1835198 (Refugee)

1835198 (Refugee) [2022] AATA 4557 (27 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835198
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Anne Grant
DATE:27 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2022 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Ghana – ethnicity and particular social group – tribal herdsman – father killed and applicant injured in clash with farmers and villagers – fear of harm from farmers, villagers and owners of cattle – country information – ongoing clashes between herdsmen and famers – no general persecution of tribe – applicant only visiting village, not usually working as herdsman and not identifiable as tribe member – passage of time – credibility – inconsistent evidence of chronology and movements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chand v MIEA (unreported, FCA, 7 November 1997)
MIAC v SZQRB [2013] FCAFC 33
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 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 28 February 2018. The delegate refused to grant the visa on the basis that they did not accept any of his claims.
The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments. The applicant was not represented and gave his evidence in English. At the conclusion of the hearing, the applicant requested and was granted time to provide additional evidence. On 9 June 2022, he provided that information, discussed further below.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant has provided evidence of his Ghanaian passport which discloses that he was born in Accra in [Year 1]. Ghana is the country of his nationality and the receiving country in considering his protection claims.
The applicant’s passport reflects that he departed Ghana from Kotoka International Airport in Accra on [Day 1] February 2018. He arrived in Australia on [Day 2] February 2018 on a Specified visa].
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Ghana, there is a real risk that he will suffer significant harm.
The applicant’s claims
In his written application for protection lodged on 28 February 2018, the applicant claimed that he lived from birth until February 2018 at [Address, Town]. He stated that he had travelled to [Country 1] in 2016 for a holiday. He claimed that he did not work from December 2016 until he departed the country because he was in hiding all this time.
In his written application the applicant stated that he completed his primary and secondary education at schools in Accra, finishing high school in September [Year 2]. Despite the address given earlier in his application, the applicant outlined employment in various places as [an Occupation] in Accra from [Year 3] until December 2016.
In his application for protection, the applicant claimed that he left Ghana because his life was under threat. He claimed that he is from a family of herdsmen who take care of other people’s cattle, and get paid. He claims there was a clash between the local people and the herdsmen about cattle grazing on other people’s farms. There was a huge altercation with ‘lives lost on both sides.’ The applicant claims his father lost his life in this clash, and 120 cattle were lost or killed.
The applicant claimed that when he heard about the clash, he rushed to the site and saw about eight people surrounding his father with wood and steel poles in their hands and beating him. One of them hit the applicant on the [Body part] with a sharp steel object which tore the flesh on his [Body part]. He ran for his life and went into hiding. He later heard his father had died. He could not seek help because the chiefs of the village were the ones who gave the orders to the youths to ‘deal with them’ (being the Fulani tribesman). Most of the cattle are owned by prominent people and even the heads of law enforcement. If they find him, they will ‘take their pound of flesh’. He claims that his life would be in danger if he tried to move to another part of the country and that he has heard that people are everywhere trying to find him. He states that Ghana is a small country and he will be found throughout the country.
In his written application the applicant further claimed that the cattle owner wants his investment returned and the local youth who shot the cattle and tortured his father are looking for him to harm him. He believes that people within the police or any other institution who lost cattle will be looking for him too so he cannot get protection from the authorities. Because he couldn’t produce the cattle, he had to flee to save his life.
In his written application, the applicant claimed that his father died on [Day 1] January 2018 and came to his friend [Mr A’s] place on [Day 2] January. He hitched on trucks.
At hearing, the applicant gave evidence in English. In summary, his evidence was that he fears persecution (being killed, attacked, or harassed) by villagers from [Town 1] and surrounding villages and by the owners of cattle his father cared for as a Fulani herdsman.
The applicant described growing up in Accra after his parents separated almost 15 years ago. After separation, he gave evidence that he and his sister stayed with his mother and his father moved to [Town 1]. His mother worked as a trader in general products in Accra, and his sister helped her in the business. He gave evidence that his father was a Fulani herdsman in [Town 1]. The applicant gave evidence that he completed schooling in Accra and then went to a [school]. He became [an Occupation] and worked as [an Occupation] in various places until 2017. When his mother died in 2015, his sister and he could meet the rental (which must be paid a year in advance) and so his sister went to live with his father in [Town 1]. The applicant started living in share houses with friends.
Over the following years, the applicant gave evidence that he and some friends started [doing an activity] together and they travelled widely to [do the activity]. The applicant claims he travelled to [Country 2], [Country 3], and to [Country 4] to [do the activity]. However, he said that it later transpired that the people who organised it were using them to make money and the [applicant and his friends] got very little out of it. They had been planning to travel to Australia as a group to [do the activity] which is why he had everything ready to apply for a visa for Australia.
The applicant claimed that his father had been living in [Town 1] and taking care of cattle belonging to other people, mainly prominent local villagers. He claimed that in early 2017, he visited his father in Kumasi and his father berated him for having no permanent address and not having a secure life with responsibilities. The applicant claims that he agreed to go to live with his father and work with him as a Fulani Herdsman, but he had no idea what that would be like. The applicant claims that when he arrived in [Town 1] in early 2017, he found the village life very different to what he was used to – there was nothing to do there except help his father with the cattle. The house only had two rooms and the village was very quiet. The applicant said he did not like living in [Town 1]. He described how they would get up in the morning, have breakfast and then take the cattle out into the forest. The applicant said that there are lots of small villages in the area where the villagers have farms with vegetables and crops. The applicant said that initially, there was no problems. Then one day when they split the herd, some cattle strayed onto local farms and ate the crops, and ruined anything left.
After the cattle destroyed the local crops, the next day a lot of people went to the area Chief to make a complaint. The Chief told the locals to go and sort it out themselves. He did not get involved.
The applicant claims that the next day, his father took the cattle out as usual, and he was to join him later. He was home with his sister. They heard that a fight had started, (there was a lot of noise and people running everywhere). The applicant said that he took off to find his father and when he got there, there were around 10 people surrounding him hitting him with machetes and stakes. These people also had guns. He tried to intervene but one of them hit him on the [Body part] with something sharp. His father yelled at him to run away and so he struggled to free himself and then ran.
The applicant claims that he went and hid in the bush until night. At night-time, he went back to his house, but no one was there, and the house had been vandalised, with half of it in ruins. He went back out to the bush in fear. The next day he realised he had no one in the village who could help him, and so he wanted to get as far away as he could. He was very worried about his sister, as she had no social life in [Town 1] and no one she could go to for help. Nonetheless, he said he chose to run instead of finding her. He described this decision as immature, but said he was in fear because he believed that the people who attacked his father also wanted to harm him.
The applicant gave evidence that he travelled to [Location] and then to [Town 2] where he had a friend who was a policeman. He caught lifts on trucks to [Town 2].
His friend in [Town 2] had heard about the attacks. The applicant gave him the address and name of his father. His friend rang someone from [Town 1] and found out that their house was ‘gone’ and that his father had been killed. Until then, the applicant had not known for sure that his father was killed. His friend told him that at that stage, his father was still not buried and that the applicant could not return to the village as it was not safe. His friend was not happy to have the applicant staying with him because of the tensions in the area and they discussed how he should return to Accra and take any opportunity to travel out of Ghana.
The applicant said that because of the connections he had from his [activity] days, he reached out to an agent who arranged everything for him to leave the country. It was a coincidence that he got the visa for Australia because none of the other members of the [group] had yet obtained their visas. He said that his policeman friend helped him return to Accra and he lived in Accra for three or four months before he could leave. He didn’t find or look for work. He gave evidence that he did not encounter any problems in that time from [Town 1] or people from [Town 1], or hear of anyone looking for him.
When asked about why he feared returning to Ghana now, the applicant said that what he experienced was very distressing and he feared returning. He claimed that the person who owned the cattle would want to harm him because they have not been compensated for the loss and so would the villagers whose crops were destroyed.
I discussed with the applicant my concern that he was not a person who had lived in [Town 1] very long and therefore that it seemed unlikely that he would still be of interest to any person there, so long after this incident took place. I also noted my concern that it seemed implausible that he would be held responsible for any of what had happened at that time. It was noted that he was not the perpetrator or cause of the damage or the losses that took place in 2018. In fact, it was he who had been seriously injured, and his father murdered, their home destroyed and the cows they cared for killed by people in the village. I observed that logically, the people who actually killed the cows and murdered his father would be responsible to the cattle owners, particularly given that his father had been murdered while protecting them. I also raised a concern that no one would know he was of Fulani heritage given his surname is a common one in Ghana, not a Fulani surname and not the same as his father’s. The applicant agreed that his name is common and not the same as his father’s, and he doesn’t speak Fulani (which might otherwise identify him) but stated that he did not think it was safe for him in Ghana. Whilst he agreed that it might not be logical, he believed that the tribesmen and the cattle owners would still harm him because the grievance is still there.
The applicant said that the man who owned the bulk of his father’s cattle was a well-known local powerbroker, and he would demand payment for the cows that were killed from the applicant if he returned, because in the powerbroker’s view, his father didn’t look after them properly. I reiterated to the applicant that it seemed implausible that the cattle owners would look to him instead of the villagers who perpetrated the crimes and who actually killed the cattle and his father. The applicant maintained that he would not be able to return to Ghana out of fear that he would be killed by either the cattle owners or the villagers.
In discussions with the applicant, I noted that the villagers had no reason to harm him so many years after the incident – they had, after all, achieved the result they wanted – the removal of the cattle managed by his father from their farms and had taken their revenge for the crops destroyed. Even if troubles have continued with other Fulani tribesman over the period since then, the applicant has not been in any way involved in such troubles and it is likely that subsequent events would have been of more interest to the perpetrators and the cattle owners. The applicant reiterated that the cattle owners don’t think like that – they hold the Fulani responsible, not the villagers, and they will not forget it until they are compensated. He also gave evidence that it is true that the villagers might not have a problem with him, but he could not be sure. He would not travel back to [Town 1] to find out.
At the time of his interview with the delegate, the applicant provided several newspaper articles from online sources. The articles are all from early 2018 and refer to [Town 1] police being given a ‘shoot to kill’ order if Fulani herdsmen misbehave[1], after an attack on some police officers earlier in the same week and that traditional rulers of [Town 1] had issued an ultimatum to the herdsmen to evacuate the lands. Other[2] reports refer to demands by Fulani Tribesman for compensation after their cattle had been shot and killed. These reports refer to a claim by the Chairman of the Fulani Association that a joint military and police task force is indiscriminately killing cattle herded by the Fulani and refers to ‘unwarranted atrocities’ meted to the Fulani in Ghana. The applicant also provided a further report[3] in which a security analyst urges the government to give the Fulani one month of grace to relocate, noting that shooting the cattle risks reprisals by the herdsmen. I informed the applicant that the country information (including the reports he had provided) does suggest that clashes between Fulani herdsmen and local villagers in Ashanti have occurred and did occur around the time that the applicant’s claims arose.
[1] [Title, URL redacted] published [January] 2018
[2] Pay us for killing our cattle – Fulani (ghanaweb.com) published 19 January 2018 Fulani Community in Ghana wants compensation for over 1500 killed cattle - MyJoyOnline.com published 19 January 2018
[3] Fulani Saga: Stop killing innocent cattle - Irbad Ibrahim | Photos (ghanaweb.com)
When asked if he had discovered his sister’s fate over the years since he left Ghana, the applicant said that one of his friends, a baker, had gone to Accra to ask around about her but said that no one had heard from her at that time. This was in 2018. He claimed that he did not have the phone number for his policeman friend in [Town 2] and had no way to get in touch with him to make other enquiries. He claimed that mobile phones and internet access are non-existent in rural Ghana.

On 9 June 2022, the applicant provided a Ghana Death Certificate in the name of [Mr B] which states that he died [in] November 2017 of cutlass wounds. The report is dated as having been made on 30 May 2022, and the date of registration is noted as 7 June 2022, with the registration being notified by the deceased’s brother. With the exception of the date of registration postdating the date of the certificate, the certificate conforms with the usual format of Ghanaian death certificates. It also states that the deceased is buried in the public cemetery at [Town 1].
Consideration of claims and evidence
I have carefully considered the applicant’s evidence. The essential elements of his claims have been consistently advanced, namely that he fears he will be killed by people from the area of [Town 1]; where his father was murdered after a clash with local villagers over the care of cattle he managed as a Fulani Herdsman. In the delegate’s decision, which the applicant has provided to the Tribunal, the delegate states that the applicant said his father was killed in 2016. However, I have listened to the interview (which took place on 4 September 2018) and notes that the applicant later clarified with the delegate that his father was killed ‘earlier this year, when they lynched him’ and also later in the interview, he claimed that his father died [in] January 2018. At hearing, the applicant did not give a specific date of death for his father but stated that he stayed in [Town 2] after his father’s death for a few weeks before going back to Accra, and that he then stayed in Accra until he could depart the country – for approximately three months - without being located or harmed. In his written application, he claimed he was in hiding from 2016. None of the timelines provided by the applicant at various stages are necessarily internally consistent with each other or with facts that can be objectively established, such as the date of his father’s death and his arrival in Australia.
Subsequent to the hearing the applicant provided his father’s death certificate which is somewhat consistent with his evidence given during the hearing and reflects that his father was actually killed by ‘cutlass attack’ on [in] November 2017; but is not consistent with his written application (which claimed that he lived in hiding from 2016) or what he told the delegate about his father dying in 2018. The applicant left Ghana on [in] February 2018. This is three months from his father’s date of death as noted on the death certificate.
Generally, I consider that if the death certificate were not genuine, it would have claimed that the applicant’s father had passed away early in 2018 rather than November 2017 to accord with the evidence the applicant had given to the delegate; or in October 2017 to accord with his evidence given during the hearing. Given that the applicant’s evidence as given in the hearing is more closely supported by the documentary evidence, I have given him the benefit of the doubt and accept that the death certificate is accurate and that it supports his claim that his father was attacked and killed in a violent assault in or near [Town 1]; and I accept that this occurred [in] November 2017. I consider that the applicant was either confused about dates at the time he was interviewed and or was exaggerating the swiftness of his departure from Ghana after the incident, by claiming it occurred later than it did, in order to strengthen his protection claims before the delegate. I do not accept that the applicant was living in hiding from 2016 as claimed in his written application for protection, or that his father died in 2018.
As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[4]
[4] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
Importantly, a decision maker must consider the evidence in its entirety and not in isolated parts: Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).
I have borne in mind the guidance provided by the courts on assessing an applicant’s credibility and the many different factors which can affect the manner in which an applicant presents evidence and information to a court or tribunal.
I accept that the applicant was born in Accra and lived there for his whole life until he travelled to [Town 1] in early 2017 where he lived with his father and sister, working as a herdsman and living in the village. For the purposes of considering the applicant’s claims, I am prepared to accept that his father was of Fulani heritage; but based on his evidence, I find that rather than living a nomadic life, as reports suggest is common for Fulani herdsmen, he lived in a home in [Town 1], in the Ashanti region of Ghana and remained in that area where he took cattle on consignment from local businessmen and fed them in surrounding bushlands. I accept that, as reflected in the general country information, this method of farming cattle has caused violent and ongoing conflicts with local villagers whose crops are sometimes ruined by stray herds of Fulani cattle. I accept that the applicant witnessed a violent assault on his father which caused his father’s death (and a [Body part] injury to the applicant) whilst he was in [Town 1] in November 2017.
I accept that the applicant fled the violence and left his sister in [Town 1], travelling by hitching to a town called [Town 2] where a friend of his was living as a policeman. This town is on the road back to Accra from [Town 1]. I accept that the applicant stayed with his friend for a short time while he recovered from the attack. I accept that his friend investigated and was told that his father had been killed, and that feelings were still high in [Town 1] over the cattle and violence. I accept that the applicant was told by his friend that he could not return.
I accept that the applicant returned to Accra where he made arrangements to depart the country. I don’t accept that he applied for the Australian visa for any reason related to his experiences in [Town 1], apart, perhaps, from his having decided in the months before his departure that a rural tribesman’s life was not for him. Based on his evidence about how he hated living in the village, I consider that the applicant intended to travel internationally again as a means of getting away from that life. According to the information he has provided and as outlined in the delegate’s decision, I accept that he applied for the visa and in fact it was granted before his father was murdered, on 7 November 2017 and 9 November 2017 respectively. Consequently, I do not accept that the visa was sought and obtained as a means for the applicant to ‘flee’ the country. I consider that it was coincidental that it was granted at around the same time as the applicant decided to leave Ghana. I do accept that the applicant used that coincidence to make arrangements to leave Ghana and that the violence he had witnessed was a motivator for him to leave the country.
I am satisfied, based on his direct evidence, that in the months after the incident in [Town 1] whilst the applicant was in [Town 2] and Accra, the applicant did not experience any threats or harm, nor did he hear that anyone was searching for him. I do not accept his written claim that he ‘had heard’ that people were searching everywhere for him, as it contradicts his evidence and is not credible.
I have referred to information provided by the applicant reporting on conflicts in [Town 1] between Fulani Herdsmen and local police and villagers in 2018. More recent reports reflect that the issue continues to affect both groups, with further clashes occurring during 2020[5], and calls for action over the killing of herdsmen[6] (there are reports of 8 tribesmen being killed over 2020) and also over the invasion of cattle driven by the herdsmen[7]. During 2021, further incidents occurred in a different district of Ghana (the Oti Region) resulting in the death of one herdsman and the injury of five.
[5] DW German Broadcast service report “Fulani Herdsmen Clash with Ghanaian Farmers” 14 October 2020: Fulani herdsmen clash with Ghanaian farmers - YouTube
[6] Fulani community petitions authorities over killing of herdsmen in Ghana | Citi Newsroom - YouTube Citi Newsroom, Ghana report 30 July 2020.
[7] Kwahu Chiefs Call For Intervention Over Fulani Herdsmen Activities - YouTube UTV News Ghana 20 January 2022
I accept that the country information reflects that Fulani Herdsmen in Ghana continue to be involved and at risk of being killed whilst herding cattle in parts of Ghana due to the friction between the herdsmen and local farmers over the use and control of farmlands. However, I was unable to find any country information suggesting that Fulani herdsmen are persecuted throughout the country due to their tribal heritage, or that they are pursued or harassed throughout the country when not involved in traditional farming methods. Rather, news reports and general country information reflects that the violent clashes involving herdsmen occur due to specific and localised ‘encroachments’ or arguments over the use of land. The applicant has stated that he would not return to [Town 1] and has no intention of living his life as a Fulani herdsman. He is a trained [Occupation] who has always found work in Accra. No country information was located which suggested that Fulani Tribesmen who do not practice traditional cattle farming, but instead live in urban environments, face persecution on account of their heritage.
Having carefully considered the applicant’s evidence, my findings about that evidence and the country information, I continue to have some concerns about the plausibility of his claims to have a real chance of persecution by cattle owners and local farmers from [Town 1] (and surrounding villages) in the Ashanti region of Ghana. Although the applicant’s core claims about witnessing extreme violence in [Town 1], his father’s murder, and the applicant escaping from that violence have been consistently given, the circumstances of why he would personally be at continuing or any risk of harm have not been satisfactorily established.
As noted at hearing, the applicant’s evidence reflects that he lived almost his entire life in Accra, and spent only a short time in his traditional tribal village, (from early 2017 to November 2017) during which time he witnessed an episode of extreme violence between the local tribesmen and landowners. I have accepted that the applicant experienced a violent conflict; but has not accepted that he was subsequently pursued by local landowners or anyone else for any reason, including because he is perceived as or is a Fulani Tribesman, because he is said to ‘owe’ the cattle owner for the loss of the cattle as the only son of his father, or because his father’s cattle damaged crops of local villagers in 2017. After the clash which resulted in his father’s death, the applicant returned to Accra where he remained without incident until he departed the country for Australia. He referred to being fearful of someone in the airport looking at him suspiciously, but the evidence does not reflect or suggest that any person, group or authority is or was actually searching for him or had any interest in him since he fled [Town 1] and or departed the country.
On the applicant’s evidence, accepted at its’ highest, he spent only eight months or so in [Town 1], his father was killed [in] November 2017, and he departed the country [in] February 2018. Even accepting that the applicant was inadvertently caught up in a violent clash which led to the death of his father in 2017, I consider that he was unknown to landowners in the area until shortly before that incident, does not bear his father’s Fulani tribal name, does not speak Fulani and has no intention of returning to [Town 1] or to traditional Fulani herding methods. Almost five years have passed and in the supervening period, new conflicts have occurred unrelated to the applicant. In addition, the applicant in fact bears a relatively common surname which is not of Fulani origin. I am not satisfied that the applicant’s family history or his brief presence in [Town 1] would afford him any profile as a Fulani tribesman as he claims. I consider it implausible that he was or would be of any interest to the local tribesmen or to the Fulani community in and around [Town 1] after he had fled the region, and that this is particularly so taking into account the ongoing clashes which have occurred since 2018 involving Fulani actually engaged in traditional practices. I consider the applicant’s claims that he will be found and harmed throughout Ghana by the villagers and people whose farms were damaged in 2017 if he returns to be far-fetched. I also consider his claim that the applicant will be held responsible for the loss of the cattle by the cattle owners, and that they will kill him or harass him for payment (after his own father was murdered protecting them,) instead of (or in addition to) the people who actually attacked and killed his father and the cattle, to be far-fetched.
The real chance test is a forward-looking test. On his own evidence the applicant spent a minimal amount of time in [Town 1], and the landowners have achieved their goal of scaring him away from their land at that time, and killed the cattle which had caused the damage. The evidence before me does not suggest that the local villagers have been looking for him since he departed or that there is any reason in fact why they would do so. I do not accept that there is a real chance that the applicant will suffer any harm from the villagers in or near [Town 1] whose crops were damaged in 2017 if he returns to Ghana.
In relation to the owners of the cattle, I find this claim that they will continue to hold the applicant responsible for matters which were clearly out of his (and his father’s) control if he returns to Ghana to be far-fetched. I consider that they would look to the persons who actually killed the applicant’s father and the cattle for reparation, particularly since those people are present in the region and able to be identified. Again, the applicant did not provide any evidence that the cattle owners had been searching for him since he departed, and I consider it to be implausible that they would have any interest in the applicant, so long after the incident and when he was not responsible for the slaughter of the livestock. I don’t accept as plausible that they would look to him for financial compensation and harm him if he fails to provide it, should he return to Ghana. I do not accept that there is a real chance that the applicant will suffer any harm from the cattle owners whose cattle was destroyed in 2017 if he returns to Ghana.
In relation to his claim to fear persecution due to his Fulani heritage, I note the applicant’s evidence that he would never return to [Town 1], that he had not experienced discrimination or any harm in the past (prior to him moving to [Town 1]) due to him being a Fulani or for any other reason and that he did not have a Fulani surname. I note his acceptance of my suggestion that his [surname] is a common one in Ghana and unlikely to draw scrutiny from persons wishing to identify Fulani persons. The applicant does not speak the local Fulani language and has spent his entire life until 2017 in Accra. He has travelled widely as a member of a [group] and has not experienced persecution whilst growing up because of his Fulani heritage. I find this claim also to be far-fetched, even taking into account that there have been ongoing reports of clashes between Fulani Herdsmen and farmers in Ghana in the period since he departed the country. I do not accept that the applicant would ever be identified as or considered to be a Fulani herdsman by unknown citizens intent on harming Fulani persons, now or in the reasonably foreseeable future.
Consequently, I am not satisfied that the applicant has established that there is a real chance that he will be persecuted by rural villagers from [Town 1], or by the cattle owners whose cattle were shot (or from any person related to or associated with them) or by other, unidentified persons because of his Fulani heritage in Ghana, now or in the reasonably foreseeable future. He has not established his claims. I have considered the claims cumulatively and individually, but I am not satisfied that, even considered cumulatively, there is a real chance that the applicant will be persecuted in Ghana for any of the reasons he has claimed. The applicant does not have a well-founded fear of persecution in Ghana.
No other claims arise on the information and evidence before me.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For the reasons given above, I have found that there is not a real chance that the applicant will be attacked, killed, or harassed by local villagers from [Town 1] and surrounding areas, or the owners of the slain cattle if he returns to Ghana. I have found that there is not a real chance that the applicant will be persecuted because of his Fulani heritage in Ghana. I refer to and rely on my reasoning above and for those same reasons, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Ghana, there is a real risk that the applicant will suffer significant harm for any of the reasons he has advanced in his claims related to his Fulani heritage, the damage to local farm crops and the murder of his father in [Town 1] in 2017, or the loss of the cattle entrusted to his father’s care. I have considered the claims cumulatively and individually, but I am not satisfied that the applicant has established any of those claims.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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.
…

[2022] AATA 4557

27 October 2022

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