1832430 (Refugee)

1832430 (Refugee) [2022] AATA 2759 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Ashrita Zeeshan (MARN: 0401052)
CASE NUMBER:  1832430
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tania Flood
DATE:21 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 June 2022 at 3:24pm
CATCHWORDS
REFUGEE – protection visa – Ghana – political opinion – opposition to the Fulani – member of the New Patriotic Party (NPP) – activist and advocate against the presence and practices of the Fulani herdsmen – no past harm suffered – ongoing tensions between the Fulani and farmers in Ghana – right to enter and reside in a third country – ECOWAS (Economic Community of West African States) member state – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana, applied for the visa on 11 July 2018. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Ghana in connection with his past actions against the Fulani herdsmen in [Town 1].
The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi (Akan dialect) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Ghana for reason of race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ghana there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
According to information contained in his application for a Protection visa the applicant is a [age]-year-old male, born in [Town 1], Asante Kyim, Ghana. He was married [in] March 2007. His wife, two sons aged [age] and [age] and daughter aged [age] live in [Town 1] as do his parents and [number] brothers. He listed one address in Ghana in [Town 1] from 9 January 1998 until 1 March 2018. He speaks, reads and writes Akan and English and is a Christian. He attended primary, junior high secondary and vocational training college in Ghana. From 26 September 2001 until 26 September 2003 he was employed as an [Occupation 1]. From 1 February 2003 until 11 February 2018 he was the owner/manager of a [business]. He was a [Sport 1] athlete from 1 January 1998 until 11 February 2018.
The applicant departed Ghana from Accra [in] March 2018 and arrived in Australia [in] March 2018 holding a [temporary] visa.
In a Statutory Declaration dated 12 July 2018 the applicant claims the following:
He is fearful to return to Ghana because he recently found out that a group of rebels called Fulani have vowed to kill him. On 28 June 2018 they entered his home and held his wife and three children at gun point to disclose his whereabouts. His youngest son was thrown and knocked his head and a nail pierced his forehead and he sustained injuries to his lips. The men sexually assaulted his wife in front of his children. His wife did not report the incident out of shame to her and the rest of the family.
His wife is currently hiding with his children. She cannot go to either of their parents as the Fulani rebels went to his father’s village also in search of him.
He feels guilt ridden, burdened, angry and depressed and hasn’t been able to think straight. That is one reason for his late application for protection.
Before these events occurred he was in the process of applying for a [specified temporary visa] because of an opportunity that presented itself. His initial plan was to take up the training position, save some funds and then go home and enrich his community with what he learnt.
When he heard the news that the Fulani were after the leaders of [Organisation 1], the organisation which he was leading since 2010, he informed his migration agent and was advised of the protection visa option but he was still in two minds because he preferred to be on a training/working visa because he was told the protection visa process can be very arduous and heart rending. At the time there were only rumours that the Fulani were looking for him.
When the attack on his wife occurred he felt like going back to protect his family but he is wise enough to know that he wouldn’t be any good to his family if he is dead.
He is seeking protection from Fulani herdsmen who have been terrorising his community since 1995.
In 1995 the Paramount Chief of his town signed an agreement with 4 cattle owners to give them a piece of land to rear their cattle with conditions to fence and dig a well for their cattle to prevent them from drinking the same water as the human beings. This agreement invited different Fulani groups from across West Africa. They have been notorious in invading and causing destruction to farmlands, farm products and water bodies in their communities. They have shot and killed hundreds of men for protesting and have raped many women.
Since his youth he has been involved with politics and is a spokesperson for the NPP. However, the authorities have turned a blind eye to these brutal killings. Several letters and appeals have been made across West Africa but nothing has been done.
This situation provoked him to form an association called [Town 1] Youth Association – [Organisation 1] in 2010. He is a leader and spokesperson for this organisation. [Town 1] citizens across the globe also formed the [Town 1] Worldwide Association and the local elders formed [Town 1 local organisation]. They are all united to fight for their community.
In 2011 [Organisation 1] along with the other associations supported his community of farmers to take the matter to court. [In] 2012 the High Court of Ghana heard the matter and ruled in favour of their community. The court ordered the government, the traditional rulers and the state attorney to use their executive powers and evacuate these Fulani from their lands. Unfortunately, it was a pyrrhic victory and since then all successive governments have failed to sanction the court verdict. His community believes it is because some of the owners of these cattle are high profile personalities across Africa; some are top politicians and because they are rich most of them are financiers of political parties in the country.
The Fulani’s have been known to carry sophisticated weapons and they go unpunished for the crimes they commit. They have become a law unto themselves and even the police are afraid to do anything.
In late 2016 after a violent attack against his community they issued an order to protect themselves from the Fulani. A youth member protecting his family retaliated against a Fulani herdsman and to their surprise he was arrested and prosecuted and jailed for life, awaiting his death.
He then led and organised several demonstrations and press conferences. The sole intent was to expose to the world the indecent and murderous acts against their farmers. It was their intention to make the government and traditional rulers sanction and make effective the court verdict. He organised several demonstrations in 2016, February 2017 and December 2017.
In December 2017 they declared an operation to shoot and kill cattle. This operation forced the Ashanti Region Security council to send security men to intervene and unfortunately the Fulani herdsmen shot two military personnel and one police officer. Maximum force was used to kill thousands of cattle.
[In] January 2018 the leaders of the Fulani, in the wake of their loss, organised a press conference to appeal to the president of Ghana and the UN Secretary General to compensate them for their losses. At the same time [Organisation 1] also called a press conference to appeal to the UN and the president to rather compensate the families who have lost loved ones over the years, the children that have been rendered street children because their parents were killed and the many deprivations his community has suffered.
He was informed that in his absence the Fulani’s met with the president of Ghana on 15^th March 2018 and he understands they were promised a ranching system on their land along the lines of the first proposal.
[Organisation 1] has raised a protest against the president’s offer because it goes against the court order. The leaders of the Fulani see him as a threat to them and have retaliated against him. They believe that without him the community organisation will fall and they can continue to harass their community as before.
[In] April 2018 there was an organised Fulani attack on his father’s village and they burnt his goods and threatened that his son will be killed and buried. His father made a report to the police but nothing happened.
He cannot move to another African country because he is well known and has been in the press and has appeared in many videos.
Attached to the application are two photographs of unnamed deceased persons.
In further documentation the applicants duties in the position of president of [Organisation 1] from August 2010 to date are outlined including advocating and advancing the rights of the community; assessing the needs of the community and seeking assistance from government and other social organisations; networking with other global communities to form alliances to protect the rights of the disadvantaged; organising and mobilising people to join together in peace walks and other initiatives to speak out against violence; planning and implementing recreational and support activities such as community clean-up campaigns and sports galas; initiating community health activities including health walks and blood donations; planning activities to help the unemployed and vulnerable youth of [Town 1]; supporting youth education; liaising between the youth and elders of the traditional area; presiding over meetings and approving communication and press releases. His educational achievements are also outlined in more detail.
On 29 July 2018 in a further Statutory Declaration the applicant provided the following additional information in support of his application:
At the end of 2017 when there were many reported murders and attacks on the [Town 1] farming community the police indicated that the farmers should arrest the Fulani or the cattle themselves and bring them to the station as evidence. Further from 2016 [Organisation 1] made several petitions and they were all turned down.
[Organisation 1] then gathered together and had a press conference meeting with the farmers and they issued a shoot to kill order on cattle found on their farms. The Regional State authority then decided to send security forces to the area to ensure that the farmers did not shoot the cattle.
When the security forces came 2 Fulani herdsmen were shot and killed and 3 military men and 1 police officer. As a result the security forces retaliated and shot and killed more than one thousand cattle. The Fulani also claimed that an undisclosed number of their herdsmen were shot and killed in the crossfire but the police never confirmed this.
It is for this reason that the Fulani herdsmen are after the leaders of [Organisation 1] claiming they are the cause of them losing so many of their cattle.
Also Fulani leaders made a petition to the president in March 2018 and managed to secure a promise that he will give them a portion of land that will be fenced so that they can keep their cattle. It is well known that the Fulani were big sponsors in the last election and the current Vice President is married to a Fulani woman.
The Fulani know that the [Organisation 1] leaders are against the corrupt promise of the president in light of the High Court judgement which unequivocally decided the Fulani’s being on the land is deemed a violation of human rights and sanctioned their eviction from the land.
The Fulani are acting in collusion with the police owing to the fact that they have received financial and other gains from some of the Fulani herdsmen. One police officer was fired from the service for selling government arms to Fulani herdsmen.
On several occasions he has followed farmers to make reports to the police and they were informed that they should go and arrest the Fulani herdsmen themselves and bring them to the station citing that they don’t have vehicles or resources.
He has managed to obtain several reports from the police station through an undisclosed source of a few of the murders and killings.
Several women farmers have been raped by the Fulani herdsmen but out of shame have not reported it. One lady, [Ms A] was brave enough to come forward and seek help from [Organisation 1]. Himself and another leader took her to the hospital for treatment. They then arranged a press conference with [a journalist organisation] who have been instrumental in uncovering several frauds and injustices in Ghana and other African countries.
Fulani herdsmen are made up of different tribes from various ECOWAS member countries who entered Ghana under that agreement. As the leader of [Organisation 1] he is well known and if he attempts to relocate to another country he would still be at significant risk of harm.
Attached as evidence are petitions and actions made by [Organisation 1]; various press releases; police reports; and country information about the origins of the Fulani.
Also attached as evidence is Section A: General Medical Form completed at [Town 1] Police Station on 30 June 2018. The Medical Officer at [a Town 1 hospital] is requested to examine and report in the case of [Ms B] (the applicant’s wife) who complained that she was attacked by three young men [in] June 2018 at 11.30pm.
Also attached is a Medical Officers report dated 16 July 2018. It states that the client was allegedly attacked [in June 2018] (note date has been altered using whiteout fluid) at around 11.30pm when she was returning home by 3 unidentified men in an attempt to rape her but she was able to free herself after about 20 minutes struggle. She reported vaginal bleeding afterward.
Also attached is an Extract from Station Diary dated 30 June 2018 at 12.20pm. It states that [Ms B] called at the charge office and reported that [in] June 2018 at about 1:00am unidentified men came to her house and started knocking on the window and calling out her husband’s name. It is further stated that [in] June 2018 at about 11.30pm she was again attacked by three young men at [location] whilst going home to sleep. Through that attack she started bleeding profusely.
On 14 August 2018 the applicant provided a further Statutory Declaration in which he responds to issues raised in his protection visa interview.
As to the issue of relocation the applicant states he mentioned in the interview that Fulani’s are not only located in [Town 1]; they are located all over Ghana; that a lot of the cattle are now owned by influential politicians and high-ranking businessmen who reside in the large cities and have engaged Fulani as hired hands. Many of these cattle owners are financiers of political parties; Fulani are located all over ECOWAS. He attaches links to various news articles and reports in support of his claims.
He mentioned to the delegate during the protection visa interview that a taxi driver told him that Fulani who thought he was travelling in his taxi stopped the car and beat him up and enquired about his whereabouts. He took the driver to the police station and ensured that he received hospital treatment. His lawyer previously advised him not to include this evidence as it was only hearsay.
He repeats his claim that the Fulani are targeting him because he spoke out in a press conference for a compensation package for victims rather than those Fulani who lost cattle.

He attaches links to video evidence in which he is featured as a leader of [Organisation 1] advocating against the Fulani.
He is passionate about community work and has been volunteering extensively with community projects in [Australia].
On 28 August 2018 the applicant’s representative emailed the Department to advise that the applicant informed that the person left in charge of the affairs and leadership of the [Organisation 1] was attacked by members of the Fulani in the wake of the initiative of the government to install cattle ranches which is an issue that the [Organisation 1] has resisted. It is alleged that the man was attacked along with his [age]-year-old daughter and the man is in hospital.
Evidence provided to the Tribunal
On 20 April 2022 the applicant’s representative provided a submission to the Tribunal. Included in this submission is a further statutory declaration from the applicant and a witness statement from his current wife.
The applicant’s statutory declaration dated 20 April 2022 sets out information in respect of his migration history; his protection claims and responses to the departments reasoning in the decision to refuse him a protection visa.
As to his migration history the applicant states that in Australia he met [Bishop C] of [Organisation 2] who sponsored him for the Training Visa. He applied for a Protection visa after his ex-wife and child were hurt in June 2018 by the Fulani in [Town 1]. He applied for the Protection visa on 11 July 2018 because of his changed circumstances and on 12 July 2018 his Training Visa application was refused. He did not seek a review of that decision because he had already applied for the Protection visa.
He is now married in Australia and he has one child with his new wife and a second child was born on [date]. Last year he applied for an onshore Partner Visa.
The applicant provides further background to his protection claims. He states that he was actively involved as a member of the New Patriotic Party (NPP) since about 1996. He started as a polling station agent of the NPP and then became a Zonal Youth Organiser. He then became [Position 1] and then [Position 2]. He then became the [Position 3] for the NPP party.
He had formed [Organisation 1] in about 2010 to champion the development of the [Town 1] community. It was created to support the poor people of [Town 1] with things such as schooling, town cleaning, building infrastructure such as fireplaces and to provide financial support for orphans, widows and the elderly. The work of [Organisation 1] kept growing and he came to know that the burden on [Organisation 1] was growing as a result of the Fulani killing people working on farms. The killings were creating orphans and widows that needed [Organisation 1] support. Moreover the [Town 1] people were reluctant to work on farms because of the clashes with the Fulani herdsmen and there was pressure on [Organisation 1] to financially support the [Town 1] people. He therefore became involved in supporting the [Town 1] people in seeking a legal remedy from the Fulani who were using their lands for cattle grazing. They received a favourable High Court ruling against the Fulani.
At the time of the Court ruling the NDC was in government and John Mahama was the Vice President of Ghana. He had a large scale of cattle being taken care of by the Fulani. He went on to become the President of the ruling party until 2017 when they lost the election. The NDC did not resolve the problems relating to [Town 1] lands as supported by the court ruling in 2012. The NDC was not in favour of the court ruling.
The NPP came to power in 2017 after campaigning to resolve the [Town 1] and Fulani issues. However upon gaining power they became apprehensive about getting rid of the Fulani from [Town 1] lands. His party became concerned that he was pursuing the [Town 1] issues too far for comfort. In 2017 he was called to an NPP disciplinary committee at regional level and he was accused of using the Fulani issue to bring down the NPP President. An MP, [named], had made a complaint against him and he got to know that this MP was sponsored by the Fulani.
The Fulani were sponsoring both the NDC and NPP but previously he had been unaware of this. Later he learnt that the NPP feared losing political sponsorship of the Fulani. The Vice-President of the NPP’s wife and her brother, Abu Ramadan, are Fulani. Abu Ramadan became the National Deputy Coordinator for the National Disaster Management Organisation.
He is being harassed and discriminated against by the NPP for pursuing the expulsion of the Fulani from [Town 1] lands.
The Fulani have attacked his friends and family to get to him.
He attended a press conference [in] January 2018 to bring awareness of the issues surrounding the [Town 1] lands. The National Security Co-ordinator was also in attendance at the radio program where he was speaking. He was disagreeing with the National Security Coordinator about the security issues in [Town 1] lands. Whilst on radio, the National Security Coordinator threatened him by saying that he is the cause of the problem and that should violence happen in [Town 1] then he will be held responsible.
[In] January 2018 the Regional Police Commander called him on his mobile phone and blamed him for the problems going on in [Town 1]. He was told he would be held responsible if something happened or someone was injured.
He left Ghana [in] March 2018 and on 15 March 2018 the President of Ghana held a meeting with the Fulani and discussed giving compensation to the Fulani.
His wife was attacked and raped by the Fulani people. He is told that these people invaded his home in June 2018 by breaking the door. They attacked his wife and were asking for him. One person raped his wife and another pushed his [age]-year-old resulting in him being injured.
His friend, [Mr D] and his family were also attacked while he was working in his shop in [Village 1]. The town [Village 1] is now taken over by the Fulani. [Mr D] was shot, his wife was raped and they attempted to rape his daughter. As his daughter was running away they shot her in the leg. [Mr D] told him that the Fulani were accusing him of being a member of [Organisation 1] even though he was not. He was just his friend.
Both these attacks were reported to the police but nothing was done to bring justice to the victims. The police said they arrested some members of the Fulani clan but nothing became of that. The people were bailed and then nothing more happened.
He believes that these Fulani people were acting on the instructions of the cattle owners who are businessmen, chief of the region and members of political parties.
After 2019 the government sent full military force to stop the violence in [Town 1] but were helpless and could not stop the Fulani violence. Another [Town 1] person was killed.
In the 2019 killing [Company 1] operated by owners in [Country 1] was attacked by the Fulani. This company had previously given money to [Organisation 1] to assist the cause. The Fulani brought their cattle to destroy the land and killed the security officer of [Company 1] who was trying to stop the cattle coming onto the farmland.
Last year the Fulani threatened to kill the military officers and the military forces were removed from the [Town 1] land.
This year a student and his siblings were fishing and the Fulani told them to leave the water so that the cattle can drink. When the students argued the Fulani shot one of them and cut his arm. The DC of police said that two people were arrested but he made an announcement that the police and military were threatened so those people were released.
The current government in Ghana is no longer pursuing the cause to rid the Fulani from [Town 1] land.
His wife in Ghana divorced him because she feared for her life if she continued to be his wife. His father was attacked in a different village. His father ran away and disowned him and blames him for not protecting him and his wife.
He continues to receive threats through Whatsapp. His friends in Ghana have told him that they have heard the local chief or some Fulani made a comment about threatening to kill him when they find him.
It is likely he will be killed in Ghana because he has upset many people and will always be perceived as a threat to them for pursing the cause of the [Town 1].
He knows about a person called Yaw Obeng, who killed a Fulani herdsman when they invaded his farm in self-defence. This person was charged and convicted and given life imprisonment but when the Fulani kill people they cannot be found or brought to justice.
In about 2016 he was told by a military officer that when he was on duty in [Village 1] to protect [Town 1] land he fired a warning shot at Fulani herdsmen bringing a large number of cattle onto farmland. The military officer told him that within a few minutes he received a phone call from the commanding officer to return to office where his authority was questioned.
The Fulani will always consider that he is assisting the cause of the [Town 1] people and they want to kill him. If he goes to any other ECOWAS country it will be easy for them to find and kill him.
Even if he modifies his behaviour and no longer pursues the cause of the [Town 1] people he will still be a threat to the Fulani because they perceive him to be a threat to them.
He will not be able to live peacefully outside of the [Town 1] lands because of the discrimination the Ashanti people face outside their lands. There is a perception in Ghana that the Ashanti people do not respect other Ghanaian tribes and want to take over their lands. He will also be recognised in other parts of Ghana because of his media presence in association with [Organisation 1].
The applicant refutes the reasons given for refusal of his application in the primary decision record.
Attached to the submission are various other supporting documents including photographs and various news articles and reports about the actions of the Fulani herdsmen in Ghana. Also attached is an Extract from Station Diary of [Town 1] Police referring to the claimed attack on the applicant’s friend [Mr D] and his family in [Village 1] in 2018.
On 24 May 2022 the applicant provided the Tribunal with a copy of a birth certificate for his daughter born on [date].
Tribunal hearing
The applicant’s oral testimony to the Tribunal and his responses to matters discussed with him during the hearing are summarised as follows:
He was born in [Town 1] in Ashanti Province, Ghana and is a citizen of Ghana.
He is currently married to [Ms E] whom he met in November 2019 on a dating site. They married [in] August 2020 and they have two children together aged [age] and [age].
He was formerly married to [Ms B] in Ghana. [Ms B] filed for a divorce in December 2018. They have three children together aged [age], [age] and [age]. The children are living with his parents in [Town 1]. He heard his former wife has a new partner and may have travelled to [Country 1].
His parents live in [Town 1]. His mother is a [occupation] and his father is a [occupation]. He has [number] brothers. One is a [occupation] in the Eastern Region, another is a [occupation] in Kumasi and the other has moved to Accra and works for [employer]. He also has [number] sisters living in [Town 1].

100. His mother and father are separated. He has some contact with two of his brothers but his mother is hard to reach because she moves between the homes of her children in Ghana. He does not know where his father is as they have not spoken since the revenge attack on him.
101. None of his family are involved in any activities against the Fulani. In fact, his family were against what he was doing.
102. Before departing Ghana he lived with his former wife and children in [Town 1] in rented accommodation.
103. In Ghana he worked as a [Occupation 1] and did some small trading. He was also involved with [training] young athletes in a voluntary capacity. In Australia he works as a [Occupation 2].
104. He secured the visa to attend the commonwealth games [legitimately].
105. It was not his intention to seek asylum when he came to Australia. He applied for a training visa to enhance his skills before returning to Ghana but it was refused. Before he received the refusal notice he consulted a lawyer and was advised to also apply for a Protection visa which he did in June 2021.
106. A lady who was staying in his house in Ghana phoned him and told him his wife had gone to the police station. When she returned his wife called him to tell him she had been assaulted by three men [in] June 2018 at around midnight. He wanted to return home but his lawyer and pastor advised him it wouldn’t be safe.
107. The Tribunal put it to the applicant that his written claims indicate his former wife was raped in their home in front of their children on [Date 1] June 2018 where the medical officer report submitted as evidence says she alleges that she was attacked by 3 men on [Date 2] June 2018 at 11.30pm when returning to her home. The Tribunal also pointed out that the extract from the police station diary dated 30 June 2018 states that she said men came to the house on [Date 1] June and were calling out for him and on [Date 2] June 2018 at about 11.30pm she was attacked by 3 men whilst going home. The applicant responded that the slight difference in dates could be the result of time differences between Ghana and Australia. He stated that it was reported to him that the attack occurred in the home. He said he doesn’t see why his former wife would lie to him about what happened and he doesn’t know why those reports state otherwise. The Tribunal noted that it is concerning that two different reports indicate she reported being attacked outside the home and not at home as is claimed.
108. The Tribunal asked the applicant how he can be certain the alleged rape was motivated by his activism against the Fulani. He said his former wife told him the attackers were mentioning his name and threatening her to reveal his whereabouts. He said his father was also attacked and he told him the same thing. He said he believes it is the result of events that occurred since the beginning of 2018. He said there had been some killing of their cattle and the Fulani organised a press conference and sought help from the UN and the president of Ghana. The media called him to attend the press conference to express his view about that and he said that the Fulani do not deserve compensation and that any compensation to be paid should go to the farmers. He said that because of those comments the national security advisor threatened him as well. He said all this occurred in early 2018.
109. The Tribunal asked the applicant why then the attacks on his family occurred six months later and he said he does not know. He said that the President of Ghana promised to give the Fulani land to raise their cattle which is counter to the High Court ruling in 2012 that they should in fact be evicted. He said that he was the only person bringing this to light. The Tribunal pointed out that his evidence indicates that other elders and politicians seen on the video’s he provided were also involved in activities aimed at evicting the Fulani. He replied that he was the first person the media usually called for comment when something happened. He said he was the youth leader and he was active in mobilising other youth to support activities.
110. He said the attack on his father’s village occurred on the same night that his wife was attacked. His father told him that people he did not recognise came to the village carrying guns and he ran away. However, he said they burnt his cottage.
111. The Tribunal queried why the attacks on his family occurred then when it seems that nothing much happened while he was living in Ghana. He said that the promise made by the President hadn’t happened. He said he left Ghana on [date] March and the President made that promise on 15 March.
112. He said he formed [Organisation 1] in 2010. He said there was a movement to bring together [Town 1] citizens around the globe and that the organisation aimed to support youth and vulnerable people and to make a contribution to building facilities for the town. He said they started building a fire station and doing some clean up activities and provided assistance with school fees and support for widows using funds obtained from the international community and private companies.
113. The Tribunal asked the applicant if his youth association became involved in issues to do with the Fulani and he said it did. He said they saw that more and more orphans and widows were coming to them for assistance and they found out that this was due to them losing their fathers through Fulani attacks. He said they consulted a lawyer who recommended they take the issue to court. They rallied farmers together and financed them to take legal action in 2012.
114. He said [Organisation 1] is not functioning as it was when he was there. He said that its members are scared to speak out on radio or television after what happened to his family. He said his former vice-president is a businessman and is living in Accra and is scared to jeopardise his business. He said he remains in contact with other global groups through a Whatsapp group and he sometimes calls the vice-president to ask what is going on. He said he was told the government has sent the military to help protect the citizens and is proposing to set up a military camp in the area.
115. He said he was a member of the New Patriotic Party (NPP) since 1996. He started working as a polling station member and through his work he was elevated to Zonal Youth Organiser. He then contested the election for [Position 1] at the District level and from there he became [Position 2]. Thereafter he became a [Position 3].
116. He said that in 2017 he was called to an NPP meeting at the regional level. He was told that his member of parliament had reported him for using the Fulani case against the government. He was accused of making his MPs life difficult and bringing down the reputation of the party in his area. He was suspended from the position of [Position 3] and because of that he was barred from contesting a higher position. Nevertheless he said he is still an NPP member and still supports them.
117. When asked if he suffered any harm prior to his departure from Ghana he said that he was not personally attacked because the problem had not escalated to the level it has reached now. He added that the Fulani might also have previously thought that he had political support from his party.
118. He said he got to know that the Fulani were sponsoring some members in his own party. He said this was aired on radio and the national security coordinator threatened him on air. He said that there would have been peace in the area had it not been for him and he warned that if anyone got injured he would be held responsible. The same night the regional police commander called him and uttered the same warnings as the security coordinator.
119. As to whom he fears will harm him in Ghana he said firstly he fears harm from the Fulani. He later realised that he may also face harm from within his own party because through his actions the party might lose their sponsorship from the Fulani. He said he does not trust anyone anymore.
120. When asked why he did not mention the threats from the security coordinator and the police commander earlier in the proceedings he replied that the security coordinator is quoted in the press articles he provided. He added that he wasn’t able to include every detail in his first statement. When he engaged a new lawyer he was questioned intensely and those details emerged.
121. He said there was an incident which occurred before he departed Ghana. He said he was at home one morning when a taxi driver came to see him and told him that he had been pulled over the day before at a roadblock by men asking about him. He said the taxi driver was beaten up in that incident and came to warn him that people were looking for him.

122. The Tribunal noted that being a public figure he might have been easy to locate and asked why the attackers did not follow through with their efforts to find and harm him. He replied that he was living freely and yet no-one attacked him and he didn’t hear anything like that again.
123. The Tribunal asked the applicant why the risk of him being harmed now would be greater than before and he replied it is because the Fulani have the full support of the President. He said the government has approved some land for ranching and the proposed military camp is to protect the Fulani.
124. The Tribunal asked if those initiatives had diffused the conflict in the area. He said that because of the military presence things did calm down. However, he said this year a young man was killed and the Fulani also made threats against the military. He said the police left the area because the Fulani were threatening to kill them.
125. The Tribunal asked the applicant if the ranching arrangements had stopped the damage being done to the farmers land and he replied no. He said the cattle are not domesticated and the Fulani still take them out to graze. In fact, he said even more Fulani from neighbouring countries have been emboldened to come to Ghana because they think the government is making peace with them.
126. He said that after he came to Australia a friend, who was his sister’s ex-boyfriend, was attacked in his store. He said the attackers raped his wife and attempted to rape his daughter. His daughter escaped but was shot. According to his friend, the attackers thought he was a member of [Organisation 1] (which he was not) because whenever he went to that village he always went to see that friend.
127. He said that in 2019 there was also an attack on a security guard at a company called [Company 1] which previously had provided funding to [Organisation 1].
128. The applicant was asked if he would re-engage with [Organisation 1] if he is required to return to Ghana. He replied that he cannot walk away from that organisation. He said his mother does some farming and he cannot sit by and watch those problems unfolding. He said he would continue to support the work of [Organisation 1].
129. As to whether he would seek further involvement with the NPP he said given what he now knows it is unlikely. In any event he said he is still sanctioned by the party.
130. As to why any future actions of his would result in him being harmed he said that the Fulani know that the President’s actions are contrary to the High Court ruling. He said that if anybody is bold enough to bring that up the government will face problems being re-elected. He said if he returns home the Fulani may think that he will stir things up again.
131. When asked if any radio stations or media outlets ever contact now for comment on the situation he said he refuses to speak. He said his children are in Ghana and are vulnerable to attack as is his mother. He said his father has rejected him since what happened to him. He said that whatever future action he took in Ghana would have to be underground as he does not want to put his children’s lives in danger.
132. The Tribunal noted that the police and the military have reportedly launched various operations in the district against the Fulani in the past and asked why he could not seek police protection in the event he became at risk of harm. He said that the police and the military are controlled by the ruling party. He said the former police commander is the owner of cattle. He said if ever they went to the police to complain they were told to go and catch the Fulani themselves but how could they when the Fulani are armed. He said there was a case where a police officer was caught selling a weapon to a Fulani.
133. He said that there will be a national election in Ghana in 2024. He said if he returns the government will think that he will campaign against them and this also won’t be in the best interests of the Fulani.
134. When asked why he could not relocate to Accra as his former vice-president has done he said that the political figures are all in Accra. He said the businessmen who own the cattle are in the big cities and the Fulani are raising their cattle. He said that people have seen him on television and some of his political activism was done in Accra. On the contrary his vice-president avoided speaking out in public because he was afraid of losing his contracts with the government. In any event he would need to show identification to secure accommodation in Accra and he would be fearful of doing so because he doesn’t know who might betray him. He said it would even be hard to find work because most people don’t like the Ashanti. He said his vice-president owns his own home and business so wouldn’t encounter this difficulty. He said his current wife and children could not relocate to Ghana and he has already lost one family to this problem and doesn’t want to face that again.
135. The Tribunal put it to the applicant that independent country information does not support that there is widespread discrimination against the Ashanti people in Ghana. He replied that the Ashanti are accommodating of other tribes but they do not receive the same courtesy. He said the Ashanti are regarded as arrogant and proud and other tribes think they like to fight. He said there was a former President who is Ashanti and the youth of Accra drove him out and pulled down his office.
136. He said he cannot relocate to another ECOWAS country because the Fulani tribe is present across the region. He said that his ability to reside in another ECOWAS country is also limited to 90 days at which stage he would have to reapply.
137. The applicant’s representative made the following verbal submissions on his behalf:
138. He fears harm in Ghana on the grounds of political opinion and membership of a particular social group – [Organisation 1] member.
139. The applicant was very active in 2016 prior to the election and the NPP came to power criticising the NDC for not resolving the Fulani issue.
140. If he were to relocate the Fulani or his ex-party members would find out where he lives. There are some practical things he cannot do without giving away his identity such as leasing accommodation, opening a business, using his dialect.
141. The execution of the ECOWAS treaty means there is uncertainty for entrants after the expiration of the initial 90-day permit.
142. The applicant has given a coherent and consistent account of his activities and experiences prior to departing Ghana which is supported by print and video media.
Post-hearing submission
143. On 2 June 2022 the Tribunal received a post-hearing submission which includes a statutory declaration by the applicant and various articles showing threats issued by an NPP Member of Parliament against individuals in 2019 and 2021.
144. In his statutory declaration the applicant states the following:
145. Regarding the inconsistency which has arisen in relation to where his former wife was raped he remembers clearly that she was very upset, crying and angry with him during their telephone conversation when she told him she had been raped. She told him she was raped by Fulani men at home in front of her children. She told him the mean were looking for him and she blamed him for having brought hurt and shame upon her especially in front of the children. She also said their youngest son was thrown and injured by the Fulani during the attack. He thinks his former wife did not tell the doctors or the police that the attack had happened at home in front of the children because she may have been protecting the children from having to describe the incident to the police or doctors. He also thinks she was ashamed that the children had witnessed the attack. She was also angry because she could not protect the children during that incident.
146. He was told the attack happened at about 11.30pm and he believes she would have been home at that time. The children were young ([age], [age] and [age] years old) at the time and he knows his former wife would not have left them at home alone at night. For this reason he is confident the attack occurred at home. In addition, the woman who first called him to inform him of the incident also said the attack occurred at home.
147. To the best of his knowledge, his former wife was raped at home in front of the children. He has not lied about this. He has only conveyed the information which he received when he was in Australia.
148. He is fearful of returning to Ghana because there is a real chance that he will be harmed in Ghana because of his political opinion in pursuing the cause to remove the Fulani from [Town 1] lands.
149. He believes that his ex-wife, father and friend ([Mr D] and his family ) were attacked in 2018 by the Fulani because of his political opinion against the Fulani. His ex-wife told him that they had come looking for him and would have harmed him if he was there.
150. The police have not done anything to bring justice to his family and friends. His ex-wife divorced him and his father has abandoned him because of all they have suffered. His ex-wife was ashamed after the rape incident and wanted to move away from the town to avoid stigmatisation.
151. He has suffered suspension from the NPP political party for his political opinion in wanting to remove the Fulani from [Town 1] land.
152. He received threats from the National Security Co-ordinator and the Regional Police Commander. He will not receive any protection from the police authorities because they have been shifting the blame on him rather than addressing the issue that is causing suffering within the [Town 1] community.
153. It is highly likely that he will suffer harm because the Fulani came looking for him to attack him in 2018.
154. When he was in Ghana, he would gather the support of the local community, businesses, politicians, and other community leaders to bring awareness to the suffering of the [Town 1] people. For this reason, the Fulani see him as a threat and want to kill him.
155. The politicians want to kill him because he has brought awareness that they are not fulfilling their election promises and they are not ending the suffering of the people. The businessmen want to harm him because his actions cause suffering to the cattle they own (which the Fulani graze on [Town 1] lands).
156. The Fulani see him as a threat. The politicians see him as a threat. The local chief sees him as a threat and refused to meet him, even while he was living in Ghana. The businessmen that own the cattle that Fulani shepherd see him as a threat.
157. He received threats from National Security Co-ordinator and the Regional Police Commander in February 2018. Then about 2 days after ([date] March 2018) he left Ghana, the President of Ghana showed support to the Fulani by offering to give parts of [Town 1] land to them for grazing cattle.
158. The Fulani got frustrated when the promise made by the President was slow in being implemented, they came looking for him to attack him. He believes that if he were at home in [Town 1] on that day the Fulani came in June 2018, they would have seriously harmed or killed him.
159. There are plenty of people in Ghana that would want to harm him because of his political opinion. He was active in his political opinion and for this reason, he received threats and continues to receive threats.
160. Even if he stays quiet in Ghana, they would still see him as a threat because they would not believe that he will be quiet. While he was in Ghana, he spent almost ten years bringing awareness to the [Town 1] cause to rid the Fulani. They would not believe that he will suddenly be quiet.
161. The Fulani have been very open in giving threats recently. They informed the government that they will kill the military people, so the military people were temporarily withdrawn from [Town 1]. The Police have been open about not being able to protect the people because of the threats given by the Fulani.
162. The present environment in [Town 1] land in Ghana remains unstable. The political parties are anxious because of the upcoming elections in 2024. His presence in Ghana in the current environment would be perceived as a threat.
163. In July 2021, a Member of Parliament (Kennedy Ohene Agyapong) gave threats to kill a journalist (Erastus Asare Donkor). The MP said on media about the journalist "That boy should be beaten seriously .. He is so annoying. For the foolish submissions he made before the [parliamentary] committee, we have to beat the hell out of him. If I were the president, I would have ordered this boy to be whipped". Mr Donkor went into hiding after the MP made these comments. The MP Kennedy Ohene Agyapong is a member of the NPP Political party, a ruling government, who he had served for many years.
164. In 2019, MP Kennedy Ohene Agyapong had made threats on media against Ahmed Hessein-Suale Divela, a reporter. Mr Divela was shot and killed by unidentified attackers in Accra, the capital, after Agyapong similarly called for him to be beaten for his work.
165. It will be impossible for him to relocate within Ghana. It will not be practical.
166. To be able to live in another part of Ghana, he would have to reveal his identity to be able to lease accommodation, get employment, or open a business.
167. The community members of the other places in Ghana would easily find out who he is because his name and face is available on media.
168. Anyone could give away his location to the Fulani, businessmen or politicians that could harm him.
169. He will not be safe anywhere in Ghana.
170. He now understands that systematically he has been led to a position whereby he could be harmed. Firstly, he was suspended from the NPP political party. Secondly, he received threats and blame from the National Security Coordinator during a media interview. Thirdly, he received threats from the Regional Police Commander during a telephone conversation. Lastly, his family and friends were attacked. He was being systematically led to a position where he could be harmed and the authorities would not help him.
171. There would be no one to help him or give him protection in Ghana. The Police have been open about not being able to protect the people because of the threats given by the Fulani.
172. The Fulani have already attacked his family. They would have no hesitation in attacking him because the authorities (National Security and Police) and politicians have targeted him. So, if the Fulani harm him there would be no action taken against them.
173. He has a new life and family in Australia. He is a father to two young children in Australia. It would cause his new family in Australia a lot of hardship if he has to return to Ghana. His Australian family would be very anxious all the time as my circumstances can change suddenly in Ghana. He fears serious harm in Ghana and he could be suddenly attacked if he is found to be in Ghana.
174. He seriously fears returning to Ghana because he knows that the Fulani will kill me.
FINDINGS AND REASONS
Country of reference
175. The applicant produced his Republic of Ghana passport at hearing which verifies his claimed identity and nationality. Based on this, and in the absence of any information to the contrary, the Tribunal finds the applicant is a national of Ghana.
Claimed past activities and harm to self and family and friends in Ghana
176. Having considered all the available evidence, the Tribunal considers the applicant has provided a generally coherent, consistent, and plausible account of his claimed activities in Ghana including his association with the youth organisation named [Organisation 1]; his membership of the NPP and his activism around the conflict between farmers and Fulani herdsmen in his local area. His claims are supported by independent country information reports (see below) about the activities of the Fulani in the [Town 1] region as well as news reports and videos in which the applicant appears and is quoted speaking out against the Fulani and the government of the day.
177. As to any claimed past harm in Ghana, the applicant states that he was never personally harmed. However, he claims he attended a press conference [in] 2018 to bring awareness of the issues surrounding the [Town 1] lands and that he publicly disagreed with the National Security Co-ordinator about security issues in the [Town 1] lands during the press conference. He claims that whilst on radio, the National Security Coordinator threatened him by saying that he is the cause of the problem and that should violence happen in [Town 1] then he will be held responsible. Afterwards he claims that the Regional Police Commander called him and similarly threatened him. The Tribunal is convinced by the available supporting documentation that the applicant was agitating for the expulsion of the Fulani herdsmen from [Town 1]; that he was instrumental in youth protest actions against the government and critical of the role played by security forces in the area. Accordingly, the Tribunal finds it plausible and accepts that he may have been threatened in the manner described.
178. Notwithstanding the above, the Tribunal had concerns about other aspects of the applicant’s claims.
179. The applicant claims that prior to his departure from Ghana he was informed by a taxi driver that persons were looking for him with a view to harm him. He claims the taxi driver was stopped at a roadblock and asked about his whereabouts and beaten and that the driver informed him of this at his home the following day. Despite his public role and this claimed event, the applicant states that he suffered no serious harm prior to his departure from Ghana. As discussed with the applicant during the hearing the Tribunal finds it somewhat implausible and difficult to accept that the persons who stopped and beat the taxi driver while searching for him were unable to locate him in his area given his public profile or made no further attempts to locate him in the years following the incident involving the taxi driver. The applicant was also unable to account for this. The Tribunal considers the evidence is hearsay and is not persuaded that unknown persons were searching for the applicant in the manner described.
180. Further, the applicant claims that his father and ex-wife were both the victims of revenge attacks by Fulani herdsmen after his departure from Ghana. He claims his father’s house was burnt down and his wife was sexually assaulted resulting in his father disowning him and his wife divorcing him for bringing these problems upon them.
181. In a statutory declaration dated 12 July 2018 the applicant claimed that his father’s village was attacked [in] April 2018 whereas he informed the Tribunal in his oral evidence that the attacks on his father and his wife occurred on the same date, namely [in] June 2018. In the Tribunal’s view this calls into question the credibility of the claimed attack on his father.
182. Further, as discussed with the applicant during the hearing the evidence before the Tribunal outlined above about the circumstances of his ex-wife’s sexual assault is inconsistent in respect of the location of the claimed assault. Whereas the Tribunal accepts that the conversation between the applicant and his ex-wife after the alleged assault would likely have been emotionally charged as was claimed post-hearing and could account for some confusion over the details it does not accept that this would have been the only one occasion where these claimed events were discussed by the applicant and his ex-wife. The Tribunal considers that any initial confusion over the claimed events, including the whereabouts of the assault, would likely have been discussed and resolved in subsequent conversations between them. In light of this inconsistency the Tribunal remains concerned about the veracity of the evidence provided by the applicant in respect of his ex-wife’s attack including the motivation behind it. While the Tribunal cannot rule out the possibility that the applicant’s ex-wife might have been the victim of a sexual assault in Ghana it is not prepared to accept that it was a result of the applicant’s activism against the Fulani.

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2759

21 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction