Evidence
Evidence Before The Court
A 2021 study stated that “[s]ingle mothers may also face some social consequences, such as shame and social stigmatization, as well as difficulties in finding a suitable partner. Economically, single mothers may face difficulties in financial or childcare assistance.”[7][7] Nyarko SH, Potter L, 2021, ‘Levels and socioeconomic correlates of nonmarital fertility inGhana, >A 2021 media article refers to “[m]others who are widows, single mothers, aged and divorces are rejected, scorned and subjected to intolerable ill treatment by some children, relatives and members of our communities.”[8][8] JOY ONLINE, 2021, ‘OTIKO AFISAH DJABA: DON’T GET TIRED OF TREATING MOTHERS WELL’, 9 MAY.A 2013 article notes that: … bearing an illegitimate child (outside marriage) classifies women as loose, frees the family from any responsibility to provide for her and protect her, and also carries considerable social stigma against her family (Jefremovas 1991:383).[9]CONSIDERATION OF CLAIMS AND EVIDENCE[9] Ghana Journal of Development Studies, African Journals Online (AJOL), Violence Against Women During the 1991 Ethnic Conflicts of the East Gonja District of Ghana, 2013, p.49The second named applicantAccording to the second named applicant's NSW Birth Certificate, he was born in Australia on [date] and his father is [Mr A]. Information in the department’s files confirms that the second named applicant’s father, [Mr A], currently holds a subclass 155 Resident Return visa and that at the time of the second named applicant’s birth he held a subclass 100 Partner visa. Both of these visas are permanent residence visas. Therefore, at the time the second named applicant was born his parent, [Mr A], was an Australian Permanent Resident.Under section 12(1)(a) of the Australian Citizenship Act the second named applicant, as a child born in Australia to a parent who at the time of birth is an Australian Permanent Resident, is an Australian citizen.Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. The object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens.[10] [10] Sections 4, 29 Migration Act.The Tribunal is satisfied on the evidence before it that the second named applicant is an Australian citizen. It follows that he does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.The first named applicantThe first named applicant submitted her Ghanaian passport. On the basis of this document and her oral evidence the Tribunal is satisfied she is a citizen of Ghana. The Tribunal assesses her claims against Ghana as her country of nationality and receiving country. The applicant claims to fear return to Ghana because of mistreatment and discrimination, due to being raped there as a child by her [uncle], and because she has had children out of wedlock.CredibilityOverall, the applicant presented her claims and responses to questions by the Department and Tribunal in a very consistent, straightforward manner, with little indication of any exaggeration or embellishment. She persuasively conveyed a sense of speaking from personal recall about events that were traumatic to her, and appeared to make genuine efforts to speak about memories which observably continue to cause her emotional pain.The applicant has consistently maintained that she was raped by her [uncle] when she was [age] years old. She has detailed how she eventually told her parents who verified she had been sexually assaulted by examining her genital area. The applicant’s recounting of these events has been personalised, matter of fact and coherent. The Tribunal accepts this happened to her as a child in Ghana.The applicant has further claimed that her parents confronted her [uncle] but would not report the assault to the police because of the shame it would bring the family. The applicant was similarly clear and consistent in explaining these aspects of her claims and the Tribunal accepts them as credible.Following the sexual assault the applicant claimed that her relatives and community learned of what happened and continued to shun and gossip about her for being a child raped by her uncle and/or for being a liar, until she departed Ghana. The applicant’s evidence was straightforward and consistent and her experiences find support in available country information about the treatment of people who are known to have been sexually assaulted as children. The Tribunal accepts these aspects of her claims.The applicant has submitted copies of her two children’s NSW Birth Certificates, which name her as their mother and [Mr A] as their father. The Tribunal accepts that the applicant is not, and has never been, married to [Mr A] and is not in a relationship with him. The Tribunal therefore accepts that the applicant has had two children in Australia out of wedlock.Fear of harm in GhanaUnder s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test: (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. The High Court confirmed in MIBP v WZAPN that the above paragraph requires a qualitative judgment, involving the assessment of matters of fact and degree.