1829741 (Refugee)

1829741 (Refugee) [2022] AATA 1975 (31 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829741
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tania Flood
DATE:31 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2022 at 10:08am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian fearing harm from traditional religious relatives – initiation, period of service as assistant to local chief and participation in rituals – credibility – inconsistent claims and evidence – long residence in local area after claimed service ceased with no serious harm – first arrived in Australia using another person’s passport – delay in applying for protection – applied after partner visa refused and period in immigration detention – no fear of harm expressed in partner visa application – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 19 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana, applied for the visa on 4 October 2016. The delegate refused to grant the applicant a protection visa on the basis that there is not a real chance or real risk that he would suffer serious or significant harm on the basis of his conversion to the Christian faith and his renunciation of pagan traditions and rituals.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by MS Teams videoconference. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant agreed to appear before the Tribunal by video on 18 May 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi (Akan dialect) and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to him during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Ghana for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ghana there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is a [Age 1]-year-old citizen of Ghana. He was born in [Town], Kumasi in the Ashanti region of Ghana. He is from the Akan ethnic group and claims to be a Christian. The applicant did not specify in his protection visa application form any other places of residence prior to his arrival in Australia and did not specify any formal education received in Ghana. His two children, [sisters] and [brothers] reside in Ghana. He states that after arriving in Australia he worked at [Employer 1] in [Suburb 1] as [Occupation 1] and [Occupation 2] from January to September 2013 and at [Employer 2] in [Suburb 2] as [an Occupation 2] between October 2013 and December 2015.
In 2007 the applicant was refused a spouse provisional offshore visa (UF309). In 2009 the applicant arrived in Australia as an impostor on an Australian passport in another identity ([Mr A]). On 30 August 2013 the applicant applied for a UK 820 / BS 801 partner visa and on 10 April 2015 this application was refused by the Department. On 9 May 2016 the MRT affirmed on review the decision of the Department. On 7 June 2016 the applicant applied for Ministerial Intervention and on 10 June 2016 the request was refused. On 4 October 2016 the applicant lodged an application for a protection visa and on 19 September 2018, a delegate of the Minister refused his protection visa application.
The applicant made the following claims on the statement attached to his visa application form:
The applicant claims that he came to Australia partly for economic reasons and partly to do with his intention to stay very far away from his maternal relatives who are animist and pagans.
He claims that in Ghana he is from the Odikro (Chief of the town) family in [Town], in the Ashanti region of Ghana. He claims that at 14 years old he was initiated as the Ohene Kra (Soul of the Royal) of the late Odikro. He claims that he was made to drink herbal potions mixed with blood for spiritual purposes and to make him invincible in defence of himself and of his Chief. He claims that he participated in various pagan rituals, including being stripped naked and washed with alcohol and herbs, and was forbidden from sexual intercourse until 17 years of age. He claims that he thereafter accompanied the Chief everywhere in the town as per the sign of being his Royal Soul. His additional duties were to taste the food and drink that was offered to the Chief in case it was poisoned. He claims to have witnessed blood rituals although he cannot speak of them, as he was warned that if he did, he would ‘go mad’. He states these rituals were in preparation of him becoming a warrior and Odikro in waiting. He states that at 17 years his duties ended and that he met and had two children with his paternal first cousin, whom he was not permitted to marry due to their blood relation.
The applicant claims that whilst in Australia he converted to Christianity. He claims he was haunted by his childhood experiences and that he has coped better through prayer and Church counselling.
He claims that if he returns to Ghana his family will find him and force him to return to their fold. He claims he would be afraid to refuse as they can put a curse on him for fear that he may tell someone what actually happens in their family shrine, which is taboo.
He claims he experienced harm in the past by being forced to worship idols and to drink pagan potions. He claims that participating in these rituals and worshiping idols is at odds with his Christian beliefs and that he suffers from post-traumatic stress. He also claims that he suffered on account of being denied a proper education and the opportunity to learn to read and write. Later in the application he states that he did not have any problems with his past because he did not know any different and he was not a threat to his relatives’ ways of doing things. He believes his family values the protection of their traditional secrets more than the value of his life.
