1835581 (Refugee)
[2023] AATA 3410
•17 July 2023
1835581 (Refugee) [2023] AATA 3410 (17 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Ashrita Zeeshan
CASE NUMBER: 1835581
COUNTRY OF REFERENCE: Ghana
MEMBER:Senior Member G. A. F. Connolly
DATE:17 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 July 2023 at 4:18pm
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian – attempted forced conversion to Islam – delay in applying for protection – lack of evidence – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Nominal Defendant v Clements (1960) 104 CLR 476
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Any 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 (Minister’s Delegate) on 13 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
The applicant is a male citizen of Ghana and he is [age] years old. He was born in Ghana and raised there as a Christian.
On 12 September 2014, the applicant was granted a tourist visa.
On [date] September 2014, the applicant arrived in Australia to attend [an event] in Adelaide. The applicant flew to Australia via [country].[1]
[1] Applicant’s Statutory Declaration, 31 October 2022 at paragraphs 5-8.
On 17 December 2014, the validity of the applicant’s visa expired.[2]
[2] Delegate’s Protection Visa Decision Record, dated 13 November 2018, at p1.
On 30 March 2015, the applicant applied for a protection visa.
On 13 November 2016, the applicant married his now wife[3], who is an Australian citizen.
[3] Applicant’s Statutory Declaration, 31 October 2022 at paragraph 64.
On 13 November 2018, the Minister’s Delegate refused to grant a protection visa to the applicant.[4]
[4] Delegate’s Protection Visa Decision Record, dated 13 November 2018, at p4.
On 04 December 2018, the applicant applied to this Tribunal for review.
The first hearing of this case was on 11 April 2023. To allow for the applicant to speak to a representative, and out of an abundance of caution to ensure every possible fairness to the applicant, there was an adjournment of this case to a future date.
The second hearing of this case was its resumption on 09 June 2023.
The applicant was represented in this second hearing by Mrs Ashrita Zeeshan but she did not the hearing of the case.
The materials filed in support of the applicant’s case were:
a.Statutory Declaration made by the applicant on 31 October 2022;
b.Email from Mrs Zeeshan dated 14 April 2023;
c.Medical, Psychology, and Police documents, all filed after the second hearing by email on 20 June 2023. This appears to be new evidence that was not presented to the Minister’s Delegate and was not before the decision maker[5];
I have read and considered all of these materials.
[5] Delegate’s Protection Visa Decision Record, dated 13 November 2018, at p5.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Migration 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 Migration 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 the applicant’s claim for protection by Australia is made out.
The applicant’s case is that he was targeted by his uncle from the age of 17 or 18 for forced religious conversion from Christianity to the uncle’s faith of Islam. In the applicant’s words, his uncle, [Mr A], who was a Muslim, wanted the applicant to become a Muslim. It was unclear at either hearing whether this uncle [Mr A] was still alive.
The applicant’s case is that he has been attacked by his uncle and his uncle’s friends, as recently as the period 2011-2014 (when the applicant was aged between [age] and [age] years).[6]
[6] Applicant’s Statutory Declaration, 31 October 2022 at paragraphs 24-34.
After the conclusion of the second hearing, there was filed with the Tribunal (per [13](c) above) the certified copy of a Ghana Police report of 19 August 2011 that the applicant had been assaulted by “…his uncle one [Mr A - spelling variant][7] … upon his refusal to convert to the Islam religion …”. There are medical forms also of 19 August 2011 that repeat what is said in the police documentation. It is unclear whether any prosecution of the uncle, following what is alleged to have been a serious assault, ever occurred. These appear to be new items of evidence that were not before the Minister’s Delegate as a decision maker or before the Tribunal in either of the two hearings of this case: s 423A(b) of the Migration Act.
[7] One presumes this should be [Mr A] albeit the exact identity of the applicant’s uncle is unknown as is whether the uncle is still alive.
Following what is alleged to have been a very serious assault in August 2011, though, the state of the evidence is that the applicant did not take any steps to leave Ghana – what he describes as, “To escape the torture, I came to Australia”[8] – for a period of another three years, in September 2014.
