1908786 (Refugee)

1908786 (Refugee) [2023] AATA 3926 (4 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1908786
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Katherine Harvey
DATE:4 August 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 August 2023 at 1:10pm

CATCHWORDS
REFUGEE – protection visa – Ghana – Christian – farmer – not a reliable, credible and truthful witness – propensity to tailor evidence in a manner that achieves his own purpose – fabricated claims for protection – would not be targeted by the Fulani now or in the foreseeable future – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 15 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Ghana (Ghana) and is [age] years old. He arrived in Australia [in] March 2018 travelling on a Ghanaian passport as the holder of a temporary activity visa.
On 20 October 2018, the applicant applied for a protection visa.
On 15 March 2019, a delegate of the Minster refused to grant the visa.
The review application
On 10 April 2019, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 1 September 2022, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 October 2022 and to provide all documents he intended to rely on to support his case by 27 September 2022.
On 28 September 2022, the Tribunal wrote to the applicant and advised that it had not received a hearing response or further submissions. The applicant did not respond.
The applicant appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal determined that it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Akan and English languages and the interpreter joined the hearing from Ghana. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
The Tribunal did not find the applicant to be a reliable, credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to significant inconsistencies in his evidence, the unpersuasive nature of some key aspects of his claims and other reasons detailed below.
Background
The applicant’s personal details are set out in his application for protection. He is a [age]-year-old man who was born in [Town1], Asante, Ghana. In his application he claimed that he belongs to the Ashanti ethnic group, is a Christian, that he can speak, read and write Twi (Akan) and English and that he had never married. He claimed that he worked as a [Job 1] and driver in Ghana and was part of the executive of the [Town 1][a Organisation 1] In Australia, he works for a [Company 1].
In his application, the applicant provided details about his parents, siblings and [child]. At the hearing, he said that his [child] lives with her mother and her mother’s husband near [Town 1] in Noboam.
Country of reference
The applicant claims that he was born in [Town 1], [District 1], Ghana and he provided a copy of the biodata page of his Ghanaian passport with his application.
The Tribunal is satisfied that the applicant is a citizen of Ghana and that Ghana is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
In his protection visa application and a personal statement provided to the Department before his interview with the delegate, the applicant made the following claims.
He claimed that he left Ghana to represent Ghana in [an event]in the [City 1] with three other [individuals of Association 1]. He heard of people paying for visas but believes that none of the [Organisation 1] foundation executive paid for their visas and instead got them because of their patriotic involvement in their community and constant fighting for the development and betterment of the people in the [Town 1] community.
He applied for a 407 training visa after a past [Town1] [District 1] native now residing in [City 1] told them that he is organising a community outreach centre in Ghana and offered to train them to go back and assist the community.
He claimed that the incidents that caused his apprehension and to fear harm occurred after he arrived in Australia. In June 2018, the leader of [Organisation 1] [District 1] told him of an incident involving the leader’s[family], but he thought that did not affect him or his family as he had not been in the eyes of the camera and media.
He claimed that the Fulani herdsmen are treacherous and wicked and have been robbing, killing and terrorising the [Town 1] community for decades. One of [Organisation 1] ’s missions was to expose them to international authorities to force the government to solve the issue, including enforcing a High Court judgement from 2012.
He claimed that in August or September the caretaker of [Organisation 1[and his [daughter] were shot one night in the caretaker’s shop. They were taken to hospital and survived but the caretaker no longer wants anything to do with [Organisation 1] or the community.
He claimed that the incident with the caretaker has made him fearful that his life will be cut short and that there is a high risk that if he goes back to Ghana now he will be targeted and killed by the Fulani.
He claimed that it is highly possible he will be killed by gunshot, machete wounds or lynching by Fulani herdsmen.
He claimed that the authorities would not protect him based on his assessments of all the incidents that have occurred to the family of his colleagues in the same association, and especially the recent incident that happened to an interim overseer of the association, and that the police have not been able to do anything because of corruption and greed.
The Fulanis are located all over Ghana and West and East Africa. Accordingly, it is likely he would experience the same harm in other ECOWAS states that he would experience in [Town 1].
With his application, the applicant provided:
·a copy of an extract from a Ghana Police station diary dated 19 August 2018
·hyperlinks to news articles about the shooting of the caretaker and his daughter
·hyperlinks to press and video links about the Fulani, and
·hyperlinks and extracts of country information including about the Fulani relocating to other areas of Ghana, being paid by high-ranking officials to herd their cattle, Fulanis in Accra and Fulanis in ECOWAS (Economic Community of West African States).
Information at the hearing
At the hearing, the applicant claimed that he initially stayed at [Town 1] but because of the issue he had been moving around. He claimed that he had lived in [Town 1] since birth until the Fulani people came and wanted to take their land, which is why he moved from the area. He claimed that he left [Town 1] around 2015/2016 and that his family did not know his whereabouts for a year. He said that his parents stay at [Town 1].
The applicant was asked what he thought would happen if he returned to Ghana. He said that the Fulani people will still hate him and that he knows they want to hurt him because they hurt one of his guys and they injured one of his guys because they fight the Fulani people.
The applicant claimed that he had completed junior high school in [year] and was a [Job 2]. He said that they[job description]. He said that the people who look after the [goods], the chiefs, would give you a place and then you wait for the [goods] there.[Information deleted].
He said that the Fulani people are all over Africa. He said that they are just there to get grass for their cattle.
He said that he thought they would hurt him because they killed one of his guys and injured others.
The applicant said that there is no hope of getting help from the police because the police who are there to protect them protect the foreigners. He said that if you fight with the Fulani, because they have the money the police hold you responsible. He said the police are always behind the Fulani.
The applicant was asked what had happened in the past. He said they always go for a loan to work on their plantation. He said that while they are working on the plantation, because the Fulani people have money, they will also need to have their cattle at the same place.
He said that initially there were a few Fulani people and there was an agreement but the Fulani did not abide by the agreement. He said the few people who came initially, when it was time to go they brought their brothers and now there are many Fulani people. He said now there are more than the local people, so they have the power to fight the local people.
He said that by the time you go to your farm, you see that the cattle have fed on your plantation. He said that you are always at a loss because the cattle come and feed on your farming and you still have to pay the loan that you secured from the bank.
He said that the local people demonstrated against the landowners and authorities. He said that the landowners were not concerned about the situation, so the farmers took it into their hands to fight for their rights. The applicant said that the Fulani have weapons – guns and machetes – so when they meet you and your wife, they rape your wife and fight with you or kill you.
He said this puts fear in them, so they always sleep and pray that they will wake up in the morning with no casualties. He said that the Fulani always try to come for them – the group leaders – more. He explained his group fights for the locals. He said that even their elders are not aware of what they do for the local people. He said that he is one of the group leaders, so the Fulani always try to meet him and they were trying to target him because he is one of the leaders.
He said that the Fulani people took their pictures, which made them leave the place and his parents did not know his whereabouts. He said that they thought he was dead.
The applicant was asked why they took his photograph. He said because they were the leaders who were protecting the locals, so the Fulani people took their pictures so when they target the leaders, they will be able to fight the locals. He also said their leaders sent their picture to the Fulani people because the Fulani people bribe them.
The applicant said that this happened around 2017, so he left the place for about a year and nobody knew his whereabouts and his parents heard that he had trouble.
The applicant was asked what happened after a year. He said that he travelled to Australia. He was asked if he told his parents after he had arrived. He explained that he was in Australia for a year and they thought he was dead. Then he called them after one year to let them know that he was alive and still in Australia.
The applicant was asked why he had waited a year. He said that initially when he came to Australia he did not want anyone to know his whereabouts. Then after a year he realised that the security was very tight and that’s when he let them know he was here.
The applicant was asked who took his photograph. He said that he could not tell that person who took his photograph but that it happened when they were demonstrating. He said that they took their photograph when they were demonstrating in [Town 1] and the person sent it to get some money.
The applicant said that they were demonstrating because the Fulani were taking their land and they did not want them to take their land. He said that the Fulani also paid money for the land so they were fighting them for the same piece of land. He said it was the town people and the locals who went for the loan for the plantation who were demonstrating. He said that it was many people and that he could not give a number but one of the people he knows got killed and one got injured.
The applicant asked when the demonstration was held. He said that it started in 2012 and they did so many demonstrations. He said in 2016 the Fulani decided to attack those who were leading the demonstration.
