1904506 (Refugee)

1904506 (Refugee) [2024] AATA 4070 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Sabinus Robi
CASE NUMBER: 1904506

COUNTRY OF REFERENCE: Ghana
MEMBER:Paul White
DATE:10 October 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – trade union activist – corruption – visa scandal – fear of detention – fear of killing – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old citizen of Ghana who arrived in Australia [in] March [2018] on a visa associated with [his profession]. The applicant applied for the visa under review on 25 October 2018 (PV application).
The applicant attended an interview with the delegate on 10 January 2019. The delegate refused to grant the visa on the basis that she did not accept that the applicant holds a genuine fear of fear of arrest, harm, or death in Ghana. She did not accept the applicant had adverse information about Ghanian politicians involved in the Commonwealth Games visa fraud and in any event that matter was dealt with in mid-2018 including by dismissal of government officials involved in the fraud.
The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted without the use of an interpreter as the applicant is fluent in English. The applicant was represented in relation to the review. The applicant gave evidence about his background, his migration history, and his claims for protection.
The applicant’s background
The applicant lived in the Greater Accra Region, the smallest area of Ghana's 16 administrative regions, for most of his life. The applicant and his Ghanaian partner who is [studying] in Australia have [number] children born in Australia. [Children’s gender and ages deleted.] Neither the applicant or his partner have relatives in Australia.
The applicant is tertiary educated and studied [subject] at college level. He worked as a manager of [an occupation 1] company then did his national service for a year providing administrative and operational support to [Agency 1] in Ghana and [an occupation 1] company.
In Australia the applicant works full time with one client as [an occupation 2] with an organisation called [Organisation 1]. He has been doing this for two or three years. Prior to that he worked for a [business 2] in Sydney and prior to that with a [business 3] for more than one year.
Claims to the Department
The applicant submitted signed written claims to the Department including the following.
I'm applying for a protection visa in Australia as a member of a particular social group - A victim facing a real risk of harm and potential persecution in Ghana due to the [Agency 2’s] 21^st Commonwealth Games visa scandal caused by its officials and agents of who deceptively provided Australian visa to me and others.
When I was in Ghana, a friend of mine called [Friend A] introduced me to one [Mr A] of [Business 1].
[Mr A] helped me to get a visa to travel to Australia. I was accredited to provide [work] for the Ghana Commonwealth Games team. I was issued a visa accredited as [an occupation 3] for [Agency 3]. [Mr A] charged me $[amount] for procuring the visa for me, which I paid in full before receiving the visa and leaving Ghana.
As I entered Australia, I found out that the [Authority 1] in Ghana has provided a visa for more than [number] individuals whom they declared as [occupation 3s] and charged them fees because they were desperate to leave Ghana for different reasons.
Some of my friends I met at the airport and on the plane to Australia were deported and were arrested on their arrival in Ghana. Some of the deportees are still in police custody without being formally charged. From information, I received from friends in Ghana, those politicians and influential people who provided the visa are threatening the lives of those who were deported, and they are afraid to provide the names and the means of how they got their visa to travel to Australia. I am facing the same predicament for fear of returning to Ghana where I am completely sure my life will be in total danger and be arrested by the police without any proper protection from the government at all. I'm prepared to mention names, but I'm afraid of the consequences which may cause death in the hands of thugs who will stop at nothing to protect those in power. I had no means of getting the visa to travel to Australia if it wasn't for the government officials who provided the visa for money. Now, these same officials will stop at nothing to protect their reputation. That is, to use drastic means to put my life in danger. For that reason, I am afraid of returning to my country for fear of my life.
Now I am stranded in Australia afraid to return to Ghana where people in power and the protectors are prepared to do anything sinister to shut me and others up for fear of revealing how we got the Australian visas. The Ghana government has made it clear that they will prosecute those who travelled to Australia posing as the game's official. The person who applied for the visa on my behalf declared me as [an occupation 3] official, which I wasn't aware of until I received the visa.
Harm suffered in Ghana
Before my departure from Ghana, I didn't suffer any harm, but I now face a real a potential risk of harm if I return to Ghana because of information I have against the officials who provided me with the visa to travel to Australia.
What I think will happen to me if I return to Ghana
My friends are in fear of their lives as they have been warned by those protecting the officials to keep out of the media and keep quiet about the visa scandal. And if not, they will pay the price with their lives. I don't want to risk going back to such a life-threatening situation. I believe I'm likely to be harmed and mistreated if I return to Ghana and I have no means of protecting myself against those politically powerful people in Ghana and their thugs who are notoriously brutal people. In the meantime, the person who assisted us in obtaining our visas is currently suspended by the government pending further investigations. Furthermore, those officials are powerfully surrounded by their bodyguards and thugs who can make my life a living hell If I returned to Ghana. I know that if the government prosecutes me, as they have indicated in the media, I'll not keep quiet, which in turn would put my life in danger.
Why I think the authorities will not protect me if I am forced to return to Ghana.
The Ghana state authorities will be unwilling to provide me with adequate protection, and the government itself is looking forward to prosecuting me and others who travelled to Australia due actions of its officials who provided me with a visa to travel to Australia. Therefore, I'm up against a government, and its officials who would not protect me or guarantee my safety if I'm forced to return to Ghana. The authorities in Ghana including the police can't protect me because I am up against powerful political government officials who have the power to order someone to harm or kill me without any criminal consequences.
The applicant was interviewed by the delegate. During the interview with the delegate, amongst other things, the applicant was asked
a.the reason he lodged and PV application;
b.why he lodged a PV application;
c.why he took the risk of coming to Australia on an invalid visa;
d.whether he had anything else to raise; and
e.about his delay of some months in making his PV application.
The applicant confirmed his claim was based upon the above facts. He paid $[amount]USD for his visa to come to Australia and people who arranged it were connected at high levels in Ghana. the applicant does not want to be exposed to them because they will do anything, and he is ready to talk if he goes back to Ghana.
The applicant indicated he did not know the people who were responsible for the fraudulent visa scheme. The applicant knew that he got his visa based on false information by claiming he was [an occupation 3].
The delegate pointed out that it would appear he would face prosecution not persecution if he returned to Ghana. The applicant said that he wasn't following the details of the investigation in Ghana. He was not in touch with people who came with him who were also involved in the fraud as they came in different groups. The delegate put to him that he had no information of significance to give the authorities in Ghana because he didn't know anything. He said he would do some investigations.
Claims to the Tribunal
In pre-hearing submissions prepared for the Tribunal the applicant submitted through this adviser
… that at the time he lodged his application for a protection visa, he did not have the assistance of a migration agent and or a person that was knowledgeable about the Australian migration law and its regulations. He instructed that this was the reason why he did not fully disclose the additional claim that is disclosed in this submission. This claim being he was actively involved in low-level union activities to campaign for better working and safety conditions of the [named] industry employees, where he worked in [occupation 1].
…. his original claims of fear of returning to Ghana because he would be arrested, denied a fair trial and even killed are true and that his testimony at the interview with the delegate of the Minister of Home Affairs, is true and was not concocted to support and or enhance his claims for protection.
It is true that he is not [an occupation 3] by profession and has never been one in Ghana. He left Ghana because of the intimidation and harassment he suffered, because of his activism fighting for the rights of workers in the [occupation 1] industry in Ghana. He wanted this marginalized part of the workers, the [occupation 1s], to form their own trade union and campaign for better working conditions. The government of Ghana did not like what he was doing and hence he was constantly intimidated, harassed, and threatened by government agents to stop his activities. These agents, who are themselves corrupt were bribed by the bosses in [his] industry to ensure that [occupation 1s] were not organized as a union because that would have meant better conditions such as wages. Ghana has enacted a Labour Act 2003, which in theory provides for rights on workers to organize or join a trade union under section 79. However, whilst these rights are in the law, sections 128 to 1312 of the Act, imposes stringent restrictions on what employers and employees can do in regard to trade union activities.
The Act has in theory given rights and in practice taken them away. lt has become impossible and dangerous for employees particularly in the [occupation 1] industry to be able to organize and agitate for their rights. Workers in the [occupation 1] industry are exploited most because most of us are semi-skilled and work in casual labour conditions, which makes it difficult to organize safely. Wages are low and the work is often dangerous. The Commonwealth games were seen as opportunity to come to Australia, a country that is advanced in its economy and obviously in workers' rights. On the visa fraud issue the applicant never intended to commit a visa fraud to come to Australia. He heard rumour that one could come to Australia with the Commonwealth team as a member of the [support] group. He was told that a fee was payable for those wanting to join the Ghana Commonwealth team as [support group] members. He raised the money with a genuine intention to join the team. He was presented as [an occupation 3] by the organizers and money collectors and only realized of his [occupation 3] credentials after he arrived in Australia. He genuinely wanted to travel to the Australia in search of freedom from a country that he believes has let him down as a young adult by depriving him the opportunity to exercise his rights to join or form a trade union.
Ghana is very corrupt[1] and does not uphold human rights to workers such as those upheld by Australia. In Ghana corruption exists in all branches of government, and there is often a lack of accountability. The judiciary and police are viewed as the most corrupt[2]. It was in this environment of corruption that he fell victim to and wanted to leave the country for Australia, where he heard workers have human rights, and are not exposed to intimidation and persecution. To accuse him of a planned visa fraud scheme, would be tantamount to blaming him for the corrupt environment created by the Ghana Government.
[1] Overview of corruption and anti-corruption in Ghana in Ghana, Transparency lnternat;fonal, 11 September 2018; Nana Akufo-Addo administration controversies, WlKIPEDIA; Journalist who uncovered corruption in Ghanaian football shot dead, < uncovered-corruption-in-ghanaian-football-shot-dead/
[2] Ibid, Overview of corruption and anti-corruption in Ghana, Transparency International, pp. 1-16.
He was never part of a conspiracy theory by Home Affairs, that he participated in a visa fraud scheme and that he knew or ought to have known that such a scheme existed. He just wanted to leave Ghana at any cost, because of what he was going through in the [occupation 1] industry.
Fear of returning to Ghana
The applicant claims he fears harm if he was sent back to Ghana because those criminals who planned and executed the Commonwealth visa scheme are waiting to attack him and silence him because they want the scheme not exposed, for the reason that top people in the sports bureaucracy were involved.[3]
[3] Ibid, Journalist who uncovered corruption in Ghanaian football shot dead.
The Ghana government would not protect him against harm, because as noted, the police and the judiciary are corrupt and hence he would not receive a fair trial. For example, a Ghanaian Sub-committee investigating the charges of visa fraud in regard to the Commonwealth Games in the Gold Coast, has claimed that its efforts have been hindered by the "uncooperative attitude of the Australian Border Control and the Ghana Immigration Service.[4] Hence until today, no government senior official has been prosecuted in relation to this "visa scandal".
[4] < -games>; Nana Akufo-Addo administration controversies, above.
He fears he would be arrested and his life at risk because neither the visa scandal organizers, those involved in general and the sports national body corrupt bureaucrats, would support him. They would treat him as enemy number one.
It is now clear that people in high-level government possibly organized the "visa fraud scheme" because the Ghana Government has taken no steps to expose them and punish them.
The applicant’s adviser submits that the applicant has sufficient reasons under s36(2)(a) of the Act, to be granted a protection visa;
-             He is a member of a particular social group, being that of trade union activist, who was persecuted and would continue to be persecuted if he returned to Ghana.
-             The Ghana Government would arrest him, detain him and not provide him opportunity for a fair trial because the judiciary is corrupt.
-             The delegate of the Minister of Home Affairs made an exaggerated and incorrect conclusion that the applicant willingly became engaged in an illegal activity when he obtained the Australian visa in Ghana.
-             The visa process regime in Australia is complex and hence the applicant did not deliberately delay his application for protection, as observed by the delegate of the Minister.
-             The applicant's fear of harm if he returns to Ghana is well-founded and that he has a real chance of being subjected to persecution.
The applicant is a person whom Australia should consider granting a protection visa on complementary protection criteria (s36(2)(aa), should he not satisfy the criteria under s36(2)(aa) of the Act.
Tribunal hearing
The applicant’s evidence at the hearing added detail to the claims set out above. The applicant said he had never been a member of a trade union in Australia and had not taken part in any union activism. He did not join the union in Australia because working conditions are better, and rights are respected. He said he is not committed to trade unionism as such but only fought for the rights of [occupation 1] workers in Ghana. In relation to his claim about being involved in trade unions I asked the applicant why he had not simply told the truth to the delegate given that he had been had various opportunities to do so. He said he thought the visa issue was his only issue and he did not get advice.
The applicant explained how he went about supporting worker’s rights. He claimed that through [an occupation 1] company called [Business 2] he could see that there were difficulties for [occupation 1] workers. The applicant did not articulate exactly why and how his company was likely to assist as it appears that [Business 2] was in competition with other [occupation 1] companies. He has never been part of a registered trade union and was not in any way affiliated to any of the trade unions like the GTUC or the Federation of Unions in Ghana.
The applicant is not a union activist. There was no name for what they were doing they were just representing his company and trying to advocate for rights of workers. In any event the applicant indicated this this company went out of existence soon after his departure. He was trying to enlighten people to the rights of [occupation 1] workers by ensuring they were receiving adequate wages, had a good work environment, and safety issues were taken care of. He claims that big companies did not like their attitude and wanted to pay workers less to. He claims their work was sabotaged.
The applicant said no one paid a contribution to his trade union work and ultimately the work was unsuccessful. He has nothing to do with the group now because they've stopped functioning. The applicant claimed for the first time at the hearing that one of his friends was harmed. He was attacked going home, probably by a competitor. The applicant has no evidence about this one incident that he claims could result in harm for himself should he return to Ghana. I asked the applicant who would actually harm him should he return to Ghana and he said the big companies would make sure he didn't get a job.
I put to the applicant that the matter of visa fraud had been dealt with by the government in Ghana. The applicant said he didn't know anyone who had been harmed either by the government or anyone else in Ghana because of the visa fraud. He said he knew nothing about the details. I indicated a Minister had been sacked and may have been reinstated again. The applicant said no details we made available on the Internet. The applicant said he would be detained and arrested for fraud for coming to Australia on the visa and the government would harm him because they want to cover up. He would be arrested and harmed, and no one will know about it as the government do not want people to know about what happened. I put to him that it was pure speculation because he was unable to provide any evidence that would support a claim for refugee status.

In relation to section 423A of the Act the applicant’s advisor said that the applicant had no assistance in making his application initially and he did not raise the claim because he didn't consider it with something relevant to the refugee convention. The advisor submitted that Ghana is broke because of corruption and so these are is a sensitive topics in Ghana. He said criminal gangs may be involved said the applicant was desperate to get out. The advisors submitted that the applicant had not been involved in trade union work in Australia because he had been busy with his family, and he had been busy working.
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
It is the applicants’ responsibility under s 5AAA of the Act to specify all particulars of their claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The purpose of the legislative amendment which created that responsibility was “to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible”.[5] The provisions in ss 5AAA and 423A act together to discourage delay and the submission of fresh claims or evidence to bolster existing claims in the absence of a reasonable explanation.[6] In circumstances where the applicants have raised a claim or presented evidence that was not first raised or presented before the delegate’s decision, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of that claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision made by the delegate.
[5] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth), [74].
[6] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475, 489 [55] (Robertson, Murphy and Kerr JJ); 1819304 (Refugee) [2024] AATA 1971, [20] (Senior Member GAF Connolly).
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.
Analysis, reasons, and findings
I find that the applicant is a Ghanian citizen based on the applicant’s place of birth, the fact that he travelled to Australia on a genuine Ghanaian passport, a copy of which is contained on the Departmental file and that he has at all times maintained that he is a citizen of Ghana. I have assessed his claims against Ghana as his country of nationality and the ‘receiving country’.
The issues in this review are whether there is a real chance that, if the applicant returns to Ghana, he will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose 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 being removed from Australia to Ghana , there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
The applicant’s claims and the evidence presented by him to the Department, and to the Tribunal are not sufficient to enable me to be satisfied that he faces a real chance of serious harm in Ghana or that 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 she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In sum, the applicant claims he will face a real chance of serious harm due to his support for workers’ rights prior to his departure from Ghana and because he left Ghana on a fraudulent visa.
The applicant raised an issue relating to his involvement in trade union activities notwithstanding he was not and never has been a member of any trade union. He said he is not a trade union activist. The applicant claimed he advocated for worker’s rights through a company he was involved with that has gone out of existence. The applicant raised this issue for the first time when his solicitor made submissions to the Tribunal that were received on 7 July 2024.
I note that during the immigration interview the applicant was asked several times in different ways about his PV application. The applicant was asked; what is the reason you lodged your PV application? His answer related to issues of visa fraud becoming a news item in Ghana. He was asked; why have you lodged your PV application? His response was people who went back were arrested and questioned. He was asked; why did you take the risk of coming to Australia on an invalid visa? And why he delayed for so long in making his application? He explained that he was frustrated and scared. Further in the PV application the applicant wrote that before his departure from Ghana he did not suffer any harm in Ghana. And that he did not seek help in Ghana because the threat to his safety and fear for his life started when friends he arrived with were deported to Ghana by Australian immigration officials. In other words the applicant was given many opportunities to provide truthful and accurate information to the Department.
I note the applicant claims his lack of knowledge about the law is the reason he did not make this claim. Given the number of opportunities the applicant had to raise this issue I am not satisfied he has provided had a reasonable excuse for not raising the claim earlier. In making this assessment I note that the applicant has signed each page of his statement referred to above which indicates he had the degree of sophistication that I would expect from a college graduate. Further he was unrepresented yet produced a statement of high quality with his PV application. He had opportunities to raise this issue in response to specific questions from the delegate and failed to do so. The applicant is articulate in English, educated to college level, and appears to have the capacity to identify and articulate any fears he has. I am not satisfied the applicant has a reasonable excuse for not raising this claim to fear harm because of his dispute about worker’s rights in Ghana earlier. I reject this claim. It follows that I also reject the claim that the applicant made for the first time at the hearing that one of his friends was attacked going home, probably by a competitor and any other claimed fears that flow from this issue.
I find the applicant is not a credible in making claims relating to his involvement in worker’s rights. I find the applicant’s claims to fear harm for reasons of his support for worker’s rights are not true. I do not accept the applicant has in the past been targeted for any involvement in supporting worker’s rights and I do not accept there is a real chance or real risk that any person or group would seek to harm the applicant for reasons of his involvement in supporting worker’s rights now or in the reasonably foreseeable future.
The applicant claims he fears harm if he was sent back to Ghana because criminals who planned and executed the Commonwealth visa scheme are waiting to attack him and silence him because they do not want the scheme exposed, for the reason that top people in the sports bureaucracy were involved.[7] He fears he would be arrested and his life at risk. And that the government in Ghana would not protect him against harm because the police and the judiciary are corrupt and hence he would not receive a fair trial.
[7] Ibid, Journalist who uncovered corruption in Ghanaian football shot dead.
I accept that the ‘Australian visa scandal’ caused a considerable amount of adverse publicity in Ghana in 2018 which resulted in the Criminal Investigations Department conducting an investigation, some officials being recalled from Australia, some officials being suspended and subsequently reinstated to their positions and the President not releasing to the public the report prepared by the Criminal Investigations Department following its investigations and provided to the President in July 2018. Since then there have been no known reports in the media about Ghanaian officials being charged and prosecuted in relation to the ‘Australian visa scandal’.
The applicant has provided no credible evidence to indicate that he faces a real chance serious harm for reason of his involvement in the visa fraud. The issue of the ‘Australian visa scandal’ received a significant amount of media interest and reporting in Ghana, Australia and elsewhere. I would expect that if any deportees or returnees from Australia have been or are being prosecuted in Ghana or have been threatened or harmed by corrupt officials or others there would be some reporting about it in the media. I am unable to find any reports to that effect. This does not mean that there have not been any prosecutions or threats of harm or harm from corrupt officials or their associates to deportees or returnees to Ghana, the lack of media reports in these circumstances is significant in terms of how the issue is perceived.
In relation to Ghanaians being prosecuted on their return to Ghana, the country information indicates that over fourteen deportees from Australia were briefly detained by the Ghana Immigration Service to ‘assist in investigations’ and then released.[8] Country information also indicates that, following its investigation, the Criminal Investigation Department reported that eight people would be arraigned in relation to visa fraud but they have never been prosecuted or taken before the Court.[9]
[8] ‘GOC Deputy Secretary office ransacked’, The Ghanaian Times, 11 April 2018, CXBB8A1DA32683.
[9] ‘Australia visa scandal: Culprits not prosecuted; Documents from High C’ssion not received’, Graphic Online, 17 September 2019. (Australia visa scandal:Culprits not prosecuted; Documents from High C’ssion not received - Graphic Online)
The applicant was not aware of country information about those he arrived with in Australia. He has not contacted any of them. It is now 6 years after the ‘scandal’ and there is no publicity surrounding the applicant, and he has not provided supporting evidence to show he is of interest to the Ghanaian authorities. I am satisfied that he would not be at risk of serious harm or significant harm if he returns to Ghana now for reason of visa fraud but that he would be seen as just another Ghanaian returning from overseas.
I do not accept that the applicant has any information about officials who provided him with the visa to travel to Australia. The Ghanaian government does not appear interested in scandal. I do not accept he will be scapegoated to hide facts. And in any event it is his evidence that he has no facts of significance about the people involved because he worked through an agent. I do not accept the applicant is “stranded” in Australia or that he fears returning to Ghana where people in power, their bodyguards and thugs, or others are prepared to take action to silence him for fear of him revealing how he got his Australian visa.
The country information indicates that the government knows what happened in the visa scandal and which officials were involved, but the investigation report has not been made public and there appears to be little political will to publish the report or to hold anyone to account. Nobody has been prosecuted in relation to the visa scandal which now occurred around four years ago. Country information does not indicate that there have been repercussions for individuals who purchased the visas or that individuals have been harmed or killed in an effort to silence them.[10] The applicant claims information does not end up on the internet. I do not accept this response as it is not supported by the country information.
[10] (accessed 7 April 2022); (accessed 7 April 2022); (accessed 7 April 2022); (accessed 7 April 2022) (accessed 4 March 2022); (accessed 4 March 2022); (accessed 4 March 2022); (accessed 4 March 2022)
In view of this country information, I am not satisfied that there is a real chance or a real risk that the applicant will be detained, charged and prosecuted by the government in relation to the ‘Australian visa scandal” if he returns to Ghana now or in the reasonably foreseeable future.
I find that if the applicant returns to Ghana in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul White
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.
…

[2024] AATA 4070

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal