1915074 (Refugee) - [2024] ARTA 756

1915074 (REFUGEE) [2024] ARTA 756 (6 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1915074
Tribunal:General Member H Kim
Date:6 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 06 December 2024 at 10:44am
CATCHWORDS
REFUGEE – protection visa – Ghana – religion – Christian refused traditional religion role and rituals in village – elected after death of uncle – fear of harm from community, clan and family – inconsistent claims and evidence – timing and circumstances of notification of election – no direct contact or threats from elders – visa and travel history – multiple travel for work – period as unlawful non-citizen – country information – significant Christian population, and many also practise some aspects of traditional religions – role not necessarily hereditary, and requires lengthy training and testing – acceptable reasons to refuse role with no punishment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Rajasundaram v MIMA (1999) 51 ALD 682
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 24 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Ghana, applied for the visa on 23 January 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 12 June 2019, the applicant applied for review of the delegate’s decision to the Administrative Appeals Tribunal (AAT) and provided a copy of the delegate’s decision record with his review application.
The applicant appeared before the AAT at a hearing on 27 August 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Twi and English languages. The applicant was represented in relation to the review and the representative attended the hearing.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Nationality
The applicant provided to the Department a copy of his Ghanaian passport issued [in] 2014 in Accra, Ghana. He also provided copies of his previous passports issued [in] 2000 and [2004] in Accra, Ghanaian driver licence issued [in] July 2016 and international driving permit. The delegate was satisfied of the applicant’s identity and that he is a citizen of Ghana. At the hearing, the applicant presented his current passport issued [in] 2021 and expiring [in] 2031. On the evidence before the Tribunal, I am satisfied that the applicant is a national of Ghana and that Ghana is the receiving country for the purpose of assessing the applicant’s claims for protection under the refugee and complementary protection criteria.
Evidence before the Department
In his protection visa application, the applicant provided that he was born in [Year] in Accra, Ghana, that he married [Ms A] (born in [Year] in Kumasi, Ashanti region) in March 2012 and they have [children] ([genders and years of birth]). With his application for a bridging visa[1] associated with his protection visa application, the applicant provided copies of the birth certificates of [two children] and a certificate of dedication for [another child]. In his protection visa application, the applicant also provided the details of his deceased father, his mother and younger brother ([Mr B], born in [Year]) in Ghana. He only provided one address in Ghana at [Suburb], Accra where he claimed to have lived from September 2015 to 2017 and where his wife and children still live. He claimed that he completed primary school in [Year] and withdrew from middle school in [Year]. His schools were in the Ashanti region. From [Year] to 2005, he claimed he was self-employed, buying and selling in [a] market in Accra, and from 2005 he was employed as an ‘[occupation 1]’ for [an NGO] in Accra.
[1] Material contained within the Departmental file (Home Affairs [Reference]) for the applicant’s protection visa application.
The applicant provided an extensive travel history including multiple trips to [Country 1] (in June-July, September and October 2000, January, February, April-May and August-September 2001, October-November 2002, August 2004, January 2008), [Country 2] (in September 2000, November 2002, March 2003, May 2005, March and April 2006), [Country 3] in 25 October – 10 November 2005, 23 October – 8 November 2007, 12-27 March 2011, 6-7 February and 14-27 August 2012, 4-17 July 2013), [Country 4] (23 January – 5 February and 25 April – 8 May 2012), [Country 5] (5-30 March 2012) and [Country 6] (1-28 September 2015).
He arrived in Australia [in] September 2017 on a visitor visa which he indicated in his protection visa application that he overstayed. He also provided that he previously applied for a visa to [Country 6] in 2015 for [occupation 1] business trip and that he had a [Country 7] visa refused in 2004 because he had insufficient funds and documents.
In relation to his reasons for seeking protection in Australia, the applicant provided the following information in his application and an undated statement:
·He fears that members of the shrine in his village, his clan and his family will punish, mistreat, persecute and kill him because of his Christian beliefs and his stand against the practices of the shrine. The people of his village feel that he has shamed and dishonoured the family and the town people for declining to be the town’s fetish priest.
·He was born in Accra and when he was about 4 years old he moved to his mother’s hometown ‘[Town, District]’ in Ashanti Region where the applicant attended both primary and middle schools. After schooling, he moved back to Accra to start working in ‘[work sector]’. He would travel back to [Town, District] to visit his family at least 4 times a year.
·He belongs to the Akan ethnic group which practices a matrilineal system of inheritance. He inherited his blood group from his mother. There are a number of different family clans in his town and he is from the family clan called ‘[Clan]’ who is the custodian of the [Location] shrine. The [Location] shrine fetish priest is very powerful in the area. His family are considered special and held in high esteem in the town because his family have for thousands of years been the holder of the [Location] shrine as fetish priest, serving as a spiritual guidance/leader for the occupier of the fetish priest stool in the town. The fetish priest prays to the ancestors to intercede on behalf of the people for rains, good harvest and the land. When the position becomes vacant including if the occupier dies, it could only be passed on to the nephews of the fetish priest in the family who are chose by the gods.
·When he was a teenager, he was given the fetish priest touch during one of the priest performances, which signified that one day when his uncle ‘[Mr C]’ known as [Title] (the fetish priest) dies, he will become the next fetish priest. The elders started training him about how to make concussions from leaves to heal various illnesses. He can heal people who suffer from various diseases such as stomach ailments, period pains, gonorrhoea and impotency.
·In his mother’s family, about 5%, mostly the younger generation are Christians, while the remaining 95% are pagans/traditionalists. The applicant became a born-again-Pentecostal Christian and was baptised in [Year] at the [Church] in Accra. He has since grown in his Christian faith and participated actively in church and was appointed a Deacon in Ghana.
·The applicant’s uncle, the fetish priest, died in May 2017 while the applicant was in Ghana and he went to the hometown to greet the family. The applicant arrived in Australia [in] September 2017 for a business trip, to return after a month. His uncle was buried and the final funeral rites were done at the end of September 2017 while the applicant was in Australia. As the applicant is the next in line for the vacant position because the gods have chosen him, the applicant received a message from his brother that the family has been seriously looking for him and informed him to return immediately to Ghana for his installation as the successor. The applicant sent a message to his family through his brother that as a devoted Christian and a deacon in his church, he cannot be a fetish priest. It is against his religion and Christian faith and belief to worship any other gods, idols and to perform any non-Christian ceremonies. He is totally against the practices of the shrine.
·The applicant received a message from his brother that the family elders are very angry with him for rejecting to be a fetish priest and because he has been nominated by the gods, the gods are unable to nominate another until he is dead. The appointment as a fetish priest is very important and highly respected in the community, it is hereditary, and refusal to continue in the role would have a profound effect on the whole community, which they would take as an insult to their religion and they would not forgive him for being disrespectful to the community. If he returns, he would be forced to become the fetish priest and if he declines, his family would harm, maltreat and kill him.
·In Australia, the applicant is an active member of the Pentecostal Church in [Suburb]. He has been appointed as a deacon at this church, playing an active role in the church leadership. He has informed the Apostle and the elders of the church about his family looking for him to be a fetish priest of the [Location] shrine. The church leaders agreed that his religious belief in Christianity prohibited him from worshipping idols and believing in rituals like sacrifices to gods, ancestors and drinking animal blood specifically.
·If he returns to Ghana and refuses to give up his Christian religion to accept the position, the family elders will pursue him to kill and use his blood to pacify the gods because he has brought disgrace, calamity and disrespect to the gods and the family. He also has to give way for them to nominate another person as the fetish priest of the shrine. He cannot relocate to another part of Ghana or hide in any part of the country because his family would know that he is in the country and they would search for him. He could not live in fear in Ghana for the rest of his life. The Ghanaian authorities would not be able to protect him because the government does not intervene in traditional issues, especially shrine priesthood. The government leaders are scared of the shrine priests/priestesses because of their supernatural powers.
·He did not lodge his protection claims immediately because he did not know how to apply for protection until one of his church elders provided information for him to apply for protection visa.
The applicant was invited to an interview with the Department on 27 March 2019. At the interview, the applicant submitted 5 unlabelled photographs (which he identified at the interview as his children, the caretaker in the family shrine and an image of an idol) and a scanned newspaper article dated [March] 2018 by [Mr D] titled ‘[Title]’. The source of the news publication and the qualification of the author are unknown and unidentified. The article includes the following information:
·The [Family name] family in [Town] of [District] worships a fetish god kept in the [Location] Shrine. According to [Mr E], the [Family name] family head and chief custodian of the shrine, the death of the occupant comes a successor chosen by their gods and family ancestors, and the spiritual appointment remains final and the living cannot interfere. No family member has the right to refuse and refusal to go by the gods’ decision to be the next shrine priest means one has elected death upon oneself for the gods to appoint another.
·A supposed successor, [the applicant], believed to have been chosen by the gods, secretly disappeared from the town, leaving behind a wife and 3 children, following the demise of the occupant priest of the Shrine. His refusal of the compulsory succession order provoked death threats from the shrine custodian, [Mr E], who happens to be his uncle. The story of [the applicant] has become the talk of town lately, [the applicant] cannot be found, and his wife and 3 children are unaware whether he is alive or dead.
The applicant’s oral evidence at the interview is summarised in the delegate’s decision record, a copy of which the applicant provided with his review application to the Tribunal. I have listened to the delegate’s interview recording and I am satisfied that the decision record summarises the applicant’s oral evidence, which includes the following:
·The applicant’s family has an idol which they worship and his uncle had been tending. His uncle passed away in May 2017 but because of the particular rituals and ceremonies that had to be held, his uncle was not buried until 10 September 2017. After the uncle’s funeral, the family called the applicant and said he had been elected as the next in charge of the idol. The applicant was in [Country 8] in transit enroute to Australia when his brother messaged him on 10 September 2017 to notify that he had been selected to be the next to look after the idol. He was confused when he learned that he had been chosen and told his brother that as a Pentecostal Christian he could not do it. His brother told him that the family was seriously looking for him.
·By refusing he will bring shame upon his family and punishment will be inflicted upon him, for example, he may be rendered unable to speak. His wife called and informed him that they are looking for him seriously, including by visiting his home in Ghana, which made him decide he could not return.
·The applicant did not attend his uncle’s funeral because it clashed with his work trip to Australia and work was more important. His family did not know that the applicant was travelling for work at the time. His brother knew he was away and informed the rest of the family when they sought the applicant.
·In response to the question on how the caretaker of the idol is chosen, the applicant stated that the family will gather and pick someone who is eligible, which the idol would then accept. The family does not respect one’s divergent beliefs, own preferences and wants and will pick whoever they like in the family.
·The applicant had originally planned to stay in Australia for only a week. After he heard from his brother that he had been picked for the role, he waited for his brother to pass on more information. When his brother advised that an article had been published in the paper which stated that the family were seeking for him, he made up his mind to remain in Australia.
·The delegate raised the inconsistencies between his written statement and oral evidence, including his written statement claiming he had been selected as the next fetish priest as a teenager and received training in preparation for inheriting the role. In response, the applicant claimed that he did not know how that information was included in the statement but he had received training as many other children do before ‘removing’ himself from it as an adult.
·His family knows he is alive and are waiting for him to return to Ghana. They will send ‘warriors’ to collect him, take him back to the village and conduct the necessary rites, after which he will be unable to leave the village because if he does not agree to their wishes, his family will ‘do things’ that will kill him.
·He does not believe the police in Ghana could help because so many people have died including politicians. He could not seek safety in ECOWAS countries because he did not ‘believe’ in any of the African countries and he cannot be safe there.
·He asked his brother to send him the photographs and the newspaper article. The photographs are of his 3 children, the idol and the man presently looking after the idol in his place. The man cannot continue to tend the idol because he is merely the caretaker for now until the applicant returns and is taught by the man to perform the necessary duties. The article was placed in the paper by his family. It was published on 22 March 2018 (6 months after the applicant’s departure) because his family had hoped he would return to Ghana and only went to the paper when he did not. The delegate noted that the article content was in the applicant’s favour and the applicant replied that the article was intended to make him feel safe and lure him back to Ghana.
·The delegate raised the information in his visitor visa application that he wanted to attend an [occupation 1] conference beginning on 9 September 2017 and planned to arrive in Australia on the day prior. However, the applicant did not arrive until [a later day] September 2017, which in the delegate’s view cast doubts on his claimed original intent in travelling to Australia. In response, the applicant claimed that he arrived in Australia later than planned due to plane delays.
Delegate’s decision
The delegate did not accept the applicant’s claims to be credible due to the significant discrepancies between his written statements and responses at the interview including the timing of when he was appointed the next fetish priest. The delegate also found implausible that the applicant’s family would select him, a Christian who is not respectful of the role of the idol and have no desire or knowledge to carry out the fetish priest duties, over another person who would adhere and willingly dedicate to the traditions such as the person currently undertaking the role, and that the family would still wait for the applicant’s return. The delegate noted that the applicant had not articulated actual threats his family made against him but rather speculated as to what they may do if he returns and they locate him, and that his wife and 3 children remain in their home. Accordingly, the delegate did not accept the applicant’s claims nor that he is at risk of harm in Ghana due to matters relating to being a fetish priest or any other reasons.
Evidence before the Tribunal
On 8 August 2024, the applicant’s representative provided written submissions to the Tribunal, which included the following additional information:
·The applicant’s concern is that there will be retribution for his refusal to assume the responsibilities of a fetish priest. Recognition of fetish priest is not limited to Ghana but also to surrounding countries e.g. Togo and Benin. The obligation of the fetish priest is to live and worship in enclosed places called fetish shrines which may be a simple mud hut. According to Wikipedia, the priest is usually chosen through ‘spiritual nomination of the shrine’ through the process of divination. A copy of an extract from the Wikipedia entry was attached, which the representative asserted ‘provide authority as to the bona fides of the duties/existence of fetish priest’.
·In addressing the credibility issues raised by the delegate, the representative submitted the Canadian Immigration and Refugee Board information of 3 May 2004 generally supported the consequence of the blood relationship between the applicant and his deceased Uncle Kawame regarding the selection procedures for fetish priest duties. That is, the role or the position of power is bestowed through matrilineal descent to nephews rather than sons and this is why there is a continuing obligation on the part of the relevant nephew to accept fetish priest duties.
·The police regard events connected to issues surrounding fetish priest not be part of the general criminal code. Therefore there would not be durable or effective state protection. Complementary protection is relevant given the inability of state law enforcement in dealing with religious issues. Relocation within Ghana or neighbouring countries is not practicable.
·The applicant and his family have been based in Accra at all relevant times. He has on a frequent basis over the years returned to his family area. He is seeking to obtain reference from his church in Australia regarding his Pentecostal faith.

The representative’s submissions did not address the delegate’s concerns including the discrepancies identified between the applicant’s written statement and oral evidence at the interview. It did not provide any updated information specific to the personal circumstances of the applicant including the status of the fetish priesthood and the caretaker. The submissions and the country information attachment were unhelpful in clarifying the applicant’s claims and current circumstances, nor did it provide any independent information supporting the applicant’s claim that he will face retribution for his refusal.
On 18 August 2024, the representative submitted a reference letter for the applicant from the [Church] Australia dated 28 July 2024. The letter from [Pastor F] states that the applicant has been a member of the church from 2017 and that he has ‘consistently been a loyal, dependable, hardworking and honest deacon’ of the church.
At the hearing, the applicant confirmed details about his identity and that he knew the information contained in his visa application and statement to be true, correct and complete. Regarding the information in his hearing response that witness statements from his wife, [Ms A], and [Mr G],[2] will be provided, the applicant claimed that he may provide them later. I asked why he hasn’t provided them before the hearing and he claimed that his lawyer said he was going to speak to the Tribunal about it. Before concluding the hearing, I discussed with the representative that it was unclear what evidence these witnesses were purporting to provide and how they would add to the applicant’s own evidence. The representative agreed they would not add to the substance of the applicant’s own evidence. The representative and the applicant were allowed until 10 September 2024 to submit any further material including country information that refutes the country information discussed with the applicant at the hearing. To date, the Tribunal has not received any further material from the representative or the applicant.
[2] Although the hearing response indicated [Mr G] was a brother, the applicant clarified at the hearing that he is a friend who lives in Accra.
The applicant expanded on his background information at the hearing as follows:
·He became a Christian in 1996, and in 2000 he became a Pentecostal Christian. He confirmed that he provided the documents in relation to his children’s birth, church and school to the Department. His wife and children are all Christians and continue to live in Accra. He contacts them everyday.
·He was born in Accra and moved to [Town] village when he was [age] years old. When he was [age] years old, he moved to Kumasi and lived in one of his uncles’ house. When he was [age] years old, he moved to Accra and lived in his paternal grandmother’s house for about 6 months and moved back to Kumasi. He returned to Accra in 2002. While living in Accra, he visited [Town] to see family and for funerals and other occasions.
·His father passed away in 2005. His mother continues to live in the same cottage in [Town]. She farms but he also sends her some money from Australia. She became a Pentecostal Christian about 2 years ago and attends church in Kumasi. His [siblings] all live in Ghana in Kumasi and [Town]. His siblings in Kumasi attend church and those who live in the village do not attend any church. His brother [Mr B], also known as [Alias], lives in the village and has never been to Australia.[3] He last spoke with [Mr B] this year.
·After leaving school, he learnt and worked in the [product 1 making] trade for about 8 years. Between [Year] and 2005, he sold [products 2 and 1] in [a] market, Accra. He would frequently travel to [Country 2] to buy the products and sold them in the Ghana market. The [Country 1] address in the visa application is his friend’s address. From 2005, he worked as ‘[occupation 1]’ for [NGO] whose office was located overseas. As the company’s local agent in Ghana, he was going out to villages to buy [products 3]. Apart from these works, he also farmed in Ghana. Since coming to Australia, he has been working as [an occupation 2].
·In 2004, he applied for a visa to [Country 7] to visit his friend, which was refused. His travels to [Country 3] were to buy the [products 2] and other supplies to sell in the Ghana market. The trips to [Countries 4 and 5] in 2012 and [Country 6] in 2015 were for his [occupation 1] work to participate in ‘sharing of information’.
·He came to Australia [in] September 2017 to attend an [occupation 1] program in Perth for his employer. He did not end up attending the program.
[3] The applicant’s protection visa application had included the details of his brother [Mr B] (born in [Year]) in Part C, Question 40, the section about family members who travelled with the applicant to Australia or who reside in Australia.
The applicant confirmed that he fears returning to Ghana because he fears harm from his family for refusing the fetish priesthood. His Christian religion does not permit him to serve the family idol as a caretaker and perform animist rituals and he does not want to be forced into doing this. The applicant’s evidence at the hearing in relation to this claim is discussed below where relevant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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-5LA, 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 to the extent that they are relevant to the decision under consideration. There is no country information assessment report prepared expressly for protection status determination purposes by the Department of Foreign Affair and Trade in respect of Ghana.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm if he returns to Ghana. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of the claims
In assessing the applicants’ claims, I have had regard to AAT’s Guidelines on the Assessment of Credibility and the relevant legal authorities. If the Tribunal is unable to make a confident finding that an applicant’s account is credible, it must assess the claim on the basis that it is possible, although not certain, that the applicant’s account is true.[4] However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal does not need rebutting evidence before it can find that a particular factual assertion by an applicant is not made out.[5]
[4] MIEA v Guo (1997) 191 CLR 559; Rajasundaram v MIMA (1999) 51 ALD 682; MIMA v Rajalingam (1999) 93 FCR 220.
[5] Selvadurai v MIEA (1994) 34 ALD 347 at 348.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in their case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements for well-founded fear of persecution or complementary protection are made out.[6] It is the applicant’s responsibility to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim, and the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
[6] MIEA v Guo (1997) 191 CLR 559; Nagalingam v MILGEA (1992) 38 FCR 91; Prasad v MIEA (1985) 6 FCR 155.
