1837475 (Refugee)

1837475 (Refugee) [2022] AATA 1550 (6 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1837475
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Paul Windsor
DATE:6 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 May 2022 at 9:31 am
CATCHWORDS
REFUGEE – Protection visa – Ghana – religion – Christian – chieftaincy dispute – fear of harm by elders and members of own family – refused kingship of his tribe –applicant suffered no harm at all – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 30 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 18 May 2016.
In his protection visa application, the applicant indicated he was born in Accra, Ghana on [date], is of Brong Ahafo ethnicity, the Christian religion and has never married or been in a de facto relationship (although he indicated he has two sons in Ghana, born in [year and year]). He indicated he departed Ghana legally on [date] February 2016 and arrived in Australia on [date] February 2016, entering on a visitor visa.[1]
[1] See the Departmental file.
In a statutory declaration of 16 May 2016 included with his protection visa application, the applicant indicated he left Ghana because he feared he would be harmed or killed by elders and members of his family because he refused to accept the kingship of his tribe and subsequently refused to become a Messenger of the gods.[2]
[2] See the Departmental file.
The delegate refused to grant the visa as she found that, on balance, the evidence supports the conclusion that the applicant had fabricated or embellished aspects of his claim and she was not satisfied he fears harm from his family members, community elders, or any other agent in Ghana in association with his refusal to accept the role of Chief, his repudiation of the role of Messenger, or for any related reason.
The applicant sought review of this decision by the Tribunal on 20 December 2018. He provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 27 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims for protection, as set out in the statutory declaration included with his protection visa application, are summarised as follows:[3]
[3] See the Departmental file.
·His hometown is [Village 1], in the Brong Ahafo Region of Ghana. He is of Akan ethnicity, is a Christian, and belongs to the [Royal family 1].
·Traditionally, the King’s stool is rotated between descendants of the Royal Family upon the death of the existing King.
·In 1998, after the death of [Mr A], he was asked to be the new King as it was the turn of the descendants of his grandmother to appoint a member of their tribe to become King. Due to the tasks involved and his Christian beliefs, however, he refused to accept the kingship. This led to a chieftaincy dispute that resulted in the murder of four other Royal Family members who were in line to be appointed as the King.
·Due to fearing for his life, he moved back to Accra in 2000.
·In February 2010 he was called back to his hometown urgently to meet the elders of his family. They told him that, in order to reclaim the stool since he refused the kingship, it was his time to serve as Messenger of the gods, to perform all rituals and libations to the gods. He immediately accepted the role as it was a sign of respect and dignity for himself and an honour for his family.
·He returned to [Village 1] two weeks later for his initiation. At dawn one of the elders performed some initiation rites in the forest and at the shrine. They poured powder and oil on him and chanted to the gods. He was made to pour libation to the gods.
·After the initiation he was told by the elder that he was to stop going to church as his duty from that day was to devote himself entirely to the worship of the gods. He told the elder this was a problem for him as he could not give up being a Christian.
·When he told his parents he could not give up worshipping as a Christian his parents remonstrated with the elders to allow him to worship as a Christian but the elders refused. His family indicated he left them with no choice for disobeying the wishes of the gods. This scared him so he ran away to Accra to avoid any inhumane treatment.
·A week later, the family head, accompanied by three other elders and five boys from the [Royal family 1] arrived at his apartment in Accra and demanded he return to [Village 1]. They said if he refused they would kill him to make sacrifices to the gods.
·After that, he started sleeping at a friend’s apartment, while still pretending he was at his own apartment.
·He fears if he returns to Ghana the elders and members of the [Royal family 1] will find him and kill him. They now consider him to be an instigator against them and believe he is a devil.
·Because he had already taken up the role of messenger of the gods, poured libation and been accepted by the gods, the elders have to kill him because they can’t appoint another Messenger while one is still alive.
·He cannot relocate for his safety as Ghana is very small and his family elders already followed him to Accra. The government cannot and will not provide any protection. The Constitution of Ghana prevents the government from interfering in chieftaincy matters.
