1900634 (Refugee)

1900634 (Refugee) [2022] AATA 4802 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900634
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Peter Katsambanis
DATE:24 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2022 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Ghana – chieftaincy dispute – Gbama-Yili – Bam-Gyili – Nanumba Konkomba conflict – applicant’s claimed identity and profile – birth certificate – claimed adopted identity – credibility concerns – inconsistent and contradictory evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91WA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 19 December 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 22 March 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal at hearings held on 13 September 2022 and on 5 October 2022 to give evidence and present arguments.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to Ghana he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CLAIMS AND EVIDENCE
Protection Visa Applicant
The applicant applied to the Department for a protection visa on 22 March 2017.
In his application form the applicant stated that he was born on [Date 1] in Accra, Greater Accra Region, Ghana. He stated that he had previously been known by the name [Name 1] but had been given a new name by his adopted father, [Mr A], to disguise himself. He also stated that he had never had a different date of birth. He claimed that he was of Nanumba ethnicity and Muslim religion. He listed his occupation as [Occupation 1].
In his Form 866 Part B, the applicant stated that his wife, [Ms B], was currently living in [Town 1], Ghana along with his two sons and one daughter who were all minors. In this form he listed his children’s names and dates of birth as follows:
·[Child C], a son born on [Date 2]
·[Child D], a daughter born on [Date 3]
·[Child E], a son born on [Date 4]
However, in his Form 866 Part C he stated that the relationship with his wife had begun [in] August 2012 but that he had become widowed [in] February 2017.On this Form 866 Part C, he also listed his daughter’s date of birth as [Date 5]. In addition, on this form he stated that his three children were currently living in Ghana.
The applicant stated that his parents’ names were [Mr F] and [Ms G] who were currently residing in Ghana. He claimed that his [number] brothers and [number] sisters were all currently living in Ghana.
The applicant stated that he arrived in Australia [in] February 2017 and claimed that he had arrived as a visitor on his Ghanaian passport Number [Number 1] issued to him [in] 2015. He also claimed that he had previously held a passport in the same name but with the number [Number 2] but stated that he could no longer find this passport.
The applicant claimed that he has travelled to [Country 1], [Country 2] and [Country 3] in 2011 and 2012 to participate in cultural and traditional music festivals.
The applicant stated that in Ghana he had lived in [Town 1] in the northern region from March 1990 to July 1999 and had subsequently lived in [Town 2] from July 1999 until he arrived in Australia in February 2017.
The applicant claimed that he had studied [Discipline 1] in Accra from March 1997 to December 2000 and had studied [Discipline 2] at [School 1] in the northern region from September 2000 to June 2001. He claimed that he had worked as a [Occupation 2] in a [group] in Accra from March 2010 to February 2017 and had also worked a [Occupation 3] in a [business] in Accra from February 2012 to July 2017.
In his application for protection the applicant claimed that he hailed from [Town 1] in the northern region of Ghana and was from a Royal family called Bam-Gyili. He claimed that there were two gates to the throne of the [Town 1] Paramountcy, being the Bam-Gyili side and the Gbama-Yili side. He stated that there was a long-standing chieftaincy conflict between these groups and as a result of this conflict any potential people to the throne are a target of murder from the other side. He also stated that within the Bam-Gyili side there was a serious internal conflict which had led to the death of many people until the government intervened to impose a curfew. He claimed that this internal conflict was rooted since the days of his great-great grandfathers and continued to this day. He claimed that he would become a target since he had been brought back from [Country 4] where he was born. He claimed that some close family members were of the opinion that the applicant would become a great chief because he was born in [Country 4]. These people claim that one of their ancestors had mentioned this about two centuries ago. He claimed that several attempts from both sides to eliminate him had failed. He claimed that any time there was a little misunderstanding, people would take advantage and look for their target. He claimed there was a recent attack on 19 June 2017 in which his mother, his wife and his daughter were killed. He believed that if he was around, he would have lost his life and added that his newborn baby was the one killed.
The applicant stated that politics had taken the better side of his region. Politicians had taken advantage of the situation and associate themselves with either of the family groups. He claimed there were two main political parties in Ghana, the NDC and the NPP. He stated that his side, the Gbu-Mayili, were usually sympathetic to the NDC while the Bang-Yili were sympathetic to the current ruling NPP. The applicant stated that the internal power struggle within his family had led to serious division, so both NDC and NPP took advantage to further divide the family. He claimed that some of the family now belong to the NDC, and others belong to the NPP. The applicant stated that the son of the last paramount chief who had died was now claiming to be the regent and the paramount chief. He stated that this person was a card-carrying member of the NDC, so he had the support of the government of the day to pursue his agenda of becoming the next paramount chief, which the applicant disagreed with despite being from the same family line. The applicant claimed that this had caused him a lot of harm coming out publicly to advise accordingly. He stated that this person was later attacked and killed in his house [in] June 2014 by the side of his contender for the paramountcy, which had further endangered the life of the applicant from both sides.
The applicant stated in his application form that he had been born in [Country 4] on [Date 6]. He claimed he had a brother called [Brother H] who had died in 1992 during the Nanumba and Konkomba conflict. He claimed that the two of them were a serious target even within their own family because they were born in the holy land for Muslims, and this has the potential to make them great. He claimed that [Brother H] was very masculine and physically strong. According to rumours, he was murdered by his own comrade, and it was arranged by a cousin who was the son of the late paramount chief [Mr I]. The applicant claimed that he was attacked in Accra on two occasions, twice in Tamale and several times in [Town 1]. He claimed he had the marks of some wounds he had sustained during some of these attacks.
The applicant claimed that somebody could be a bit safe when their party was in power but even that could not guarantee your safety. He stated that [Mr I], who was claiming to be the paramount chief and had the support of the government, was killed in his house because you are dealing with the entire Nanumba group. He stated that the entire northern region was engulfed with tribal conflict and the lack of development in the region meant that most people had to migrate to various cities so whenever there was a little misunderstanding between two people it usually triggered a fight. He also claimed that whenever there was a problem up north it will transcend down to where northerners were living at the time.
The applicant stated that he moved to Accra but yet again northerners are scared everywhere. He claimed that one day he went to the [named] market in Accra to visit his uncle who had arrived from [Town 1]. The applicant stated that during the conversation he disagreed with the man on the chieftaincy dispute, and it nearly caused serious chaos. He claimed that police were deployed to the scene, and he was terribly beaten that day.
The applicant stated that his father was currently in exile in [Country 4] since he had flown back as a result of the conflict between the Nanumba and Konkomba people in 1992 and could not return. He stated that his mother was killed in the recent conflict as was his wife and daughter, so his family line was now in the minority. He claimed that it was his intention to not leave his country but now he was afraid he could not go back. He stated that he had tried in his own small way to stay away from the chieftaincy related matters. With the death of [Mr I], his sympathisers had turned to hate the applicant and his children, and he was still not safe from the other side as well.
The applicant stated that he could not get any assistance from the authorities of Ghana because African politicians have parochial interests and always hide their faces then go behind to support with cash and ammunition to their various supporters. All they did was often impose curfews in the region and that is what they have been doing on an ongoing basis.
The applicant stated that relocating within Ghana was not an easy task because of the nature of the conflict. He stated that people had relocated and even at various cities where people had relocated to, other people still carried along the conflict there and brought their problems outside the northern region. He stated that he had relocated to Accra but because of his status it is still dangerous for him. He also claimed that because of tradition his mother had refused to move to Accra and arranged for him to marry a lady from the village of [Town 1], so going there becomes necessary for him since his mother, his wife and his children live there.
Together with his application for protection, the applicant provided the Department with an undated typed statement in which he stated that he had received his current name from his adopted father, [Mr J], who had taken care of him since the Nanumba Konkomba conflict in 1992.
In this statement, the applicant claimed that his father was the great grandson of the [Town 1] kingship hailing from the Gbamagyili clan. The applicant stated that his father understood the mystery surrounding chieftaincy issues and then decided to study in [Country 4], where he had gained a scholarship. After a few years, his father took his mother to [Country 4] where they gave birth to 3 children but one passed away in [Country 4]. The family stayed there until his parents decided to return home because it was expensive to bring up children in [Country 4].
The applicant claimed the family arrived in Ghana in 1989 and moved to Tamale from Acra, and then proceeded to [Town 1] where he lived with his father, mother and brother until 1992 when a conflict broke out between the Nanumba and the Konkomba people. The applicant stated he was [age] years old at the time and this conflict led to the death of countless numbers of people and displaced many others. He claimed that his elder brother, [Brother H], died in this conflict and during this time people had to run to save their lives.
The applicant claimed in his statement that his parents were all missing, and the applicant finally found himself in Accra with a man called [Mr J]. The applicant stated that at the time he had blocked ears and could not hear anything because of the sound of weapons. This man did not know what to call the applicant, so he chose to name him [Given Name 1] after his late son who he had lost in the conflict. Given that this man’s surname was [Surname 1], the applicant then adopted the name [the applicant] and maintained it to disguise himself. He later received information that his father had flown back to [Country 4].
The applicant claimed that a few months after the conflict he found his mother, but she decided that the applicant should stay with [Mr J] for schooling. He later returned to Tamale to attend school. The applicant stated that for a few years after the conflict there was a bit of sanity, however there was internal conflict between [Mr I], who was then the paramount chief, and his brother [Mr K] who was waiting to become the paramount chief if [Mr I] passed on. [Mr I] feared that his brother wanted him dead to assume the seat and this created huge hatred in the family that lasts until today.
The applicant stated that after the death of [Mr I], [Mr K] took the mantel for a while until he died in 1999, which caused more tension as to who was at the legitimate head of the throne. He stated that two people in contention, [Mr I] and [Mr L] were both from the Gbamayili gate, which was the applicant’s side of the family. During this internal wrangling [Mr L] died in 2014 and his funeral caused serious conflict which led to the death of many people and the imposition of a curfew.
The applicant stated that on 19 June 2014 some family members, believed to be sympathisers of [Mr L], attacked and killed [Mr I] in his house, cut off his head and also killed some other people in the house. The applicant claimed that with all these things happening he was afraid of his life, but for his mother he could not stop going to [Town 1]. In order to please his mother, he got married to a wife of his mother’s choosing and the wife had to stay with his mother to support her in [Town 1]. The applicant stated that he would travel to [Town 1] every few weeks depending on his schedule.
The applicant claimed that in 2010 he was attacked and brutalised in a little argument with a guy from the Napka Naa Salifu side. He did not know that this person was from that side, and if not for the intervention of the police who rescued him from these four guys, he would have been badly harmed. He claimed that the police took everyone to the police station where they provided statements and they later took the applicant to hospital where he was treated and discharged. He claimed that during the treatment some people had visited the hospital wanting to kill him but fortunately for the applicant, some family members were around, identified these people as enemies and confronted them. He claimed that later on the hospital authorities had to bring in the police who conducted a search and found a gun in these people’s possession. He was discharged quickly to continue his treatment at home.

The applicant claimed that he suffered several attacks while in Tamale, Acra and [Town 1]. He stated that the people of [Town 1] were living in fear and there was tension and fighting in the town because [Mr L] was yet to be buried. He claimed that the family of this person wanted him buried as a paramount chief, but the applicant’s side had rejected this proposal.
The applicant stated that [in] February 2017, a few days after his departure to Australia, the side of [Mr L] attacked the side of the applicant’s family. The applicant claimed that many people died in this conflict, despite the media mentioning that only a few had died. The applicant claimed that he lost his mother, wife and son in this recent conflict and the government had to impose a curfew that was still pending. He added that he had now lost his family, but his father was living in [Country 4] and never wanted to return to Ghana.
The applicant stated that he had made certain statements which his side of the family had interpreted as supportive of the other side, however the truth of the matter was that [Mr L] should be allowed to be buried as the paramount chief of [Town 1] so that peace would prevail, and the parties could use this as a starting point. However, he claimed that his statement had not gone down well with some people.
The applicant stated that he had no intention whatsoever to leave his country but because of this recent case he was afraid he could not survive in Ghana.
The applicant provided the Department with links to 4 online news articles that reported on the death of [Mr I] and disputes about whether this person should be buried as a legitimate chief.
The applicant was interviewed in relation to his protection visa application by a delegate from the Department on 20 September 2018. The delegate’s decision record indicates that at this interview the applicant initially introduced himself as [the applicant] and claimed his date of birth was [Date 1].
The decision record notes that the applicant then stated that his name by birth is [Name 2] and that he was born in [Country 4] on [Date 6]. He claimed that his father’s name is [Name 1] and stated that his father had been unable to obtain a copy of the [Country 4] birth certificate on his behalf.
The applicant stated that in Ghana he completed high school at [School 1] and attended [School 2] in Accra. He claimed that all of his school records are in the name of [Name 2].
The applicant claimed that in Ghana he has been issued with two passports, both in the name of [the applicant], his previous passport number [Number 2] and the current one number [Number 1].
The decision record notes that the applicant was asked why he did not have a passport in the identity given at birth, and he responded that the man who took a care of him, knew about his problems and therefore helped him with the new identity as [the applicant].
The applicant claimed that he lived in [Town 2], a suburb of Accra, from 1999 until he left Ghana in February 2017 but provided no further details or documents to verify this address.
The decision record notes that at interview the applicant stated that he was not a member of any association of [Occupation 2]s in Ghana and he was not a member of the [Occupation 2] Union of Ghana. The applicant claimed that he travelled to Adelaide in February 2017 to take a part at [named event] as a [Occupation 4]. However, because the main performer or group from Ghana did not travel, he did not participate in this festival but departed Adelaide for Sydney few weeks later. The decision record notes that at the interview the applicant was vague in relation to whom he travelled with, what purpose he travelled to Australia for and his circumstances on arrival in Adelaide.
At this interview, the applicant initially stated that he had three children. He was asked to clarify the date of birth of his children [Child E] and [Child D] as it seemed they were being born two months apart in [year]. The applicant responded that it was an error and that [Child D] was born on [Date 5]. The decision record notes that the applicant did not submit any documents such as a marriage certificate or birth certificates for his children to the Department.
The decision record notes that at this interview the applicant claimed that his wife was ‘no more’. When asked to clarify what he meant by this statement, he responded that his wife and son [Child E] have died. The applicant was asked to give more information about what, when and under what circumstances has happened to his family. He responded that he was not there when they died. He claimed that it happened after he left Ghana and that he found out from his friends on Facebook [in] February 2017 that they had died. When asked why he did not go back to Ghana to support his other children during that time, the applicant responded that there was nothing for him to do and nobody to contact. He claimed that he made no attempts to reach someone in Ghana or to ascertain what had happened to his family.
At this interview, the applicant was asked if he attempted contacting his in-laws, his siblings or relevant authorities in order to find out more about what had happened to his family, and he said no. He did not know when any funeral had been held for these deceased family members. He stated that he did not have death certificates for his mother, his wife or his son, but added that if he wanted, he could get them. In response to a question about who was responsible for the tragic loss of his family members, the applicant stated there was a long-standing feud between two families. He then stated that his family were at a wedding, some people started shooting and that is when three members of his family were killed. He stated that he believed they were targeted and not accidental victims. The applicant was asked about who would want to harm them and he responded, ‘the other part of the family’. When asked to clarify who this other side of the family was, he claimed it was the Salifu side.
The decision record notes that at interview the delegate raised a number of inconsistencies in the applicant’s evidence about the circumstances surrounding his family in Ghana. In particular, inconsistencies over time about whether it was his mother, wife and daughter who had been killed or whether it was his mother, wife and son who had been killed and inconstancies over time about when these deaths took place and when he was widowed. In response, the decision record notes that the applicant responded that it was his son who had been killed and not his daughter.
The applicant claimed that because he was born in [Country 4] he was, since an early age, been perceived as the ‘chosen one’ to be the next in line for the chieftaincy. He stated to the delegate that the Salifu clan or family had been against that ever since 1992. The applicant also stated that currently there was no chief in [Town 1], that he was unsure when the next chief would be selected but that the process could happen at any time now. He added that he did not know when and if he will be offered a chieftaincy.
The decision record notes that the applicant stated that no family member from his Gbamagyili clan, apart from his mother, had ever told him that he would be a chief at some point in the future. He stated that he had never undertaken any activities in his village [Town 1], or for his family and clan, or for the benefit of the local community.
The decision record notes that the delegate put to the applicant that if members of Salifu clan wanted to harm him, because they did not want him to ever become a chief, they had ample time since 1992 to do so. The applicant responded that they tried many times. He claimed that he could not specifically say when, but there were more than 3 attempts. He was asked if he could give more details about who attacked him, when he was attacked and why he was attacked. The applicant responded that one attack occurred in Tamale in 2000, two in [Town 1] (2003 and 2006) and in June 2016 he was hit by a stick in Konkomba.
At the interview, according to the decision record, the applicant stated that he had no political opinion, and he did not belong to or support any political party in Ghana. During the interview, the applicant did not submit information to suggest that the opposing political affiliation of the Bam-gyili and Gbama-yili clans in Ghana have any relevance to his protection claims.
The decision record notes that at the interview the applicant claimed that since he had been in Australia, he had worked casually in the [specified] industry in odd labouring jobs. He claimed that, on average, he earned around $700 a month and that over the last year he had earned $6,000. He was asked if he sends money to family in Ghana and he said that he did so sometime to his friend and ultimately to his children.
It is stated in the decision record that at the interview it was put to the applicant that the Department had access to reports indicating that, since he has been in Australia, the applicant had sent over $38,000 to various people in Ghana, [Country 2] and [Country 4]. The applicant responded that his friends asked him to send money on their behalf and it is not all his money. He added that he had also sent money to his father in [Country 4], but his father was not able to obtain his birth certificate. In response to a question about whether the applicant had travelled to Australia for work, he stated that he travelled to attend a cultural program and intended to go back but after what happened to his family since he arrived, he had changed his mind and now wanted to remain in Australia.
The applicant provided the Department with a copy of his passport issued [in] 2015 by the Republic of Ghana and numbered [Number 1]. This passport stated that the applicant was born in Accra on [Date 1]. He also provided a copy of his New South Wales photo identity card.
It is noted on the decision record that the Department noticed irregularities in the applicant’s passport and submitted the passport to document examination.
The document examination report dated 15 October 2018 relevantly states as follows:
‘it is my opinion that it is a legitimately manufactured Republic of Ghana passport; however it is not possible to determine whether the damage observed is a result of fraud or other causes. The result is inconclusive.’
The result of this document examination was communicated to the applicant and his response was requested. In response, the applicant stated that he was having great difficulty obtaining documents from his home country but had managed to obtain a birth certificate. He also responded that in his application he had clearly stated the reason for his name change and he now affirmed that he wished to maintain the name that he had been given by his adopted father.
The applicant provided the Department with a copy of a birth certificate issued by the Registrar of Births and Deaths in Ghana [in] 2018. This certificate stated that [the applicant] was born on [Date 1] at [Hospital 1] in Accra, Ghana. The father is listed as [Mr J], whose occupation is listed as farmer. The mother is listed as [Ms G]. The date of registration of birth is listed [in] 2012.
The applicant also provided the Department with two statutory declarations, both declared on 5 October 2018, from [Mr M] and from [Mr J].
In his statutory declaration, [Mr M] states that he is the uncle of [Name 2] who is now known as [the applicant] and who was born in [Country 4] to his mother, [Ms G], and his father, [Mr F]. The declarant states that on 19 February 2017 a conflict erupted in [Town 1] during the burial of the paramount chief [named]. It is claimed that many people died including the mother of the applicant ([Ms G]), the son of the applicant ([Child N]) and the wife of the applicant ([Ms B]). The declarant claims that he was there and witnessed the conflict. He states that all the bodies were buried by the families as demanded by custom and tradition, and no registration of the death was made due to the level of tensions and agitation and due to the curfew imposed by the authorities. It was claimed that the burials were made without registration to the registry of births and deaths and therefore the registry was unable to provide death certificates as requested as the law prohibits the issuance of death certificates without a death registration certificate.
In his statutory declaration, [Mr J] states that it he is the adopted father of the applicant, who was previously known as [Name 2]. The declarant states that the child was among the masses that fled from the Nanumba Konkomba war in 1994 as the declarant had also done. He claims that they were finally transported from the northern region to Accra, and he found the child alone as they were walking from [Town 1]. He assisted the child until they found a safe place in Accra.
The declarant further stated that since he and his wife had lost their child during the war, whose name was also [Given Name 1], they decided to take care of this child as they could not find his parents, so presumed they were among the dead. Because the child could not talk, they gave him their son’s name, a name that he still bears today. The declarant stated that six years after the war they found the child’s mother, but the mother decided the child should stay with the couple. He had subsequently adopted him as his son. He stated that his own son had been born on [Date 1], so he gave this child the same birthdate as they did not have any records to determine his age and date of birth.
The delegate refused to grant the applicant a protection visa on 19 December 2018.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 9 January 2019. Together with his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
The applicant did not provide the Tribunal with any submissions or any documents in support of his claims prior to the scheduled Tribunal hearing.
First Tribunal Hearing
At the first Tribunal hearing, the applicant stated that his real name was [Name 2]. When asked if he had any documents in this name, the applicant stated that he had a bank card in that name issued to him by [Bank 1] in Ghana. He confirmed that he used the name [Name 2] when he was in Ghana and stated that some of his friends call him by that name although others call him [Given Name 1].
The applicant stated that he also had some school records in the name [Name 2] and claimed that he may have copies in his emails. When asked why he had not provided these documents to the Department or the Tribunal, the applicant responded that he still goes by the name of [Given Name 1].
The applicant claimed he had been born in [year]. When asked to provide the date of his birth, the applicant hesitated and searched through his paperwork before stating it was [Date 6]. He claimed that he had been born in [Country 4]. When asked if he had a copy of his birth certificate to evidence this birth, the applicant stated that maybe he did and then stated that he did not know if his father still had it. When asked if he had requested a copy of this document from his father, the applicant stated that his father had told him he would check the documents to see if he had a birth certificate or a report from the hospital.
It was pointed out to the applicant that he had lodged his application for protection more than five years ago, which had provided him with significant time to source any documents that he would seek to rely on. In response, the applicant stated that his father had sent him a document a few days ago and then showed the Tribunal a copy of a document that appeared to be written in Arabic. He claimed he will try to obtain a translation of this document.
The applicant was asked why he had applied for a protection visa in a different name to the one that he had told the Tribunal was his real name. He responded that this was the name given to him by his adopted father. The applicant confirmed that he used both names. When asked how he decided which name to use on which occasion, the applicant responded that his old friends know him by one name and other friends know him by his new name, and then added that he used [Given Name 1] more often.
The applicant was asked if he used the same date of birth for both names. He responded that he used the date of birth [Date 7] when he used the name [the applicant]. When asked by the Tribunal to clarify that date, the applicant confirmed that it was [Date 7].
The applicant was asked why he did not have a passport in the name of [Name 2] if that was his real name. He responded that he used that name when he was young but as he grew up, he used [the applicant] instead, so that was the passport that he got.
It was pointed out to the applicant that his responses in relation to his name and date of birth created concerns about his real identity and he was asked to clarify his identity. The applicant responded that when a man adopted him, he was not capable of understanding because he was very young. However, he confirmed that he opened a bank account in the name of [Name 2] when he was around 18 years old. When asked why he continued to use this name as an adult, the applicant responded that at the time his adopted father told him to use his real name.
The applicant stated that his birth father’s name was [Mr O] and stated that although this man used to live in [Country 4] he was now back living in Ghana. When asked what years his father had resided in [Country 4], the applicant stated that he did not know because it was a long time ago. He claimed that his birth father had returned to Ghana around 1 ½ to 2 years ago, and confirmed it was after the applicant had arrived in Australia. He claimed that this man was now residing in the central region of Ghana, but the applicant stated that he did not know which city or town he was living in.
The applicant claimed that his birth mother’s name was [Ms P] and stated that she was no longer alive.
When asked to state the name of his adopted father, the applicant responded that it was [Mr Q] ‘or something’. The Tribunal asked the applicant if he could be specific about the name of his adopted father, rather than ‘or something’. In response, the applicant stated that the name was [Mr Q].
The applicant claimed that he did not know the name of his adopted father’s wife because the wife was not alive when this man adopted the applicant. When asked if he knew when this wife had died, the applicant stated that after he had grown up his adopted father had told him the wife had passed away. He confirmed his claim that his adopted father’s wife was not alive at the time when his adopted father started to take care of the applicant.
The applicant was asked when he was adopted by his adopted father. He responded that he was uncertain about the date, but it was sometime around 1992 after the war. When asked which war he was referring to, the applicant stated that it was the Nanumba-Konkomba war. He again confirmed that this war occurred in 1992.
The applicant was asked what had occurred during this war that required him to be adopted. He responded that everybody scattered, and people ran for their lives. The applicant stated that he followed a group, and his adopted father was the leader of this group, so he helped the applicant to escape from the war. The applicant confirmed that this man adopted him in 1992 and they lived in various places around Accra, before settling in [Town 2], which the applicant described as being on the outskirts of Accra. When asked how long he lived in [Town 2], the applicant responded that it was six or seven years or maybe more. He then claimed that he would travel to [Town 1] or to Accra, but he continued to live in [Town 2] until he came to Australia.

The applicant was asked to explain how he had a birth certificate in the name of [the applicant] if this was not the name that he had been born with. He responded that his adopted father had helped him to come to Australia. The applicant stated that his adopted father asked him which name he wanted to use, and the applicant chose [the applicant]. He added that without a birth certificate he could not obtain a passport.
The applicant was asked whether it was his evidence that he had obtained a false birth certificate in order to obtain a passport to travel. He responded that a lot of people know him by that name.
The applicant was asked if the certificate he had provided to the Department was the real certificate that evidenced his birth. He responded that the certificate was in his name.
It was pointed out to the applicant that he had earlier stated to the Tribunal that he had been born in [year] in [Country 4] but had provided a birth certificate to the Department indicating that he had been born in Accra on [Date 1] and the certificate contained a different name to the name he claimed to have been born with in [Country 4]. On this basis, he was again asked if he was asserting that this birth certificate was his actual birth certificate that evidenced his birth. The applicant responded that it was the certificate he used to come to Australia. He added that he had asked his sister and she had told him that he had been born on [Date 6].
The Tribunal pointed out to the applicant that the certificate he had provided clearly indicated he was born in Accra, Ghana on [Date 1]. He had not provided any other birth certificate to the Department or the Tribunal. On this basis, the Tribunal asked the applicant whether this was actually the true certificate evidencing his birth. The applicant responded that the Tribunal was right in some ways but wrong in other ways. He stated that he had been using this birth certificate for a while and he had it with him when he came to Australia.
The Tribunal stated to the applicant that it was simply trying to clarify whether the birth certificate he had provided was his true birth certificate or whether it was a false birth certificate. The applicant responded that this was the certificate he always used. He added that the one written in Arabic (which he had shown to the Tribunal earlier in the hearing) was the one his sister had given him after he came to Australia.
The applicant stated to the Tribunal that the person who was actually born on [Date 1] was the son of his adopted father who had passed away before the adopted father had adopted the applicant. The applicant claimed that after this man adopted him, he gave him the same date of birth.
The applicant was asked to clarify whether it was his evidence that he had assumed the identity of a dead child in order to obtain a birth certificate and a passport. The applicant responded that it was this child’s date of birth, but his adopted father had given this to the applicant after he had adopted him. The applicant then confirmed that he was using a dead child’s birth certificate and that he used this birth certificate in order to obtain a passport.
The applicant stated that in Ghana he sometimes worked in [area] and sometimes he [worked in different area]. When asked what he [did at work], the applicant responded that he would [perform specified tasks].
The applicant stated that he came to Australia to save his life from harm. When asked what harm he feared, the applicant responded that he feared killing and stuff. He added that he did not have a stable place to live and if people knew him and his family links then he would need to leave. When asked what the issue with his family was, the applicant responded that his family was the Dasani family. When it was pointed out to the applicant that his family name did not appear to be Dasani, he responded that this was true, but it was a big family, and it was easy to identify them.
The applicant was asked how a person with the name of either [the applicant] or [Name 2] could be identified as a member of the Dasani family. The applicant stated that he was not a Dasani but he had many friends and they often shared ideas from friend to friend so people would know he was associated with this family. When again asked to clarify how a person with his name would be identified as a member of the Dasani family, the applicant indicated that he did not know what the Tribunal wanted to clarify. He then added that his father was a Dasani which also made him part of the family.
The applicant was asked if he had experienced any problems in Ghana before he came to Australia. He responded that he had but did not elaborate.
The applicant indicated that he applied for a visa to come to Australia so that he could attend [an event]. He stated that he would [participate in the event] as a member of a [group]. He claimed that there were 11 members of the group of which six arrived in Australia together and then the rest came later. He claimed that his [group participate in this event] in Adelaide and stated that whilst in Adelaide he stayed at a motel for two days and then at a friend’s place for one day.

100. The applicant claimed that he did not apply for a protection visa whilst in Adelaide but moved to Sydney. When asked why he moved to Sydney from Adelaide, the applicant responded that he felt like moving there. He indicated that he did not know anyone when he arrived in Sydney but went there and made some friends upon arrival. He claimed that he flew from Adelaide to Sydney but when asked if he had any confirmation of the flight details, he indicated that he would look to see if he could provide them.
101. The applicant stated that he was married in Ghana. The Tribunal asked the applicant to provide the date of this marriage. After a long pause, the applicant stated that the marriage took place in 2000. When again asked if he could provide the date of the marriage, the applicant stated that it was in September 2000. He claimed that his wife’s name was [Ms R] and her family name was [Surname 2].
102. The applicant stated that he had three children. His eldest son was named [Child C], his daughter was named [Child D] and his youngest son was named [Child E]. The applicant was unable to recall the date of birth or the year of birth of any of his children. When asked if he could provide their approximate ages, the applicant stated that his children were aged [age] years, [age] years and [age] years respectively. When asked where his children were currently living, the applicant responded that there was only one child left. He indicated that his only living child was his youngest son, [Child E]. However, the applicant indicated that he did not know where this child was currently living.
103. The applicant stated that his first son had passed away together with his wife after the applicant had come to Australia because they had issues in [Town 1]. The applicant stated that this happened in 2017 but indicated that he could not remember the month. He added that when he was told about these deaths, he decided he could not go back. He confirmed his claim that his wife had passed away on the same day as his mother and his son. He confirmed his evidence that the son who had passed away was his eldest son, [Child C]. The applicant stated that there had been some clashes and fighting in [Town 1], shooting had started, and they died.
104. The applicant was asked if he had a copy of the death certificates of his mother, his wife and his son. In response, he claimed that he had provided the certificates to the Department after his interview. However, he then indicated that the document he had provided to the Department was the statutory declaration from his uncle, [Mr M], and not any death certificates. He claimed that he did not believe that any death certificates had been issued but added that he would call and see what he could obtain.
105. The applicant claimed that his daughter, [Child D], had died about one year later in 2018. He added that he had been told that she had suffered a heart attack and was around [age] or [age] years old when she passed away.
106. The applicant was asked if he could provide any birth certificates for his children. He indicated that he did not know if he could do so because when the fighting started houses had been burnt down. When asked why he could simply not apply to the registry to obtain new certificates, the applicant responded that they had passed away without any certificates.
107. The applicant stated that prior to coming to Australia he had travelled to [Country 3] in 2015 to attend an Islamic festival. He also stated that he had travelled to [Country 1] around 2016 to attend a similar festival and had also passed through [Country 5] on his way to Australia. When asked if he had ever travelled to any other country apart from the ones he had mentioned, the applicant stated that he could not remember but did not think so.
108. The applicant stated that he had obtained a new passport from Ghana since he had been in Australia. He indicated that he could not find the old passport that he used to travel to Australia and added that he had checked everywhere but could not find it. When asked how he managed to obtain a passport in Ghana if he was not present in that country, the applicant responded that everything was on computer now and they can simply print his passport from the old one. He added that he called a friend who worked in Ghana and this friend organised the new passport for him. He confirmed that his new passport had the same photograph on it as the passport he had used to travel to Australia.
109. The Tribunal pointed out to the applicant that he ought to be aware from the delegate’s decision record that the Department had issues relating to the damage that was apparent on his old passport. He responded that he did not know anything about that.
110. The Tribunal indicated to the applicant that the passport he had used to travel to Australia was dated [in] 2015, but the copy of the passport he had provided to the Department did not contain any stamps to indicate that he had travelled to [Country 1] in 2016. The applicant responded that maybe he had got the dates wrong and that perhaps he had travelled to [Country 1] in 2014 using a previous passport.
111. After a short break in the hearing, the applicant was asked to outline what problems he had experienced in Ghana before he came to Australia. The applicant responded that there had been an attack or a couple of attacks. When asked if he could be more specific about when these attacks occurred and how they had occurred, the applicant stated that there were just fights with someone. He added that four or five people tried to attack him, and he later found out that these people were from [Town 1]. He stated that he had been attacked over family issues because everybody wants to be a chief or a ruler. When asked why these people would want to specifically attack him, the applicant stated that they feared he might be a future leader and the other side tried to attack him to eliminate him.
112. The applicant was asked who in particular considered him to be a future leader. The applicant responded that in Ghana they have certain things they do that tell them a person will be a leader and then they attack this person. He added that if you understood the way chieftaincy works, it is all the same families and people are brothers, but they try to eliminate each other to clear their own path to the chieftaincy.
113. The applicant was asked if he had ever been offered a chieftaincy, and he responded that it had not happened yet. When asked why he thought he would ever be offered a chieftaincy, the applicant stated that it runs in the family and added that his father had refused a chieftaincy and had travelled to [Country 4] to avoid any harm. However, the applicant confirmed that his birth father was now living in Ghana again without having incurred any apparent harm. He added that since his father was still alive, he could pass the chieftaincy and the problems to his son.
114. The applicant confirmed that the chieftaincy problems were related to his membership of his birth father’s family and confirmed that this person’s name was [Mr F]. When asked if he had any documents or other evidence to confirm that this person was actually his father, given that the only birth certificate he had provided indicated that another person was his father, the applicant responded that he needed to translate the document he had in his possession into English.
115. The Tribunal asked the applicant what he feared about returning to Ghana now or in the reasonably foreseeable future. The applicant responded that he might be killed because of chieftaincy and political issues. He added that in Ghana the chieftaincy and political issues intertwine, with various branches of the family being associated with different political parties that caused troubles. However, the applicant indicated that he was not a member of any political party and although he had voted in elections, he had never been an open or active member of any political party in Ghana.
116. When asked if he had any other fears about returning to Ghana, the applicant stated that he had disposed of everything he had to leave the country and he had made up his mind to leave forever.
117. The applicant stated that in Australia he had travelled from Adelaide to Sydney, then travelled to Melbourne and had then come to Perth around 2020. He claimed that he had previously worked in [industry] in Perth but was now working with a [specified] company in the city. He added that he would like to learn joinery or butchery. The applicant stated that he was not currently married. The applicant also stated that he had nothing else he wanted to tell the Tribunal about his claims for protection.
118. The Tribunal expressed its concerns to the applicant that although he had provided names and dates of birth for his children to the Department, he had been unable to provide the dates of birth of his children in his evidence to the Tribunal. The applicant responded that he had forgotten the details. It was pointed out to the applicant that when he was asked to identify the rough ages of his children at the hearing, the ages he provided did not align with the dates of birth that he had provided to the Department, and he had not provided any birth certificates for these children. On this basis, the applicant was asked why the Tribunal should accept that he did have any children as claimed. The applicant responded that it would be best if he could get birth certificates for the children. When asked why he had not been able to provide such birth certificates in the five years since he had lodged his application for protection, the applicant stated that he did not know he would need them. When it was pointed out to the applicant that the delegate’s decision record made it clear that the dates of birth of the children were an issue, the applicant did not provide a response.
119. The Tribunal pointed out to the applicant that over time he had made three separate claims relating to which of his family members had been killed in the attack in 2017. In the application form that he had lodged with the Department he had claimed that it was his mother, his wife and his daughter who had been killed in this attack. At his interview with the delegate, the decision record clearly shows that he claimed that it was his mother, his wife and his youngest son [Child E] who had been killed in this attack. However, at the hearing, the applicant had told the Tribunal that it was his mother, his wife and his eldest son [Child C] who had been killed in this attack. On the basis of these three conflicting claims around the same series of events, the applicant was asked why the Tribunal should accept that this claim was true. In response the applicant said that he believed it was [Child C] who had been killed and that was the information that had been provided to him. When it was pointed out that his evidence in relation to this claim had changed over time, the applicant responded that maybe he had made a mistake in typing his application form, but he added that he did not really know.
120. The Tribunal asked the applicant why it should accept his claims that he was ever married or had children given that he had provided no marriage certificate, no birth certificates and his claims about the attack had changed over time. The applicant responded that he was married, and he did have children.
121. The applicant was asked why the birth certificate he had provided to the Tribunal, which he claimed was the birth certificate of his adopted father’s deceased son, appeared to contain the name of his adopted father as the father however also appeared to contain the name of the applicant’s birth mother, [Ms P], rather than the name of the deceased child’s mother. The applicant responded that he believed that [Ms P] was the name of his adopted father’s wife. He then claimed that this lady had the same name as his mother.
122. The Tribunal asked the applicant whether the birth certificate he had provided to the Tribunal was actually his true birth certificate. He responded that it was not. He confirmed that his real mother’s name was [Ms G], which was the name that was listed as the mother on the birth certificate. When again asked why the certificate would contain the name of his adopted father and his real mother, the applicant responded that this was what his adopted father did for him.
123. The Tribunal pointed out to the applicant that the evidence he had provided over time and at the hearing created a significant dilemma as to his identity. It was pointed out to him that if the birth certificate he had provided was not his actual birth certificate he could be deemed to have provided bogus documents to the Department, which would invoke the operation of s 91WA of the Act and which would require the Tribunal to consider whether the applicant had a reasonable explanation as to why he had provided such bogus documents. On this basis, the Tribunal asked the applicant if he could provide an explanation around the status of these documents. The applicant responded that he did not know what to say.
124. The Tribunal then pointed out to the applicant that if it found that the birth certificate he had provided was his actual birth certificate then this could lead to a finding that he was not the son of [Mr F] and therefore was not involved in any of the chieftaincy or political issues he had raised in relation to his claims for protection. The applicant was asked if he could provide any evidence that could resolve this dilemma. He responded that he did not know and added that his real certificate was the one in Arabic but the person on the birth certificate he had provided to the Department was his adopted father.
125. The Tribunal stated to the applicant that he had provided a birth certificate and a passport bearing the name [the applicant], and the date of birth on both documents was consistent. On the basis of these documents, the applicant was asked why the Tribunal should accept that he was actually born with the name [Name 2] rather than the name [the applicant]. The applicant responded that without a birth certificate you could not acquire a passport. He added that because his adopted father was in charge of him, they had decided to use this name. When asked if he had decided to use this name because it was his only name, the applicant stated that this was not the case.
126. The Tribunal pointed out to the applicant that it had some concerns about the content of the statutory declaration from his uncle, [Mr M], which the applicant had earlier highlighted to the Tribunal. The Tribunal pointed out that in this statutory declaration the uncle claimed that the name of the child killed during the conflict in [Town 1] in 2017 was [Child N]. Given that the applicant had not indicated to the Tribunal that he had any child by this name, the applicant was asked why the Tribunal should accept the contents of this declaration as being true and correct. The applicant responded that this was a family name. When it was pointed out to the applicant it was clearly not a name that he had indicated was the name of any of his sons, the applicant stated that sometimes a child may be called by his uncle’s or grandfather’s name. When it was pointed out to the applicant that the uncle had declared a legal document and it would be expected that he would attempt to get the details of such legal document correct, the applicant responded that maybe the uncle called the child [Child N].

127. The applicant was asked to clarify what the name of his adopted father was. Initially the applicant stated that his adopted father’s name was [Mr Q]. He then added that his name was [Mr Q extended variant].
128. The applicant was asked why all the documents provided over time listing the adopted father’s name, including the adopted father’s own statutory declaration and the birth certificate that had been provided, had listed this man’s name as [Mr J] or as [Mr J variant]. In response the applicant stated, ‘[Mr J] is like’ and then after a long pause added ‘[common name]’.
129. It was pointed out to the applicant that this man had chosen to give his name as [Mr J] on the statutory declaration provided to the Tribunal and had listed a similar name on the birth certificate. However, at the hearing, until the Tribunal mentioned the name [Mr J] the applicant did not appear to know the man by this name. The applicant responded that he called him father [Mr Q].
130. The Tribunal pointed out to the applicant that in previous documents he had submitted to the Department he had called this man [Mr J], yet he had not used this name at all at the hearing. On this basis, the Tribunal asked the applicant why it should accept his evidence as being true and correct in this regard. The applicant responded that everything in the documents was true.
131. The applicant confirmed his claim earlier at the hearing that he had never met the wife of his adopted father and that she had died before this man had adopted the applicant. It was pointed out to the applicant that in the statutory declaration provided to the Department in the name of the adopted father it was clearly stated that the adopted father and his wife had jointly decided to take care of the applicant and had jointly given him their deceased son’s name. It was also pointed out to the applicant that in the statutory declaration the word ‘we’ was used to signify that it was a joint decision between the adopted father and his wife. In response the applicant stated that he had never met the adopted father’s wife.
132. The applicant was asked to clarify why his adopted father would state in his statutory declaration that he and his wife had jointly found and looked after the applicant if this was not the case. The applicant responded that even if he had met this woman, he did not know that she was the wife of his adopted father.
133. Based on the conflict between the applicant’s claims and the contents of the statutory declaration, the applicant was asked why the Tribunal should accept that the statutory declaration was a true representation of the facts. The applicant responded that he had never met the wife.
134. The applicant confirmed his claims that his birth father had left Ghana to return to [Country 4] in 1992. The applicant further claimed that his birth father had left at that time because the Nanumba-Konkomba war had started, and his father wanted to avoid harm.
135. The Tribunal pointed out to the applicant that country information it had accessed indicated that the Nanumba-Konkomba war did not start until January 1994. Given the conflict between the applicant’s evidence and this country information, the applicant was asked why the Tribunal should accept the applicant’s claim in relation to his father departing Ghana for [Country 4] and the reasons for this departure. In response, the applicant stated that this was what [Mr J], his adopted father, had told him. He added that the war had started at that time, but it was not open yet, and claimed that the warring parties would attack people on their farms.
136. The Tribunal sought clarification from the applicant in relation to the countries he had travelled to before coming to Australia. In response the applicant stated that he had been to [Country 1] and [Country 3]. He had also transited through [Country 5] on his way to Australia. He then clarified that he travelled through [Country 2] on his way to [Country 3] by bus and further clarified that the only time he had been to [Country 2] was on his way to [Country 3].
137. The applicant stated that he would do everything he could to translate into English the document that was written in Arabic, which he had shown the Tribunal. He claimed that he had only received this document a few days ago. When asked if he had an original of the document that had been issued by the authorities in [Country 4], the applicant stated that he had a photocopy with him and a copy in his email. It was agreed that the applicant would provide a translated version of the document to the Tribunal by 20 September 2022.
138. When asked if he had anything else he wanted to mention to the Tribunal, the applicant stated that hopefully everything would be all right and that he would send an email to the Tribunal soon.
Post Hearing Submission
139. In an email dated 18 September 2022, the applicant stated that from the day he had submitted his application he had referred to both his real name and his adopted name, and the reasons why he had been given that name by his adopted father. The applicant stated that he could have kept quiet and maintained the name, however he wanted to be honest in completing such an official document and to answer all questions truly to the very best of my knowledge.
140. The applicant stated that he was born in [Country 4] and was now submitting a translated copy of his birth certificate in the name of [Name 2] issued in [Country 4]. He also stated that he had previously submitted a bank car bearing that name which he would use in Ghana.
141. In relation to death certificates, the applicant stated that he made a lot of efforts to obtain it however all deaths must be registered before a death certificate could be issued. He further submitted that the statutory declaration previously provided from [Mr M] and [Mr J] should be considered in relation to the deaths.
142. The attached translation indicated that the document provided was a birth notification that had been issued in [Country 4] on [date]. The notifcation recorded the birth of [Name 2] on [Date 6] at [Hospital 2]. The father’s full name was recorded as [Mr S] and the mother’s name was listed on that translation as ‘illegible [Ms T]’. Both parents were listed as being of Ghanaian nationality. The translation indicated that document contained the name and signature of the delivering doctor and the name and signature of the notifying party, being the father [Mr S]. The translation also indicated that the document contained tow rubber seals from the ‘[Country 4] Ministry of Health, Directorate of Health Affairs at [City 1], [Hospital 2], Birth Certificates’.
Second Tribunal Hearing
143. At the second Tribunal hearing the applicant provided the Tribunal with a copy of a bank card issued by the Ghana [Bank 1] in the name of [Name 2] with an expiry date of November 2015.
144. The applicant agreed that he had consistently told the Department and the Tribunal that his birth father’s name was [Mr F] or [Mr F variant]. He indicated that the spelling sometimes differed, but it was the same name. He added that the term [Term 1] or [Term 2] was sometimes added to the name. He claimed that this term indicated that the person had the potential to get a chieftaincy.
145. The Tribunal pointed out to the applicant that the translated birth certificate he had provided from [Country 4] did not list the father’s name as [Mr F] or [Mr F variant]. The applicant stated that he did not think this was his real birth certificate, but it was just a hospital report recording the birth of a baby around the time when the baby was being weighed. He added that he could not find the actual birth certificate.
146. It was pointed out to the applicant that the translation he had provided stated that the document was an ‘Extract Translation of Birth Notification’. The document contained official [Country 4] stamps, which would indicate that it was a document of some official status. The applicant responded that every country does things differently and he did not know how they did things over there.
147. The Tribunal again pointed out to the applicant that this document, which the applicant was claiming evidenced his birth in [Country 4], did not list the name [Mr F] or [Mr F] as the birth father but instead listed the name [Mr S] as the birth father. On this basis, the Tribunal asked the applicant why it should accept that this document was a notice confirming his actual birth as claimed. The applicant responded that it was a notice of his birth. When asked why a notice of his birth would not contain the name that the applicant consistently claimed was the name of his birth father but would instead have a different named listed, the applicant responded that the notice did have the name of the father on it. When it was pointed out that the name of the father was not the name he had provided, [Mr F] or [Mr F], the applicant responded that he did not know how they did things over there and claimed that it was very different over there. When asked how a different name would appear on the certificate, the applicant responded that he did not know and that it was very difficult.
148. The Tribunal pointed out to the applicant that country information from a variety of sources, including some sources referred to in the delegate’s decision record, indicated that document fraud was very common in Ghana. On this basis, the applicant was asked to comment on any concerns the Tribunal may have that some of the documents he had submitted over time may be fraudulent. The applicant responded that this was a document from [Country 4]. He further claimed that his sister had found it and then sent it to him. When asked if his sister was living in [Country 4] when she sent it to him, the applicant stated that she was not living there anymore and that she was now in [Country 6]. When asked if it was possible that his sister had obtained the document in Ghana rather than in [Country 4], the applicant stated that she could not have done so because she was in [Country 2].
149. The Tribunal pointed out to the applicant that he had stated that his sister was living in [Country 6] and then a few moments later had stated that she was living in [Country 2]. The applicant responded that the countries were close together and all the family was there. He added that his sister was living in [Country 2]. When asked why he would mention [Country 6] a few moments earlier if his sister was actually living in [Country 2], the applicant stated that his sister always went to [Country 6] to buy stuff, but she was living in [Country 2].
150. The applicant indicated that his sister had provided this birth notification document from [Country 4] to the applicant sometime after his interview with the Department on 20 September 2018, and he confirmed that the document had been in his possession for around four years. The applicant insisted that he had provided a copy of the document to the Department, however confirmed that he had only obtained a translation of the document a few weeks ago and had only provided the translation to the Tribunal.
151. When asked if he had anything else he wanted to add to his evidence, the applicant indicated that he had no other information that he wanted to provide.
FINDINGS AND REASONS
152. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
153. There are significant issues about the identity of the applicant and country of birth. However, the applicant arrived in Australia on a valid passport issued by Ghana and in all the claims he has made over time, including claims that he was born in [Country 4], the applicant has maintained that he is a national of Ghana and that he has no other nationality. There is no evidence before the Tribunal to contradict this claim. The Tribunal therefore accepts that the applicant is a national of Ghana and has assessed his claims accordingly
The applicant’s claims as to his identity and profile
154. The applicant arrived in Australia [in] February 2017 on a passport in the name of [the applicant] which was issued by the authorities in Ghana on [Date 8]. This passport included a photograph in the likeness of the applicant and stated that the bearer of the passport was born in Accra, Ghana on [Date 1]. The applicant has also provided a copy of a birth certificate issued in Ghana in the name of [the applicant] stating that this person was born in Accra, Ghana on [Date 8]. His Australian visa was also issued in the name of [the applicant].
155. At the first Tribunal hearing, the applicant stated that he had subsequently acquired a new passport from the authorities in Ghana in the name of [the applicant] with the same birth date and place details and bearing a photograph in the likeness of the applicant.
156. The applicant has also provided various other identity documents over time in the name of [the applicant], including a New South Wales photo identity card and a Western Australian photo identity card.
157. However, in his claims for protection made over time the applicant has claimed that [the applicant] is his adopted named given to him by his adoptive father and that his real name is [Name 2] or [Name 2 extended]. He has further claimed that he was actually born in [Country 4] and that his actual date of birth is [Date 6], rather than [Date 1].
158. In support of this claim the applicant has provided a birth certificate for [Name 2], which was issued in [Country 4] and which states that this person was born on [Date 6]. He has also provided a bank card issued by [Bank 1] of Ghana in the name of [Name 2] and statutory declarations from [Mr M] and [Mr J] attesting that the applicant had changed his name from [Name 2] to [the applicant].
159. The Tribunal accepts that the various different arrangements of the name that the applicant has claimed he was born with in [Country 4] are simply variations of the same name, including different placements of the surname within the arrangement of the full name. For consistency, the Tribunal will use the name [Name 2] when referring to the applicant’s claimed identity arising from his claimed birth in [Country 4].
160. The applicant has consistently claimed that, as [Name 2], his family hailed from [Town 1] in the northern region of Ghana, that the family returned to live there from [Country 4] when the applicant was an infant, that he was part of a Royal family with lineage to the chieftaincy or throne of the [Town 1] Paramountcy, and that by virtue of his family lineage and his birth in [Country 4] he is considered by some people to be a future candidate for this chieftaincy. He has also claimed that he was married to a woman in [Town 1] and that the couple had three children before the applicant came to Australia.
161. All of the applicant’s claims for protection arise from his claim that he was born [Name 2] and is perceived to be this person. This includes the applicant’s direct claims that are based on his claimed lineage to the chieftaincy in the [Town 1] region (through being born as [Name 2]) and the various disputes that have arisen over time around this chieftaincy, which it is claimed have created significant conflict in the [Town 1] region over time, as well as more general claims about ongoing tensions between Nanumba and Konkomba, between the Bam-Gyili and the Gbama-Yili and between the Dawuni and the Dasani/Dasana families, or ongoing tensions within the Dasani/Dasana family.
162. In summary, as discussed with the applicant at the first hearing, if he is [Name 2] who was born in [Country 4] and returned to [Town 1] as a young child, he then has a series of claims for protection based on this identity and associated profile. However, if instead he is [the applicant] who was born and raised in Accra, Ghana (without any link or perception of any link to [Name 2]) then these claims for protection based on his identity and profile as [Name 2] fall away.
163. Additionally, as [the applicant], in the absence of any identity or profile as [Name 2], the applicant has not made any claims for protection.
The applicant’s claimed identity at birth
164. The applicant has provided vague and contradictory evidence over time in relation to many aspects of his identity and his personal details arising from that identity.
165. In his evidence over time, the applicant has been consistent in his claims that he is really [Name 2], rather than [the applicant], and that he was born in [Country 4] on [Date 6].
166. The applicant has consistently claimed over time that the name of his birth father is [Mr F] or [Mr F variant] (which the Tribunal accepts are variations in spelling of the same name). The applicant confirmed this was the name of his birth father at both Tribunal hearings.
167. As pointed out to the applicant at the second hearing, the birth certificate he provided to the Tribunal to evidence the birth in [Country 4] lists the birth father as [Mr S]. When asked at the second Tribunal hearing to provide an explanation as to why he had not provided the name of his birth father as recorded on the birth certificate in his oral evidence to the Tribunal, at first the applicant stated that the document he had provided was not really his birth certificate but simply a hospital report of the birth. The applicant then claimed that the name he had provided over time, being [Mr F] or [Mr F variant], was listed on the certificate. The applicant also claimed that they did things differently in [Country 4], he did not know how they did things there and that it was very difficult for him to know how this had happened.
168. The Tribunal does not accept these explanations offered by the applicant. Despite the applicant’s claims, the translated certificate clearly does not contain the name [Mr F] or [Mr F variant] as the birth father. Instead, it states that [Mr S] is the birth father. Until this issue about the father’s name was raised with the applicant at the hearing, the applicant had insisted that the document he had provided was his actual birth certificate evidencing his claimed birth in [Country 4]. In addition, as pointed out to the applicant at the hearing, the document he provided bears official stamps which would indicate that it is an official document, whether it is considered as a birth certificate, a hospital record of birth or an extract of birth. The Tribunal does not consider the applicant’s claims that things may be done differently in [Country 4] or that he did not know what had happened as being plausible explanations for the difference between the birth father’s name as consistently claimed over time by the applicant and the birth father’s name that appears on the birth certificate provided to the Tribunal.
169. The Tribunal has placed significant weight on the inconsistency between the birth father’s name as consistently claimed over time by the applicant and the birth father’s name that appears on the birth certificate provided to the Tribunal when determining the applicant’s identity and place of birth because the Tribunal considers that the applicant should be able to clearly identify his father’s real name without doubt or contradiction, and that the name should be consistent with the name of the birth father that is recorded on the certificate that the applicant provided to the Tribunal.
The applicant’s wife and children
170. The applicant has not provided any marriage certificates, birth certificates or death certificates to verify his claims that he was married with 3 children in Ghana before he came to Australia or to verify the claimed demise of some of these family members. The Tribunal does not place any adverse inference on the failure to provide such certificates. However, in the absence of any such certificates to verify these claims, the Tribunal has considered the other evidence before it when assessing these claims.

171. The applicant has provided inconsistent, vague and contradictory evidence over time in relation to his claims that he was married with 3 children in Ghana before he came to Australia.
172. At the first Tribunal hearing the applicant provided vague, undetailed and inconsistent evidence in relation to the dates of birth and ages of his children. He could not recall the dates or the years in which any of his children were born. He did state that his children would be aged around [age] years, [age] years and [age] years respectively. These ages are inconsistent with the children’s’ ages based on the birthdate details provided on the applicant’s application form which listed the first child as being born on [Date 2] ([age] years old at date of hearing), the second child on [Date 3] ([age] years old at date of hearing) and the third child on [Date 4] ([age] years old at date of hearing).
173. The Tribunal has considered the applicant’s explanation at the first hearing that he had forgotten the details of his children’s birth but does not accept this explanation as it would be reasonable to expect that a father would be able to provide the dates or years of birth of his children and their ages with some level of detail and consistency. The Tribunal has also considered the applicant’s statement at the first hearing that it would be best that he provides the birth certificates of the children, but the Tribunal notes that the applicant has not done so at any stage since he lodged his application for protection more than five years ago.
174. The Tribunal has placed significant weight on the vague, undetailed and inconsistent evidence provided by the applicant at the first hearing in relation to the dates of birth and ages of his children because it would be reasonably expected that a father would be able to provide the dates or years of birth of his children and their ages with some level of detail and consistency over time.
175. The applicant has claimed over time that one of his children was killed in an incident that took place in February 2017, after the applicant had arrived in Australia. He has also claimed that his mother and his wife were killed in this incident.
176. However, over time, the applicant has provided directly contradictory evidence as to which of his three children had been killed in this alleged incident in February 2017. In the application form that the applicant lodged with the Department, he claimed that it was his daughter who had been killed in this attack along with his mother and his wife. However, at his interview with the Department, the decision record states that the applicant claimed that it was his youngest son, [Child E] or [Child E variant], who had been killed in this attack. Then, at the first Tribunal hearing the applicant stated that it was his eldest son, [Child C], who had been killed in this attack.
177. When asked at the first Tribunal hearing to provide an explanation for this directly contradictory evidence over time, the applicant insisted that it was his eldest son, Seidu, that had been killed based on the information that had been provided to him. He also indicated that he may have made a mistake in typing his application form. But he added that he did not really know.
178. The Tribunal has considered these explanations from the applicant in relation to this directly contradictory evidence relating to which of his three children had been killed in this alleged incident. However, the Tribunal does not accept these explanations as it would be reasonably expected that the applicant would be able to provide consistent evidence over time as to which of his children had been killed in this attack. In addition, even if the applicant had made a mistake in typing his application form, this does not provide a reasonable explanation for the further inconsistency between his claims at the Department interview and his claims at the first Tribunal hearing.
179. Based on the directly contradictory evidence over time as to which of his children had been killed in the alleged incident in February 2017, the Tribunal finds that the applicant has not been a witness of truth in relation to these claims.
180. The Tribunal has placed significant weight on the vague, inconsistent and contradictory evidence over time in relation to the applicant’s claims about his wife and children when making findings on the identity and profile of the applicant.
The applicant’s claimed adopted identity
181. The applicant has consistently claimed that he became separated from his family during armed conflict that erupted in the northern parts of Ghana in the 1990s, that he was found by a man who protected him from this conflict and was later adopted by this man. The applicant has also claimed that the name [the applicant] was given to him by this adoptive father in honour of this man’s deceased child. The applicant has further claimed that he chose to adopt this name as his own in honour of his adoptive father and that this is the reason why he is using this name.
182. However, the applicant has provided inconsistent and contradictory information over time in relation to this claimed adopted identity.
183. The applicant initially claimed at the first Tribunal hearing that his adoptive father’s wife had died before this man found and adopted the applicant. At this time, he also clearly stated to the Tribunal that he did not know the name of his adoptive father’s wife. He further claimed that he had never met this wife.
184. However, the statutory declaration that the applicant provided claiming to be from this adoptive father clearly indicated that both the man and his wife had found and adopted the applicant as a child and in this declaration the writer frequently used the word ‘we’ to suggest that both the man and his wife were involved in the applicant’s life after adoption. When it was pointed out to the applicant at the hearing that the statement in this statutory declaration directly contradicted the applicant’s own evidence to the Tribunal, the applicant responded that he had never met the adopted father’s wife.
185. Although the applicant has provided several variations of his birth mother name, he has consistently included the name [Ms P] in all of these variations over time, including at the first Tribunal hearing. When it was pointed out to the applicant at the hearing that this birth mother’s name appeared to be the name recorded on the birth certificate for [the applicant], the applicant stated that he believed that [Ms P] was also the name of his adoptive father’s wife. This claim was at odds with the applicant’s earlier claim at the hearing that he did not know the name of his adoptive father’s wife.
186. In relation to the name of his adoptive father, the applicant clearly stated at the hearing that this person’s name was [Mr Q] or [Mr Q extended variant], which the Tribunal accepts as being variations of the same name. However, as pointed out to the applicant at the hearing, this claim directly contradicted the documents the applicant had provided over time which listed this person’s name is either [Mr J] or as [Mr J variant]. The Tribunal has considered the applicant’s explanations for this contradiction that ‘[Mr J] is like [common name]’ and that he simply called this man [Mr Q]. However, the Tribunal does not accept that this is a plausible explanation for why the applicant did not mention the name [Mr J] as being part of his adoptive father’s name until it was pointed out to him by the Tribunal that this was the name contained in the official documents that the applicant himself had provided to the Tribunal, as it would be expected that the applicant’s own oral evidence at the hearing about this person’s name would have aligned with the name recorded on the document the applicant himself had provided in relation to this person.
187. Given this inconsistent and contradictory evidence over time from the applicant in relation to the names of his alleged adoptive father and adoptive mother, the Tribunal finds that the applicant has not been a witness of truth in relation to these matters.
188. The Tribunal has placed significant weight on the inconsistent and contradictory evidence over time from the applicant in relation to his alleged adoptive father and adoptive mother when making findings in relation to the identity and profile of the applicant.
Supporting documents
189. In making findings on the identity and profile of the applicant, the Tribunal has considered the supporting documents provided by the applicant.
190. The applicant has provided a statutory declaration from [Mr M], who claims to be the uncle of the applicant, in support of claims that the applicant had been adopted as claimed and in support of claims that members of the applicant’s family had been killed in an incident in February 2017. However, as pointed out to the applicant at the first hearing, in this statement the uncle claims that the name of the applicant’s child who was allegedly killed in this incident in February 2017 was [Child N]. In all of the applicant’s claims over time, he has not stated that he has any child by this name. The Tribunal has considered the applicant’s explanations at the hearing that this may be a family name and that a child may sometimes be called by his uncle’s or grandfather’s name or that maybe the uncle simply called the child ‘[Child N]’. However, the Tribunal does not accept this explanation because, as pointed out to the applicant at the hearing, it would be expected that a person completing a legal document such as a statutory declaration would take care to ensure that the correct name was used in this declaration. Accordingly, given that this statutory declaration uses a name for the applicant’s child that is not the given name of the child as stated by the applicant himself, the Tribunal has placed little weight on this statutory declaration when making findings in relation to the identity and profile of the applicant.
191. The applicant has provided a statutory declaration from [Mr J], who claims to be the adoptive father of the applicant, in support of claims that this person adopted the applicant and gave him the name that he has used on his passport and his application for protection. However, as discussed above, the name of this person as written on the statutory declaration is not consistent with the name of the person that the applicant has claimed to the Tribunal is his adoptive father. In addition, the statutory declaration clearly suggests that the adoptive father and his wife both found the applicant and raised him together, which directly contradicts the applicant’s own claims that the wife of his adoptive father had died before this person adopted the applicant. Also as discussed above, the Tribunal does not consider that it has been provided with reasonable explanations for these inconsistencies and contradictions between the statements made in the statutory declaration and the applicant’s own evidence over time. Accordingly, the Tribunal has placed little weight on this statutory declaration when making findings in relation to the identity and profile of the applicant.
192. The Tribunal has considered the birth certificate, or extract of birth, from [Country 4] provided by the applicant in support of the applicant’s claims that he is [Name 2]. However, as discussed above, the name of the birth father on this certificate is inconsistent with the name that the applicant has claimed over time is the name of his birth father and the Tribunal considers that it has not been provided with a reasonable explanation for this inconsistency. Accordingly, the Tribunal has placed little weight on this birth certificate when making findings in relation to the identity and profile of the applicant.
193. The Tribunal has considered the passport the applicant used to come to Australia, in the name of [the applicant], and the Department’s document identification examination report, which states that this passport was legitimately manufactured in the Republic of Ghana and further states that it is not possible to determine whether the damage observed on this passport was as a result of fraud and other causes. Given the finding that this passport was legitimately manufactured in the Republic of Ghana, and in the absence of any finding in relation to fraud, the Tribunal has placed significant weight on the finding that this passport was legitimately manufactured in the Republic of Ghana when making findings in relation to the identity and profile of the applicant.
194. The Tribunal has considered the birth certificate in the name of [the applicant] that the applicant has provided. Given the findings above that the applicant has not been a witness of truth in relation the names of his adoptive father and his adoptive mother and given that there is no evidence before the Tribunal to suggest this is a fraudulent document, the Tribunal has placed significant weight on this birth certificate when making findings in relation to the identity and profile of the applicant.
195. The Tribunal has considered the bank card in the name of [Name 2] issued by [Bank 1] in Ghana, which the applicant has claimed he used when he was in Ghana. Given that this card expired [in] 2015, which was some time before the applicant came to Australia in February 2017, and given that the applicant has provided no explanation as to why he did not renew this card when he was in Ghana despite the opportunity over time to do so, the Tribunal has placed little weight on this card when making findings in relation to the identity and profile of the applicant.
Findings as to identity and profile of the applicant
196. In relation to the applicant’s claims that he was married in Ghana and had three children and that his wife, his mother and one of his children was killed in an incident in February 2017, the Tribunal has placed significant weight on the applicant’s vague, undetailed and inconsistent evidence provided by the applicant at the first hearing in relation to the dates of birth and ages of his children and on the directly contradictory evidence over time as to which of his children had been killed in the alleged incident in February 2017. The Tribunal has also placed significant weight on the finding that the applicant was not a witness of truth in relation to his claims around the alleged incident in February 2017. The Tribunal finds that this inconsistent, vague, undetailed and contradictory evidence over time and the finding that the applicant was not a witness of truth, on which it has placed significant weight, far outweighs the statements contained in the statutory declaration from [Mr M], on which the Tribunal has placed little weight for the reasons outlined above.
197. Accordingly, on the evidence before it, the Tribunal finds that the applicant was never married in Ghana in the past as claimed, the applicant has never had any children in Ghana in the past as claimed and that no members of his family were killed in any alleged incident in February 2017 in Ghana.
198. In relation to the applicant’s claims that he was born as [Name 2] in [Country 4] and that he still has this identity and profile in Ghana despite using his alleged adopted name of [the applicant], the Tribunal has placed significant weight on the inconsistency between the birth father’s name as consistently claimed over time by the applicant and the birth father’s name that appears on the birth certificate provided to the Tribunal, as outlined above. The Tribunal finds that this inconsistency, on which it has placed significant weight, far outweighs the birth certificate or extract of birth from [Country 4], the bank card in the name of [Name 2] and the contents of the statutory declarations from [Mr M] and [Mr J] as the Tribunal has placed little weight on these documents for the reasons outlined above.
199. Accordingly, on the evidence before it, the Tribunal finds that the applicant was not born as [Name 2] in [Country 4] as claimed, and the Tribunal further finds that the applicant has no identity or profile whatsoever as [Name 2] in Ghana as claimed.
200. In relation to the applicant’s claims that he was adopted by a man in Ghana who later gave him the name [the applicant], the Tribunal has placed significant weight on the inconsistent and contradictory evidence over time from the applicant in relation to the names of his alleged adoptive father and adoptive mother and on the finding that the applicant was not a witness of truth in relation to these matters. The Tribunal finds that this inconsistent and contradictory evidence, and the fact that the applicant was not a witness of truth in relation to these matters, on which the Tribunal has placed significant weight, far outweighs the contents of the statutory declarations from [Mr M] and [Mr J] as the Tribunal has placed little weight on these documents for the reasons outlined above.
201. Accordingly, on the evidence before it, the Tribunal finds that the applicant was not adopted by a man in Ghana who later gave him the name [the applicant] as claimed.
202. Given the findings above that the applicant was not born as [Name 2] in [Country 4], that the applicant has no identity or profile whatsoever as [Name 2] in Ghana and that the applicant was not adopted by a man in Ghana who later gave him the name [the applicant] as claimed, given that the Tribunal has placed significant weight on the passport used by the applicant to enter Australia in the name of [the applicant] which has been found to have been legitimately manufactured in the Republic of Ghana and on the birth certificate in the name of [the applicant], the Tribunal finds that the applicant was born [the applicant], that he was born in Accra on [Date 1], that he has only ever been known as [the applicant] and that he does not have any identity or profile whatsoever as [Name 2].
Claims for Protection based on applicant’s identity
203. As outlined above, the applicant’s only claims for protection arise out of his claimed lineage to this chieftaincy or throne of the [Town 1] Paramountcy and the various disputes that have arisen over time around this chieftaincy, which have created significant conflict in the [Town 1] region over time. The applicant’s associated fears of harm in Ghana arising from this claimed lineage only arise if the applicant is [Name 2], as claimed, on the basis that he would be perceived as having this identity and profile by people in Ghana despite having adopted the name of [the applicant].
204. However, the Tribunal has found that the applicant is not [Name 2], that he was not born with the name [Name 2], that he was not adopted by a man in Ghana who later gave him the name [the applicant] and that he does not have any identity or profile whatsoever as [Name 2] in Ghana as claimed. The Tribunal has also found that the applicant was born [the applicant], that he was born in Accra on [Date 1], that he has only ever been known as [the applicant] and that he does not have any identity or profile as [Name 2].
205. On the basis of these findings, the Tribunal finds that if the applicant returned to Ghana now or in the reasonably foreseeable future there is no real chance that he would face any harm for any reasons associated with any identity or profile as [Name 2], including any claimed issues arising from any dispute associated with the chieftaincy or throne of the [Town 1] Paramountcy or any claimed issued arising from ongoing tensions between Nanumba and Konkomba, between the Bam-Gyili and the Gbama-Yili and between the Dawuni and the Dasani/Dasana families, or any claimed issues arising from ongoing tensions within the Dasani/Dasana family.
206. The applicant has not made any claims that he fears harm for any other reason in Ghana, and no other claims arise on the facts before the Tribunal.

207. Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
208. 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).

210. The Tribunal has already found that if the applicant returned to Ghana, he would not face any harm for any reasons associated with any identity or profile as [Name 2]. Apart from these claims, the applicant has not made any claims that he fears harm for any other reason in Ghana and no further claims arise on the facts before the Tribunal.
211. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Ghana. 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).

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

213. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
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 4802

24 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction