he made the other travel arrangements including purchasing his airline tickets and organising his accommodation in Australia. His evidence to the Tribunal is that he travelled from Ghana to Australia [via other countries]. He landed in Brisbane or the Gold Coast and then caught a connecting flight to Sydney. He was met at Sydney airport by a Ghanaian friend who lived in Sydney and he then lived at his friend’s home in [Suburb 1] for 6 months. The Tribunal would expect that if he believed that he was an ordinary Ghanaian travelling to Australia to attend the Commonwealth Games and support Ghanaian athletes as claimed, he would have expected to attend the Commonwealth Games on the Gold Coast and would have arranged for accommodation on the Gold Coast. Instead, he booked a connecting flight to Sydney and made arrangements for his friend to pick him up at the airport in Sydney and accommodate him in Sydney. 

34. The Tribunal raised as issues with the applicant the inconsistences between his evidence to the Department and to the Tribunal and the credibility of his claims that he was misled by [Mr A] and a victim of fraud perpetuated by him. The Tribunal noted his own evidence to the Tribunal that [Mr A] told him that he could obtain a visa for him on the basis that he was a Ghanaian official.

1. The applicant responded that everything he told the Tribunal was accurate and true. He did not know the process they followed to get the visa. When the Tribunal reminded him of his earlier evidence that [Mr A] told him that he would get him the visa on the basis that he was an official, he agreed that he told him that but he did not know if it was true. The reason why he did not check the truth is that he was eager to come to Australia and did not want to do anything that would impact on his commitment. He did not know they were going through a false process to get him here.

2. The Tribunal does not accept the applicant’s explanation and finds it nonsensical as he would have known it was false to claim that he was a Ghanaian official when he was not and he was told that this was the basis on which the visa would be obtained. His explanation does not alleviate the Tribunal’s concerns.

3. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

4. Third, in his Statement of Claims, the applicant claimed that he now faces a real risk of harm if he returns to Ghana because of information he has against officials who provided him with the visa to travel to Australia. He claimed that political thugs protecting [Mr B] and [Mr C] will put his life in danger and will stop at nothing to silence him. These claims are not consistent with his evidence to the Department or the Tribunal.

5. In his evidence to the Department and the Tribunal, the applicant only claimed to have had contact with a man named [Mr A]. Despite being given many opportunities to give further evidence at the hearing, he did not claim to have had contact with a [Mr B] or a [Mr C] or any other official or claim that [Mr A] referred to any other official in his conversations with him or claim that any other official “provided him with the visa” or claim that he had information against other official who provided him with the visa. He also gave evidence that he never met [Mr A] at his office. He did not refer to “political thugs protecting [Mr B] and [Mr C] putting his life in danger” and “stopping at nothing to silence him” despite being asked several times about his fears and concerns over returning to Ghana.

6. During the hearing, the applicant gave evidence that most of the Ghanaian officials involved in the ‘Australian visa scandal’ belonged to a political party and the party was protecting its members. He claimed that he does not belong to a political party and no one is going to protect him should something happen. He does not want to take that risk. He also claimed that most of the people who were deported from Australia belong to political parties but offered no explanation for how he knows this. He has not provided the Tribunal with any evidence to support this claim nor is the Tribunal able to find any country information to support this claim.

7. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

8. Fourth, in his Statement of Claims, the applicant claimed that he did not seek help in Ghana because of the threat to his personal safety and fear for his life. He claimed that two of his friends who travelled with him to Australia were deported to Ghana and their lives and the lives of others are in danger due to what they know and their preparedness to give evidence against the officials and suspended official who provided them with the visas. He claimed that bodyguards and political party thugs are threatening the lives of his friends and have told them to shut up or they would kill them. He claimed that the government is now investigating everyone involved in the scandal and using people like him as scapegoats to hide the facts. He claimed that his friends are in fear of their lives because of threats they have received. He claimed that he is likely to be harmed and mistreated if he returns to Ghana and has no means of protecting himself. He claimed that if the government prosecutes him, he will not keep quiet and this would put his life in danger.

9. During the hearing, the Tribunal asked the applicant several questions in relation to why he fears returning to Ghana. He responded that there were two reasons. The first was that he did not belong to a political party that would protect him in case he was prosecuted in relation to the ‘Australian visa scandal’ and wherever he goes they will follow him and hang him. The second was that he now has a partner who is an Australian permanent resident and a single mother and they support each other. He made no mention of his two friends who were deported to Ghana or their experiences and his resultant fears.

10. When the Tribunal raised as an issue with the applicant the fact that he made no mention of ‘threats to his personal safety and fear for his life” despite being asked several times about whether he had any other reason why he feared returning to Ghana, he responded that he  did not go into specifics. He just generalised that he stands the risk of being harmed when he returns to Ghana. The Tribunal is not persuaded by this explanation in the context of a hearing about his claims for protection and why he fears returning to Ghana. The Tribunal would expect him to give full details of his claims during the hearing to explain why he fears returning to Ghana.

11. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

12. Fifth, the applicant’s conduct is not consistent with his claims. During the hearing, he gave evidence that he has followed the news in Ghana since coming to Australia. He has made claims in relation to the Commonwealth Games on the Gold Coast in 2018, people being deported to Ghana from Australia in relation to the ‘Australian visa scandal’ and his fear of being harmed if he returns to Ghana. The country information indicates that more than fifty Ghanaians who purported to be sports journalists covering the Commonwealth Games on the Gold Coast in 2018 were deported from Australia to Ghana in early April 2018 as the Australian authorities were not satisfied that they were journalists.[1] This received wide media coverage in Australia, Ghana and around the world. 

    [1] ‘Africa: Ghanaians Fail Australia Sports Quiz, Sent Home’, All Africa, 5 April 2018, CXBB8A1DA32448.  

13. The records of the Department indicate that the applicant arrived in Australia on [date] March 2018 on a [temporary] visa. This visa expired on 15 May 2018 and he thereafter remained in Australia as an unlawful non-citizen. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that he was thereafter at risk of being deported to Ghana. The Tribunal noted that it would expect that if he feared that he would be at risk of harm if he returned to Ghana, he would have checked the expiry date of his visa, obtained immigration advice and lodged an application for a Protection visa before his visa expired. The Tribunal noted that his delay until 19 May 2018 to apply for protection raises concerns about the credibility of some of his claims.

14. The applicant responded that the reason why he did not apply for a Protection visa before his ([temporary]) visa expired was because he did not get an agent to represent him, he had no knowledge and did not know how to do it himself. The Tribunal accepts that he may not have known how to apply for protection by himself but is of the view that this is all the more reason why he would have obtained immigration advice and sought the assistance of a professional as soon as possible. He was living with a friend in [Suburb 1] from whom he could have sought help to consult a migration agent and obtain immigration advice. He has proved himself to be a resourceful and capable person during his stay in Australia.

15. The applicant’s conduct raises further issues in relation to his credibility and the veracity of his claims.

16. Sixth, in his Statement of Claims, the applicant claimed that he is now stuck in Australia and fears returning to Ghana where people in power and protectors are prepared to do anything sinister to shut him up for fear of revealing how he got his Australian visa. He claimed that the Ghanaian government is threatening to prosecute those who travelled to Australia posing as game’s officials.

17. Country information on Ghana indicates that in April 2018 more than 50 Ghanaians, who had tried to gain entry into Australia as sport journalists to cover the 2018 Commonwealth Games held on the Gold Coast, were deported by the Australian authorities. Although the deportees claimed to be journalists and had genuine visas, many of them did not carry necessary reporting equipment and were unable to answer basic questions about sport.[2] The Ghana Journalists Association published a statement putting on the record that it did not know the identity of the alleged journalists, nor was it aware of their mission in Australia. They called on the Ghanaian authorities to thoroughly investigate the matter.[3]

    [2] Ibid.

    [3] Ibid.

18. Ghana Web reported on 6 April 2018 that the first lot of deportees from Australia arrived in Ghana on 3 April 2018. One of the deportees claimed that he had paid money to the Ghana Olympics Sports Committee and the Ministry of Sports to have their visas processed as journalists for the Games. This was denied by the Deputy Minister of Youth and Sports and the Director General of the National Sports Authority. [4] Two Ghanaian Olympic Committee officials, Addy and Ashley, were briefly detained by the Bureau of National Investigations on their return to Ghana and were then released on bail.[5] On 19 April 2018, they were reported to still be in the employ of the National Sports Authority and report for work.

    [4] ‘Commonwealth Games: How the scandal unfolded’, Ghana Web, 6 April 2018, CXBB8A1DA29543.

    [5] ‘Commonwealth Games visa scandal: BNI releases two suspects on bail’, Ghana Web, 11 April 2018, CXBB8A1DA32693.  

19. The Deputy Minister for Youth and Sports and the Director General of the National Sports Authority were initially suspended. The President of the Ghana Olympic Committee, the Chairman of the National Sports Authority and the Chef-de-Mission were recalled from Australia to help with investigations.[6] The Criminal Investigations Dept conducted an investigation into what happened and their report was given to the Ghanaian President on 6 July 2018. Following receipt of the report, the President reinstated the Deputy Minister for Youth and Sports and the Director General of the National Sports Authority on the basis that the report contained no adverse findings against them.[7] The report was not released to the public despite calls for it to be released.[8]

    [6] ‘Minister Fired Over Visa Scandal; Others Officials In Hot Waters’, Daily Guide, 13 April 2018, CXBB8A1DA29498.  

    [7] ‘Sports Minister Cleared Of Visa Fraud’, Daily Guide, 10 July 2018, CXBB8A1DA32357.  

    [8] ‘Ras Mubarak demands release of Australian visa scandal report’, Ghana Web, 10 July 2018, CXBB8A1DA32695.  

20. The Tribunal discussed this country information with the applicant and noted that it may lead it to the conclusion that because of the publicity and the (adverse) attention of the world media on Ghana at the time when over fifty Ghanaians who purported to be sports journalists were deported from Australia to Ghana in April 2018, the Ghanaian government suspended some officials and conducted an investigation but nothing has been done about it since then. The Tribunal noted that officials who were suspended were subsequently reinstated and are back doing their usual jobs. The Tribunal noted that, in these circumstances, it is highly unlikely that [Mr B] and [Mr C] or their bodyguards or any ‘political party thugs’ protecting [Mr B] and [Mr C] would have any interest in him or what he has to say. The Tribunal noted that this raised doubts that he would be at risk of harm from any of them if he returns to Ghana.

21. The applicant responded that most of the officials belong to a political party and the party is protecting its members. He does not belong to a political party and no one is going to protect him if something happens to him. He does not want to take that risk. The Tribunal is not persuaded by this response.

22. The issue of the ‘Australian visa scandal’ received a significant amount of media interest and reporting in Ghana, Australia and elsewhere. The Tribunal would expect that if any deportees or returnees from Australia have been or are being prosecuted in Ghana or have been threatened or harmed by corrupt officials or their bodyguards or ‘political party thugs’ there would be some reporting about it in the media. The Tribunal is unable to find any reports to that effect. Whilst the Tribunal is mindful that this does not mean that there have not been any prosecutions or threats of harm or harm from corrupt officials or their associates to deportees or returnees to Ghana, the lack of media reports in these circumstances is significant.

23. Seventh, in his Statement of Claims, the applicant claimed that the Ghanaian government is threatening to prosecute those who travelled to Australia posing as game’s officials. He provided the Department with a printout dated 23 April 2018 from the internet. It is titled Two Ghanaian athletes did not return from Commonwealth Games and the source is ‘Myjoyonline.com’. This article refers to two athletes running away after being eliminated from their event at the Commonwealth Games and not returning to Ghana from Australia. The final sentence states “the athletes if found will be prosecuted under Australian law and extradited to Ghana for further prosecution”. The Tribunal does not consider this article to be particularly relevant as the applicant does not claim to be an athlete who was part of the Ghanaian Commonwealth Games team.

24. In relation to Ghanaians being prosecuted on their return to Ghana, the country information indicates that over fourteen deportees from Australia were briefly detained by the Ghana Immigration Service to ‘assist in investigations’ and then released.[9] Country information also indicates that, following its investigation, the Criminal Investigation Department reported that eight people would be arraigned in relation to visa fraud but they have never been prosecuted or taken before the Court.[10]

    [9] ‘GOC Deputy Secretary office ransacked’, The Ghanaian Times, 11 April 2018, CXBB8A1DA32683.  

    [10] ‘Australia visa scandal: Culprits not prosecuted; Documents from High C’ssion not received’, Graphic Online, 17 September 2019. (Australia visa scandal:Culprits not prosecuted; Documents from High C’ssion not received - Graphic Online)

25. The Tribunal discussed this country information with the applicant and noted that these were people who had been deported from Australia at the height of the ‘Australian visa scandal’ and were of adverse interest to the Ghanaian authorities. The Tribunal noted that he was not in the same situation. It is now 4 years after the ‘Australian visa scandal’, he is not being deported, there is no publicity surrounding him and he is not of interest to the Ghanaian authorities. The Tribunal noted that he is just another Ghanaian returning from overseas. The Tribunal noted that this may lead it to the conclusion that he would not be at risk of serious harm or significant harm if he returns to Ghana now.

26. The applicant responded that he does not belong to any political party that will act on his behalf if something happens to him. Most of the people deported belong to political parties. He offered no explanation for how he knows this. The Tribunal is of the view that this is speculation and is not satisfied that most of the people deported belonged to political parties. The Tribunal is not persuaded by his explanation and does not accept it.

    Other considerations

27. The Tribunal has considered the country information provided by the applicant to the Department and to the Tribunal. He provided a number of articles in the Ghanaian media in relation to the ‘Australian visa scandal’ that are consistent with the country information referred to above. He has also provided to the Department copies of the Freedom in the World 2018 – Ghana report published by Freedom House and the 2015 Country Reports on Human Rights Practices – Ghana published by the US Department of State and media reports from Ghana. He provided the Tribunal with copies of a 2021 Report from Amnesty International and the Amnesty International Report 2017/18 – Ghana. The reports provided to the Department refer to corruption and lack of transparency in government.  

28. The applicant did not provide the Department or the Tribunal with any submission referring to what part or parts of these reports he was relying on and how they were relevant to his claims. Some headings or sentences in these reports were highlighted but no explanation was provided in relation to their relevance or how they supported his claims. The applicant was represented by a migration agent at the time his application for a Protection visa was filed and since then. He has had the benefit of obtaining immigration advice and preparing and presenting his case to the Department and the Tribunal with the assistance of his migration agent. It is not the role of the Tribunal to make his case for him.

29. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to relevant open source country information on Ghana and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

30. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated or embellished some of his claims for the purpose of obtaining a Protection visa.

31. The Tribunal accepts that the applicant was born on [date] at Accra in Ghana. The Tribunal accepts that he had 9 years of schooling and did not complete Middle School. The Tribunal accepts that he was self-employed in Ghana and had a [business]. The Tribunal accepts that his parents live in Accra and he has no siblings. The Tribunal accepts that he has been working in Australia and has been financially supporting his parents since he has been in Australia. The Tribunal accepts that he has never married. The Tribunal accepts that he is now in a relationship with a woman in Australia who is an Australian permanent resident.