[11] [11] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [41], [51].Subsection 5J(5) has been held to contemplate that a person’s livelihood or well-being will be jeopardised in a material way.[12] A threat to subsistence as referred to in ss 5J(5)(d)–(f) would at a level that challenges the ability of the individual to continue to exist or remain in being.[13] [12] MIMIA v VBAO of 2002 (2004) 139 FCR 405, Marshall J.[13] SZBQJ v MIAC [2005] FCA 143 at [11]).In Chan v MIEA, Mason CJ held that serious punishment or penalty, or the imposition of some significant detriment or disadvantage, for a Convention reason will amount to persecution and that harm short of interference with life or liberty may still amount to persecution. His Honour stated that:…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage ... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ...[14] [14] Chan v MIEA (1989) 169 CLR 379 at 388. In the same case, McHugh J stated:…to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.[15] …the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.[16][15] Chan v MIEA (1989) 169 CLR 379 at 430.[16] Chan v MIEA (1989) 169 CLR 379 at 431. Failure of state protection can also, in some circumstances, constitute persecution within the meaning of the Convention, where such failure is itself for a Convention reason. If the state is aware of the harm and does not act to prevent it or protect the victim, an issue can arise as to whether this failure on the part of the state of itself constitutes persecution for a Convention reason.[17][17] MIMA v Khawar (2000) 101 FCR 501 at [10], [129].In her home society in Ghana the applicant is known as a person who was raped as a child by her uncle and/or as a person who has lied that about this. The Tribunal has accepted that she was ostracised and gossiped about by the people there so that she withdrew from that society and when in her home area spent her time alone at home with her parents. The applicant spoke of people isolating her, ignoring her, yelling at her, and making accusations against her to her face and behind her back. Parents would not let their children associate with the applicant and adults would also shun her.The available country information highlights that children known to have been sexually abused in Ghana suffer stigma and blame for what they have been subjected to. Reports speak of them being considered ‘bad’ and ‘immoral’ and bringing shame upon their family.The Tribunal notes that as a child the applicant found some support from the pastor in her local church who urged the congregation to be supportive and not blame the applicant for what had happened to her. However the extent to which they could and can redress the widespread social discrimination against the applicant within the community appears very limited.If the applicant returns to her home in Ghana there is no indication that her situation would be any different from how it was when she lived there. She would therefore be in an environment in which people refuse to associate with her as well as think and speak badly of her. The Tribunal considers that in such an environment there is a real chance the applicant would face potentially insurmountable obstacles to find employment adequate for her subsistence, given the community’s discriminatory treatment and rejection of her. There is also a real chance she would not be able to find accommodation outside of her parents’ home. Further, there is the likelihood she would continue to be subjected to severe social isolation, ostracism and condemnation. She would face all this as a result of being the victim of sexual assault as a child. In addition, the Tribunal notes that the applicant has been unable to bring a prosecution against her uncle due to family and societal pressure. He therefore remains in her community amidst the broad awareness that he was able to sexually assault the applicant with impunity. The available country information indicates that in matters of child sexual assault and domestic violence the local police will often accept bribes to not investigate a case or will convince the victim’s family not to prosecute, especially when the perpetrator is a relative. As such not just the community but the authorities bear part responsibility for a lack of protection available to the victims of sexual assault. The applicant observed during the hearing that if she did try to bring a prosecution against her uncle it would anger him and his family and it would not go well for her in terms of the community’s reaction. She also spoke of her uncle almost beating her when he confronted her about telling her mother about what he had done to her. The Tribunal considers there is a real chance, which is likely not high but is not remote, that the applicant’s uncle would react with physical violence if the applicant had made, or does make, a complaint to the authorities about him. In view of the foregoing the applicant has therefore been forced to stay quiet out of fear of reprisal from her community and from her uncle and his family as well as a lack of willingness by her family and the authorities to effectively intervene on her behalf. She has had to avoid taking action so as not to offend and provoke her uncle and the community. The Tribunal considers this would have a serious adverse impact upon the applicant’s emotional health and create or prolong a level of trauma for her. The High Court has stated, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action’.[18] An applicant cannot be required to take steps, reasonable or otherwise, to avoid offending his or her persecutors, or to modify some attribute or characteristic to avoid persecution.[19] [18] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40]. [19] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], [80]. There is evidence, which the Tribunal accepts, that the applicant’s mental health, while currently stable, can deteriorate in times of stress. [Dr C], in her letter submitted to the Tribunal, stated that the applicant has a “background of chronic depression, childhood sexual abuse and relational issues” and that there was a post-natal exacerbation of the applicant’s depression. The applicant gave evidence that she sought [Dr C]’s help during a period after the birth of her second child in which she almost attempted suicide. The Tribunal considers that based upon the applicant’s mental health history, there is a real chance that return to her home area in Ghana may similarly trigger a relapse in the applicant’s mental health. There is potential for the impact of the mistreatment by the applicant’s home community upon the applicant to be more severe given her susceptibility to poor mental health. The courts have noted that, when assessing whether discrimination faced by an applicant amounts to ‘serious harm’, all relevant circumstances must be taken into account, including the personal circumstances such as the applicant’s age and frailty.[20] The Tribunal consider that the potential decline in the applicant’s mental health if she returns to Ghana further brings the harms she is at risk of, such as community ostracism, discrimination and condemnation, well to the level of serious harm.[20] AGA16 v MIBP [2018] FCA 628.The Tribunal is satisfied that the harms outlined above are of a nature that the applicant cannot reasonably be expected to tolerate[21] and, particularly on a cumulative level, [22] amount to serious harm.[21] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [65]; MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [73]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40].[22] See S1891 of 2003 v MIMIA [2005] FMCA 1069; SCAT v MIMIA [2003] FCAFC 80 at [23], [25]The Tribunal is satisfied that the harm the applicant is at risk of in her community is a result of systematic and discriminatory conduct in that it will be done to her intentionally and selectively.The Tribunal considers that the reasons for the harms the applicant is at risk of are her membership of a particular social group, namely women and girls who have experienced past sexual assault. The Tribunal notes that a fear of persecution cannot identity a particular social group. However in describing the relevant particular social group to include past sexual assault the Tribunal is not suggesting that this is the fear of persecution, it is merely describing the group in terms of the stigmatising identifier that unfortunately surrounds them and sets them apart in society. In view of the reported obstacles and some reluctance on the part of local authorities to take action in matters of child sexual abuse the Tribunal is not satisfied there is effective protection available to the applicant from the authorities in Ghana. Further, as the adverse community attitudes remain pervasive, with little being done to redress the situation, the Tribunal is not satisfied there is available effective protection to the applicant against the serious forms of discrimination, isolation and stigma she faces from the community.On the basis of the above reasoning the Tribunal is satisfied the applicant faces a real chance of persecution in her home area in Ghana.Under s 5J(1)(c) of the Act the real chance of persecution must relate to all areas of the receiving country. The Tribunal considers that if the applicant lived in another part of Ghana it would not be immediately known that she had been subjected to child sexual assault. It may however become known. While the applicant may then experience some negative reactions it is highly doubtful that she would encounter the widespread hostility and isolation she faced in her home area. It is expected that the people in a new locale would have a much lower level of engagement in the applicant’s personal life. There would also likely be no friends or family of the perpetrator to create or stir up trouble for the applicant, particularly the greater the distance the new locale is from the applicant’s home area. The Tribunal is not satisfied that the situation in another part of Ghana would result in a real chance the applicant would be ostracised or denied employment, accommodation or basic services, even if people become aware she had been sexually assaulted as a child. The Tribunal is therefore not satisfied that the real chance of persecution relates to all areas of Ghana. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Ghana, as defined by s 5J of the Act.Complementary ProtectionThe Tribunal has found there is a real chance that the applicant will be subjected to severe social ostracism, discrimination, isolation, and condemnation in her home area in Ghana, so as to deny her opportunity for employment and accommodation outside of her parental home.The Tribunal considers these harms are acts and omissions by which mental pain and suffering are intentionally inflicted upon the applicant, in circumstances which can reasonably be regarded as cruel or inhuman in nature. The Tribunal is satisfied they amount to significant harm.The Tribunal is satisfied that the risk of these harms to the applicant is one faced by her personally because of her background, and not a risk faced by the population of Ghana generally.As found above the Tribunal is satisfied that the applicant cannot obtain from an authority of Ghana protection such that there would not be a real risk she would suffer significant harm in her home area. Under section 36(2B)(a) of the Act there is taken not to be a real risk that the applicant will suffer significant harm in a country if it would be reasonable for her to relocate to an area of Ghana where there would not be a real risk that she will suffer significant harm.The Tribunal has found above that the real chance, or real risk, of serious and significant harm to the applicant does not relate to all areas of Ghana. The Federal Court has confirmed that the issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.[23] What is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.[24][23] AHK16 v MIBP [2018] FCAFC 106 at [53]; MZYXS v MIAC [2013] FCA 614 at [37].]. [24] SZATVv MIAC (2007) 233 CLR 18 at [24]. What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation.[25] The applicant’s own particular circumstances must therefore be carefully considered. Relevant factors may include age and life experience, gender, health, disability, family responsibilities and relationships, social or other vulnerabilities, financial difficulties, skills, educational, professional and work background and opportunities, any past persecution and its psychological effects, etc .[26] Matters such as the availability and adequacy of employment, housing, education and healthcare in the ‘safe’ area may also be relevant to an assessment of the reasonableness of the applicant relocating.[27] [25] SZATVv MIAC (2007) 233 CLR 18 at [24]. [26] UNHCR, Internal Flight Guidelines, above n 5 at [25]; Januziv SSHD [2006] 2 AC 426 at [20]. See for example Ashraf v MIMA (Federal Court of Australia, Tamberlin J, 14 November 1997); Umerleebe v MIMA (Federal Court of Australia, Marshall J, 28 August 1997); Woldie v MIMA (Federal Court of Australia, Foster, Lee and RD Nicholson JJ, 16 July 1998) at 7; Abdi v MIMA [2000] FCA 242; NNN v MIMA [1999] FCA 1290; SZHEP v MIAC [2007] FCA 1219; NAIZ v MIMIA [2005] FCAFC 37; Franco-Buitrago v MIMA [2000] FCA 1525; SYLB v MIMIA [2005] FCA 942; AZAEH v MIBP [2015] FCA 414 at [34]; SZTJO v MIBP [2015] FCCA 1921. [27] See for example BGT18 v MHA [2021] FCCA 1425 and ARB18 v MHA [2021] FCCA 1427. The applicant would be returning to Ghana as a single mother and the primary carer of two very young children, one of whom has a serious medical condition and medical needs. The applicant also does not have employment in Ghana or accommodation outside of her parents’ home. As reported above there is also some stigma attached to unmarried mothers in Ghana so that they may be rejected and scorned by family and society.A 2016 report to the UN High Commissioner for Human Rights, by the Ghana Permanent Mission in Geneva, states that the populations in Ghana most affected by homelessness are single women including unmarried mothers with children. Women were also reported to lack access to credit from financial institutions in order to establish a new home. The Tribunal considers the applicant would face serious hardship in finding employment to support herself and her two children in a new area of Ghana. The Tribunal also considers it is likely the applicant would struggle to find accommodation for herself and her two children, particularly given her lack of employment income and her diminished status as an unmarried mother. There is a real possibility she and her children would be or become homeless and destitute if she tried to relocate in Ghana. The applicant’s younger child’s need for medical care further restricts the potential areas the applicant could relocate to. Country information indicates medical treatment facilities are located primarily in large urban areas.[28] The higher housing and living costs in such areas would present a financial cost likely outside of the applicant’s reach. Finally, the applicant would lack family and social support structures in a new area of Ghana. [28] See the UK Home Office, Country Information Note, 2022, ‘Ghana: Medical Treatment and Healthcare’, August.In light of these significantly adverse circumstances the Tribunal is not satisfied it would be reasonable, in the sense of practicable, for the applicant to relocate to a part of Ghana in which she would not face a real risk of significant harm.Conclusion on Complementary Protection criteriaGiven the above the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk she will suffer significant harm.Section 36(3) Under s 36(3) of the Act Australia is taken not to have protection obligations in respect of the applicant if she has not taken all possible steps to avail herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia.The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.The courts have also held that the right to which s 36(3) refers is not merely a right to enter, but must consist of a right both to enter and reside.[29] It must be a ‘legally enforceable right’[30] and an existing right and not a past or lapsed right, or a potential right or an expectancy.[31][29] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64]. [30] Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001), Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively[31] [2001] FCA 1391 (Gray J, 2 October 2001)Ghana is a member of the Economic Community of West African States, or ECOWAS, a regional economic union of fifteen countries comprising Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. In May 1979 the member states of ECOWAS signed ‘Protocol A/P.1/5/79 Relating To Free Movement Of Persons, Residence And Establishment’ that formed the foundation for further steps to provide freedom of movement and residence within member states. Since the signing of this protocol, ECOWAS has gradually implemented a number of related protocols over three phases that have outlined the legal requirements of member nations.The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[32] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[33] [32]IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23; ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Liberia country report, 1 January 2014.[33] ‘IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23Each State determines the admissibility of non-citizens. Commentators have suggested that until States agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by States’ recourse to overly broad or arbitrary grounds of inadmissibility.[34] Although the ECOWAS protocols have made progress in establishing freedom of movement and residency between ECOWAS member states in practice, evidence also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, arbitrary decisions, and administrative harassment and extortion on the part of member states. Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.[35] A report commissioned by the UNHCR details inadmissibility provisions in ECOWAS countries.[36] According to the report, ‘the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would-be migrants seemingly without need of explanation or process’. The report suggests that most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission.[37] Further, a non-citizen’s right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.[38][34] Katy Long and Jeff Crisp, Migration, mobility and solutions: an evolving perspective, Forced Migration Review, vol. 35, pp.56-57.[35] ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Ghana country report, 1 January 2014, pp.46 & 47; IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.27; United Nations High Commissioner for Refugees, New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol, 1 December 2007, pp.9 &11.[36] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.[37] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.[38] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015, p.86.A UNHCR report provides the following information on the implementation of the ECOWAS treaty and protocols in practice:Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[39]… At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds”. The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[40][39] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015.[40] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015.The above information indicates there are bureaucratic and administrative restrictions and impediments upon the right of citizens of ECOWAS member states to enter and reside in another member state. These restrictions and impediments also change from time to time as well as decrease and increase, in response to developments in the changing political, security, and health situations in the various member states. As such the Tribunal is not satisfied that the applicant has an existing and legally enforceable right to enter and reside in another member country of the ECOWAS.The Tribunal is therefore satisfied that the applicant does not have a right to temporarily or permanently enter and reside in any other country, and that she is not excluded from Australia’s protection obligations by s 36(3).ConclusionsFor the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).The second named applicant is not a non-citizen and therefore he does not satisfy any of the criteria in s 36(2).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s 36(2)(aa) of the Migration Act.The Tribunal affirms the decision not to grant the second named applicant a protection visa.Melissa McAdamMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…