[8] Applicant’s Statutory Declaration, 31 October 2022 at paragraph 34.
There is nothing in the evidence that explains why this three year delay by the applicant occurred, particularly given what the applicant says was the allegedly torturous persecution of him by his uncle [Mr A].
In the hearing before the Tribunal on 11 April 2023, the applicant says that he cannot return to Ghana as he will be killed.
In the hearing before the Tribunal on 09 June 2023, the applicant repeated that he feared returning to Ghana.
This is far as the applicant’s case can go on the evidence before the Department and the evidence filed with the Tribunal.
Assessing an applicant’s case
In assessing an applicant’s case, particularly in the absence of independent witnesses and supporting documentation, much will turn on credibility of the applicant.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth. Similarly, an application for protection that is made some months or even years after the applicant’s arrival in Australia, or which is otherwise accompanied by delay, will have to be explained, lest an adverse inference be drawn by a decision maker.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is this Tribunal required to accept uncritically any and all the allegations made by an applicant.[9]
[9] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and, indeed, almost always will – involve an assessment of the particular applicant's credibility. In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection (this is especially so where an applicant has been held in detention or in a prison). The Tribunal is, in this case, as in all cases, aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims. At the same time, an applicant who is not credible and/or who has unexplained delays will struggle to make out their case.
All of this said, as was stated above, the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence, especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[10]
[10] See Randhawa (1994) 52 FCR 437 at 451 per Beaumont J and Selvadurai; (1994) 34 ALD 347 at 348 per Heerey J.
It is noteworthy, for example, that s 423A of the Migration Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made earlier, or the evidence not presented, in the time before the primary decision was made. This approach is the application of a rule of common sense in respect of judging adversely an applicant’s credit where she or he has engaged in delay or a failure to speak or act.[11]
Problems with the applicant’s case
[11] see Nominal Defendant v Clements (1960) 104 CLR 476 at 495 per Windeyer J.
The applicant’s protection claim was not made until some months after the applicant’s tourist visa expired.
The applicant’s departure from Ghana, also, only occurred some three years after the last incident of what he said was “torture”.[12]
[12] Applicant’s Statutory Declaration, 31 October 2022 at paragraph 34.
The applicant’s case was and is plagued by a lack of evidence and, especially, delay.
Consideration of Credibility
On one view, there is no further evidence that can be provided in 2023, however weighty, that can avoid the impression of dubiousness in relation to what the applicant said happened to him 2011 and his delay of three years in trying to leave Ghana. The applicant did not satisfactorily explain this delay in either of his two hearings. It is not clear that the applicant’s uncle, if he exists, is alive, or, if he is alive, is in any position to harm the applicant. The applicant’s case raises more questions than it answers.
Section 423A(1)(b) of the Migration Act requires that in circumstances where the Tribunal is not satisfied with an applicant’s explanation of new evidence, then the Tribunal is to draw an inference unfavourable to the credibility of the claim. While this sub-section requires the Tribunal to infer adversely to the applicant, the delay in the applicant’s making of his protection claim is what, fatally, damages his credibility and causes the failure of his protection claim. I would draw an adverse inference, in any case, against the applicant and his claim, given his delay, and the sheer implausibility that someone, aged between [age] and [age], would wait three years before taking steps to escape from a situation that he considered to be “torturous” and where, he says, that his life was in danger. There may have been a plausible explanation for this delay but that was never made to the Tribunal.
FINDINGS
Therefore, on the bare evidence supplied by the applicant in this case, I find that that the applicant is neither a refugee nor is he owed protection by Australia on complimentary protection grounds.
The applicant’s claim for protection lacked evidence as well as any sort of coherence. It is not the task of this Tribunal to try and construct some case that the applicant may have made. The applicant’s case is too fatally compromised by a lack of evidence and, especially, delay, and it must be dismissed.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 July 2023 at 4:18pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals TribunalATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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