The applicant was asked who was leading the demonstration and he said that he was. He said four of the leaders came to Australia and he does not know where the others are. Then he said that others were the real leaders for the demonstration but they were guiding them and protecting them and that they were the targets for the Fulani. He said there were three people, two were also part of the group who were guiding the leaders. He said that they departed Ghana and came here. He said that he knows them by their three names – [Mr A], [Mr B] and [Mr C]. He said that these three were the group leaders and they were just helping them.
The applicant said that they helped the group leaders because they were the strongest and were using their strength to fight the Fulani people to help the group leaders. He said that the group is called [Organisation 1]and there was another name, [Organisation 1]. He said that [Mr C] was the Chairman of the group and [Mr A] was the [Position 1] and that he was using his strength as a supporter.
The applicant was asked what was happening to his family in Ghana. He said that so many things are happening to his family. He said that his parents cannot go to the farm. He said that he and the group are now with main targets the Fulani are looking for. He said that because of the attack, some of his [relatives] went to Accra but he does not know where they are in Accra.
Additional information
At the beginning of the hearing, the applicant said that he had more information to supply. When asked what it was, he said the evidence is that the Fulani killed one of his people and injured one of his people. He said the man killed was called [Mr D]and man who was injured is[Mr E]. He explained that [Mr D] was killed two months before the hearing. He said that he could not give a specific date or day but they sent him pictures and it was horrible.
The applicant was asked why he had not sent the information seven days before the hearing. He said that he did not understand the email content very well and he thought that he would submit the evidence when he met at the hearing.
The applicant was asked if he could be more specific about the timing of[Mr D]’s death. He said that [Mr D] was called to come to the farm because his plantain was ripe and they killed him. When asked who called him, the applicant said the Fulani people have money and they just hire people so they can give people money to just call him and when he gets there.
The applicant said that this had happened in July or August 2022. The Tribunal asked if there were any media clippings about the incident. The applicant said he would have to check the other information about the incident.
The applicant was asked how he knew [Mr D]. He said that he called his parents and they told him that they had killed one and injured a person and later found his dead body somewhere decaying. The Tribunal asked again how he knew him. He said he was part of their group, where they were [working]. He explained that he knew the one who was injured personally as he always rode on the motorbike with him. The applicant said that [Mr E] was injured at the same time. They called him and he was on the motorbike and swerved but did not die. The applicant said that ‘because we sit on the same motorbike together, I’m sure when I go there, they will do a similar thing to me.’

The applicant said that he had the pictures with him at the hearing. As the applicant was participating by video, the Tribunal invited him to submit the pictures and any additional evidence he wanted to provide. The applicant agreed that a week was sufficient time to provide any additional evidence. The Tribunal explained how to submit the additional evidence and how the applicant could receive assistance if he needed any help submitting the evidence. No additional evidence was received by the deadline, the applicant did not request an extension of time to submit evidence and no additional evidence was received by the time the decision was finalised.
Analysis, reasons and findings
Is the applicant a leader?
In his application, the applicant claimed to be part of the executive of [Organisation 1]. When the Tribunal explained that it was concerned that he was embellishing his role in opposing the Fulani to remain in Australia, the applicant replied that ‘I was strong, so I always try to protect my people.’ The applicant was asked why he would be targeted specifically by the Fulani. He said it was ‘because we are the leaders, we are leading everything’. He said the Fulani people think that when they kill them the Fulani will be in charge and they can control the farmland and areas. That is why they want to kill him.
The Tribunal explained that, as recorded in the decision record, a copy of which the applicant provided to the Tribunal, the delegate found he was not a leader and he had not established to the Tribunal’s satisfaction that he was a leader. The applicant explained that he is not a leader like a chief, or someone who is a secretary who would be writing something, or a chairman. He said that he is not that type of leader. He is leading when it comes to strength and protection of people. That is why he’s calling himself a leader. Not that he’s a chief. He said he has been sent to protect people, that is why they are targeting him. The applicant did not provide any evidence about who had sent him to protect people, how he protected people or who he protected.
The Tribunal considered the evidence presented was vague and imprecise. The Tribunal finds that the applicant provided insufficient evidence to substantiate his claim that he is a leader or that he has any leadership role with [Organisation 1] or of any farmer-led movement in his community, or of any community or farmer group.
Photographs
At the hearing, the applicant made a new claim, that photographs had been taken of him that would be used to identify and target him for harm. As detailed above, the applicant provided conflicting information at the hearing about who took the photographs. He claimed that the photographs were taken by the Fulani, by his elders who sent the pictures to the Fulani because the Fulani bribed them, and by an unknown person who sent the photograph to get some money.
The Tribunal explained that it was concerned that he had not made this claim about photographs before the hearing and that in his personal statement, which was provided to the Department, he had claimed:
But in my own mind I was thinking that I am safe because even though I am an [Organisation 1] executive I have not been in the eyes of the camera and media so it wouldn’t affect me or my family.
The applicant said that he had not said that. When the Tribunal explained that it was point 12 of his written personal statement, he said that he had no idea where it came from. He said that his pictures are not in the media but ‘because of the pictures, they are still after us.’ The Tribunal does not find this explanation persuasive or satisfactory. Based on the shifting evidence provided by the applicant, the Tribunal does not accept that photographs were taken of the applicant by the Fulani, his elders, unknown people or anyone else. The Tribunal does not accept that the applicant would be or could be identified as a leader or participant in the demonstrations and the Tribunal does not accept that the applicant has any profile that would lead him to be threatened or harmed.
Demonstrations
Having found that the applicant was not a leader and did not have a leadership role in [Organisation 1] or of any farmer-led movement in his community, or of any community or farmer group, the Tribunal considered whether the applicant had participated in demonstrations and whether he had been attacked by the Fulani in 2016.
The applicant did not claim to have participated in demonstrations in his application for protection. In his application he claimed that ‘the incidents that caused his apprehension to fear and harm occurred after he arrived in Australia’.
At the hearing, the applicant’s evidence about the demonstrations was vague and he was unable to provide information that the Tribunal would expect that an active participant would recall, even after the passage of time, such as an estimate of the number of participants that was more specific that ‘many people’ and an estimate of the when the demonstrations were held that was more specific than the demonstrations started in 2012 and they did ‘so many demonstrations’.
Based on the information before it, the Tribunal does not accept that the applicant was an active participant in demonstrations about land use in [Town 1] and the Tribunal does not accept that he was attacked by the Fulani in 2016.
Was the applicant employed by [Organisation 1]?
In his protection visa application, the applicant claimed that he was a farmer from August 2004 to May 2009 and employed from 30 August 2010 to 20 October 2018 as the [senior official] / [Job 1] for [Organisation 1] 2010 Foundation. In a personal statement provided to the Department before his interview, the applicant said that he worked as a [Job 1]and [job 3] and is part of the executive of [Town 1] [Organisation 1]. At the hearing, the applicant said that he was a farmer.
When the Tribunal raised these apparent inconsistencies in his claimed employment with the applicant, he explained that he wrote in his application that he was a member of [Organisation 1] and worked for them but it is not a job you get paid for. He said that [Organisation 1] is a group for the farmers. He said that he knows how to [do job 3] so sometimes he [does job 3] for them. But that was not the exact work he was doing. He said that most of them do not have [credentials]so they use him and he [does job 3] for them without charge.
Based on the information before it, the Tribunal finds that the applicant was not employed by [Organisation 1] and that he has not been a Vice President or [Job 1] for [Organisation 1]. The Tribunal finds that the applicant is a farmer from [Town 1].
Applicant’s place of residence
In his protection visa application, the applicant claimed that he lived in [Town 1] from birth until [in] March 2018, when he came to Australia.
Initially in the hearing, he claimed that he moved from [Town 1] around 2015 or 2016, and that his family did not know his whereabouts for a year. Later in the hearing, he claimed that he left [Town 1] around 2017, after the Fulani took his picture and his parents did not know his whereabouts for a year and they thought he was dead. He also said that after he was in Australia for a year he called his parents to let them know he was alive and still in Australia. When asked why he had waited for a year to tell his parents, he said that initially he did not want anyone to know his whereabouts, then after a year he realised that security was very tight in Australia and that nothing would happen to him, so he let them know.
The Tribunal explained that this information was different to what had been provided earlier and that it goes to the credibility of his claims. The applicant responded that what happens does not just happen one day, it might change. He said that recent happenings are what he is adding now and that any time he gets information he has to provide that information, which is why there are inconsistencies in the evidence.
The applicant failed to provide a plausible explanation for the differences in the evidence provided to the Department and at the hearing about where he lived in Ghana. Based on the information before it, the Tribunal does not accept that the applicant left [Town 1] in 2015, or 2016, or 2017 because he was targeted by the Fulani. The Tribunal finds that the applicant resided in [Town 1] until he came to Australia in 2018.
Country information
The country information about the Fulani in Ghana supports the applicant’s evidence that there is contention between the pastoralist Fulani herdsmen and farmers. Estimates of the number of casualties in the [Town 1] region range from more than 20 people killed since 2002[1] to about 70 people killed between 2001 and 2016.[2]
The Fulani or Fula are an ethnic group that is spread across numerous countries, predominately in West Africa. They are a traditionally nomadic, pastoralist, trading people.[3] Ghana’s population is 32.8 million people and the Joshua Project estimates there are 5,400 Maasina Fulani in Ghana with their main religion being Islam (89.9 per cent).[4]
Operation Cow Leg is a joint military and police operation used in 2015–2019 to try and create peace between the Fulani and [Town 1] [Ashanti region] residents.[5] The Chief of Defense Staff warned the Fulani that the government could not be intimidated and ‘will respond in equal measures to any attack from the herders.’[6]
In a [year] journal article, the continuing communal violence between the Fulani and towns near [Town 1] has been described as ‘a national security issue due to the crimes associated with the activities of the nomads’. The article continues on to say that the Ghanaian President John Dramani Mahama announced that veterinary services and 10,000 hectares of land would be provided to the Fulani to discourage any future violent clashes with surrounding village people.[7]
In February 2018, the Divisional Police Commander of Madina said that the Fulani need to report any bad acts against them instead of taking the law into their own hands. He made the statement after Fulani leaders expressed concern at the situation of the Fulani in Ghana.[8]
In April 2018, when a farmer and a Fulani herdsmen clashed, one person died and several houses were burnt down.[9] In January 2018, suspected herdsmen shot and killed two people over similar clashes.[10] The Fulani leadership has also called for compensation for the loss of more than 1,500 cattle who were caught in the line of fire.[11]
According to a Fulani spokesman quoted in a March 2020 media article, countless reports of attacks on the Fulani have been made to security agencies:
These have fallen on death [sic] ears, and despite reports of attack on their herdsmen and cattle, justice has not been served to the affected persons and their families as their cattle are killed with impunity.[12]
[Footnote deleted]
[2] [2] Abdul Karim Issifu, Francis Diawuo Darko, Sebastian Angzoorokuu Paalo, ‘Climate change, migration and farmer–herder conflict in Ghana’ (2022) 39(4) Conflict Resolution Quarterly.
[3] Tarig Anter 'Who Are the Fulani People & Their Origins?', Modern Ghana, 9 September 2011, 20200331091810.
[4] Joshua Project ‘Maasina Fulani in Ghana’,
[Footnote deleted]
[6] 'We’re being maltreated in Ghana – Fulani Community', citifmonline, 19 January 2018, 20200327111303.
[Footnote deleted]
[8] 'We are Ghanaians - Fulanis cry out', Ghana Web, 07 February 2018, 20200113132520.
[9] 'Country Report on Human Rights Practices for 2018 - Ghana', US Department of State, 14 March 2019, 24, 20190314112415.
[10] Ibid.
[11] 'Fulani Community in Ghana wants compensation for over 1500 killed cattle', Myjoyonline, 19 January 2018, 20200113162818.
[12] 'We’re also Ghanaians – Fulanis roar over Ghana card, passport discrimination', Ghana Web, 09 March 2020, 20200327111058.
The Tribunal has considered the country information submitted by the applicant to the Department, including that thousands of innocent lives had been lost. The Tribunal accepts that there has been contention between the pastoralist Fulani herdsmen and farmers that has led to injuries and deaths. The Tribunal gives greater weight to the country information about the number of people injured and killed in the violence. The applicant did not submit more updated or contemporary evidence in support of his claims made at the hearing that one fellow farmer had recently been killed and a man known to him had been injured. The Tribunal places very little weight on this claim. The Tribunal places greater weight on the country evidence than the evidence from the applicant about the preparedness of the police to take action. The Tribunal finds that the country information does not overcome the significant concerns identified by the Tribunal with respect to the applicant’s evidence and does not remedy the defects in the credibility of his claims.
The Tribunal considered whether the applicant being a Christian would raise his risk profile of being targeted and killed by the Fulani.
According to the 2010 government census, 71 percent of the population of Ghana are Christians. The remaining population is 18 percent Muslim, five percent indigenous or animistic religious beliefs and six percent is either belonging to another religion or has no religious beliefs. The constitution prohibits any religious discrimination and provides for individuals’ to practice any religion and freedom to profess.[13]
[13] 'Ghana 2018 International Religious Freedom Report', US Department of State, 21 June 2019, 2, 20190625084805.
No country information was identified that indicated that the applicant’s risk of being targeted by the Fulani would be affected by his religious beliefs or practice. The Tribunal finds that the applicant would not be targeted because of his religion.
Conclusion
For the above reasons, the Tribunal is of the view that the inconsistencies in the applicant’s testimony and other concerns identified fundamentally undermine the reliability of his account, the credibility of his claims and the truth of his evidence. The Tribunal finds the applicant not to be a reliable, credible and truthful witness. His evidence shows a propensity to tailor evidence in a manner that achieves his own purpose.
The Tribunal finds that the applicant has fabricated and concocted his claims for protection to achieve an immigration outcome. The Tribunal does not accept that the applicant has ever been targeted or threatened by, or feared harm from, the Fulani. The Tribunal does not accept that the applicant left [Town1] in 2015, or 2016, or 2017 or 2018 because he feared harm from the Fulani or anyone else. The Tribunal does not accept that anyone took photographs of the applicant as a [position] of [Organisation 1] or a demonstration, and the Tribunal does not accept that any photographs were provided to or sold to the Fulani to allow them to identify the applicant as a leader of [Organisation 1], a demonstration, a farming group or a community group so that he could be targeted for harm. The Tribunal accepts that the applicant is a farmer, a Christian and a member of [Organisation 1]. The Tribunal does not accept that the applicant is or was a member of the [Organisation 1] executive or employed by [Organisation 1] or had or has any leadership role with [Organisation 1]. The Tribunal does not accept that the applicant has or had any profile as a leader of [Organisation 1], a farming group or a community group. The Tribunal does not accept that the applicant has any connection with the caretaker of [Organisation 1]who was shot in his shop. The Tribunal does not accept that the police have ever denied him assistance. The Tribunal does not accept that one to two months before his hearing with the delegate that one man was injured and one man was killed and the Tribunal does not accept that [Mr D]was killed or that [Mr E]was injured a month or two before the hearing. Nor does the Tribunal does accept that the applicant’s parents can no longer farm because of the Fulani or that some of his siblings have left [Town 1]because of the Fulani.
Having found that the applicant fabricated and concocted his claims for protection, the Tribunal considered whether as a farmer, Christian and member of [Organisation 1] the applicant would lead or participate in demonstrations or be targeted by the Fulani if he returned to Ghana now or in the foreseeable future. Based on the information before it and the Tribunal’s findings about what the applicant has done in the past and his truthfulness, the Tribunal does not accept that the applicant would lead demonstrations, participate in demonstrations or be targeted by the Fulani now or in the foreseeable future.
Does the applicant have a well-founded fear of persecution for a refugee nexus reason?
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.[14] Considering all of the applicant’s claims individually and cumulatively the Tribunal finds that there is no real chance he will face serious harm in Ghana for reason of his race, religion, nationality, membership of a particular social group or political opinion if he returned to Ghana now or in the foreseeable future.
[14] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Is there a real risk the non-citizen will suffer significant harm?
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[15]
[15] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
On the information before it, considering the applicant’s claims individually and cumulatively, the Tribunal is finds that there is no real chance of the applicant experiencing serious harm and, for the same reasons, finds that there is no real risk of the applicant suffering significant harm on his return to Ghana now or in the foreseeable future.
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.
Katherine Harvey
Senior 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.
…

[2023] AATA 3926

4 August 2023

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