The applicant attended an interview with the Department on 2 November 2018. The delegate’s decision record indicates that the following additional matters were raised at that interview:
·He is aware of a previous case in his family’s history in which a person was harmed for bringing shame to the family.
·He is aware of some Chiefs in Ghana who consider themselves to be Christian, but they are only nominally Christian.
·Police in Ghana investigate certain kinds of crimes such as gun crime but not incidents where someone has died a ‘natural’ or ‘spiritual’ death.
Evidence from the hearing
At the hearing the applicant indicated that his parents are living in [Village 1], which he indicated is around [number] hours drive from the capital, Accra (this is confirmed by Google maps, which indicates it is [number] km and [number] minutes by car from Accra). He indicated they are [farmers]. When asked if he has any siblings he indicated there are eight children all up, but to different mothers. He indicated his siblings also live in [Village 1] and are farmers.
The Tribunal queried the applicant regarding his marital status. He said be had never married but indicated he was with someone and has two sons who live in Ghana.
The applicant confirmed he was born in Accra. When asked why he wasn’t born in his home village ([Village 1]), he said his parents were in Accra on holiday when he was born. He confirmed he is of Akan ethnicity and is a Pentecostal Christian. He indicated his parents are also Pentecostal Christians.
The applicant said he did his early schooling in [Town 1] where he stayed with a neighbour. He confirmed the advice in his protection visa application indicating that he completed his senior high [schooling], majoring in [subject]. He indicated he attended as a boarder and went there because his family wanted him to attend a very reputable high school. He commented that he is the eldest son and the family knew in the future he would inherit the chieftaincy and wanted him to have a better education.
The applicant indicated in his protection visa application that he completed his high schooling in June [year]. The Tribunal asked him what he did from that time until 1998 (when he had indicated the previous King had died).
He said he worked with some of his brothers and their friends He said it was [specified work]. The Tribunal also queried the applicant that he had indicated in his protection visa application that he had worked in [sales] and as a [sporting] coach for [Employer 1]. He said these jobs were both after he moved to Accra. He commented that [sales] became more difficult from 2010 [due to specified shortages]. He indicated he got into [coaching] as [a local employer] saw he had potential. He indicated he was still doing that work up until he came to Australia.
The applicant indicated that in Australia he is working in a r[factory].
The applicant confirmed the advice in the delegate’s decision record that, as well as travelling to [Country 1] in 2013, he travelled to Europe in 2014, visiting [Country 2] and [another country]. When asked why he did not seek protection in Europe when he was there in 2014, the applicant commented that ‘the issue’ was ‘not that intense’ at that time so he returned to Ghana, but then realised it was really intense when he got back home. He added that when he returned from [Country 2] in 2014 and went back to his apartment in Accra he was told that someone had come looking for him.
The Tribunal asked the applicant why he was asked to become King in 1998. He said [Mr A], who had been King for [number] years, was the [relative] of his grandmother, and she had to select the new King. He said his family gathered in [Village 1] and called him to inform him he was to be the next King. He indicated it was intended that he would be installed as King in 1999. He said there are many rituals involved in installing a person as King, which are not godly, including incarnations and the spilling of blood. He added that sometimes they even kill people. He said these are against his beliefs as a church-going Christian.
The applicant said that when he informed his family that he could not do it, they were really upset and mad at him. He added that his grandmother was always thinking about it and grieved about it and then passed. He added that his family were really concerned because him not taking the kingship meant it went to another family. He said the kingship is rotated between his family (the [Royal family 1]) and [Family 2].
The Tribunal queried the applicant why he objected at that time if, even though his family were Pentecostal Christians, they had been preparing him for the role of King for a long time. He said he did not know about all the sacrifices, incantations and chanting that were involved in the role. When queried why he did not know this if he had grown up with his family in [Village 1], the applicant said they don’t tell anyone because if they tell them they will run away.
The Tribunal queried the applicant regarding the usual process to fill the position. He said they don’t choose the person randomly, they have to come from a certain bloodline and a child of his grandmother’s bloodline had to become the next chief.
