1829915 (Refugee)

1829915 (Refugee) [2022] AATA 492 (27 January 2022)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829915
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sheridan Lee
DATE OF DECISION:  27 January 2022
DATE CORRIGENDUM
SIGNED:31 January 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
-    On the decision cover sheet, substitute the decision date ‘27 January 2021’ for ‘27 January 2022’.

Statement made on 31 January 2022 at 4:21 pm
Sheridan Lee
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1829915

COUNTRY OF REFERENCE: Ghana
MEMBER:Sheridan Lee
DATE:27 January 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 January 2022 at 10:01 am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christianity – particular social group – persons in line for chieftaincy – activist for animal rights – refusal to perform chief’s rituals – fear of killing – protection in Economic Community of West African (ECOSWA) States – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 5 October 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age]-year-old man and a citizen of Ghana. He applied for the visa on 14 December 2017 on the basis that he would be forced into a chief position for his village and would be persecuted for his Christianity and animal rights activism. The delegate refused to grant the visa on the basis that the applicant had embellished and fabricated aspects of his claims.
The applicant is a citizen of Ghana. He has produced a Ghanaian passport and his nationality is not in issue. I find that Ghana is the country of his nationality and the receiving country in considering his protection claims.
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 (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 applicant was born in [Town 1], Ghana. He was granted a visitor visa (FA-600) on 26 September 2017 and first travelled to Australia [in] November 2017. His visitor visa expired [in] December 2017 and he has been in Australia since that date.
He applied for the Protection visa (XA-866) currently under review on 14 December 2017. The protection visa application form submitted to the Department outlined that the applicant was born on [date] in [Town 1], Central Region, Ghana. He can speak, read and write in Twi and English. The applicant is of African ethnicity and belongs to the Christian faith.
The following claims for protection were contained in the applicant’s protection visa application and an additional statement, dated 13 December 2017:
·The applicant claims that the “kingmakers” of his village want to make him the chief against his will. He cannot accept the role because his Christian beliefs are against the practices of the pouring of libation, animal sacrifice to the gods and spiritual fortification.
·The applicant claims that if he is made chief against his will his wife will divorce him and he fears that he will lose his life like his uncle. He states that he will commit suicide if he is forced to become a chief.
·The applicant claims to have experienced harm in the form of emotional and psychological torture during the year (no year listed). He suffered stress as the result of the kingmaker’s presence in his house, “making everything possible” to make him the chief.
·He did not seek help from the Ghanaian authorities because there is no law preventing the kingmakers from making him the chief. There have been no circumstances in the past where the government has succeeded in protecting someone from the kingmakers. The applicant states that chieftaincy is a powerful institution in Ghana. The family members he spoke to did not want to “incur the wrath” of the kingmakers and therefore did not give him an audience.
·The applicant has not tried to relocate in Ghana because the kingmakers would find him even if he hid in another village. Further, if he hid in another village, he would not be able to work and support his family and other dependants.
·The applicant indicated that he fears harm from the kingmakers because they started to put him through emotional and psychological torture. The kingmakers will succeed in making him the chief and he would prefer to end his life than become chief.
·The Government can’t do anything to protect the applicant. The Government does not get involved with chieftaincy matters unless there have been clashes as the result of disputes.
·The kingmakers can easily locate the applicant in Ghana, because if he moves to a new town or village the residents will want to know where he comes form, and there may be someone coming from the same area as him.
The delegate refused to grant the protection visa and the applicant applied to the Tribunal for a review of that decision. A copy of the delegate’s decision was provided to the Tribunal.
Application for merits review
On 12 November 2021, the applicant provided the Tribunal with a statutory declaration. The declaration is not signed by the applicant or a witness. The declaration outlined that:
·the applicant’s grand uncle (mother’s uncle) had been selected as chief of his village. He turned down the chieftaincy and had to leave Ghana for his safety. He lived in [Country 1] until his death.
·the applicant was not born in the same village as his family. His parents moved to [Town 1] before he was born. The applicant and his brother grew up in the city, where there were better job opportunities. They did not return to the village often.
·the applicant’s uncle, [named], was the most recent village chief. He was also Christian and refused to perform the required rituals. He died in mysterious circumstances in 2011. Many people from the village believe he was murdered because of his refusal to perform the rituals.
·the village currently has no chief due to the applicant’s refusal to accept the position. Some villages in Ghana remain without a Chief for decades while a suitable candidate is found. During that period the village is overseen by a regent.
·in 1999 the applicant started working at the [Employer 1] in Accra. He later transferred to Kumasi. During that time he financially supported some of his family members.
·the applicant’s father died in April 2012, a few months after his uncle who was chief. Around that time, the applicant’s cousins and some elders started to talk about him becoming chief. The applicant did not take it seriously at first because he was not approached by a kingmaker, his family knew of his Christian faith and his professional achievements.
·many of the rituals are kept secret because they are criminal in nature. The applicant has been advised that some rituals involve human and animal sacrifices.
·Due to his faith, the applicant cannot owe allegiance to the gods and ancestors instead of the lord.
·in or around October 2017 two kingmakers from [Town 2] visited the applicant at his house in Kumasi. They told him he was nominated to be the chief. The applicant refused the position and the kingmakers left. The applicant believed they had accepted his answer. However, within a week the kingmakers returned and threatened the applicant. They told the applicant that he had to become chief or face the consequence and the wrath of god.
·the applicant hid at a friend’s house in Accra for approximately one month. The applicant’s wife and children remained at their home in Kumasi. She informed the applicant that the kingmakers visited the home to enquire about the applicant’s whereabouts. The applicant’s wife told them he was attending a course in Accra. She was frightened and later took the children to stay with family in [Town 3].
·In September 2017 the applicant obtained an Australian business visa through a community organisation that he volunteered with. He originally planned not to travel to Australia, preferring to remain in Ghana and rest. However, when he realised that he needed to leave Ghana he secured tickets to Australia.
·If the applicant did not have a visa for Australia, he would have applied to any country that would allow him to. He highlighted that his status as [an occupation 1] would have increased his chances of securing a visa.
·In November 2017, the applicant was told by a colleague, [named], that two men from his village came to work looking for him. [The colleague] told them he was on leave.
·In February 2018, two kingmakers went to the applicant’s brother’s house in Accra to ask about him. His brother told them that he had run away to another country in the hope that would encourage them to stop looking for him. The applicant’s brother would have been nominated as chief, except he suffered a [medical condition] in 2008 and is not well enough to be chief.
·The applicant did not plan to remain in Australia long term. He requested an extension of leave from [his employer] in Ghana in the hope that he could return. The applicant had a good life, a good job and a family. He did not want to start over again.
·Before leaving Ghana the applicant had built [some] flats and commenced building [another]. He was well paid and took care of his immediate family and other people from the village and community.
·The applicant has suffered a lot of stress as a result of his situation and was prescribed [a medication] by a doctor.
·The applicant is Christian and completed bible studies with [Bible School 1]. He is a member of [Church 1] and donates $30 a month to a Christian [organisation].
·The applicant has always been interested in the protection of animals. Since he started working Australia he donates $20 a month to [Organisation 1].
·The applicant will lose his life if he returns to Ghana. No place within the country would be safe and the authorities do not intervene with chieftaincy affairs.
In addition to the above points, the applicant provided some background on the customs and traditions of chieftaincy and responded to some information put forward in the decision of the delegate. In the delegate’s decision, it was noted that “a senior lecturer at the University of Ghana’s Department of Sociology advised that ‘there is no physical punishment for refusing a traditional position’ however: tradition hardly allows an unwilling Chieftaincy candidate to have his way simply because the candidate’s refusal to accept a chieftaincy position is a denial of a whole family, or section of it (ruling/royal gate) of such an opportunity and subsequently, denies such a family or a section of it the opportunity to present candidates for the particular chieftaincy position”. The applicant noted that the quoted statement might be true in situations where there are many suitable and eligible candidates for the chief position. However, in his situation, no other candidates were preferred by the kingmakers.
Attached to the declaration was:
·A letter from [Doctor A], dated 14 September 2021. The letter states that the applicant attended appointments on 10 and 20 October 2018 and 1 December 2018 for depression and anxiety.
·A certificate of completion issued to [the applicant] by [Bible School 1] [in] March 2010.
·A letter from [Leader A], dated 26 September 2021. The letter outlines that the applicant has been known to [Leader A] for three years and he is a faithful member of [Church 1].
·An article titled ‘Tribal Chiefs in Ghana Coming to Christ’ published on 13 November 2019 on the website of Missions Box.
·An article titled ‘Religious Persecution on the Ascendancy in Ghana?’ dated 14 June 2017, written by Lawrence Ntow and published on paper published on 2 May 2017 by the Immigration and Refugee Board of Canada on titled ‘Ghana: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successor, 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)’.
·An annual statement issued by [Organisation 1] to [the applicant] for the 2020 to 2021 financial year. The statement reports donations totalling $240.
Tribunal hearing
The applicant appeared before the Tribunal via Microsoft Teams to give evidence and present arguments on 24 November 2021. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I 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 video. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant did not raise any concerns in respect of the hearing format.
The applicant gave evidence that he belongs to the Akan people and adheres to the Christian faith. In Melbourne he attends [Church 1]. He speaks Akan (Twi) and English.
The applicant has been married twice. He was most recently married in a customary ceremony in 2011, with the official marriage certificate issued in 2012. His wife, [Ms A], and their [children] live with family in [Town 3], Ghana. The applicant keeps in contact with his wife through [a messaging service]. The applicant also has a [child] with his first wife, who was born in [Country 1], but now lives in Accra with his mother.
The applicant has [specified family members]. The applicant said that [one brother] lives in Accra. He has been bed ridden since he suffered a [medical condition] in 2008. [Another sibling] is a farmer in [Town 1]. [Details deleted.] Both of the applicant’s parents are deceased.
The applicant’s father and mother were Christian and he grew up in the religion. He described himself as so committed that he wanted to be a preacher and teacher. He completed [Bible School 1].
Before moving to Australia, the applicant lived in Kumasi, Ghana. He worked as [an occupation 1] for the [Employer 1]. In Australia, the applicant is employed in [a specified area] area of a [named business].
The applicant lived outside of Ghana when he studied in [Country 1 between specified years].
The applicant gave evidence that his family are traditionally from the village of [Town 2], located in the central southern region of Ghana. However, his parents moved away from the village prior to his birth. The family did not return to the village often.
The applicant expressed concern about returning to Ghana on the basis that he would be killed by the kingmakers of the village, the elders and his cousins because he did not accept the role of village chief. He gave evidence that the kingmakers made it clear that they would find him and kill him as punishment for running away.
The kingmakers visited the applicant at his home on two occasions. The applicant personally knew one of the kingmakers - he was the applicant’s [uncle]. He was not familiar with the other visitor.
When asked about the six-year gap between the death of the previous chief and the approach by the village kingmakers, the applicant expressed the belief that his cousins were trying to convince him into the position voluntarily. Also, they were looking for an alternative, but couldn’t find one.
After the applicant left Kumasi to hide, the applicant’s uncle and another person from the village visited his wife to ask about his whereabouts. She told them that the applicant was attending a conference in Accra. After that they went to the head office of [his employer] in Accra to ask about the applicant.
The applicant stated that his wife had never been threatened or at risk. She told people that the applicant ran away and she has not been in contact with him. Also, she moved to her hometown and had not been visited again.

The applicant explained that to the best of his knowledge no chief had been installed for the village. Even if a new chief had been put in place, the applicant felt that he would still be at risk because he disrespected their religion. They target educated people so that they can send those representatives to chiefs’ counsels. They also seek Christians to convert them.
I highlighted that the delegate raised concern about the timeline differences between the applicant’s written evidence and his oral evidence at the interview. In particular, the delegate noted that the applicant claimed to travel to Australia out of fear but had originally intended to return to Ghana. He also claimed to make the decision to remain in Australia after kingmakers visited his office while he was in Australia. In response, the applicant explained that he was already fearful when he went to Accra for approximately one month. That’s why he began to look for an opportunity to leave Ghana.
During the hearing, I noted that the Ghana Statistical Service 2021 Population and Housing Census reported that the population of Ghana in 2021 was 30.8 million. It seems unlikely that village members would locate the applicant after the passage of significant time and within a large population. In response, the applicant conceded that the population is high but felt that the villagers would still locate him. I asked how and he advised that they would be searching for him with assassins; it happens all the time.
I further noted that the delegate outlined that the applicant could live in any of the Economic Community of West African (ECOSWA) States. There are 391 million people within the ECOSWA states, many religions, and several English-speaking countries. The applicant understood that there is free movement but felt that there would be no protection there. He noted that he would have to hide because the people looking for him would have the same freedom of movement.
In relation to the applicant’s mental health, the applicant confirmed that he did not consult a specialist, such as a psychiatrist or psychologist. He did not receive an official diagnosis and no longer takes medication. He stopped taking medication about a year before the date of the hearing.
I asked the applicant some questions about the hierarchy of the position he was put forward to perform. The applicant could not provide any details about the regional council members or hierarchy. He explained that he is not interested in becoming a chief or the details of the position. In relation to his claim to the position, the applicant noted that there are no records of membership to royalty in Ghana. It is just remembered by members of the community. Royalty runs through the blood line and most are matrilinear.
Evidence from [Ms A]
On 8 December 2021, I spoke with the applicant’s wife, [Ms A] via telephone. She gave evidence that the couple have [specified children]. [Number] of the children live with [Ms A] in her hometown of [Town 3].
[Ms A] recalled that two family members, elders from the applicant’s village, came to the house in Kumasi. She knew one of them, [Mr B], who used to come and visit in the sitting room. One visit they went into a guest room with the applicant. [Ms A] said she heard a lot of noise from them arguing. After they left, she asked the applicant the reason why they came. He said they wanted him to become a chief. He didn’t want to become the chief. [Ms A] didn’t want him to become the chief either. She stated that if he became chief she would get a divorce.
[Ms A] stated that the elders from the village came again. They were very angry and said that if the applicant failed to become chief they would kidnap him. They would kill him, and the gods would exact retribution.
[Ms A] said that she stayed with a friend after the applicant left Ghana because people were looking for him. [Mr B] came back after one or two weeks looking for the applicant.
Post-hearing submissions
On 3 December 2021, the applicant supplied a statement with further information about why he could not resettle in one of the ECOSWA states.
In support of his statement, the applicant provided a report published by the United Nations High Commissioner for Refugees on ‘West Africa as a Migration and Protection Area’ and an article by John Agyei and Ezekiel Clottey titled ‘Operationalizing ECOWAS Protocol on Free Movement of People among Member States: Issues of convergence, divergence and prospects for sub-regional integration’.
Findings
I accept that the applicant is [an age]-year-old Akan man and an adherent of the Christian faith. I accept that he is married to [Ms A] and father to [number] children. I accept that his mother’s family originate from the village of [Town 2], although he was not personally born there. I further accept that in around October 2017 he was invited by the traditional kingmakers to take the position of chief for the village of [Town 2] and that he declined the offer.
While I accept that the kingmakers may have been disappointed by the applicant’s choice, as supported by [Ms A’s] account of their visit to the family’s home, I do not accept that the applicant would be kidnapped, killed or otherwise harmed by members of his family, the village or the wider community for refusing the position of chief, for his Christian beliefs or on the basis of animal activism, now or into the reasonably foreseeable future.
Most information available to the Tribunal on the issue of tribal chieftaincy was published by the Immigration and Refugee Board of Canada (IRBC) between 2013 and 2017. There has been no new advice published by the IRBC since that time and the Department of Foreign Affairs and Trade (DFAT) has not published any advice on the topic. The Tribunal’s own research revealed no reports of tribal retribution against a tribal chieftaincy recusant anywhere in Ghana in the past five years. Reports of chieftaincy dispute related violence in the available country information do not appear to be for the essential and significant reason of recusancy. This is consistent with country information as far back as 2012, published by the IRBC.[1]
[1] Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, Research Directorate, Immigration and Refugee Board of Canada, Ottawa (see: accessed 16 May 2020); and; Ghana: State involvement in chieftaincy matters, including state protection available for people involved in chieftaincy disputes, Research Directorate, Immigration and Refugee Board of Canada, Ottawa (see: >
At the Tribunal hearing, I discussed some of the available material with the applicant. I noted that a professor of political science at the University of Ghana is quoted in the 2017 IRBC research response as saying that ‘one is free to accept or refuse a chieftaincy position in any part of Ghana’. An emeritus professor of anthropology at Haverford College was also quoted as saying that ‘[n]obody would be penalized for not wanting the job.’
In response, the applicant said that this may be true for the sub-chiefs, but not the main chiefs. They are all referred to as chiefs. The sub-chiefs do not have to perform the rituals.
I note that there is no distinction between chiefs, sub-chiefs, nor chiefs who are expected to perform rituals and those that are not, in any of the material reviewed. I find that country information is not consistent with the specific harm that the applicant claims to fear if he were to return to Ghana now and for the foreseeable future, namely, tribal retribution against tribal chieftaincy recusants.
The applicant supplied an article published on Missionsbox, which outlined one example of a Christian man who refused the position of tribal chief: “Clement was named chief. However, his refusal to deny his faith in Christ made him a target for unbelievers. Their intense search for him and their intent to do him harm eventually drove him out of the country…
…His was not an isolated case. Some have lived to tell their stories. Others have been murdered in cold blood.” Missionsbox is a website that describes its role as ‘using the secular news as a tool to showcase the relevance of Christian non-profit work and its impact around the world’. I note that while the article was published on Missionbox in 2019, it cites an article published on 19 January 2016 as the source of the case study on Clement.[2] There is very limited information on the alleged threats to Clement’s life or his relocation. Further, no examples were provided in relation to the allegation that people have been murdered in cold blood for refusing the position of chief. I give more weight to the material produced by the IRBC, which cites various academics who have studied and published on chieftaincy in Ghana.
[2] Akaabitono Abawine, ‘To remain a Christian or to become a traditional chief’, GhanaWeb, 19 January 2016, accessed at >
While I accept that the position of chief was offered to the applicant, his claims in relation to the threat he would face as a result of refusing the position appear to have been exaggerated. The applicant gave evidence that he was not born in [Town 2], he never lived there and rarely visited. Neither his immediate family nor his wife and children live in [Town 2]. No evidence was presented to suggest that the applicant would travel to the town in the future. It is not plausible that a small village would have unlimited resources to search for an individual amongst a population of more than 30 million indefinitely. Further, there is very limited evidence to suggest that they would be motivated to do so.
The applicant and his wife recounted being visited by the kingmakers at their home in Kumasi on two occasions. After the applicant departed Ghana, his wife moved to her hometown and has not been contacted by the kingmakers since. Further, the applicant gave evidence that his brother and workplace were visited one time each and the kingmakers did not return when they were advised that the applicant has relocated. This is not indicative of a relentless search for the applicant, even if the applicant’s wife claimed not to know of his whereabouts.
In his statement of 12 November 2021, the applicant outlined that his uncle died in ‘mysterious circumstances’ in 2011. Some members of the community hypothesised that he was killed because he refused to perform rituals involving animal sacrifices. Other than this conjecture, no evidence was put forward to support the inference that the applicant’s uncle was killed for failing to perform the role of chief. I do not accept the death of the applicant’s uncle as evidence in support of the applicant’s claim that he would be killed for not accepting the chieftaincy or for running away. I also accept that the applicant’s maternal uncle moved to [Country 1] and remained there until his death. No evidence was put forward as to the date the applicant’s uncle was offered the chieftaincy, nor the date he departed Ghana. I do not accept that he moved for the purpose of avoiding retribution for refusing to accept the chieftaincy.
The United States Government reports that approximately 71 percent of the population in Ghana is Christian, 18 percent is Muslim, 5 percent adheres to indigenous or animistic religious beliefs, and 6 percent belongs to other religious groups or has no religious beliefs. The majority of the population of Ghana is Christian and I accept that the applicant is Christian too.
While I accept that the applicant’s religious beliefs would be inconsistent with the position of chief in many respects, contrary to the applicant’s statement to the contrary at the Tribunal hearing, there is no evidence before the Tribunal to suggest that Christians are persecuted more generally in Ghana. Further, the applicant did not provide any examples of religious persecution for consideration.
While I accept that the applicant cares for the welfare of animals, I do not accept that he is an animal activist. I accept that he makes regular donations to an animal welfare organisation, however no evidence was put forward to indicate that the applicant takes part in any activism personally. Further, I note that the applicant’s views in relation to animal rights are not likely to cause issue if he does not hold the chieftaincy.
In relation to the applicant’s mental health, I have considered the medical evidence indicating that the applicant saw his GP on four occasions in 2018 for the treatment depression and anxiety. The letter does not address the applicant’s ability to give evidence or establish that his ability is compromised in any way. At the Tribunal hearing, the applicant confirmed that he did not consult a specialist, such as a psychiatrist or psychologist. He did not receive an official diagnosis and no longer takes medication. While the applicant stated in his application form that he would commit suicide if he were forced to become chief, he made no mention if suicidal thoughts at the Tribunal hearing. In addition, as I do not accept that the applicant would be forced into the chieftaincy, I do not accept that this would be a risk.
I accept that the applicant sought treatment for depression and anxiety from [Doctor A] in 2018 and that he took medication until approximately one year prior to the Tribunal hearing. However, I consider that the medical evidence submitted by the applicant is of limited value in assessing his claims. The letter provided no insight into the severity of the applicant’s conditions or the extent of the impact on the applicant’s ability to recall traumatic events or general information from the past. There was no advice on how the applicant’s mental health might impact his ability to return to Ghana or his risk of self-harm. In the circumstances I do not consider that there is a real risk that the applicant would suffer serious or significant harm as a result of his mental health now or in the reasonably foreseeable future.
I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if he were returned to Ghana. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[3] I find that there are no 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: s.36(2)(aa).
[3] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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).
For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2022] AATA 492

27 January 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review