The applicant states that he fears harm at the hands of the Odikiro and his maternal relatives due to his conversion to Christianity and his renunciation of pagan rituals, and that he bears the weight of tradition due to belonging to the maternal side of his family. He states that his father was good Christian but it did not bother his mother’s family because he was not seen as a blood relative. In Akan tradition, the children of a marriage belong to the maternal side of the family and that is why he was initiated to become the Chief’s soul and because he is his mother’s younger brother.
He claims that relocating to another part of the country is not going to make his life any safer. He is not one of them and has no intention of being one of them and this is the problem he has. In Australia he can live as a Christian and go to church freely without fear of persecution from his relatives.
He states that the authorities are impeded from intervening in his persecution due to vows of secrecy amongst practitioners of traditional pagan practices, although they are generally aware of such practices.
Protection visa interview
The applicant attended an interview with the Department on 6 September 2018. The interview was conducted in the Akan and English languages. According to the decision record of the delegate, which is before the Tribunal for the purpose of this review, the applicant provided the following testimony:
He said that at the age of 12 or 13 he was initiated in the role of ‘soul of the royal’ for the chief. The initiation included drinking blood of an animal and being placed in a shrine room for a week where pagan rituals were conducted. After the initiation he was required to be with the chief. He would taste and drink anything that the Chief was to consume for fear of it being contaminated. This role ceased when he reached 17 years of age.
When asked why his elder brother was not selected for this role he stated that his elder brother had a physical disability and other boys who become royal souls in his clan were initiated like him, however he has been the only person the chief has disliked.
The applicant stated that his uncle disliked him because of his father who was a practising Christian. The chief was not a Christian believer and because his lineage is on the maternal line his father did not have a say in his upbringing.
When asked what he did after he ceased the role of royal soul he said that someone assisted him to obtain an apprenticeship. He said that while he worked his uncle would regularly contact him to do errands for him.
He stated that if he returns to Ghana there is a 90% chance he will be killed by the chief or the extended family because he left Ghana, has revealed the clan’s pagan ritual secrets and he has become a Christian.
He stated that his father had explained to his friend in Australia ([Mr A]) what had happened to his son in the village. He said that [Mr A] went to visit his mother to investigate for himself the problems he had in the village. [Mr A] assisted the applicant to come to Australia. A few months after his arrival in Australia [Mr A] died but he had returned the passport to him prior to his death.
The applicant stated that he delayed his application for a protection visa because he did not know anything about such a visa.
He states that he became scared to return to Ghana because his sister posted him a letter telling him not to return as they were looking for him. He went into hiding until the authorities found and detained him in Villawood detention centre in 2013. His pastor visited him in detention and he told him about his fears of returning to Ghana. His paster located a migration agent to assist him to prepare a protection visa application.
Documents submitted to the Department
The applicant submitted a letter from his sister [Ms B] in support of his visa application, dated 4 October 2016. This contains an account of the Odikro’s vigilance as concerned the applicant’s whereabouts, and the harassment of persons suspected of harbouring the applicant.
Documents submitted to the Tribunal
The applicant provided as a part of his review application a two-page submission from his representative which recounts claims made on the visa application form and offers some additional information.
His mother and father were not married and his mother’s family was responsible for his upbringing. He lived with his uncle who was the King of the village, [Mr C]. On occasions when the applicant would go to visit his father his uncle always sent men to take him back to his house after a few days. Upon return his uncle would threaten him and told him not to leave the house again. His uncle did not like that his father was Christian and didn’t want him to be influenced by him and converted to Christianity.
He states that from the age of 14 his uncle appointed him as ‘The Soul of the King’. He was not allowed to do anything other than his royal duties and was not allowed to attend formal schooling or to find employment.
At the age of 20 his girlfriend got pregnant but his uncle did not approve of the relationship and they were not allowed to live together. His uncle claimed they were cousins but it was not the case.
He was advised by friends and relatives in Ghana how upset his uncle was with him for running away from the village and leaving for Australia. He was furious when he found out he converted to Christianity. He stated that his nephew betrayed him and such betrayal is punishable by death. The applicant personally experienced the brutality of his uncle while living with him in the village. He is afraid his uncle will have him killed.
His uncle is widely known and feared across the country. It will not be hard for him to find out if he returns to the country.
The applicant provided a reference letter from [Ms D] of [Organisation] dated 21 March 2022 recounting the applicant’s volunteering [in] the community and offering general support for his application.
The applicant provided a reference letter from [Rev E] of [Church] dated 23 March 2022 testifying to his good character and offering general support for his application.
The applicant provided a reference from his current employer [Employer 3] dated 4 May 2022 and signed by [Mr F] ‘National HR Advisor’. This specifies the applicant’s role, his rate of pay and conveys a positive account of his character and support for his application.
COUNTRY INFORMATION
According to the US Department of State (USDOS) 2020 Report on International Religious Freedom: Ghana, some 71 per cent of Ghana’s 29.3 million population is Christian, 18 per cent is Muslim with the remainder adhering to indigenous beliefs or other religious groups. Many individuals who identify as Christian or Muslim also practise some aspects of indigenous beliefs. The USDOS report further states that the constitution prohibits religious discrimination, stipulates that individuals are free to profess and practice their religion, and does not designate a state religion.
Open sources reveal no information about the role of the ‘Soul of the Royal’ or whether there is an age limitation to the role.[1]
[1] Sources consulted included CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), government reports, NGO and human rights organisations, local news sources and major international newspapers and Internet searches.
A 2008 publication on chieftaincy roles in Ghana highlights the hierarchy of the Ashanti chieftaincy. According to Ubink, the King or “Asantehene’ sits at the top and presides over a group of paramount chiefs, including but not limited to an ‘ohene’ and ‘odikro’. The report explains:
Ohene is the word for king or chief in (Ashanti) Twi, the indigenous language of the Asante. Within the Ashanti Region each village chief (ohene or odikro) is subordinate to a paramount chief (omanhene), who again is subordinate to the Asantehene.
… The term ‘chief’ (ohene) can denote traditional leaders at various hierarchical levels, from heads of one village (odikro) to divisional chiefs (ohene) to paramount chiefs (omanhene) who rule an entire traditional area consisting of dozens of villages, to – in the Ashanti Region – the Asantehene, king of Asanteman.[2]
[2] In the Land of the Chiefs: Customary Law, Land Conflicts, and the Role of the State in Peri-Urban Ghana, Leiden University Press, 1 January 2008
No specific information was found in relation to a secret initiation. However, some information was found in a 2017 report by the Immigration and Refugee Board of Canada indicating that there may be consequences for divulging a secret ritual in Ghana. The report quotes a professor anthropology from the University of Wroclaw:
“Divulging secrets might call forth some ritual sanction, wrath of gods, etc”.[3]
[3] Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation; consequences of divulging a secret ritual to another member of the same ethnic group, including the Kotokoli in the Volta region; state protection available to individuals that do not comply with chieftaincy rules and traditions (2014-April 2017), Immigration and Refugee Board of Canada, 2 May 2017 CISEDB50AD9149
Tribunal hearing

The applicant appeared before the Tribunal on 18 May 2022 to present evidence and arguments in support of his case. The Tribunal discussed with the applicant his background in Ghana, the circumstances of his travel to Australia in 2009, his religious beliefs, the reasons why he chose to leave Ghana as well as his claimed reasons for fearing to return to Ghana. His testimony and responses to issues discussed with him by the Tribunal during the hearing are summarised in the following findings and reasons.
Post-hearing submission
On 24 May 2022 the applicant made a post-hearing submission to the Tribunal. He asserts that he was baptised in the [specified] church and is an active member of the church where he holds the position of a Deacon of the church. He also assists with prayer meetings and fund-raising events. He asserts that he genuinely converted to Christianity in 2010.
The applicant repeated his oral testimony in respect of the tenure of his role as the Soul of the Royal.
The applicant maintained that his sister is not a practicing Christian although she believes in the principles of Christianity.
The applicant states that the evidence he gave at the time of the review of his partner visa application was because he was afraid that anything he would say about his uncle will further endanger his life. He was afraid that his uncle would find out about any statements he made.
The applicant repeated his testimony in respect of the fear he has of his uncle and the reasons for this.