The Tribunal observed that country information it had read, including from the Immigration and Refugee Board (IRB) of Canada, seems to indicate that the process for selecting a successor as the head of clan is more democratic than he has indicated. This information suggests a successor is usually chosen through a process of election by the elders of the clan, from among several candidates put forward through a process where all families are consulted, and the queen-mother is also consulted to help reach a consensus.[4] The applicant commented that for people of Akan ethnicity the different families have different ways of installing a chief. He added that the process can take up to 10 years and there can be a lot of arguments and fighting about who will be the next chief. He said in his case there are only two Royal Families who can provide the chief and when a family loses it, it goes to the other family. He added that it may not ever come to his family again, which is why his grandmother and family were insisting he become the chief. He indicated that royalties and properties also flow from the title.
[4] ‘Culture and Economic Development in Ghana: The Conventional Wisdom Revisited’, Vehnamaki, M, Nordic Journal of African Studies, 8 (1), 1999, p.63, CIS1CA3D8B857.
The Tribunal asked the applicant about his statement that his declining the kingship led to a chieftaincy dispute that resulted in the death of four other Royal Family members. He indicated that four people died before the other ([Family 2]) Royal Family installed a new chief in 1999. He said they were all fighting because of the benefits that flow from the position.
The Tribunal also observed that relevant country information from the IRB indicates that, while they may suffer pressure from their families (and possibly be ostracised and perhaps outcast), people are free to accept or refuse the role of Chief. The country information indicates a person refusing a chieftaincy position may offer a sheep to sacrifice to pacify annoyed ancestors, and that is the end of the matter.[5] Similarly, in 2009 the UK Home Office indicated that there was no specific evidence that individuals who claim they are persecuted by family, community or tribal leaders to become the next chieftain or high priest in fact encounter mistreatment.[6] Country advice provided to the Refugee Review Tribunal in March 2010 also commented that, despite pressure from families, no incidents were found of an individual being targeted because they had rejected the role of chief or any other senior tribal role. It was noted in this advice that the UK Home Office and DFAT indicated they believed there was no evidence to suggest such individuals face mistreatment.[7]
[5] Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available’, Immigration and Refugee Board of Canada, 16 August 2016, Refworld | Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available
[6] ‘Operational Guidance Note: Ghana’, UK Home Office, 29 January 2009, CISE1310071964.
[7] ‘Ghana – GHA36430 – Chieftaincy – State Protection – Northern Ghana – Accra, Refugee Review Tribunal, 15 April 2010.
The applicant commented that it is true that people can refuse the role, but added that the reaction differs across the different families who may be involved. The Tribunal observed that he had returned to Accra in December 1999 and had lived there for 10 years until 2010 without suffering harm due to having declined the role of Chief. The applicant replied that the issue was not that intense until after 2010 when it became serious. He indicated that after 2010 his family felt he had disgraced them and they lost a lot of reputation and property as a consequence.
The Tribunal asked the applicant why the elders wanted him to serve as a Messenger of the gods in 2010. He replied that it was so he would be in the Chief’s family. He said he had to go through some rituals, including spilling of blood, to appease the gods. The Tribunal queried the applicant regarding his statement that he immediately accepted the role, observing that he must have known that it would require him to be involved in activities that would be in conflict with his Christian faith. The applicant insisted he didn’t know it would involve such things. The Tribunal observed that he had indicated earlier in the hearing that he declined the role of Chief because it involved many rituals, incantations and the spilling of blood and queried that he would surely have expected that the role of Messenger of the Gods would involve similar practices. The applicant commented that he thought the role would just be that of a normal messenger and would involve helping around the palace.

The Tribunal asked what the initiation ceremony involved. The applicant said they killed 7 sheep, some fowls, and poured schnapps and offered eggs to appease the gods. The Tribunal observed that, contrary to what he has said at the hearing, he wrote in his statement that he was told it was his time to serve as Messenger of the gods ‘to perform all ritual (sic) and libations to the gods’ and immediately accepted the role. He stated he declined the role when they explained all that was required to him and stated, after that, they started coming after him.
The Tribunal asked if a fetish priest is the same as a Messenger of the gods. The applicant replied ‘yes’. The Tribunal observed that the country information from the IRB indicates that a fetish priest is not a hereditary position but a person is ‘called’ to such a position when possessed by a deity or a deity reveals itself to the person in a dream or in a real life encounter, and that such a person then undergoes a lengthy training process supervised by a senior priest.[8] In response the applicant indicated this is different to what he was asked to do, adding that he was to be the Messenger of the Chiefs.
[8] Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available’, Immigration and Refugee Board of Canada, 16 August 2016, Refworld | Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available
The Tribunal observed that his written statement indicates he was to be Messenger of the gods to perform all the rituals and libations to the gods, not that he was to be the Messenger of the Chiefs. The applicant responded that the role was to pour schnapps in the palace. The Tribunal asked why he objected if that is all the role entails. He replied that a Messenger also has to go to sacrifices to become a Messenger.
The Tribunal also queried the applicant that he indicated in his written statement that the problem he had with the role was that he was told he could not continue to practise as a Christian. The applicant said he went to the church elders who told him he could not be involved in the spilling of blood, and if he was, he could not stay in the church. The Tribunal observed that in his written statement it is the other way around, in that he stated it was a village elder who told him from the day of his initiation that he was to stop going to church as his duty from that day was to devote himself entirely to the worship of the gods. The applicant replied that his family suggested he do both but after he realised that it involved sacrifices he consulted the church elders and they said he could not be involved.
The Tribunal observed that the country information indicates being a Christian and not wanting to participate in traditional ancestor homage and recognition of local deities are less important because the people of Ghana are notable ‘syncretists’ who are able to accommodate many seemingly incompatible religious beliefs.[9] The applicant replied that some do, but not when bloodletting is involved. The Tribunal clarified that he was referring to animal sacrifice. He indicate he was, such as the sacrifice of sheep and cows.
[9] Ibid.
The Tribunal asked the applicant how he managed to stay safe for six years after he fled to Accra in 2010, if people came to his apartment a week after he returned there. He said one day he left his apartment and when he came back he was told some people came looking for him and when he investigated he realised it was them. He added that even now he is Australia he is told they are still enquiring about him.
The Tribunal observed that in his written statement he said the family head, accompanied by three other elders and five boys from the [Royal family 1] family arrived at his apartment in Accra and demanded that he return to [Village 1], and if he refuses they will kill him to make sacrifices to the gods. The Tribunal said that sounds like they were with him, in his apartment, and asked if that was correct. The applicant said two people from [Village 1] came to his apartment looking for him and subsequently came again. He said someone told him the way they are looking for him, if they find him, they are going to do something to him such as harm or kill him. The Tribunal asked the applicant if people ever came and met him in his apartment when he was there. He said the first time they didn’t meet him but they kept coming and leaving messages. When again asked if they ever met him, the applicant said some of them disguised themselves when they came to meet him and when he was having a conversation with them he realised they had ‘been sent’.
The Tribunal again queried the applicant that he has stated this occurred in 2010 and asked how he managed to avoid these people for 6 years until February 2016. The applicant said it wasn’t serious at that time but from 2014 he realised it was serious, and since he has been in Australia he has realised that if he goes back they will kill him.
The Tribunal asked the applicant why he delayed departing from Ghana (for three and a half weeks) after his Australian visa was granted on 20 January 2016. He said it was difficult for him the get the necessary funds together. The Tribunal also asked why, after he arrived in Australia on [date] February 2016, he delayed applying for protection until 18 May 2016, after his visitor visa had expired. The applicant said he did not know how he could apply for protection until he was told. When asked why, in that case, he decided to come to Australia, the applicant said he was training a [sportsman] who got permission to come to Australia and they got the visas together. He said he decided to stay in Australia when he realised if he went home to Ghana he would be killed.
Assessment of claims
Identity
On the basis of the copy of his passport submitted to the Department,[10] the Tribunal accepts that the applicant is a citizen of Ghana and that his identity is as claimed. The Tribunal accepts that Ghana is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[10] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Ghana, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
The Tribunal accepts that the applicant is a Pentecostal Christian of Akan ethnicity. The Tribunal accepts that his home village is [Village 1] in the Brong Ahafo Region of [Ghana]. In accordance with the evidence in his protection visa application, the Tribunal finds that the applicant lived in Accra for over 15 years from December 1999 until he came to Australia in February 2016. The Tribunal finds therefore, that Accra can be considered the applicant’s home region when considering where he would reside if he returned to Ghana.
Claim to be at risk of serious/significant harm due to refusing to accept the kingship following the death of the King of his homeland in 1998
While the applicant has not provided any supporting evidence in relations to his claims, the Tribunal accepts that it is possible he is a member of the [Royal family 1]. The Tribunal accepts it is possible that he was approached about becoming the new King after the death of [Mr A] in 1998, but declined the role because he thought it conflicted with his Christian beliefs.
The Tribunal accepts that this may have disappointed and saddened his family members, but notes that the applicant moved to Accra, the capital of Ghana, and continued living there until he came to Australia in March 2016. Despite indicating in his statutory declaration that he moved back to Accra in 2000 due to fearing for his life, he did not suffer any harm while living there for over 15 years. He managed to work [in sales] and as a [coach], form a relationship and have two sons. At the hearing, the applicant indicated that the issue was not that intense until after 2010. When asked why he did not seek protection in Europe when he visited in 2014, the applicant indicated that the issue still was not that intense at that time so he returned to Ghana.
The Tribunal finds the applicant not suffering any harm as a consequence of declining the kingship is consistent with the relevant country information discussed above.
The applicant has not provided any information or evidence indicating or suggesting the death of his grandmother was in any way related to him declining the kingship and the Tribunal does not accept this was the case.
The applicant has claimed that his declining the kingship resulted in the murder of four members of the other Royal family (the [Family 2]) who were to choose a new King after he declined the role. He has not provided any information or evidence in support of this claim and, given its findings below (which raise significant concerns regarding the applicant’s credibility), the Tribunal considers it is unlikely to be the case. In any event, the Tribunal finds that there is nothing in the applicant’s evidence to indicate or suggest he was ever harmed by members of his own family or members of [Family 2] as a consequence of declining the kingship.
Based on his experiences living in Ghana for a further sixteen years after declining the kingship, without suffering any serious or significant harm, the Tribunal concludes that the applicant does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm either from members of his own family or members of [Family 2] because he declined the kingship following the death of the previous King in 1998.
Claim to be at risk of serious/significant harm due to refusing to be the Messenger of the gods, after having been initiated into the role in February 2010
The Tribunal found the applicant’s evidence in relation to this matter to be vague, inconsistent, implausible and ultimately unconvincing. The Tribunal does not accept that the applicant ever accepted the role of Messenger of the gods or that he was ever initiated into this role. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal does not accept the applicant’s evidence at the hearing that he accepted this role because he did not know it would require him to be involved in things that would conflict with his Christian beliefs. This is despite indicating in his statement that the role was as Messenger of the gods (being traditional gods) which involved performing all rituals and libations to (non-Christian) gods, matters that would clearly be in conflict with his fundamental Christian belief in there being a single God and that he should not worships ‘false gods’. The Tribunal found the applicant’s claim to have been under the impression (until after he was initiated into the role) that it would simply involve running errands and pouring schnapps for the Royal Family to be implausible.
Second, when queried at the hearing regarding how he could not have been aware of the requirements of the role, the applicant altered his evidence, claiming the role was as Messenger to the Chiefs rather than to the gods. When pressed regarding why, if this was the case, the role would have been an issue for him, the applicant contradicted himself by stating that it would still involve bloodletting/animal sacrifice.
Third, in his written statement the applicant indicated that, after he was initiated, he told his parents he would do the job, but only if the village elders allowed him to continue going to church and worshipping as a Christian, but the village elders refused. At the hearing, however, he said the problem was that his church elders told him he could not be involved in the spilling of blood, and if he was, he could not stay in the church. The Tribunal finds this is a significant and material inconsistency in his evidence.
Fourth, the applicant indicated at the hearing that he declined the role when they explained to him everything that was required, and after that they started coming after him. In his written statement he indicated that the elders have to kill him, because having been initiated into the role, they cannot appoint a different Messenger of the gods until after his death. He also stressed at the hearing that his family felt he had disgraced them, and that they had lost reputation as well as access to royalties and property. He declined this role in early 2010, however, which should have meant people were actively coming after him and seeking his death from that time. This directly contradicts contradicting his oral evidence that things weren’t that intense until after he returned from [Country 2] in 2014.
Fifth, and further to the above, the applicant indicated in his written statement that a week after he returned to Accra in early 2010 (after declining to continue in the role of Messenger of the gods), the family head, accompanied by three other elders and five boys from the [Royal family 1] arrived at his apartment in Accra and demanded that he return to [Village 1], under threat of being killed to make sacrifices to the gods. The Tribunal considers this clearly implies he was at home and the demand that he return to [Village 1] was made directly to him. When this was raised with the applicant at the hearing, however, he was vague and evasive, indicating that he was not at home when people came but was told that two people (rather than nine) had come to his apartment. When pressed regarding how he avoided these people for six years, he did not answer the question but suggested he sometimes met with people in disguises and realised they had been sent by village elders. In his written statement he indicated he started to sleep at his friend’s apartment while pretending he was still living in his own apartment, but he did not raise this at the hearing. Most significantly, while the applicant claimed things became more intense after he returned from Europe in 2014, he did not explain why this was the case or how he managed to avoid harm from the people he claimed were threatening to kill him, and were highly motivated to do so because they could not appoint a new Messenger of the gods while he was still alive. Despite this, the applicant also suffered no harm at all from that time until he departed for Australia in mid-February 2016, while continuing to live at the same apartment, work with [Employer 1] and raise a family in Accra.
Sixth, the Tribunal gives some weight to the failure of the applicant to seek protection in Europe in 2014, given he initially indicated things became ‘more intense’ after he declined the role of messenger of the gods in 2010. The Tribunal also gives some weight to the three and a half week delay in the applicant departing Ghana after his visa was granted in January 2016, as it considers he would have be thinking about the funds he needed to travel to Australia when he applied for the visa. The Tribunal also gives some weight to the delay of over three months in the applicant applying for a protection visa after arriving in Australia. In this regard, the Tribunal considers that if the applicant fled Ghana in fear of his life as claimed, he would have been highly motivated and very focused on finding out about his options to remain in Australia once he arrived, and would have quickly found out about protection visas through making inquiries with African community and asylum seeker support resources.
Having regard to the above findings, considered cumulatively, the Tribunal finds the applicant never accepted the role of Messenger of the gods (or Messenger of the Chiefs). The Tribunal finds he was never initiated into such a role. Accordingly, the Tribunal finds he did not subsequently refused the role. The Tribunal finds that the elders and members of the [Royal family 1] have not been looking for the applicant to harm or kill him. The Tribunal does not accept that he is seen as an instigator of propaganda and opinions against the [Royal family 1] or that he is seen as a devil by them. The Tribunal also finds that members of [Family 2] have not been seeking to harm him.
Accordingly, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm from elders and members of the [Royal family 1], including his family members, or from members of [Family 2], because of his Christian faith or for any other reason, should he return to Ghana now or in the reasonably foreseeable future.
Does the applicant have a well-founded fear of persecution if he returned to Ghana?
Having carefully considered the applicant’s claims both individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from elders and members of the [Royal family 1], including his family members, or elders and members of [Family 2] because of his Pentecostal Christian faith, membership of the [Royal family 1] or for any other of the reasons mentioned at s.5J(1)(a), if he were to return to Ghana now or in the foreseeable future.

Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Ghana, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Ghana, there is a real risk that the applicant will suffer significant harm as set out in s.36(2A) from elders and members of the [Royal family 1], including his family members, or elders and members of [Family 2], or any other authority, agency, group or person.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available’, Immigration and Refugee Board of Canada, 16 August 2016, Refworld | Ghana: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available

[2022] AATA 1550

6 May 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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