I have serious concerns about the credibility of the applicant’s claim and evidence. His oral evidence at the hearing about critical aspects of his claim to fear harm in Ghana was significantly inconsistent with the evidence before the Department. His responses at the hearing often did not squarely address the issues put to him even after rephrased and follow up questions. The representative submitted that these evidentiary concerns can be ascribed to the passage of time of almost 7 years since the initial claims were made. I have considered the memory recall issues due to the passage of time, the applicant’s personal circumstances including his education and language, his likely unfamiliarity with experiences of giving evidence in a proceeding such as a Tribunal hearing, and the difficulties communicating through an interpreter. Having regard to these matters, I do not consider minor inconsistencies such as omitted details of family, addresses and work history, would on their own undermine the credibility of the applicant’s claims. However, my concerns about the applicant’s evidence, as discussed with the applicant at the hearing and detailed below, are not in relation to minor matters, and these cumulatively raise doubt as to the credibility of the applicant’s claimed events in Ghana and his fear of harm on return.
While I have significant concerns about the applicant’s evidence regarding his reasons for fearing harm, I accept the following information about his family and background which has been relatively consistent before the Department and the Tribunal:
a)His background information summarised at [7]-[9] and [18] regarding his family, address, work and travel history;
b)He belongs to the Akan ethnic group and his family clan ‘[Clan]’ is the custodian of the [Location] shrine in his mother’s hometown/village of [Town]; and
c)He is Pentecostal Christian and he continues to attend church in Australia where he is highly regarded by the members of his church. His wife, children and mother are also Christians in Ghana. Some of his siblings in Kumasi also attend church.
The applicant confirmed that his only reason for fearing returning to Ghana related to his refusal of fetish priesthood and he did not have any other reason to fear harm in Ghana. He did not claim that he had experienced any past harm in Ghana for refusing the fetish priesthood, his Christian religious practice or for any other reasons, and I accept this. For the following reasons, I am not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for his claimed reason or any other reasons if he returns to Ghana now or in the reasonably foreseeable future.
Country information on fetish priesthood in Ghana
According to the 2021 Ghanaian government census referred to the in the 2022 and 2023 United States’ Report on International Religious Freedom,[7] approximately 71% of the Ghanaian population are Christian and 44% of the Christians are Pentecostal. 3% of the population adhere to indigenous or animistic beliefs and most followers of traditional religious beliefs reside in rural areas. Many individuals who identify as Christians also practise some aspects of indigenous beliefs. Senior government officials in Ghana publicly emphasise the importance of peaceful religious coexistence and Ghana’s traditions of interfaith tolerance.[8]
[7] 2022 Report on International Religious Freedom: Ghana, United States Department of State, p.2 ‘Section 1. Religious Demography’; 2023 Report on International Religious Freedom: Ghana, United States Department of State, p.2 ‘Section 1. Religious Demography’.
[8] Ibid, p.5 ‘Government Practices’.
An Associate Professor of Anthropology from Toronto who has done extensive fieldwork on fetishes in Ghana has advised the Canadian Immigration and Refugee Board in 2004 that the Akan people actively worship a large number of major and minor gods, and once a god has been established in a community or area, the social expectation is that a particular family line acts as owners of the shrine and priestship is inherited through matrilineal descent to a nephew.[9] However, sources indicate that familial lineage is not the only path to becoming a fetish priest. According to a researcher at the University of Helsinki, a person may be called to become an okomfo (a fetish priest position) by a deity possessing or encountering them, this position is not hereditary, and because the person must undergo a lengthy training process supervised by a senior priest, ending with a test to determine their capability of mediation with the deities, the researcher did not think anyone can be forced to become one.[10] Further, sources advise that there are community-acceptable reasons to refuse priest position including lack of formal education, because ‘elders seeking an office holder want the most highly educated and potentially wealthy and powerful candidates’.[11] Some give their Christian conversion as a reason for refusing to accept priesthood. An academic provided that the usual method for a person who does not want to accept an offered office is to travel so as to avoid the possibility of being offered the position.[12]
[9] Ghana: Information on fetish called Akwasi-Akwasi in the Akan tribe, including whether the position of the fetish priest is hereditary by eldest nephew upon the priest's death, and the consequences of refusing the position, Research Directorate, Immigration and Refugee Board of Canada, 3 May 2004, < Ghana: Consequences of refusing a fetish priest or chieftancy position, and whether there is state protection available [GHA104154.E], Research Directorate, Immigration and Refugee Board of Canada, 16 August 2012, <
[11] Ibid.
[12] Ibid.
Those who refuse to accept a priest position can be worried about being subject to spiritual/health ‘punishment’ for not doing their duty, even if they themselves are Christians and they travel far away. However, there is no practice of punishing persons for running away before being offered a position.[13] There are no physically harsh repercussions, mistreatment or violence from family, community or tribal leaders for those who refuse to become priest and any punishment are usually of a social nature such as scorn, irritation by the elders, social ostracism or banishment.[14] Further, sources indicates that Akan chiefs are frequently adherents of Christianity and other non-indigenous religions, and Christian Ghanaians do not encounter serious problems if they refuse to give up Christianity in order to take up positions of traditional office.[15]
[13] Ibid.
[14] Ghana: Succession traditions for the position of Krontihene in Abetifi Kwahu, Eastern Region, and consequences for refusing the position; names of current and past holders of the position, Research Directorate, Immigration and Refugee Board of Canada, 2 November 2002, GHA39781.E, < Ghana: Consequences of refusing a fetish priest or chieftancy position, and whether there is state protection available, Research Directorate, Immigration and Refugee Board of Canada, 16 August 2012, GHA104154.E, < Operational Guidance Note: Ghana, UK Home Office, 28 January 2009, p.7.
[15] Ghana: Consequences of refusing a fetish priest or chieftancy position, and whether there is state protection available, Research Directorate, Immigration and Refugee Board of Canada, 16 August 2012, GHA104154.E, < N Wellings, ‘Between custom and Christianity’, BBC News, 4 August 2006, <>
The above country information indicates that Christianity would not prevent a person from being offered or accepting fetish priesthood, but it can be a reason some may give to refuse priesthood. It also indicates that Christians would not be forced to give up their Christian religion to accept the priesthood position. Importantly, the information provides that there are no physical harm, mistreatment or threat to life to a person who refuses priesthood, from the family, community or elders, although the person may be subject to some scorns and social ostracism.
Claim in relation to his refusal of fetish priesthood
At the hearing, the applicant claimed that his uncle ‘[Mr C]’ had been the caretaker of the shrine for about 40 years. The applicant had attended family clan rituals and ceremonies when he used to live in [Town], but after he became a Christian he did not attend any. He did not claim he experienced any difficulties, harassment or issues with his family for not attending the rituals, nor that he actively expressed or advocated against the shrine practices. He also did not refer to his written evidence that he was ‘given the fetish priest touch’ as a teenager to succeed after his uncle’s death and that the elders started training him in healing diseases. It was only when this inconsistency was directly raised with the applicant (which was also a concern raised by the delegate), he explained that as a young 5 year old child living in the village with no authority to make decisions he was part of the process and knew how to do ‘such things’, but maintained that he did not know he was formally to succeed at the time as there were many others who went through the process. This response was still inconsistent with the written evidence that he was selected and trained from his teenage years, and he did not explain the reason for the differences between the written and oral evidence.

He claimed that in May 2017 when his uncle passed away he went to [Town] as all family members gathered to discuss the funeral arrangements. There were no rites or ceremonies during his visit and he claimed that he did not know about his inheritance of the priesthood at this time. As noted above, his claim to have been unaware of his inheritance is inconsistent with the written evidence which he had confirmed at the commencement of the hearing to be true and that he did not wish to add or change.
He claimed that there were some rites for the public between the meeting in May and the actual funeral in September but he did not attend any because it was against his Christian faith. He did not mention experiencing any issues with the family in the village for failing to attend these. He did not attend his uncle’s funeral in September because his work was paramount, he was in Australia and even if he was in Ghana, he claimed that he would not have attended anyway because of his religion. All of his family members including his siblings attended the funeral, but no one in his family had any issues about the applicant’s absence because they, including his mother, already knew he was absent and that he was not going to attend. This evidence was inconsistent with his evidence before the Department that the family did not know he was travelling for work and only his brother knew of the applicant’s absence.
He was informed about his inheritance by his brother [Mr B] when he was in transit in [Country 8]. While this is consistent with what he told the delegate at the interview, it is inconsistent with his written evidence that he was already in Australia when his uncle’s final funeral rites were done at the end of September 2017 and his brother messaged him to advise of his selection. I note he had confirmed at the commencement of the hearing that his written statement to be true and he had nothing to change. He offered no explanation about the inconsistencies between his written and oral evidence, although it was a concern already raised by the delegate and the applicant has been legally represented before the Tribunal. Even if I accept his oral account, the differences with his written evidence raises concerns about the credibility of the information contained in it, the applicant’s submission of unreliable written material and in turn, his reliability as a witness.
He initially claimed that he did not know how he was chosen to be the successor. When asked why he would be chosen if he doesn’t live in [Town], had not been participating any of the ceremonies and the family knew he was Christian, the applicant claimed that the elders do not care about one’s religion or circumstances once the Gods name the successor. His initial claim to be unaware, which evolved to introduce vague details about when and how he was chosen, was again inconsistent with his written evidence of having been chosen by the ‘touch’ as a teenager. Later when asked about the photograph of the person in the shrine, the applicant claimed that he is the caretaker who is currently still looking after the shrine and he is the link through which the Gods speak. This suggests, in light of the country information noted above, that this caretaker has been occupying the okomfo (fetish priest) position since the uncle’s death, and casts a doubt on the applicant’s claim to have been selected as the successor.
He claimed that when he heard about his selection from his brother, he was traumatised because he knew how serious the family was about idol worship. He asked his brother to relay his refusal of take on the priesthood role to the family and his brother told him ‘maybe you don’t want to come back’. When asked about the family’s reaction to his refusal, the applicant generally stated that they will wait for him as the Gods have spoken and chosen him. He did not claim that they were angry with his refusal and were seriously looking for him as he had claimed in his evidence before the Department. When asked specifically whether anyone had tried to contact or threaten him and his family, he claimed that the only reason the family elders hadn’t done so is because they don’t have his contact number which was difficult to believe, given his wife, children, mother and siblings all continue to live in their homes and the elders could seek the applicant’s contact and whereabouts from them. He also claimed that around 3 years ago the elders travelled to Accra to ask his wife about the applicant’s whereabouts. He did not expand to suggest his wife was harassed nor did he provide specific details about this claimed visit including the identities of the family elders who visited his wife.
Given his evidence that the caretaker has been carrying out the fetish priest duties since his uncle’s death (7 years to date), I asked why the elders would still be interested in initiating the applicant as the successor. The applicant claimed that the current caretaker has very limited roles, there is no one else to take over the main functions and the elders have to regularly appease the Gods and are waiting for the applicant’s return. His evidence did not indicate that the elders had tried to harass or further contact his immediate family including his wife, mother and brother [Mr B] to pressure him to return to Ghana. The available evidence also did not indicate that the applicant’s family in the village had been harassed or harmed by the elders or the village people because of the applicant’s refusal of the appointment. I am not convinced that the elders have been waiting for the applicant to return for almost 7 years without doing more than ‘just appeasing the Gods’ if the family is serious about idol worship and priesthood succession as the applicant claims.
As to what would happen to him if he returns to Ghana, the applicant claimed that the family elders can hurt him, arrest him to take him to the village to force the succession process, and if the applicant does not accept, they may even kill him. However, he could not give more specific details even after multiple prompts and rephrasing of the question. He stated he did not know what the family would do and repeated he feared for his life. He claimed that his belief does not allow him to follow the elders’ orders and that the spirit will take over him. He claimed that the family will know his arrival in Ghana and be able to locate him anywhere in Ghana and in neighbouring countries. These general and repetitive answers, not directly addressing the question or the details sought, did not clarify how the elders will find, hurt and force him to become the fetish priest, or kill him for refusing, when there is already a person performing the role since 2017 and his evidence does not support any meaningful attempts by the elders to try to force him to return in the almost 7 years since he left Ghana.
In relation to the newspaper article dated [March] 2018, the applicant vaguely claimed that his friend saw it, took a picture of it and sent it to him, but he did not know where his friend got it. This was significantly different to his evidence before the delegate that his brother told him about the article, it was placed by his family in the newspaper to convince him to feel safe and lure him back to Ghana, and he asked his brother to send it. The applicant claimed at the hearing that he did not know the particular newspaper in which this article was published or the author ‘[Mr D]’. When asked why an article about his rejection of priesthood in September 2017 would be published in March 2018, the applicant again claimed he didn’t know. He added that his friend sent it to him when he was making the application. I do not find any of these responses convincing. The person from whom he claimed to have obtained the article and the circumstances of the article’s publication and the applicant obtaining it are materially inconsistent. I do not consider this inconsistency can be explained by any memory recall problems. His evasive answers, claiming he does not know when more details and clarifications were sought, diminishes the article’s evidentiary value as corroborative evidence that the applicant himself presented in support of his claim.
I discussed my concerns about the reliability of this article due to unclear source and qualification of the author, as well as the applicant’s inconsistent evidence noted above. He confirmed that it was his friend who sent the article to him, who he accepts as a brother culturally. He did not identify the friend’s name or provide other details. I also discussed my concerns about the content of the article referring to death threats by his uncle and shrine custodian ‘[Mr E]’ and that his wife and children do not know whether the applicant is alive or dead, which appeared to be inconsistent with the applicant’s own evidence (for example, he had been unable to identify any of the elders by name and he claimed that he was in daily contact with his wife and children). The applicant was unable to detail the claimed death threats referred to in the article. He repeated that his friend saw the article and sent it to him for his case. He claimed that he cannot confirm what was said or what happened there because he has not spoken to the person, he was not present when this happened or when it was written. This suggested that the applicant did not agree with, or had knowledge of, the claimed death threats or any of the alleged events mentioned in the article. He also claimed that he does not understand why the writer would say his wife and children do not know whether he is alive or dead. His response to my concern that the article appears to contain unreliable information and I may not give it weight as corroborative evidence was that he is not able to read it and he can’t understand the content.
I find these responses to be evasive and unconvincing in explaining the various inconsistencies and concerns about the article. It is illogical that the applicant would provide an article in support of his claim to fear harm from his family elders in Ghana but is unable to satisfactorily explain the content or how he obtained it. The representative submitted that the applicant cannot control the character or content of the article or explain the intent of the person who provided the information. This does not explain why the applicant would submit an article as supporting evidence for which he himself does not understand the content or the author’s motivation, nor know the source of the article or the information. It also does not explain the applicant’s inconsistent accounts of obtaining the article. For these reasons, I do not consider this article accurately or truthfully depict the applicant’s circumstances in Ghana nor do I accept this article corroborates the applicant’s claim to fear harm from the family elders for refusing priesthood. Noting that the applicant did not expressly claim that he received any threats or direct contact from the elders in relation to his refusal, I reject any suggestion in the article that his uncle, ‘the dreaded shrine custodian [Mr E]’, threatened the applicant. The applicant’s submission of this article, as well as his inability to explain its relevance to his claim and the circumstances of acquiring it, also indicate his willingness to provide unreliable material to bolster his protection claim. This in turn casts a serious doubt on his reliability as a witness of truth.
Although there is no independent evidence to corroborate the claim that his uncle was the fetish priest and he passed away in around May 2017, I am prepared to accept these claims. However, considering all of the above concerns cumulatively, I do not accept the applicant’s claim to have been offered or selected the fetish priesthood as the successor to his uncle and that he will be harmed on return because he refused it. His varying and general accounts of when he was selected for the priesthood, when he became aware of his succession and his past participation in ceremonies, as detailed above, do not convince me that he was speaking of his own experiences.
I do not accept that the elders visited his wife in Accra around 3 years ago to ask about his whereabouts. His evidence in this regard lacked any meaningful detail and its introduction only after my specific question suggested that he was fabricating his response to strengthen his claim. The totality of his evidence indicating that his wife, children, mother and siblings, who remain living in their homes in Accra and [Town], have not suffered any harm or harassment in relation to his refusal to accept priesthood or to pressure and force him to return suggest that the elders have no interest in the applicant. His evidence that a caretaker has been in place since his uncle’s death also does not convince me that the applicant was chosen as the successor or that the elders or the family will force the applicant to take the position upon his return. As I have rejected his claim to have been offered or selected the priesthood, I also do not accept his written claim that he will be forced to give up his Christian religion to accept the position. Based on his evidence indicating he did not experience any harm for not participating the family clan rituals, I do not accept that he will be forced to perform animist rituals or that he will face any harm for refusing to do so.
Further, I find that the applicant was unable to clearly articulate the harm he may face on return to Ghana because he does not have any reason to fear harm from the elders or his family in relation to this claim. In any event, as discussed with the applicant at the hearing, the country information does not support any claim of physical harm, mistreatment, violence or death for those who refuse to become a priest. In response, the applicant vaguely stated that people in his town are expected to accept the rules of the town and that no one will protect him before the harm happens. I note that although the applicant and his representative was given time to provide country information that supports his contentions, they did not provide any. I place weight on the country information outlined above, and considered together with the applicant’s vague and highly generalised evidence, I do not accept that if he returns to Ghana, he will be found, arrested, hurt, forced to accept the priesthood, rendered unable to speak or killed by the elders, the village people or his family for refusing the priesthood.
Having regard to all of the above, considered together with the significant concerns about the article he provided as corroborative evidence, I find that the applicant has contrived his claim in order to facilitate a protection visa. Accordingly, I reject the applicant’s claim to have been chosen as the successor fetish priest by the family elders, that the elders are angry and seriously looking for him because he refused the position, that the village people feel he has shamed, insulted and dishonoured the family and their religion, and that he will be harmed in any way on return for these reasons.
Based on the available evidence, I accept that the applicant is a Christian, has practised his Pentecostal faith in Ghana without any problems and he continues to practise it in Australia. I also accept that his wife, children, mother and some of his siblings are Christians and attend church in Ghana. The applicant did not claim, and there is no evidence before the Tribunal to indicate, that he and his family were unable to practise their Christian religion in Ghana or he experienced any harm in Ghana because he did not participate in the family clan ceremonies after becoming a Christian. There is no independent evidence to support his written claim that he stood against the practices of the shrine and at the hearing the applicant himself never mentioned such experiences in Ghana or expressly claimed he would be harmed on this basis.
The country information noted above indicates that Ghana has a significant Christian population, diverse coexistence of religions is promoted by the government, and religious practice in Ghana is syncretic including many Christians practising some aspects of indigenous beliefs. I accept that the applicant will continue to practise his Pentecostal Christian faith on return to Ghana and he will not participate in indigenous rituals or idol worship which is contrary to his Christian practice. I reject any claim that he has stood against, or will expressly oppose, the practices of the shrine in Ghana as the available evidence does not support this. Based on the applicant’s own evidence and the country information, I do not accept that he will face any harm in Ghana for his Christian faith and continuing to practise it as he has and for not participating in the family clan rituals.
For the above reasons, I am not satisfied that the applicant faces a real chance of serious harm for his claimed reason of refusing to inherit fetish priesthood, or any other reasons including his Christian religion, if he returns to Ghana now or in the reasonably foreseeable future.
Conclusions
For the reasons and findings set out above, and having considered all of the evidence before the Tribunal and the applicant’s claims individually and cumulatively, I am not satisfied that if the applicant returns to Ghana now or in the foreseeable future, that he faces a real chance of serious harm for his claimed reason of refusing fetish priesthood, his Christian religion or any other reason set out in s 5J(1)(a) of the Act. Therefore, I find that the applicant does not have a well-founded fear of persecution in Ghana and is not a refugee as defined in s 5H of the Act. The applicant does not satisfy the criterion in s 36(2)(a) of the Act.
As I have concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
The ‘real risk’ test in s 36(2)(aa) of the Act imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ under the refugee criterion.[16] I have rejected the applicant’s claims to fear harm on the basis of his refusal to accept fetish priesthood and Christian religion, and found above that he does not face a real chance of serious harm if he returns to Ghana now or in the reasonably foreseeable future. Having considered all of the applicant’s claims and evidence individually and cumulatively, and for the same reasons and findings set out above, I am not satisfied 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’ as exhaustively defined in s 36(2A). The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
[16] MIAC v SZQRB (2013) 210 FCR 505.
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 under review.
Date of hearing: 27 August 2024
Representative: Mr Adrian Phillip Joel
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.
…