1831501 (Refugee)

1831501 (Refugee) [2021] AATA 5169 (29 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831501
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tamara Hamilton-Noy
DATE:29 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 November 2021 at 9:20am
CATCHWORDS
REFUGEE – protection visa – Ghana – dispute with relatives because of land inheritance – father beaten and step-mother threatened – credibility – inconsistent, unsupported and implausible claims and evidence – voluntary return to home country – partner citizen of third country and Australian-born children – separation not systematic and discriminatory – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (4)(c), 36(2)(a), (aa), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

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 arrived in Australia on a student visa [in] October 2014. He lodged an application for a further student visa on 15 May 2016 and this application was refused on 28 October 2016.
The applicant departed Australia [in] April 2017 as the holder of a bridging visa. He applied for a partner visa on 2 May 2017 and returned to Australia [in] May 2017.
The applicant applied for a protection visa on 5 March 2018.[1]
[1] Movement and visa history taken from the Department’s decision, a copy of which was provided by the applicant to the Tribunal.
Claims and Evidence
Evidence before the Department
In his written protection application, which was completed with the assistance of a migration agent, the applicant stated that he was born in Kumasi, Ashanti region, Ghana. He described his relationship status as divorced and stated that his parents, step-brother and step-sister and two uncles were all residing in Kumasi. At the time of the application, he stated he was engaged to a female from [Country] who was residing in Australia. He stated that between [Year] and October 2014 he lived in Kumasi. He stated that both of his parents are citizens of Ghana and that he is of the Ashanti ethnic group and a Christian. He stated that he studied until June [year], completing senior high school, and that from June [year] to October 2014 he worked in [an] industry and that since arriving in Australia he has worked in [Job sector 1], [Job sector 2] and [Job sector 3] work.
The applicant provided a written statement in support of his protection application which stated the following:
I was in a town called [Town] in the Ashanti Region (Ghana). My dad [named] my mother [named] are my parents. I am the first and only biological son of my father. I have two [siblings].
On the 01/03/2017 I had a call from my dad informing me of my late grandfather [whom] I was locally named after. My grandfather was a very wealthy and influential man and also a title holder in my town.
When I heard the news, I decided to go for the funeral rites back home. On [date]/04/2017 I went back to help and assist in my grandfather’s funeral rites which was held on 08/04.2017 and 09/04/2017 because in my culture, funerals are performed for two days at [Location] – Kumasi in the Ashanti Region. The funeral rites and other ceremonies were successfully carried out.
According to our tradition, when a title holder dies his will has to be read in public after a few months by his confidant because you don’t have to write a will. You can confide in an elder who is close to you and who you also trust.
So my grandfather’s Will was not written but he had a confidant according to the custom whom he will make his intentions regarding the disposition of his property known to before he dies.
All the family members had to gather few months after the funeral rites to listen to a will of my grandfather because his Will wasn’t legally signed and written. In this situation it must be said by the head of the family ([named]) about what my late grandfather told him before he passed away. After everything was said by the head of the family, there became some controversies between my dad and the family because they don’t agree why my dad and I had most of the properties (15 plots of lands) of my late grandfather. After I return back to Australia in 7 months time, the family stood up against my dad and I regarding our inheritance.
They came to our house at Midnight to harass me and my dad, fortunately for me I was not home.
They dragged my dad out of the house that night and gave him a beating of his life, tied him up and dumped him in a ditch where he stayed over the night and was later rescued by passers by the next morning.
As a result of our inheritance our family members started tormenting my dad. They started looking for me too but they realized that I have travelled back to Australia.
Through this my dad and I is not stabled in life because his life is at risk. Since then he can’t stay or sleep at home. He has made report to the police but because of corruption in the country he is not individually secured so he has been moving to other states in Ghana but still they have been tracking him.
Because of the Current situation I cannot return to my Country Ghana. My life is at risk, if I go back to Ghana I will be suffer inhuman and degrading treatment. If they get me then they will get my dad as well. I can’t go back to Ghana because of the situation at hand because I will suffer cruel and inhuman treatment or be killed.
The government of our Country will not protect me, protection is privatized and for the elites. When my father reported to the police, they told him it was a family matter and they have no jurisdiction to assist us.
The applicant attended an interview with the Department on 6 September 2018. The Tribunal has listened to a recording of the interview, the relevant parts of which are discussed further below.
A delegate of the Department found that the applicant had given inconsistent evidence between his written claims and the claims he outlined at interview, that the applicant had not provided any evidence in support of his claims and that the applicant’s claims lacked plausibility. The delegate did not accept the applicant is from a royal family as claimed at interview or that his father was harmed as he claimed. The delegate found that the applicant had given varying reasons for returning to Ghana in 2013 and that the delay in claiming protection added to the delegate’s concerns about the applicant’s credibility. Having regard to country information, the delegate found the applicant (and his father) could access the legal system to enforce their property rights. The delegate was not satisfied the applicant would be targeted because of his grandfather’s will, in relation to land holdings or for any other reason and found that he had embellished or fabricated parts of his claims. The delegate was not satisfied the applicant fears harm in Ghana from family members because of a family conflict over his grandfather’s will or for related reasons. The delegate found that the applicant may be able to enter and reside in other ECOWAS countries.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 3 September 2021, the Tribunal wrote to the applicant stating that it had considered all of the evidence before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing on 23 September 2021. At the time of the hearing, the Tribunal’s Melbourne Registry was closed due to the COVID-19 pandemic and the Tribunal determined it was appropriate to hold the hearing by MS Teams video, having regard to the Tribunal’s objective of providing a mechanism of review that was quick and informal and having regard to the delay if the matter were not heard by MS Teams video.
On 9 September 2021, the applicant’s representative wrote to the Tribunal stating that he had just been appointed by the applicant and requesting an adjournment of the matter, due to his late engagement in the manner and conflicting schedules.
An adjournment was granted by the Tribunal and on 10 September 2021, the applicant was invited to attend a hearing on 22 October 2021.
The Tribunal hearing was held on 22 October 2021 by MS Teams video. The applicant’s representative was present at the hearing. The Tribunal found that the audio and video were clear throughout the hearing and the Tribunal was satisfied that the applicant was able to give evidence and present arguments throughout the hearing.
At the conclusion of the hearing, the applicant’s representative requested further time to make written submissions to the Tribunal, which was granted by the Tribunal.
On 25 October 2021, the Tribunal wrote to the applicant under s.424A, inviting a response by 8 November 2021.
On 23 November 2021, the applicant’s representative provided submissions and response to the s.424A letter. The contents of these submissions and response are discussed further below.
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.
Assessment, reasons and findings
The applicant travelled to Australia on a passport issued in Ghana and has at all times claimed he is a citizen of Ghana. The Tribunal accepts the applicant is a citizen of Ghana and has assessed his claims against Ghana as his country of nationality.
In assessing the applicant’s claims, the Tribunal must adopt a reasonable approach in making its findings as regards credibility, based on relevant and material facts. Where ‘the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[3]
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
[3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204.
The Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal hearing and the use of interpreters. The Tribunal acknowledges there may be memory issues from the lapse of time and cultural issues which may affect how an applicant answers questions before the Tribunal. The Tribunal has had regard to its Guidelines on the Assessment of Credibility in the conduct of the hearing and in assessing the totality of the applicant’s evidence before it.
The Tribunal is prepared to accept that the applicant was born in the Ashanti region and is of Ashanti ethnicity. The Tribunal is prepared to accept the applicant resided in Kumasi from [Year] to 2014 when he left for Australia and that he completed senior high school and then worked in [an] industry before leaving Ghana. The Tribunal is prepared to accept that the applicant’s parents, step-siblings and two uncles all reside in the Ashanti region. The Tribunal accepts that the applicant first arrived in Australia on a student visa and that he has found work in a range of industries since first arriving in Australia.
However, having regard to the extent of the inconsistencies in the applicant’s evidence and for other reasons as set out below, the Tribunal has not accepted the applicant’s claimed reasons for fearing harm if he returns to Ghana now or in the reasonably foreseeable future.
First, the applicant gave varying evidence about his father’s experiences as a result of a claimed land dispute within the family.
In his written protection application, the applicant claimed that after he returned to Australia, the family had stood up against the applicant and his father about his inheritance and ‘they’ came to his house at midnight to harass the applicant and his father but fortunately the applicant was not home. The applicant claimed in his written protection application that ‘they’ dragged his father out of the house that night and gave him a beating of his life, tied him up and dumped him in a ditch where he stayed overnight and was rescued by passers-by the next morning.
In contrast, at the Department interview that the applicant attended in September 2018, the applicant told the interviewer that some people came to look for his father at his father’s shop but his father had left the shop. The people who came said to the person there that the applicant’s father was lucky he had left and gave a notice to his friend that if they met him there, they ‘wouldn’t joke with him’. The applicant told the interviewer that his father had told him that he was attacked twice, the second time at the shop. The first time had been when his father was driving home and someone was on the road side looking for help. His father had tried to park his car but didn’t get out and still had the engine on, and he looked in the mirror and saw people coming with sticks and cutlasses; he then drove away.
At the Department interview, after the applicant had given the interviewer the above information, the interviewer noted that in the applicant’s written claims he had said that his father was taken from his house and beaten. The applicant then told the interviewer that yes, that had happened before the car incident; he then stated that the car was the first attack and three days later this happened. The applicant said that the people then went to his father’s shop. The applicant said that his father was injured, beaten and dragged from his house, had body pains and scars on parts of his body and that strangers had found him.
In further contrast, at the Tribunal hearing the applicant told the Tribunal that his father was driving home and was stopped by a car, that a gang threatened him, saying he and his son couldn’t go free and need to clear all of their properties. The applicant told the Tribunal that the gang dragged his father out of the car and beat him, that his father was badly injured and that this had happened in 2018, a few weeks after the will was read. The applicant said that there was also an attempt on his stepmother at the end of 2019 when she was in her car but that she drove away. He gave evidence to the Tribunal that his father and stepmother received threats. When asked directly by the Tribunal about any other attacks on his father, he stated that there were no other physical attacks on his father apart from the attack in 2018.
Following the Tribunal hearing, the Tribunal wrote to the applicant under s.424A, noting the inconsistencies in his evidence about his father’s treatment in Ghana, as set out above. The Tribunal noted in its correspondence that the inconsistencies may lead the Tribunal to doubt the truthfulness of the applicant’s claims, and may cause the Tribunal to not accept that the applicant or his father inherited land from the applicant’s grandfather that had been the subject of a family dispute, that the applicant’s father was physically attacked at any time or threatened with attack, that the applicant’s father suffered injuries in an attack, that there was an attempted attack on his stepmother or that the applicant or any of his family members had been threatened over the phone or had a dispute with family members or anyone else over land. The Tribunal noted that it may also cause the Tribunal to not accept the applicant’s father had been in hiding over the past three to four years, as he claimed at hearing, because of physical assaults or threats over the phone. The Tribunal noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana. The applicant was invited to comment on the above information.
The applicant’s representative provided submissions to the Tribunal following the s.424A letter, stating that the applicant’s father had been physically assaulted twice, once at his residence and once when driving home and that there were two other occasions where people had come looking for his father but his father could not be located.

The Tribunal noted that the representative’s submissions as to the applicant’s father’s experiences was inconsistent with the applicant’s own evidence given at hearing. The Tribunal was not persuaded that the representative’s explanation explains the significant discrepancies in the applicant’s accounts of his father’s experiences. These discrepancies cause significant doubt for the Tribunal that the applicant or his father inherited land, that the applicant or his father or his stepmother have been the subject of attacks or attempted attacks, or that the applicant or his father have been threatened because one or both of them have inherited land from the applicant’s grandfather.
Second, the applicant has given varying evidence about the land that he claims he and/or his father inherited from his grandfather.
In his written protection application, the applicant stated that he and his father had most of his grandfather’s property, 15 plots of land, which had belonged to his late grandfather.
At the Department interview in September 2018, the applicant told the interviewer, ‘I have three plots’, and said that he has a share in the land and that his father has the title for all 15 plots and he will get three plots. The applicant told the interviewer that 90% had gone to his father, which had raised the whole issue between his family members and his father. The applicant said to the interviewer that the land is all together, and that he is going to get three plots and the other 12 are going to his father. The applicant said that he has three plots and that if his father dies, the whole 15 become his.
In contrast, at the Tribunal hearing, the applicant gave evidence to the Tribunal that his father is still alive and, when asked by the Tribunal whether the 15 plots had been left to his father or to him, gave evidence that they are ‘mine, all to me’ and that, ‘15 is mine, these are what I got, he gave me 15’. The applicant gave evidence that he believes his father was left one business by his grandfather.
Following the hearing, the Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistences in the evidence he had given about the land left by his grandfather. The Tribunal noted in its correspondence that these inconsistences may lead the Tribunal to doubt the truthfulness of the applicant’s claims and may cause the Tribunal to not accept that the applicant or his father inherited land from the applicant’s grandfather that has been the subject of a family dispute, that the applicant or his father inherited 15 plots of land that caused a family dispute or that the applicant has a dispute with family members or with anyone else over land. The Tribunal’s correspondence also noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on the above information. The applicant’s representative provided submissions stating that there were 15 plots left to the applicant and his father, that the applicant had received three plots which are now in the custody of his father and that if the applicant’s father passes away, the applicant will inherit the other 12 plots.
The Tribunal considers it implausible that, if the applicant’s grandfather had left land to the applicant or his father, or to both the applicant and his father, the applicant’s accounts of the arrangements under the will would vary so substantially. The Tribunal was not persuaded that the explanation given by the applicant’s representative explains the discrepancies in his accounts. These discrepancies cause further doubt for the Tribunal that the applicant or his father were left land by his grandfather which caused a family dispute or which led to the applicant or his father being attacked or threatened.
Third, the applicant has given varying evidence about the threats he states he received over a claimed land dispute.
At the Department interview in September 2018, the applicant was asked by the interviewer whether he had been threatened since he returned to Australia and he told the interviewer that the reason they don’t threaten him is that he is far away and they know they can’t threaten or do anything to him in Australia. He stated to the interviewer that any threats go through his father’s phone.
At the Tribunal hearing, the applicant gave evidence to the Tribunal that he had received threats on his Australian phone number, which had started three days after his father was beaten, which he had told the Tribunal happened in 2018 a few weeks after the will was read. The applicant gave evidence that the threats have been continual and that the most recent one was two months ago.
The Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistencies in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept the applicant or his father inherited land from his grandfather that has been the subject of a family dispute, that the applicant received threats at any time over a land dispute or that the applicant has a dispute with family members or with anyone else over land. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The applicant’s representative provided submissions to the Tribunal stating that the applicant and his father have both received threats over the phone, that the applicant was last threatened in 2018 and the applicant’s father was last threatened three months ago.
The Tribunal noted that the explanation given by the applicant’s representative was inconsistent with the information the applicant gave at the Department interview, in which he stated he had not been threatened since arriving in Australia. The interview was conducted in September 2018, by which time the applicant claimed at the Tribunal hearing he had commenced receiving threats on his Australian phone number. The Tribunal considers it implausible that the applicant would state in September 2018 he had not received any threats if he had been threatened over the phone shortly after the will was read. The Tribunal did not consider that the representative’s explanation explained the discrepancies in the applicant’s evidence. These discrepancies add further significant doubt for the Tribunal that the applicant or his father received land from the applicant’s grandfather that has caused a family dispute or that has led to assaults, attempted assaults or threats to the applicant or his father.
Fourth, the applicant has given varying evidence about how his grandfather died.
At the Department interview in September 2018, the applicant told the interviewer that his grandfather died in the car on the way to hospital. In contrast, at the Tribunal hearing the applicant gave evidence that his grandfather had died in his sleep. The applicant stated that his grandfather had ‘slept and didn’t wake up’.
The Tribunal wrote to the applicant under s.424A, noting the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistences in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept that the applicant’s grandfather passed away and left the applicant or his father land that has been the subject of a family dispute, that the applicant’s father and stepmother have been the subject of attacks and threats in Ghana or that the applicant has received threats as a result of land dispute with family members or with anyone else. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The applicant’s representative submitted that the applicant’s grandfather died while sleeping in a car on the way to the hospital. The Tribunal found this explanation unpersuasive in explaining the different accounts the applicant had given of his grandfather’s passing. The discrepancies in the applicant’s evidence adds further doubt for the Tribunal that the applicant or his father received land from the applicant’s grandfather that has caused a family dispute or that has led to assaults, attempted assaults or threats to the applicant or his father.
Fifth, the applicant has given varying evidence about how he found out about his grandfather’s death.
In his written protection claims, the applicant stated that he had received a phone call from his father on 1 March 2017 informing him of his grandfather’s death. In contrast, at the Department interview in September 2018, the applicant told the interviewer that he was told about his grandfather’s death in February on the ‘actual date’ and that his auntie had called first and he had later confirmed this with his father. At the Tribunal hearing, the applicant gave evidence to the Tribunal that his father had called him on 1 March 2017 about his grandfather’s death.
The Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistencies in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept that the applicant’s grandfather passed away and left he or his father land that has been the subject of a family dispute, that the applicant’s father and stepmother have been the subject of attacks and threats in Ghana or that the applicant has received threats as a result of a land dispute with family members or with anyone else. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The applicant’s representative submitted that the applicant received a phone call about his grandfather’s death for his father after receiving a phone call from his auntie the day before. The Tribunal noted that these submissions were inconsistent with the applicant’s own evidence to the Tribunal at hearing. The Tribunal found this explanation to be unpersuasive in explaining the discrepancies in the applicant’s evidence. These discrepancies add further doubt for the Tribunal that the applicant or his father received land from the applicant’s grandfather that has caused a family dispute or that has led to assaults, attempted assaults or threats to the applicant or his father.
Sixth, the applicant has given varying evidence about his mother’s illness that was part of the reason for his return to Ghana in 2017.
At the Department interview in September 2018, the applicant told the interviewer that after his mother gave birth to his stepbrother, she had a caesarean section and was bleeding. In contrast, at the Tribunal hearing when asked about the reasons for returning to Ghana in 2017, the applicant gave evidence that his mother had been hospitalised and had had surgery for [health] problems.
The Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistences in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of the applicant’s claims and may cause the Tribunal to not accept that the applicant’s grandfather passed away and left he or his father land that has been the subject of a family dispute or that the applicant returned to Ghana because his mother was ill or that he returned to Ghana because his grandfather had passed away. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The applicant’s representative’s submissions did not address this aspect of the Tribunal’s s.424A letter. The applicant’s differing evidence as to the reasons he had returned to Ghana in 2017 adds further doubt for the Tribunal about the applicant’s credibility and about the truthfulness of his claims.
Seventh, the applicant has given varying evidence about who inherits his grandfather’s land from him.
At the Department interview in September 2018, the applicant told the interviewer that his father’s nephews inherit the land if he passes away and that it ‘becomes a family property again’. The applicant told the interviewer that in the olden days it used to be the son who inherits but now it is the nephews so that it keeps on going. In contrast, at the Tribunal hearing the applicant gave evidence to the Tribunal that it is up to him to decide who would inherit the land. The applicant gave evidence to the Tribunal that the land will go to his siblings.
The Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistences in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept that the applicant’s grandfather passed away and left the applicant or his father land that has been the subject of a family dispute or that the applicant has inherited land. The Tribunal’s correspondence noted that the inconsistences may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The representative’s response to the s.424A letter addressed who the applicant claims inherits the land if his father passes away, but did not address the question of who the applicant states inherits the land if he himself passes away. The discrepancies in the applicant’s account as to who inherits the land in question from him adds further doubt for the Tribunal about the applicant’s credibility and about the truthfulness of his claims.
Eighth, the applicant has given varying evidence about his grandfather’s role in his community.
In his written claims, the applicant stated that his grandfather was a very wealthy and influential man and a title holder in his town. At the Department interview in September 2018, the applicant told the interviewer that his grandfather was part of the royal family and that he attended the palace. The applicant said that the chief of the area is his grandfather’s brother, but not from the same mother, and that the applicant doesn’t know his name. At the Tribunal hearing, the applicant gave evidence to the Tribunal that his grandfather was a businessman who farmed animals.
The Tribunal wrote to the applicant under s.424A, inviting him to comment on the inconsistencies in his evidence. The Tribunal noted in its correspondence that the inconsistencies in the applicant’s evidence may lead the Tribunal to doubt the truthfulness of his claims and may cause the Tribunal to not accept that the applicant’s grandfather was wealthy, influential, a title holder or part of the royal family and may cause the Tribunal to not accept that the applicant’s grandfather owned 15 plots of land that were left to the applicant or his father or that the applicant or his father were left land that has caused a family dispute. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Ghana now or in the reasonably foreseeable future or that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The applicant was invited to comment on this information. The applicant’s representative submitted in the s.424A response that the applicant’s grandfather was very wealthy [and] as a businessman dealing with [imports], that due to his wealth, he held the position of a chairmanship at the [Location] traditional area and that the applicant is part of the [Name] family clan. The Tribunal noted that the information the applicant gave at the Department interview that his grandfather was part of the royal family was inconsistent with the representative’s submissions that the applicant’s grandfather was appointed to a position of influence due to his wealth. The representative’s submissions that the applicant is part of the [Name] family clan was inconsistent with the applicant’s own evidence to the Tribunal that he is from the Ashanti tribe and is not a claim the applicant has made in his written claims, the Department interview or at the Tribunal hearing. The Tribunal did not find the explanation given by the representative to be persuasive in explaining the different accounts the applicant has given as to his grandfather’s role in the community. These different accounts add further significant doubt for the Tribunal that the applicant’s grandfather owned 15 plots of land that were left to the applicant or his father or that any land was left to the applicant or his father which has caused a family dispute.
Ninth, the applicant gave inconsistent evidence to the Tribunal at hearing. For example, the Tribunal asked the applicant what had happened between him returning in May 2017 and the protection visa being lodged in March 2018 and the applicant stated nothing happened, that he didn’t know this was going to happen and even when he returned he didn’t know there would be conflict. In contrast, later in his evidence, the applicant stated that the will was read a few months after the burial and the conflict started weeks after that. Also in contrast to his earlier evidence, the applicant later gave evidence to the Tribunal that his father had been dragged out of his car and beaten in ‘around 2018’ and that this was a few weeks after the will was read.
Further, the applicant gave evidence at hearing that his father and stepmother received threatening phone calls and that there had been no other threats to family members that he knows about. In contrast, later in his evidence, he stated to the Tribunal that his birth mother had also received threatening phone calls three times, in 2018, 2019 and 2020.
The Tribunal is mindful that the claimed events occurred a number of years ago now. The Tribunal is also mindful that the applicant may have been nervous in giving his evidence at the hearing. However, the inconsistencies in the applicant’s oral evidence at the hearing, on top of the other inconsistencies in his evidence as set out above, add further doubt for the Tribunal about his credibility and the truthfulness of his claims.

Tenth, the Tribunal found aspects of the applicant’s evidence to be given in a vague manner that was lacking in credibility. For example, the applicant gave evidence to the Tribunal that he had been left 15 plots of land and he believed his father was given one business but he doesn’t know many of the details. When asked why he didn’t have a discussion with his father about what his grandfather had left his father, he stated that he was surprised his name had ‘popped up’ and it is about him and the things happening to his father. The applicant was asked by the Tribunal about the titles to the land in question and stated that the documents should be with his father but he had not even asked about this as it is ‘about life and death at the moment’. The Tribunal considered it implausible that, if the applicant’s grandfather had left the applicant or his father property that was the cause of a family dispute significant enough for the applicant to fear returning to Ghana, he would not have discussed with his father the details of what had been left by his grandfather and the location of the legal titles to the land in question.
Further, the applicant was asked at hearing who the conflict was with over the land in question and he stated that he ‘can’t really point to someone’. When asked who has an issue with the applicant inheriting the land in question, he stated that he can’t tell as he wasn’t around. When asked who had been phoning and threatening him he stated he ‘can’t.. it was a surprise to me’. As to who he claimed had beaten his father up, he stated that they ‘hire guys to do that’. As to who would inherit the land who may have an issue with him, he stated he doesn’t know because it is up to him to decide. He stated that ‘it’s a family thing, I can’t tell all these things, each person might’ [have an issue with him]. The Tribunal observed during the hearing that it was having difficulty accepting that the applicant was claiming he feared returning because of inheriting land but doesn’t know who had been threatening him, and that he had an option of leaving the land to whomever he wanted but was claiming that he was at risk because of this. The applicant stated in response that he doesn’t know why they are attacking because of the land. The Tribunal considers it implausible that, if the applicant had inherited land as claimed that is the subject of a family dispute, he would not be able to point to family members who were likely to be involved in the dispute. The vague manner in which the applicant gave this aspect of his evidence adds further doubt for the Tribunal about the credibility of his claims.
Further, the applicant gave evidence at hearing that his father was beaten by a gang of youths after being dragged out of his car, and that his injuries included injuries to his back, arm and face, that he stayed indoors for a couple of months and that he had X-rays for investigation. Later in the hearing he gave evidence that a report had been made to the police who didn’t investigate further. When asked why the police would not investigate if his father had been so severely beaten, he stated that they didn’t know the person doing this. When asked whether his father has brothers or nephews who it might be, the applicant stated he ‘can’t point to one person’. The Tribunal considers it implausible that, if the applicant and his father were involved in a family dispute over land and the applicant’s father suffered injuries to his back, arm and face, that the applicant and his father would not know which family members had an interest in the land or that police would be unwilling to investigate a significant assault. The implausibility of the applicant’s claims on this point add further doubt for the Tribunal about the credibility of his claims.
For the reasons set out above, the Tribunal does not accept the applicant’s claimed reasons for fearing return to Ghana. The Tribunal does not accept that the applicant’s grandfather was wealthy, influential, a title holder, a part of the royal family who attended the palace, a wealthy businessman, a chairman at the [Location] traditional area or part of the [Name] family clan. The Tribunal does not accept the applicant returned to Ghana in 2017 after his grandfather passed away or because his mother was ill. The Tribunal does not accept the applicant’s grandfather left 15 plots of land to the applicant and his father, that the applicant was left three plots and his father held the title for all 15 plots, that 90% of the land had gone to his father which caused problems, that the applicant was left 15 plots or that if the applicant’s father passes away, the applicant receives 15 plots that were his grandfather’s.
For the same reasons, the Tribunal does not accept the applicant, his father, his stepmother or his birth mother have received threatening phone calls as a result of a family land dispute. The Tribunal does not accept the applicant’s father was dragged out of his house, beaten, tied up, dumped in a ditch and rescued by passersby the next morning. The Tribunal does not accept that people came looking for the applicant’s father at his shop and gave notice to his friend, that the applicant’s father was driving home and saw people coming with sticks and cutlasses and drove away, that the applicant’s father was stopped by a car when driving home and threatened by a gang who dragged him out of his car and beat him, that the applicant’s father was badly injured by a gang, that a gang of youths dragged the applicant’s father out of his car and beat and injured him or that there was an attempt on his stepmother in 2019 when she was driving in her car. The Tribunal does not accept that people came twice looking for the applicant’s father but he could not be located. The Tribunal does not accept that family members tormented the applicant’s father or were looking for the applicant. The Tribunal does not accept the applicant’s father has been unable to stay or sleep at home, that his father has now been out of the house for some three to four years, that the applicant’s father is unable to speak to the applicant on the phone because he is in hiding or that the applicant’s father has been running his import business remotely for several years because he is in hiding. The Tribunal does not accept the applicant’s father made a report to police, that he has moved to other states in Ghana but people are still tracking him or that he is receiving phone calls because people are keeping track of his movements. The Tribunal does not accept the applicant has received threatening phone calls on his Australian phone number.
Because the Tribunal does not accept the applicant’s claimed reasons for fearing return to Ghana, the Tribunal also does not accept the applicant faces a risk to his life, inhuman or degrading treatment, cruel in inhuman treatment, being killed, or that ‘they’ will get him if he returns to Ghana. The Tribunal is not satisfied the applicant faces a real chance of serious harm if he returns to Ghana now or in the reasonably foreseeable future because of a family dispute over his grandfather’s land, or as a member of the [Name] family clan.
The applicant raised at hearing that if he returns to Ghana he will be separated from his [children] who are all Australian born. The Tribunal accepts that the applicant would be separated from his [children] if he returns to Ghana. The Tribunal finds that any harm arising from this separation is due to the act of removal itself and finds that any harm experienced by the applicant arising from the separation does not involve systematic and discriminatory conduct as required by s.5J(4)(c) and is not for reasons of the applicant’s race, religion, nationality, membership of a particular social group of political opinion as required by s.5J(1)(a). The Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Ghana now or in the reasonably foreseeable future, because he would be separated from his children who are residing in Australia.
The Tribunal finds that there is not a real chance the applicant faces persecution, if he returns to Ghana now or in the reasonably foreseeable future, for any reason. 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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). For the reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Ghana.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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.
…

[2021] AATA 5169

29 November 2021

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