32. The Tribunal accepts that the applicant wanted to travel overseas since at least [month] 2017 when he obtained a Ghanaian passport. The Tribunal accepts that he saw an opportunity to travel to Australia during the Commonwealth Games which were held on the Gold Coast in 2018 and was eager to come to Australia. The Tribunal does not accept that in he was approached in public, or, alternatively, at his shop by a man named [Mr A] who claimed that he worked for the Ghana National Sports Authority and they were recruiting people to travel to Australia to support the Ghanaian athletes at the 21^st Commonwealth Games. It follows that the Tribunal does not accept any of his claims that flow from that.

33. The evidence before the Tribunal leads it to the conclusion that the applicant, in consultation with his friends, approached a fraudster to obtain a visa for him to travel to Australia. The Tribunal accepts that he paid the fraudster US$[amount] to obtain the visa for him and is of the view that he was fully aware that the visa would be obtained by providing false information. The Tribunal does not accept that he believed he would be attending the Commonwealth Games in any capacity and is of the view that he obtained the visa for the purpose of getting to Australia with the intention of living in Sydney with his friend and working here. The Tribunal does not accept that he was misled by the fraudster who obtained the visa for him.

1. The Tribunal does not accept that the applicant has information against ‘officials who provided him with the visa to travel to Australia’. The Tribunal does not accept that two of his friends who travelled with him to Australia were deported to Ghana, their lives and the lives of others are in danger due to what they know and their preparedness to give evidence against the officials and suspended official who provided them with the visas. The Tribunal does not accept that bodyguards and ‘political party thugs’ are threatening the lives of his friends, have told them to shut up or they would kill them and that his friends are in fear of their lives because of the threats they have received. The Tribunal does not accept that the Ghanaian government is now investigating everyone involved in the scandal and using people like him as scapegoats to hide the facts.

2. The Tribunal does not accept the applicant is “stuck in Australia and fears returning to Ghana where people in power and protectors are prepared to do anything sinister to shut him up” for fear of him revealing how he got his Australian visa. The Tribunal accepts that the ‘Australian visa scandal’ caused a considerable amount of adverse publicity in Ghana in 2018 which resulted in the Criminal Investigations Department conducting an investigation, some officials being recalled from Australia, some officials being suspended and subsequently reinstated to their positions and the President not releasing to the public the report prepared by the Criminal Investigations Department following its investigations and provided to the President in July 2018. The Tribunal notes that since then there have been no known reports in the media about Ghanaian officials being charged and prosecuted in relation to the ‘Australian visa scandal’.

3. In view of this country information, the Tribunal is not satisfied that there is a real chance or a real risk that if the applicant returns to Ghana now or in the reasonably foreseeable future Ghanaian officials or bodyguards or ‘political party thugs’ protecting [Mr B] and [Mr C] or any other Ghanaian official will ‘put his life in danger and will stop at nothing to silence him’.

4. The Tribunal has considered that some deportees from Australia were initially detained by the Ghana Immigration Service in 2018 to assist in their inquiries and then released. The Tribunal has also considered that although the Criminal Investigation Department reported that eight people should be arraigned in relation to visa fraud, none of them have been prosecuted and taken before the Courts. The Tribunal is unable to find any reports of people who came to Australia during the ‘Australian visa scandal’ and subsequently returned to Ghana being prosecuted.

5. In view of this country information, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will be detained, charged and prosecuted by the government in relation to the ‘Australian visa scandal” if he returns to Ghana now or in the reasonably foreseeable future.

6. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Ghana now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?

7. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act.

8. The Tribunal is not satisfied that the applicant is unable or unwilling to avail himself of the protection of Ghana owing to a well-founded fear of persecution and finds that he is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary protection criterion?

9. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

10. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Ghana now or in the reasonably foreseeable future. 

11. Accordingly, 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 as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

12. 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) or s.36(2)(aa) of the Act.

13. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…