Attached to the submission is a letter from [the Reverend E], Sydney Branch of the [Church] which states the applicant was baptised in 2019 and plays a major role in the church.
FINDINGS AND REASONS
Country of reference
The departments record show that the applicant entered Australia using a passport in another person’s identity. He subsequently produced to the department a Republic of Ghana passport in the name of [the applicant]. In the absence of any information to the contrary, the Tribunal accepts, for the purpose of this review, that the applicant’s true identity is [the applicant] and that he is a national of Ghana.
Claimed fear of harm from maternal relatives
The applicant claims that he is now a Christian and his maternal uncle, who is the village chief or Odikro, will forbid him to practice his religion in Ghana and will likely kill him for this reason and for what he considers to be the applicant’s betrayal of the family’s indigenous religious beliefs, traditions and practices.
For the reasons set out below the Tribunal did not find the applicant to be a credible witness and it has serious concerns about the veracity of key aspects of his claims.
At the outset the Tribunal notes that the applicant’s written claims state that he was initiated as the Soul of the Royal of the “late” Odikro [Mr C]. During the Tribunal hearing he advised that [Mr C] is alive and continues to occupy the role of Odikro and is the uncle whom he fears will harm him if he returns to Ghana. When this inconsistency between his written and oral evidence was discussed with him during the hearing the applicant stated that a lawyer wrote his statement of claims but confirmed he did so after listening to his narrative of events. In the Tribunal’s view the applicant has not given a credible explanation as to why or how his lawyer provided such an incorrect version of a key aspect of his claims and the inconsistency in his evidence in this regard contributes to the Tribunal’s concerns about the veracity of his claims.
Secondly, in the Tribunal’s opinion the applicant’s written claims and oral evidence to the delegate, clearly indicate that he ceased his duties as the Soul of the Royal when he reached the age of 17. On the contrary, when asked during the Tribunal hearing what age he was when he ceased to be the Soul of the Royal he stated that he in fact was never released from the role. He said his uncle forbid him to work and continually required him to accompany him wherever he went. He said that when he was given an opportunity to undertake an apprenticeship his uncle became angry and disallowed it. When the Tribunal pointed out to the applicant that he appears to have given differing accounts of his tenure as Soul of the Royal he said that ordinarily it is understood that the role ceases when the occupant turns 17 but in his case his uncle did not allow it. He repeated this assertion in his post-hearing submission.
The Tribunal put it to the applicant that he previously told the delegate during his protection visa interview that he was assisted to work as an apprentice after completing his role as Soul of the Royal. The applicant repeated his assertion that his uncle never allowed him to do it. The Tribunal also notes that when questioned by the delegate about what he did upon ceasing the Soul of the Royal role the applicant merely stated that his uncle sometimes bothered him to do errands for him “while he was working”. He gave no indication that he was forbidden to cease his duties as the Soul of the Royal or that his uncles demands meant he could not work at all as is now claimed. Indeed, his evidence to the delegate indicates he was in fact undertaking work as an apprentice in Ghana.
Based on the available evidence the Tribunal does not accept the applicant was forbidden to work as he was required to continually perform the role of Soul of the Royal of the Odikro. The Tribunal is of the view that if the applicant was the Soul of the Royal his duties ceased at age 17 as previously maintained.
Thirdly, the Tribunal is not persuaded that the applicant only became a Christian in Australia. The applicant advised the Tribunal that no other family members of his family are Christian because his uncle forbids it. Relevantly, in support of his claims the applicant provided to the department a letter from his sister in Ghana which is dated 4 October 2016. As discussed with the applicant during the hearing this letter is riddled with references to God including statements such as “thanks to God”; “have good faith in the Lord” and “believe in God” which suggests to the Tribunal that she is a Christian. The applicant replied that his sister believes in God but cannot attend church. He said her words were written to encourage him in his faith in God and he argued that this does not make her a Christian. He repeated these assertions in his post-hearing submission.
As discussed with the applicant during the hearing some 71 per cent of Ghana’s population are Christian and country information reports do not reveal any widespread interference with people’s ability to practice Christianity in Ghana. The Tribunal has considered the applicant’s responses above but remains of the view that the wording of the letter from the applicant’s sister strongly suggests that she is likely a practicing Christian.
The Tribunal initially had some concerns about whether the applicant is a Christian himself because he appeared uncertain during the hearing about the type of church he was attending in Australia and appeared to falter when asked if he could produce a copy of his baptismal certificate. On further consideration the Tribunal is prepared to accept he is likely a practicing Christian. However, given the majority of people in Ghana are Christian, that the applicant’s father was reportedly a Christian and the likelihood at least that his sister is also a Christian, the Tribunal considers it possible that the applicant was also a Christian in Ghana. The Tribunal acknowledges the applicant’s claim in his post-hearing submission that he was only baptised in the [specified] Church in Australia in 2019 but finds it significant that he has not produced a copy of his baptismal certificate despite this omission being discussed at hearing and his representative agreeing that such records are ordinarily accessible in Australia. In any event there is no evidence before the Tribunal to indicate that the [Church] could not or would not baptise the applicant even if he was previously baptised in a different church in Ghana.
Based on the available evidence, the Tribunal believes that the applicant is claiming to have become a Christian in Australia in order to provide further support for his claim that there is a real chance he will be harmed by his uncle if he returns to Ghana because it cannot be reasonably made out that he will be harmed for betraying his uncle for shunning his duties as Soul of the Royal because all the evidence suggests he ceased to carry this responsibility when he turned 17.
In forming this view the Tribunal also notes the applicant departed Ghana in 2009 at the age of [Age], some 20 years after he likely ceased to be the Soul of the Royal. While he stated during the hearing that his uncle persecuted him, other than claiming that he refused to allow him to work, which the Tribunal rejects, he gave no other clear examples of serious harm.
Furthermore, if indeed the applicant was persecuted by his uncle for most of his adult life the Tribunal considers he would have at least fled his local area or departed Ghana sooner. The Tribunal notes that when discussing the possibility of him relocating within Ghana if he is required to return to his country the applicant stated that there is nowhere he could hide from his uncle. He replied that his uncle is well known and travels a lot. The Tribunal put it to the applicant that he claims his uncle is an Odikro which appears to be a chieftaincy at the village level and it is therefore difficult to see why he would be well known and feared throughout the country as is claimed. The Tribunal does not accept the applicant’s uncle has nationwide influence and remains of the view that if need be the applicant could have attempted to leave his local area in Ghana many years prior to his departure from the country to avoid any harm he was experiencing at the hands of his uncle. That he did not and remained in living in his area for many years despite claiming continuous persecution also causes the Tribunal to doubt the veracity of the applicant’s claims.
The Tribunal is also concerned about the timing of the lodgement of the application for protection. As discussed with the applicant during the hearing he arrived in Australia in 2009 and yet only applied for a Protection visa some seven years later in 2016. The applicant responded that he didn’t know much about the legal system when he first arrived and he didn’t have any money to make an application. The Tribunal put it to him that he made an application for a Partner Visa in 2013 which demonstrates some awareness of migration processes and a certain level of financial capacity. His response to this observation was merely to state that he consulted a lawyer and that is why he and his ex-partner made the application for a Partner visa.
The Tribunal has considered the applicant’s responses but remains concerned about the long delay between the applicant arriving in Australia and applying for a Protection visa. Based on his evidence the applicant had the means to consult a lawyer about his visa status as early as 2013 and finds it significant that he chose to apply for a Partner visa then instead of making his fears for his safety in Ghana known at that point in time.
The Tribunal also discussed with the applicant, pursuant to the requirements at s.424AA of the Act, the fact that he provided information to a differently constituted Tribunal in a statement dated 21 April 2016 as part of a review of his partner visa refusal that appears not to support his current claims. That is, he stated in the statement dated 21 April 2016 that [Mr A] sent him his passport to use to enter Australia unlawfully because his family’s health was deteriorating; they were suffering a scarcity of food supplies and he could not afford to educate his family. The Tribunal pointed out to the applicant that this information makes no mention of him fleeing Ghana because he feared harm from his maternal relatives and also appears to be inconsistent with his oral evidence to the delegate and the Tribunal that after [Mr A] went to his village to investigate the problems his father advised him that his son was having he then assisted him to come to Australia by allowing him to use his passport.
The applicant responded during the Tribunal hearing that when he was nominated to be the Soul of the Royal he was told that if he revealed any of the traditional secrets he would die or go mad. He said it was only when he was placed in immigration detention and was visited by his pastor that he told the whole truth. He said that until then he did not have the courage to do so. He said his pastor told him that because he is now a Christian and engaged in regular prayer nothing bad could happen to him. In his post-hearing submission the applicant states that he was afraid that his uncle will find out about any statement he made in Australia.
The Tribunal has considered the applicant’s responses but is not persuaded that this accounts for his failure to mention his claimed fears of harm at the hands of his uncle until 2016 when he made the application for a Protection visa. As discussed with him during the hearing he says he became a Christian in 2010 and has been actively participating in prayer and church activities for many years. Indeed, the available evidence indicates he rose to the role of Deacon in his church. The Tribunal is not persuaded, given his claimed faith in Christianity, that he was unable to overcome the fear he says was gripping him and prevented him from revealing the truth about his claimed fears until counselled by his Pastor. The Tribunal remains of the view that the applicant’s failure to mention his claimed fear of harm of his uncle during the review of his partner visa refusal casts further doubt on the veracity of his claims. The Tribunal is also of the view that the applicant’s willingness to enter Australia posing as someone whom he is not also raises serious questions about his credibility.
The Tribunal is also concerned about the timing of the letter from the applicant’s sister. As discussed with him during the hearing his sister wrote to him to alert him to certain events that appear from her narrative to have happened about a year prior to her writing the letter. When this was discussed with the applicant, he said that he was detained in 2016 and when nobody in the family heard from him for about two months it was rumoured that he might have returned to Ghana. He said this likely made his uncle happy and that is why his sister wrote to him and encouraged him to remain in Australia.
The Tribunal has considered the applicant’s responses but continues to find it difficult to accept that his sister waited almost one year to inform him that guards and elders sent by his uncle came to search for him and threatened and harassed her in the process. The Tribunal considers the timing of the letter, that being the same date on which the applicant made the application for the Protection visa, to be highly coincidental. The Tribunal is of the view the letter was written in a bid to provide evidence to support the applicant’s claims for protection and is not a truthful reflection of events which occurred in Ghana.
Having carefully considered the applicants claims and evidence and in light of the above concerns the Tribunal has formed the view that he has not provided an honest or accurate account of his situation in Ghana or the problems he faced there or fears on return to Ghana.
While the Tribunal is prepared to accept the applicant might have occupied the role of Soul of the Royal from about the age of 14 it finds that he ceased those duties when he was 17. The available evidence indicates that he remained living in Ghana unharmed by his uncle or anybody else for a further 20 years before departing to Australia. The applicant has not claimed that he was accused of betraying the family’s indigenous beliefs or secrets during those 20 years or that he was harmed for this reason in all those years. The Tribunal is therefore not prepared to accept that he will be harmed on return to Ghana now or in the reasonably foreseeable future because it will be assumed or is known he has revealed the secrets of his family’s pagan rituals. The Tribunal also does not accept the applicant will be forced to return to the family fold against his will if he returns to Ghana or that he will be cursed or otherwise harmed or killed for betraying his uncle. Nor does the Tribunal accept that he will be harmed by his uncle for converting to Christianity in Australia or for renouncing his family’s pagan rituals.
The Tribunal accepts the applicant is a practicing Christian but has found he was likely a Christian prior to his departure from Ghana. The Tribunal accepts he will want to practice his faith on return to Ghana but does not accept that he will be forbidden by his uncle to attend church or otherwise observe his faith. As noted in the findings above the Tribunal considers the applicants sister is also a Christian and likely practicing her faith in Ghana despite any views her uncle may hold about Christianity. Furthermore, the available country information indicates that the majority of the population of Ghana are Christian and able to freely practice their faith without hindrance.
In light of the above the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm at the hands of his uncle or maternal relatives or anybody else if he returns to Ghana now or in the reasonably foreseeable future for any of the reasons claimed.
CONCLUDING PARAGRAPHS
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). For the same reasons already articulated 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 the reasons claimed or for any other reasons. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1975

31 May 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction