1831982 (Refugee) - [2023] AATA 4101

1831982 (Refugee) [2023] AATA 4101 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Arjun Sirohi
CASE NUMBER:  1831982
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Melissa McAdam
DATE:7 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s 36(2)(aa) of the Migration Act;
and
The Tribunal affirms the decision not to grant the second named applicant a protection visa.

Statement made on 07 September 2023 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – women and girls who have experienced past sexual assault – victim of child sexual abuse – raped by uncle as a child – community ostracism, discrimination and condemnation – impact on mental health – ‘serious harm’ – state protection – reasonableness of relocation – single mother in Ghana – children out of wedlock – serious financial hardship – child’s medical needs – Economic Community of West African States (ECOWAS) – decision under review remitted
LEGISLATION
Australian Citizenship Act (Cth), s 12
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MIMAC v SZRHU [2013] FCAFC 91
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Ghana, applied for the visas on 15 December 2016.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The first named applicant is the mother of the second named applicant.
The first named applicant presented the claims for protection in the visa application. Any reference to ‘the applicant’ in this decision refers to the first named applicant.
The following is a summary of the claims and information the applicant provided in the Protection visa application:
a.The applicant was born in a town in Kumasi in Ashanti Region in Ghana [year]. She submitted a copy of her Ghana passport.
b.The applicant’s son, the second named applicant, was born in Sydney in [year]. His NSW Birth Certificate was submitted.
c.The applicant belongs to the Akan ethnic group and is Christian. She works in Australia as [an Occupation 1]. She did not work in Ghana.
d.The applicant had a relationship which started in 2010. She and her partner separated in 2016.
e.The applicant is in contact with her sister and parents in Ghana, by telephone, at least once a week.
f.The applicant lived in her hometown all her life in Ghana. She completed high school and obtained a Certificate in [Discipline 1] in Ghana. She departed Ghana [in] December 2012 and arrived in Australia [in] December 2012 as a migrant, on a prospective partner visa. In October 2015 the department decided the applicant did not meet the criteria for a subclass 801 Partner visa. She applied for review of this decision but was unsuccessful.
g.The applicant will be shunned and harassed by her extended family and relatives who harassed and ostracised her before she left Ghana, due to a sexual assault by her [uncle] she suffered when she was [age] years old. When she told her parents they did not believe her until they checked her private parts before agreeing that she was telling the truth.
h.Her uncle denied it and the family kept it a secret until her uncle's wife found out and started spreading rumours that her parents had accused her husband of sexually assaulting the applicant. Since then, everyone in their small town heard about it and started pointing fingers at the applicant, accusing her of being a liar.
i.After the sexual assault the applicant remembers her father yelling at her and saying he will have her circumcised and to sew up her private parts. The applicant remembers the Brethren from the SDA Church coming to the house the next day to convince him otherwise. The applicant’s mother might have informed them. Her father’s reaction showed that he shifted the blame onto her for what happened.
j.Living in the town proved very traumatic until she met her fiancé who came from a different town and did not know about her past. After she arrived in Australia she decided to inform her husband about her childhood sexual abuse, but she didn't for fear he might treat her distastefully like others did to her in Ghana.
k.The applicant suffers flashbacks and nightmares which affect her sleep. When she married her husband in Australia she thought she had put her past behind her, but she soon realized that her husband is inconsiderate and insensitive towards her. Recently after their separation she found out that someone informed him about her past. This explained why he didn't treat her with respect.
l.Returning to Ghana will put the applicant in a situation where she will suffer harassment and discrimination from her relatives and extended family. Her marriage has now failed due to her past and circumstances out of her control and the same situation exists should she be forced to return to Ghana. Her past haunts her and she blames herself. This has affected her mental health ever since.
m.She experienced sexual assault as a child and was harassed and discriminated against by her relatives and others because of what was done to her at the age of [age]. Her [uncle] is still alive and he makes her feel completely sick when she sees him and his wife who destroyed her reputation. No one, not even her father, has dared to hold her uncle to account or even report what happened to her to the police. Before coming to Australia, the applicant thought of reporting the matter to the police, but her mother convinced her that it will bring more shame to her and she should forget about doing such a "silly" thing.
n.The applicant thought traveling to Australia will be the end of her traumatic experience in Ghana, but the man she trusted and married proved to be the same as those people who discriminated against her in Ghana.
o.The person responsible for her past still continues to deny the harm he caused her and the applicant is very afraid of him and his side of the family whenever she sees them. According to her mother their community in Ghana continues to point their fingers at her and they gossip about the applicant. The applicant doesn’t want to return to such a situation. In Ghana, relatives and family ties are important, but the applicant wasn't able to be part of her extended family. This means the experiences and the harm she suffered as a child will never go away, but it will get worse if she returns to Ghana, compounded by her failed marriage.
p.The applicant sought help from her parents but they did not report the matter to the police for fear of tarnishing their family image.
q.The applicant did not move away to another part of the country because she was young and relied upon her parents for basic needs and educational needs at the time. She was not independent to make such a decision to move elsewhere at the time until she met her fiancé who sponsored her to migrate to Australia.
r.The applicant believes she will be mistreated by those who mistreated her all the years she spent in Ghana from her childhood to adulthood. According to her mother nothing has changed since she left.
s.The authorities may be able to charge the person who sexually abused her as a child, but she doesn’t think they will able to protect her from shame, discrimination and harassment from people who are aware of the sexual abuse she suffered at the hands of her uncle. Therefore, she doesn’t think the authorities will protect her if she goes back.
t.The applicant is already away from Ghana and relocation to any part of the country will not help her to forget what happened to her there, because of the culture of shame associated with sexual abuse and how victims of sexual abuse are ill-treated whenever people find out about their past.
u.In Australia, the culture and the compassion given to victims of sexual abuse is completely contrary to how such victims are treated in Ghana. In Ghana it's a taboo subject which allows the perpetrators to roam free without any care in the world as family members are afraid to deal with it. Rather, they demonise the abused.
v.Relocation would not have changed anything because it is the culture of shaming sexual abuse victims in that country which makes it very hard to relocate away from. In Ghana instead of compassion, it's a matter of victimization of the victim, and that is what the applicant suffered there.
Second named applicant
w.As a child born fatherless and now residing in Australia the second named applicant is protected from degrading mistreatment by people and the public in general. He would never feel like a normal child in Ghana and he will not be treated with respect like other children because of the circumstance of his birth. That is, because of the denial of paternity by her mother's husband at the time of his birth.
x.If forced to return to Ghana the second named applicant will be discriminated against. He and his mother will be harassed and discriminated against by his mother’s relatives and her estranged husband’s relatives, which will negatively impact on the second named applicant. In Ghana, the second named applicant will become a victim of ridicule and stigmatisation because of the circumstances of his birth, which is a taboo subject in Ghana.
y.The second named applicant cannot return to Ghana because his mother will not be able to protect him against discrimination and stigmatisation. He will be treated degradingly as an illegitimate and fatherless child. ln Ghana and elsewhere in Africa children born in similar circumstances like the second named applicant are discriminated against and stigmatized because the communities in that part of the world disapprove of illegitimate children. His mother will also be stigmatised as well. Ghana will be a harmful society to raise an illegitimate child like the second named applicant. In that society people are denied the right to grow up as a normal child because the society does not tolerate illegitimate children. The second named applicant’s case is worsened due to the fact that his mother was married at the time, and paternity was denied by her husband. If the second named applicant were to be taken to Ghana it will be very harmful to his welfare as a child.
z.As a fatherless child born to a married woman, there is a real chance that the second named applicant is more likely to be treated degradingly in Ghana and discriminated against, and likely to suffer significant mistreatment, stigmatisation, harassment and humiliation in school and elsewhere, because he is an illegitimate child born out of wedlock. The authorities will not be able to protect him. His mother will not be able to relocate anywhere in Ghana without attracting the same discrimination and degrading treatment, because their situation is a taboo subject in Africa in general.
On 12 April 2018 the applicants’ representative submitted a change of name for the second named applicant and his updated NSW Birth Certificate, issued on [date]. The Birth Certificate records the second named applicant’s father as ‘[Mr A]’.
Departmental Interview, 30 August 2018
Only the first named applicant attended the Department interview. The following is a summary of the information provided by her in the Department interview:
a.The applicant’s hometown was about [number] minutes’ drive from the centre of Kumasi.
b.In Ghana the applicant studied, she was not employed. She studied [Discipline 1]. She has not worked as an [Occupation 2]. She works in [Industry 1] in Australia. She completed an [Discipline 2] Certificate III at TAFE in 2013. She chose to study [Discipline 2] in Australia because she was told it would be difficult to find a job in [Discipline 1].
c.Her fiancé brought her to Australia to get married. Her marriage was genuine.
d.She fears return to Ghana because she was raped by her uncle when she was little. Her uncle denied it so people pointed fingers at her. She was not taken to a doctor or hospital when it happened. Her parents did not report it, they did not tell anybody. It remained in the family. Her parents asked the uncle about it and he denied it. Her uncle’s wife told people the applicant had told stories about her husband.
e.Her uncle was her mother’s only brother. There was nowhere they could send her.
f.She does not want to return to Ghana because what happened to her as a child will happen to her if she goes back. She broke up with the man who brought her here. Her child is not the man’s child. Her son’s father is a different man. Her ex-husband told her the child was not his. Her ex-husband is not the father. She has told the Pastor’s wife this. ‘[Mr A]’ is the child’s father. He acknowledges that he is the father. He is a permanent resident of Australia. His friends call him [Mr A]. She met him on a bus in [Suburb 1].
g.The delegate put to the applicant that she had described her son as ‘stateless’ but his father is Ghanaian. The applicant responded that she described her son’s father’s citizenship as unknown in the visa application because she did not know where the father was and could not find him at the time. He had told her not to involve him with the child or put his name as related to the baby. She told all this to her lawyer. Her lawyer asked her to write stuff about the child’s father. The delegate put to the applicant that at her former AAT hearing in the review of her Partner visa refusal she told the Tribunal that her husband was the child’s father. The applicant responded yes but she doubted the paternity of the child.
h.She receives some payments from her son’s father to help support him. The government is not taking payments from him but he gives her cash sometimes for the child’s upkeep.
i.She is scared because she had her child with another man. He is not her husband’s child so she is worried to take the child back with her to Ghana.
j.She fears what was said before about her will continue to be said if she returns to Ghana.
k.She could not take care of herself if she moved to another part of Ghana. She will need help. People will ask who is the father of her child.
l.The applicant’s father was going to report her uncle but her mother stopped him. When she arrived in Australia she told her mother she wanted to report her uncle but her mother discouraged her. Her mother told her to move on with her life and leave the case behind her. She did not think to report her uncle when she was in Ghana because she knew people would talk against her if she did.
m.She did not tell the previous Tribunal about what happened to her because she was not asked about her past or what she feared in Ghana.
n.The applicant is a Christian and goes to a Pentecostal church in Australia, the Assemblies of God. In Ghana she went to the Seventh Day Adventist (SDA) church. The church would help her in Ghana but the people in the community would do the same treatment to her again. People point fingers and talk stuff about her. She will not have freedom to move around like she does here. Her child will not be treated properly because her husband was not the father.
Delegate’s Decision
The Delegate accepted as credible the applicant’s claim she was raped as a child. The Delegate did not find her claims that her father threatened to have her undergo an FGM procedure; that local SDA church members knew of the rape upon her; or that she was widely criticised or considered blameworthy within her hometown, reliable. The Delegate did not accept as credible the applicant’s claim she will report her [uncle] to police for her childhood sexual assault in Ghana.
The Delegate did not find credible the applicant’s claim that she will be targeted by her family or the general public in Ghana for physical punishment, abuses, or harassment and discrimination, because she had a child outside of marriage and/or from a perceived extra-marital relationship. The Delegate acknowledged there would be a level of family and societal censure but was not satisfied that it would be of the volume, intensity or duration that would reach a threshold level of serious harm.

The Delegate observed that the applicant is capable of self-care and caring for her son. The Delegate was satisfied that the applicant’s education, vocational training and work skills, with the prospect of some continuing financial support from [Mr A] for the second named applicant, did not place her amongst the most vulnerable of single-parent women in Ghana.
Information to the Tribunal
Pre-Hearing Submissions
On 15 August 2023 the applicant’s representative provided the following materials to the Tribunal:
-A further written statement by the applicant.
-The NSW Birth Certificate of the applicant’s son, [the second named applicant], born on [date], naming the applicant as his mother and [Mr A] as his father.
-The NSW Birth Certificate of the applicant’s daughter, [Child B], born on [date], naming the applicant as his mother and [Mr A] as his father.
-A Services Australia Child Support Assessment issued on 19 July 2023, stating the amount payable by the applicant to [Mr A] as a percentage share for the care costs for both children.
-A letter dated 7 August 2023 from [Dr C], of [named] Mental Health Service, stating that in 2019 and 2020 the applicant was suffering from postnatal exacerbation of depression with a background of chronic depression, childhood sexual abuse and relational issues.
In the applicant’s written statement she outlines the following:
I came to Australia [in] December 2012 on a Prospective Marriage Visa. The Visa was subsequently refused on 23 October 2015 and then later affirmed on review by the Tribunal on I December 2016.
By the time the Tribunal affirmed the department's decision I was pregnant with my first child, [the second named applicant]. On [date], l gave birth to my son [the second named applicant] in [Hospital 1] through the emergency C-Section operation. At the time, I did not know [the second named applicant]'s father well enough. He was not at the hospital for the birth of the child, and I had no knowledge of his whereabouts. I was discharged from the hospital after a few days, but I couldn't go home because my husband, at the time, did not want me in the house. A pastor from the Ghanaian community took me to his house and allowed me to stay there temporarily.
During this time I became aware that the Tribunal had refused my application when I was at the hospital. I sought advice from a migration agent in [Suburb 1] during which he asked me about my background and my past in Ghana. When I told him that I could not get help from my family in Ghana, and that my [uncle] had abused me when I was a child, he advised that I should apply for a protection visa and to include [the second named applicant] in the application. He told me the application would allow me to work full time and look after my newborn. I needed to work desperately because [the second named applicant]'s father was not a part of our lives and, as a temporary resident, I did not receive any assistance from the Government. On his advice, I instructed him to file the application herein. The claims I made in the application are true and that I still hold a fear of going back to Ghana. However, more than the fear of being returned to Ghana, I fear that I will lose my children who are Australian citizens.
After [the second named applicant]'s birth, life was not easy for me. I survived on the little savings that I had. I had to resume work after four months at [Employer 1], where I was an [Occupation 1]. When I started working, I was able to move out of the pastor's house and went to rent with a friend. It was not easy for me to look after [the second named applicant] alone financially because I was able to work only two days a week.
In late 2017 or early 2018, I decided to look for [the second named applicant]'s father. Because God is so good, I was able to find [the second named applicant]'s father - [Mr A]. [Mr A] was surprisingly happy to learn about [the second named applicant] and he took [the second named applicant] in. He later applied to have [the second named applicant]'s name changed and added his family name. He took [the second named applicant]'s responsibility as a father. We soon worked out an arrangement where we commenced sharing the care of [the second named applicant].
One day in September or October 2018, I had gone to collect [the second named applicant] from [Mr A]'s house. [The second named applicant] threw a tantrum and said that he did not want to go with me, and we all stayed there that night. [Mr A] had work the next morning, so we decided that I should take [the second named applicant] after he left for work. That night [Mr A] and I got intimate and after a month or two I learnt that I was pregnant. When I told him, [Mr A] was not happy about the pregnancy and he demanded that I terminate the pregnancy. I went to see my doctor who referred me to a centre for the abortion. I made an appointment, but I couldn't go through with the abortion. I told [Mr A] that I was keeping the child. He was not happy with the decision I took. I called my parents and told them about the pregnancy; and they were angry with me and criticised me that I, once again, had a baby out of marriage.
During the pregnancy, [Mr A] came to accept my decision and I moved in with him. He felt sorry because I was sick at the beginning of the pregnancy, and I could not work. During the pregnancy, we found that the child had a problem with her left kidney. I was in a bad place at the time. I had no one to talk to. One day I decided to end it all by ending my life. I put my son to sleep, I went to the kitchen took out a knife but, when I tried doing that, l heard my son crying and saw him walking towards me. I put the knife away and ran to him. I took this as a sign from God and I decided that I couldn't be selfish. I wanted to see my son grow. The next day was my antenatal check up at the hospital and I told them about my situation and what had happened the day before. They told me to go [a named] Family Relationship centre. I went to see them, and they transferred me to see [a] Refugee Health Services where I received some assistance from them. During that time, they found out [the second named applicant] had a speech problem, and he was taken to a speech therapist at [a] community health centre.
On [date] l gave birth to my daughter [Child B]. After birth they did a series of tests and scans on her and there was no improvement to her kidney. I was so depressed that I could not sleep at night, so they referred me to see [Dr C] at [Hospital 2]. I saw her for about a year.
In June or July 2019, [Mr A] applied for support from Centrelink, however, because we were living together, his application was refused. [Mr A] asked me to leave his home and live separately. In November 2020, I moved into my current [Suburb 2] house with my children. I resumed working after a year of giving birth to [Child B]. After I left the house the Child Support Agency approved [Mr A]'s claim and I pay him about $700 monthly towards child support. We have a shared care arrangement. My daughter is [age] years now and has only one kidney. She needs close care and attention.
I am currently working as [an Occupation 3] at [Employer 2], Australia.
On the morning of 22 August 2023 the Tribunal received a further written submission from the applicants’ representative enclosing copies of the following materials:
–A copy of the applicant’s TAFE Certificate III in [Discipline 2].
–A copy of an April 2021 AAT Decision, Case Number 1717702, affirming the decision to refuse a Protection visa to a woman from Ghana, but recommending Ministerial intervention.
–A submission from the representative setting out the applicants’ background in Australia and stating that he agreed with the decision in AAT Case Number 1717702 and that it should be followed in his client’s matter. The representative argues there are unique and exceptional circumstances within the Ministerial guidelines for the exercise of his discretion under s 417 of the Act.
Tribunal Hearing, 22 August 2023
The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The second named applicant did not attend the hearing. The following is a summary of the information provided by the applicant at the hearing:
a.She has two children now. They both have the same father. Their father is an Australian Permanent Resident. He has not yet applied for a Citizenship Certificate for the children but intends to do so soon.
b.The children are living with the applicant. She and their father have contact about the children but otherwise have no relationship.
c.She shares a house with another person from Ghana. He is just a housemate and she is not in a relationship with him. He is also a permanent resident. He does not give her children any support. The applicant is not in a relationship with anyone currently.
d.The applicant’s parents are still alive and living in Ghana. So is her [uncle] and his wife. They have adult children.
e.The applicant’s father was originally from a different area so the applicant does not have contact with his relatives as they were not around when she was growing up.
f.She does not know if her parents have contact with her [uncle] as she does not speak about him with them.
g.She is working two jobs in Australia in [Industry 2]. She will provide confirmation of this from her employers.
h.She had schoolmates in Ghana but no close friends. She has not stayed in contact with any of her schoolmates.
i.The applicant is close to her sister but because the applicant is older they don’t share personal things much. Her sister is still at school in Ghana.
j.When she lived in Ghana she just studied and attended school and polytechnic. She lived on campus at her high school and polytechnic during school terms. During vacations she would just stay home. She would do household chores, watch movies and listen to music. She stayed at home because she didn’t have friends and wanted to be by herself. She didn’t want any trouble.
k.She stayed at home in Ghana because of the way the community treated her. After her uncle raped her other parents told their children not to play with her. She would ask the children why and they would say their mother told them not to because she had been raped. Rumours were spread about her. Once a person is raped it is like a scar and always with you. It was known that she was raped and not by an ordinary person but by her uncle. It wasn’t easy for her.
l.Her time at high school was better because it was away from her community and the people at her high school did not know she had been raped by her uncle. Her polytechnic was a bit closer to her home town though and was very large so there were some people in it from her community who pointed at her and spread rumours about her.
m.Her uncle’s wife told other people in the community who would then say things to the applicant. They would blame the applicant and told her things like it wouldn’t have happened if she hadn’t gone to her uncle’s room. Or they would tell her she was lying and spreading lies about her uncle. Other adults would refuse to speak with her or have any contact with her when she was outside. They would tell her to get away. She became scared to speak with anyone.
n.Her mother told her of another chid something similar had happened to. The child’s family were originally from a different place so they moved back to their original place because of what happened to the child.
o.She does not want to return to Ghana. She cannot live anywhere else in Ghana because she would not be able to find work and look after her children. If people find out she was raped by her uncle as a child she does not know how they would treat her.
p.Her father wanted to report her uncle to the local authorities but her mother stopped him because she said it would bring humiliation to the family.
q.She did not receive any treatment in Ghana after she was raped by her uncle. Her mother told their church members and some church members came to speak with the applicant and told her that it was not the end of the world. They would try to visit her after church and if they didn’t see her in church they would come to check on her. They gave her support and it helped, especially the church Pastor. He told people not to treat the applicant badly as it was not her fault. Her church was the SDA. There were many other churches in her home area including Catholic, Baptist and Pentecostal churches. Her uncle did not go to church and his wife went to a different church from the applicant’s family.
r.In Australia she no longer belongs to the SDA church. She attends the Assembly of God church in Sydney.
s.She does not know what would happen if she tries now to report her uncle to the authorities in Ghana. She has no evidence. Maybe the police will investigate but she does not think it will go well for her. She thinks it will anger her uncle. The community would not support her. Her uncle’s children are grown up now and might become threatening. She had nothing to do with her cousins in Ghana. They would tell her she lied about their father.
t.Sometimes she would see her uncle in her home area as his house was not far from her family’s home. She was always scared when she saw him. When it happened he told her not to tell anyone he was raping her or he would kill her. When she told her mum her mother confronted him. He became very angry and went to their house and shouted at the applicant when her mother was outside, about telling her mother. He came towards her aggressively and was going to beat her but her mother came into the house and stopped him. Her mother quarrelled with her uncle. Since then she and her parents had little to do with her uncle and his family.
u.Sometimes when the applicant saw her uncle he would shout at her but she would just ignore him. His wife works in the market selling things but the applicant doesn’t go near her. When his wife saw the applicant she would call the applicant a witch and a liar.
v.The applicant saw a psychologist for a period in Australia but doesn’t anymore. She became too busy with her children and her work. She sometimes feels bad and can’t sleep but her children help distract her. She would find it very stressful to be in Ghana because of her background there.
w.In Ghana it is not a good thing for a woman to have children outside of marriage. There are some unmarried women with children in her home area but their children are from the relationship the mothers are in so it is okay for them. It would be different for the applicant as she would be alone there without the children’s father and she has a bad reputation because she was raped by her uncle as a child.
x.She has not had any problems with other men in Ghana. She has not faced other harm or threats in Ghana apart from being raped by her uncle and her bad treatment because of it.
y.She does not think she will be able to find work in Ghana. They do not have [Industry 2 work] there. Her parents are old and cannot financially support her. She is sending money to them from Australia to support them.
z.Accra is too expensive for the applicant to be able to live in. She does not know anyone in Accra. She could establish herself in Australia because she was with her ex-husband here and he helped her settle in.
aa.She is worried about her children’s future. Her daughter has only one kidney and is most of the time fighting infection. The health care in Ghana is not good like it is in Australia. She does not know how she will be able to look after and support her children in Ghana, or how they will survive there.
Post-Hearing Submission
On 5 September 2023 the applicant’s representative submitted the following materials to the Tribunal:
-Letters from the applicant’s employers confirming her employment in [Industry 2].
-Medical letters and reports regarding the applicant’s daughter, noting that she has a chronic kidney disease known as congenital kidney dysplasia and that she is under doctor and hospital direct renal care. She has only one functioning kidney.
-A Department VEVO check showing that [Mr A] was granted a subclass 100 visa in August 2012 and that the visa type is ‘permanent resident’.
-Submissions from the representative regarding the automatic Australian citizenship of the applicant’s two children at birth.
Country Information
Child Sexual Assault in Ghana
The Tribunal has located several studies regarding child sexual abuse in Ghana and how it is perceived and treated. An early one from 2009 raised issues and questions regarding gaps in relevant research as well as stated the following:
In the case of Ghana, some of the broad reasons identified as influencing nondisclosure of violence (physical, psychological, sexual, socioeconomic, and traditional) against women and children are the absence of severe physical injury, fear of social reprisal, the economic cost of seeking justice or medical treatment, and negative experiences with formal agencies such as the police. Other factors also high- lighted in the Ghanaian context, some of which relate or are likely to relate to culture, include "no need to report", embarrassment, stigmatization, and fear of reprisal from either the perpetrator or the victim's own family.
…
Indeed, there have been numerous cases of child sexual abuse in Ghana where, after the victim disclosed the abuse, the family attempted to settle the matter "amicably," either within the family, as in the case of intrafamilial child rape, or with the perpetrator's family, in the case of acquaintance rape (Ghana News Agency 2006). Some of the concerns over possible secondary victimization are often reflected in local sayings such as, "Do not wash your dirty linen in public." In the African context, this admonition applies as much to private, individual matters as it does to both nuclear and extended family matters.[1]
[1] Boakye KE, 2009, ‘Culture and Nondisclosure of Child Sexual Abuse in Ghana: A Theoretical and Empirical Exploration’, Law & Social Inquiry, Vol. 34, No. 4.
Several more recent studies further explore issues of stigma and the treatment of victims of child sexual abuse in Ghana. A 2022 study made the following findings and observations:
In Ghana, CSA [‘child sexual abuse’] is classified into defilement and sexual exploitation. Defilement, according to the Criminal Code Amendment Act 1998 section 101 sub-section 2, is the ‘natural or unnatural carnal knowledge of a child below 16 years, with or without his or her consent’. Studies show that cases involving CSA in Ghana are rarely reported due to cultural reasons. …
While [CSA] laws have yielded significant results in the West, countries like Ghana are still struggling to make them work due to the strong influence of tradition and culture. Ghana, like other African countries, is faced with the paradox where, though legal frameworks exist on CSA, people in the communities take a different position from that of the law. Thus, despite the explicit position of the law in Ghana, several studies have identified that concerns with stigma, especially where the perpetrator is family, are among the reasons for non-reporting or withdrawal of reported cases from the police for ‘settlement at home’.
…
The analyses showed that a lot of consideration is given to whether an incident of CSA would be reported to the police or dealt with using traditional approaches. On many occasions, cases that are reported to the police are withdrawn and ‘brought home’ for redress. In some instances, the case does not go to the police at all but is dealt with using a three-pronged process observed to include family settlements, child marriage or inaction.
Family Settlement
Family settlement was the most preferred option of redress by parents and guardians whose children had been abused. This is to avoid stigmatisation of the sexually abused child. Girls who got pregnant in the Ga community without husbands are labelled as children who lacked morals and their families blamed for not instilling good morals in them.
Family settlement was also mostly preferred when the perpetrator was a relative. Incest is a taboo in most communities in Ghana and the act taints the entire family for many generations. The stigmatisation associated with incest is serious to the extent that families do not agree to marriage into such families. As a result, cases involving incest are rarely reported. This is seen in the words of a parent whose daughter was sexually abused by her husband’s brother:
‘How can I report such a person to the police? This will bring disgrace to the family. Moreover, I would not want the person to die in jail but I would not mind if he is disgraced “small” by the family elders. As a result, I just reported him to his family who invited him over and disgraced him. He was cautioned never to do that to any child in the community. If I report a family member who abuses my child to the police, my whole family will be a mockery in this community.’
Such incestuous cases were settled among family members in order to prevent stigmatisation and disgrace to the victims as well as to the entire family.
Child Marriage
In the Ga community, when sexual abuse of a child results in pregnancy, the perpetrator is forced to begin the marriage process. This he does by presenting drinks and cash to the girl's family, declaring his intentions to marry the girl. The man gains the right after ‘knocking’ to continue having sex with the pregnant girl in order to ease labour pains. Marriages under such circumstances are performed to secure the child's future as abused and stigmatised girls may be unattractive to other men as potential wives. Members of the community studied considered child marriage as a ‘solution’ to child abuse.
Inaction
The findings also show that in most instances, especially where the perpetrator is a relation, no action is taken by the family of the child. Parents often remain silent about these kinds of abuse because they do not want to bring disgrace to the family as incest is a taboo. Besides, because of the rules of exogamy and endogamy, it may even be culturally unacceptable for such perpetrators to marry the girl. Such abuses are, thus, shrouded in secrecy. For example, a 45-year-old woman whose daughter was abused by her father said:
‘We did nothing because we did not want anyone to hear of what happened. It is her father, so if something happens to him it would affect the child. We are just praying he does not repeat the action again. It is a very disgraceful situation so it is only the close family members who are aware and they have been warned not to disclose it to anyone.’
In many instances where children's testimonies were not believed, nothing was done. In the words of Naa Awoo:
‘I did not believe what my daughter told me because I know how she can tell lies sometimes. She is a bad girl and she can do anything. When I realised that what she was saying was true, it was too late to do anything about it.’
Disbelieving children’s experiences of sexual abuse may deter other children from opening up about their experiences. This situation is attributed to the cultural norm which makes it difficult for a child’s word to be easily believed. Children in such social settings are likely to be abandoned and made to suffer the outcomes of their experiences silently and alone.
Some participants also claimed they did nothing to the perpetrators because they believed they had been negligent and failed to provide the basic needs of their girls. Princess, whose 13-year-old daughter was sexually abused, said:
‘I did nothing to the man who abused my daughter because I felt very bad as a parent. I was unable to provide her basic needs, this was why the man who provided for her needs forced and had sex with her… I abandoned her and did not take care of her because I had no money to do so. I would feel very shy to even walk to the man's house and accuse him of abusing my daughter’
…
Reporting to the Police
This study found that reporting CSA to the police was the last approach resorted to by parents and guardians when perpetrators refuse to settle or marry the young girls. The participants explained the complexity and difficulty associated with seeking redress in the law courts as the reason this option was least preferred. One female interviewee disclosed that:
‘I told a friend about the sexual abuse of my daughter and she suggested we reported the case to the police, which I did. The perpetrator was then arrested by the police and we were told the case would be sent to court. We were happy about it but the police did not commit to pursuing the case, we believed he was bribed. We went to the police station several times without any positive outcome so we stopped pursuing the case.’
… in the case of Eugenia, whose daughter experienced incest with her uncle, the family was pressured by the police official to settle the case at home because it involved a relative and they did not want to be stigmatised. She explained that:
‘When we went to the police station, one of the policemen who knew my family convinced me to withdraw the case and settle it at home. He said my uncle would be jailed for many years if we go to court. He said it would not be good for the family. I was not happy about it but my husband agreed to what the policeman said.’
It can be gleaned from these narratives that not only community members but also sometimes the police put pressure on families who reported their cases to them, to withdraw them in order to maintain peaceful cohabitation in the community. Seeking legal action was viewed as wickedness as perpetrators are likely to be jailed.
… However, despite respondents' reservations and challenges experienced with using the legal route of redress, they assert that it is the best option when the child has suffered injuries from the abuse and stiffer punishment needed to be meted out.^[2]
[2] Markwei U, Tetteh P M, 2022, ‘A Study of Alternative Measures in Resolving Cases of Child Sexual Abuse among the Ga Community in Accra, Ghana’, Child Abuse Review Vol. 31: 27–39 (2022). See also Aboagye S A, 2013, ‘Disclosing Child Sexual Abuse in the Ablekuma Central Sub Metropolis of the Greater Accra Region of Ghana’.

A 2021 report noted the following:
In Ghana, there are safety net structures (SNS) in place to curb issues of child abuse. These are the Department of Social Welfare, Domestic Violence and Victim Support Unit of the Ghana Police Service, Commission on Human Rights and Administrative Justice (CHRAJ) and Ministry of Gender, Children and Social Protection. Besides, there are legal documents that seek to address child abuse cases in the country. These documents are relatively comprehensive legal framework for child protection guided by the 1992 Constitution and the Children's Act, 1998 (Act 560) which are all operational in the country (Ministry of Gender, 2015). Despite all these safety net structures put in place to deal with child abuse cases in Ghana, abuse issues are often not reported (Nyavi, 2017).
…
Stigmatization and maltreatment were cited as another factor that hindered victims of child abuse from reporting cases. In a typical case of two victims, reported abuse cases were interpreted as a sign of disobedience and maturity to handle their affairs. According to the interviewees, they have been made to believe that such cases should be reported at a level which would not go outside the home.
…
It appeared that the thought of what might happen to them, or the perpetrators were convincing enough for victims of child abuse not to report. These fears were tied to what their parents might do or say about them. Observations from teachers and counsellors were that the community in which the victims found themselves served as an obstacle to report cases and further dealing with these cases. Data gathered revealed that it is against some society's cultural norm for victims to report perpetrators. According to one teacher, the family of the victim usually prefers settling the case at home. Together with other people from the community, the family will do their best to take the issue out of court. This is something familiar in the community they live in.
…
Data gathered showed that because the communities in which these abuses occurred were uneducated about child abuse issues, they were found to repel those who report these cases. Some community members' behaved negatively towards teachers and counsellors for reporting abuse cases to the appropriate authority. Due to this, cases were found to be managed at the school level by inviting the victims and the perpetrators to settle the issue.
…
A representative indicated that it becomes difficult to report relatives involved in child abuse cases because of socially defined allegiance to family prestige. Due to this way of life, people prefer to settle abuse cases at home rather than reporting to the SNS.
…
In effect, several factors were found to hinder people from reporting child abuse cases to the SNS. These include a child unwillingness to report cases, stigmatization and maltreatment, fear of aftermath actions, societal and family influence, and long duration for handling cases by the SNS.
…
They posit that child abuse cases go unreported because some forms of violence against children are socially accepted, tacitly disregarded, or not perceived as abusive. The study's findings also corroborate with Nabila et al. (1998) who indicated that the moral decadence in the various communities has made child abuse pervasive and practically condensed as normal.[3]
[3] Dankyi L A, Laryea J E, Dankyi J K, Arhin J, 2021, ‘Child Abuse Among Basic School Pupils in Ghana: Awareness and Utilisation of Safety Net Structures’, 15 October.
A 2023 study states the following:
A recent study in Ghana observed that sociocultural and economic factors have contributed to the sexual violence against children, as well as their inability to come out of such abuse. The study found that the majority of the respondents “agreed that the culture of the victims and perpetrators accounted for domestic violence against women and children”.
… A Child Research and Resource Centre reported from their survey that younger children may consider sexual abuse as normal. .Some children also hold this view because they were stigmatised for disclosing the abuse, and in some cases, nothing was done to the perpetrators. This situation of gaps in the concept of CSA [‘child sexual abuse’] among stakeholders such as professionals, families, and children calls for great concern. It was observed that this phenomenon has resulted in significant differences between what is legally accepted and what is socially accepted as CSA in Ghana. Consequently, a significant number of cases of CSA occur without the appropriate legal redress and societal response.
Another important socio-cultural issue in Ghana that influences CSA is the family system. … In Ghana, families function as extended systems, which widen the social protection network for children. On the contrary, it also widens the occurrences of CSA. This is because there is evidence that the majority of the cases of CSA in the Ghanaian context are perpetrated by family members, and also those in close relationships with children.
When sexual abuse of children is perpetrated by family members, it may go unnoticed by authorities for a very long time since it is a forbidden area for conversation. Commenting on this scenario, Boakye observed that in the collectivistic nature of the Ghanaian culture, it is difficult to talk about intrafamilial sexual abuse of children because of what he described as “collective shame.” This implies that the entire family share in the shame of CSA when the issue is in the public domain. Consequently, there are two main choices for the family members with regard to CSA. Boakye indicated that on one hand, the family keeps abuse secret in order to prevent the child from stigmatisation and public ridicule. This is aimed at protecting the interest of the child. On the other hand, the family will keep the abuse secret to prevent shame that will be brought to the family….
… some families continue to pursue the case until justice is administered despite the police often slacking in their duties for several reasons such as bribery, and when the perpetrator is highly influential in society. For instance, a media report carried a sexual abuse story of a 14-year-old girl by three young men continuously for three days. The report indicated that the police arrested the men and later released them and advised the family to seek an out-of-court redress. However, the family of the victim insisted that justice would be pursued to the letter. The victim’s father lamented “My daughter was raped by three young men. After we reported the incident to the police the boys were arrested and my daughter was admitted for five days at a health facility in the community. I was later told the young men have been released and the police are insisting we should do an out-of-court settlement. This was on my blind side; we will want the law to take its full course.”
Another concern is the fact that in Ghanaian culture, maintaining the virginity of girls before marriage is the pride of families. As a result, when sexual abuse occurs, families are more likely to remain silent in an attempt to protect their girls from being labeled as “bad girls”. Similarly, Boakye observed that girls who experience CSA may be labeled as ‘damaged’, and also blamed for acting in ways that attracted the attention of the perpetrator of the abuse. Mansaray also noted that in some cases, the girl is “re-victimized by the stigma attached to her as the one who has brought disgrace on her family by virtue of her defloration outside of marriage.” The stigma or fear of the stigma of being a ‘bad’ girl may cause some victims to remain silent about the abuse. This implies that families will take steps to protect the honour of virginity and the risk of their girls being tagged as damaged, which also has implications for the marriage of the girls.
…
In some cases, when the abuse is unreported, it also denies the victim access to a wide range of interventions such as medical, psychological, and legal services.[4]
[4] Kpalam E T, Ahiataku E, 2023, ‘Examining the Realities of Child Sexual Abuse in Ghana’, E-Journal of Humanities, Arts and Social Sciences, Vol 4 Issue 6, June 2023 pp 699-713. See also Amo-Adjei J, Nurzhynska A, Deliege A, 2022, ‘A Vignettes-Based Exploration of Attitudes of Parents Toward Reporting of Child Sexual Abuse in Ghana’, Journal of Interpersonal Violence, 9 October.
A November 2022 media article referred to the Ghana government’s Child and Family Welfare Policy acknowledging a culture in which “families, religious leaders, chiefs, and other local community leaders focus on compensation, reconciliation and restoring harmony in the family and community, over the needs of the child who has been harmed.”[5]
[5] Ghana News Agency, 2022, ‘Teenage pregnancies: child sexual abuse under reported’, 30 November.
Regarding women in Ghana and Liberia who have been raped a 2013 research report stated the following:
The frequency of unreported rapes points to a culture of secrecy and silence around rape: rape and defilement are associated with negative and stigmatized attributes such as promiscuity, unfaithfulness, and personal weakness (WHO, 2008). Rape affects the health and wellbeing of women, leading to increased levels of depression, distress, and trauma (UNFPA, 2011). Rape compromises the ability of women to cope with daily life (Kilpatrick, 2004), and women may experience anger, thoughts of revenge, and nightmares (Calhoun, 2008). Survivors are likely to experience fear and anxiety (Briere & Jordan, 2004; Calhoun, 2008). Cohen and Roth (1982) reported that rape victims are generally acutely distressed during the first few months. They can also develop chronic difficulties including nightmares, low self-esteem, fear, depression, shame and other psychological disorders (Burt & DeMello, 2002; Campbell, 2008; Campbell, Dworkin & Cabral, 2009; Finkelhor, 1994). Research conducted by Kilpatrick et al, (1984) and more recently by the Zimbabwean Women’s Network (2010) also suggests that almost one-third of all rape victims develop PTSD at some point during their lifetime, and more than 1 in 10 rape victims develop long-term PTSD.
…
We found a statistically significant difference in depression level depending on whether a woman was raped by a close relation or by a stranger. Those raped by close relations exhibited higher levels of depression than those raped by strangers. … We found that women assaulted by people familiar to them, such as close relatives, had higher levels of depression than those who were assaulted by strangers. In both Ghana and Liberia, more than 95% of reported rapes occur within a family relationship (Gender Centre, 1999 & 2010; UNFPA, 2011). In these cases, women feel betrayed by the people they trust and who are in a position of authority (Kilpatrick, et al., 2007; Kueynehia, 1998). They may isolate themselves socially and stay away from others, compounding their psychological distress (Appiah & Cusack, 1999). Atkeson et al. (1982) found that women raped by close relatives tend to have more psychological disorders than those who are raped by strangers.[6]
Single Mothers in Ghana
[6] Aryee E, 2013 “I Was Raped: The Psychological Effects of Rape Among Liberian & Ghanaian Women in Ghana”, University of Toronto.
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 in
Ghana, >
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.49
The second named applicant
According 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 applicant
The 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.
Credibility
Overall, 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 Ghana
Under 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 Protection
The 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 criteria
Given 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.23
Each 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).
Conclusions
For 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).
DECISION
The 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 McAdam
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.
…