1917246 (Refugee)

1917246 (Refugee) [2023] AATA 1483 (8 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917246
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Ann Duffield
DATE:8 March 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 March 2023 at 2:43pm

CATCHWORDS
REFUGEE – Protection visa – Ghana – Conversion to Judaism – persecuted by his father or his father’s followers – anonymous allegation – abandonment of the church – Tribunal does not accept that the applicant has been or is or will be targeted by his father or his father’s followers – manufactured claim to support his application for protection –delay in applying for protection– applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499
Migration Regulations 1994, Schedule 2

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 28 June 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 citizen of Ghana applied for the visa on 9 January 2019. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations on 28 June 2019.
The applicant appeared before the Tribunal on 1 February 2023 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 OF Claims and evidence
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of Ghana born in [year]. There have been no claims made by the applicant or findings by the department that he is other than who he claims to be. There is no suggestion that the applicant has provided false identity documents.
The applicant was refused citizenship in [Country 1] because he was found to have committed migration fraud. These matters were put to the applicant at the hearing and, as with his statement to the department, the applicant claims that his ex-wife made false allegations against him because she was a drug addict and wanted to harm him. His residency was revoked and deportation action by [Country 1] authorities had begun against him prior to his eventual departure in May 2018. As such the applicant has no right of return to [Country 1] and no right of residency.
The Tribunal is satisfied that the applicant is a citizen of Ghana and has no right of residency in a third country. The Tribunal has assessed his claims with Ghana as his receiving country.
Documentary evidence
[Country 1] residency and immigration fraud
The applicant claims that he married an [Country 1] citizen in August 2010, and they finally divorced in 2022 after separating in 2018. [Country 1] instigated deportation action against the applicant in 2018 immediately prior to his departure in May 2018. This information was put to the applicant during the hearing, and he claims that he had no idea that [Country 1] was trying to deport him and he showed the Tribunal his passport with a [visa]. The Tribunal noted that despite the evidence of the visa, it did not prove that he did not know that he was subject to deportation. He did state that he knew that his wife had made false allegations about their marriage to the immigration office in [Country 1] and that she had been cheating on him with her ex-husband. He states that his ex-wife is an unreliable witness because she is a drug addict, and she stole from him.
The applicant has provided his own statement, a statement from his ex-wife and a statement from a friend who knew them both in [Country 1] supporting his account of his marriage to his ex-wife. He has also provided their certificate of marriage, some documentation in relation to some land and plans for a house that they allegedly undertook jointly in around 2015-2017 in Ghana. He has also provided some evidence of the transfer of some USD$140,000 purportedly for the sale of the house in Ghana.
There is also before the Tribunal a statement from [Mr A], a neighbour of the applicant in [Country 1] and “church colleague”, is sworn and dated 11 January 2023. Mr [A] states that he was witness to the applicant’s wife’s threats and drug taking and her arrest for drug offences.
Unsworn letter from [Mr B] dated January 2023
The applicant provided the Tribunal with an unsworn letter from his friend Mr [B] and some photographs allegedly of [Mr B] after an alleged assault and some photographs of broken computers. [Mr B] states that he and the applicant were together when they were subject to an attack by unknown assailants in August 2018. He states that the applicant escaped by jumping through a window and suffered broken bones. He also states that the assailants stole the applicant’s passport and other travel documents along with a laptop.
[Mr B] also states that he visited [Country 2] and was involved in trying to organise a reconciliation between the applicant and his father. He states that the applicant’s mother was attacked by people associated with the applicant’s father’s church and died as a result of her injuries on [date] September 2021. He states that he attended her funeral on [date] October 2021.
Video with Mr [B]
The applicant has submitted several videos of a person who appears to be Mr [B] showing [Mr B] with a quantity of damaged computers and what appears to be television screens. There is no audio and no explanation as to what these videos purport to explain or what evidence they are intended to support. They are undated.
Police report dated [date]September 2018
A copy of a police report dated [date] September 2018 refers to an attack on 1 August 2018 involving the applicant and “8 muscular male gangs with motor-bikes” and that the applicant suffered some broken bones and items were stolen. The statement does not mention that the applicant’s friend, [Mr B] was also seriously injured in the attack, or the reasons for the attack.
Photographs of the applicant’s injuries
The applicant has provided the Tribunal with several photographs of injuries he has received, including evidence of doctors’ appointments and medicines. The Tribunal accepts that the applicant has been injured as reflected in the photographs that he has provided. However, as it was explained to him, the photographs are not evidence that he received the injuries in the manner he claimed or for the reasons he claimed.
His mother’s death and the death certificate
The applicant stated that his mother was targeted by his father and his father’s followers and attacked and killed when she returned to Ghana from [Country 2] in 2021. The applicant provided some photographs of his mother in a wheelchair. In a caption of that photograph, he states that she had broken limbs and bones. There is no indication in the photographs provided that the applicant’s mother was injured in that way. There does not appear to be any evidence of broken bones. She is sitting in a wheelchair wearing an oxygen mask.
There are other photographs tendered as evidence including a photograph, allegedly of the applicant’s mother, in the back of an ambulance and other photographs, allegedly of the applicant’s mother’s remains being taken from the ambulance and into the morgue. None of these photographs are dated nor are they evidence that the applicant’s mother was beaten and killed by his father or his father’s followers.
The Tribunal notes that the death certificate of the applicant’s mother [states] that she passed away in September 2021.
Other documentation
The applicant has provided the Tribunal with copies of some educational certificates he has received from institutions in [Country 1], results of courses undertaken by the applicant, along with court documents, evidence of the purchase and sale of land and money transfers. This information was considered by the Tribunal.
Travel to Australia
The Tribunal put to the applicant at the hearing that he was granted a visitor visa to travel to Australia in January 2018 yet did not travel until December 2018. The Tribunal put to the applicant that such a delay did not suggest that his fear of persecution was well founded. The Applicant told the Tribunal that he still held out hope that he and his father and his father’s church could reconcile. He said that he had travelled back to Ghana from [Country 1] on many occasions to try and reconcile with his father.
The Tribunal asked the applicant what he meant by reconcile and he said that his father wanted him to come back to the Church and he refused. The Tribunal asked him what sort of reconciliation could occur with both taking such positions. He said that he just wanted to be able to be safe in Ghana and work without worrying about being killed. He had planned to get an education in [Country 1] and return to work in the security agencies in Ghana.
The applicant said that he travelled from [Country 1] to Ghana in around May 2018 (he was in [Country 1] when he was granted the Australian visa) rather than travel to Australia because he wanted to attend the reconciliation meeting. He claims that he was coming to Australia to attend a [conference] later in the year but was unable to travel earlier because of the injuries he sustained in the attack on him and [Mr B] in August 2018, just three days after the alleged reconciliation meeting. He says that he only became fearful after those attacks in August 2018 and that is the reason that he did not claim asylum in [Country 1] or travel to Australia at an earlier time.
Travel out of Australia 2022
The Tribunal asked the applicant why he travelled out of Australia between March and July 2022 and he said that he went to visit his auntie who was still grieving after the death of his mother.
The applicant told the Tribunal that he visited her in [Country 2] and otherwise kept moving around because he was afraid that he would be found. He told the Tribunal, in response to questioning, that he did not go to Ghana at all because he was afraid of what would happen to him. He spent some time in [City 1] before spending the last three weeks with his auntie in [Country 2]. He said he had to change his tickets several times because he had bribed some immigration officials at the Ghana airport who told him when it was safe to travel. He said he took advice from them because he was afraid that he would be attacked at the airport by his father’s followers. He said that his mobile phone was being tracked by the government. Asked why anyone from the government would be interested in him such that they would be motivated to expend such resources trying to locate him he said that his father’s church was very well connected, and they would find him.
The Tribunal asked the applicant why he would risk making the trip to Africa, given that he claimed that he was followed and his every move monitored. The Tribunal put to him that it seemed like a risky thing to do. The applicant said that he was going through a lot of fear and the reason why he didn’t go to Ghana and didn’t stay in [Country 2] for long periods at a time was because he was afraid. He stated that he didn’t even get a direct ticket because he wanted to make sure that he wasn’t being followed. He said that if he didn’t go directly to [Country 2] but drove around instead.
The applicant said that he didn’t want to make it obvious that he was around. He says he had a bond with his aunt, and they needed each other. He said that he had to go and comfort her. He said that he considered not going but in the end he decided that he had to.
Information received by the Tribunal after the hearing
The Tribunal received an anonymous allegation in relation to the applicant and his claims. The Tribunal also located a video posted on [social media] by what appears to be the organiser of the funeral of the applicant’s father and his mother at the following link: [social media] [deleted]. The video was posted to [social media] on [date] May 2022.
The Tribunal invited the applicant to comment on the adverse information and the video in a letter to the applicant dated 15 February 2023. He was asked to respond to that information by 1 March 2023. His comments are included where relevant in the paragraphs below and in the findings and reasons below.
On 27 February 2023 the applicant sought an unspecified amount of additional time to obtain further evidence for the Tribunal to consider. The Tribunal did not ask the applicant for further evidence, only his comments on the adverse information and video. He did not indicate specifically what kind of evidence he would be seeking to obtain or for what aspects of his account any such evidence would support. The Tribunal considered the request carefully and decided that the applicant had sufficient time and notice of the issues to enable him to obtain and provide all necessary evidence and declined the applicant’s request. He was informed that the Tribunal would consider any evidence he provided up until the time it made its decision.
Adverse information
The Tribunal received anonymous, but detailed, information stating that the applicant’s father died of COVID and his mother died of asthma in 2021 and that the funeral was held for both his parents in March 2022. The informant also stated that the applicant travelled by bus [to] attend the funeral and assist with carrying the coffins at the funeral. The informant stated that the applicant’s account of his father and his father’s church were all untrue. The informant named the applicant’s parents correctly and identified the timing of the funeral correctly. The Tribunal gave this information some weight.
The video of the funeral of the applicant’s parents appears to be made professionally, with the use of drones to take overhead shots, it is around 8 minutes long and set to music. It is very detailed and shows the funeral procession to consist of over a hundred people. In the video there is quite clear imagery of the applicant and his friend [Mr B] carrying one of the coffins. The Tribunal notes that the video has been uploaded by a user named “[name]” in Ghana. The Tribunal does not consider this video to have been fabricated. There would not appear to be any motivation for anyone to do so and the Tribunal therefore gives this evidence substantial weight.
The Tribunal put to the applicant that it appears his claim of not travelling to Ghana in 2022, but of simply visiting his bereaved Aunt in [Country 2] was untrue. It further put to the applicant that he and his friend [Mr B] appeared unharmed at the funeral despite them both claiming that they were attacked and seriously harmed by followers of his father’s church in 2018 and that the applicant would be significantly harmed or killed if he returned to Ghana. The Tribunal put to the applicant that the information and the video suggested that his fear of suffering significant harm for the reasons claimed should he return to Ghana was unfounded.
The applicant said in a response to the Tribunal’s letter that he reiterates his statements to the Tribunal, and he was shocked to see the video. He said that if his father had died, he did not know and, in any case, he does not believe it as his father’s death has been announced before, but those announcements were not true. He says that his father has been pronounced dead several times as a trap to lure his adversaries.
He claims that his mother was not an asthmatic, and he would know. He said that she was diabetic. He says that few family members know the location of where his mother is buried, thereby saying that he also does not believe that the video is genuine as it shows that his mother was being buried with his father at a funeral attended by hundreds of people.
He states that he never went to Ghana and the person identified as him carrying one of the coffins in the video is not him. He states that he took some pictures at Sydney Airport before his departure and asks the Tribunal to submit them to an expert for verification. He states that this will prove that he was never present at any funeral in Ghana. The applicant also sent some photographs of some foreign money and a copy of his covid health declaration for Nigeria. The applicant states that everything he said about his father and his church fellowship is true.
CLAIMS

The Tribunal found the applicant not to be a witness of truth and his claims lack credibility and are unsupported. The Tribunal is not satisfied that the applicant is a person to whom Australia owes protection obligations for
Conversion to Judaism
In his original application dated 9 January 2019 the applicant stated that he was disowned and thrown out of home for converting to another religion – Judaism. He stated that his father and his followers felt betrayed by his action. He states that things got worse for him “since I became a Jewish” since it was considered a crime and disrespect for denouncing his family’s religion, He claimed to have been attacked on numerous occasions as a result. The applicant stated unambivalently that “You don’t convert and live. Converted members are always found dead for no cause or they just vanish without seeing their bodies”.
In his statement to the Tribunal of 19 July 2019 the applicant doubled down on his claims to have converted to Judaism stating that in 2002 he converted to “Jewish” after witnessing the evil acts of his father’s church. He states that he converted to Jewish because “I never got the best out of Christianity”. He states that “If the Jewish in Ghana are not doing evangelism today can never discredit my claim that it was done in 16 years ago (sic)”. When the applicant’s alleged conversion to Judaism was tested by the delegate the applicant backed away stating that he had not really “converted” but attended the “church”. He maintained however that just because he didn’t go to a Synagogue or formally “convert” did not mean he wasn’t Jewish.
At the Tribunal hearing, the applicant retreated from his claims that he “converted” to Judaism or that his alleged persecution from his father and his father’s church and his family were because of his alleged conversion to Judaism.
The applicant stated that he had friends in the Jewish community whilst he was at university, but he had nevertheless left his father’s church and they would kill him for that reason. He told the Tribunal that they helped him financially and when pressed he said that it was only small amounts of cash from individuals in the community.
The Tribunal also does not accept that the applicant may have been seen to have converted to Judaism because he associated with members of the Jewish faith. The Tribunal does not accept that the applicant converted to Judaism at any time or that he was or will be persecuted by his father or his father’s followers because of this alleged conversion should he return to Ghana.
The applicant has adjusted his claim to be that he fears persecution from his father and the followers of his father’s church because he left the church.
The applicant has modified his claim to state that his father’s church is evil and “occultish”. That there are blood sacrifices and that his father and his followers “vanish children” and hide their activities. The applicant has provided some photographs which he claims demonstrate that the church is involved in blood sacrifices. The Tribunal cannot see that the photos provided demonstrate any such thing.
The applicant has claimed that his father and his father’s followers in the church would consider his departure a betrayal and considered him a threat who would leak known secrets and wrong doings. He has not provided any evidence that he has spoken out about his father’s church and its alleged wrongdoings or made any reports to the media or other human rights organisations or anyone else either in Africa or Australia at any time about the serious allegations he has made about his father’s church including “disappearing children”.
The applicant also states that the agenda of his father’s church goes beyond what they portray on the internet and “many people have lost their lives as a result of the groups wrongdoing” He states that the group is widespread across Africa, and they have temples everywhere. He has stated and restated to the Tribunal at the hearing that his father’s church is protected by security services and the government because they are also involved. He states that his father’s church finances many political organisations and can influence government agencies to track his phone and find out where he is at any time. He has provided no evidence to support these claims.
The applicant has stated that the church sends “death squads” to kill him. He has provided photographs of injuries that he has sustained, along with his friend [Mr B], however the Tribunal put to the applicant that he could have received those injuries for many other reasons. He has also provided a statement from his friend [Mr B] who has stated that he and the applicant were attacked and robbed by men sent by the applicant’s father. Again, the injuries, damage to property and theft of items could also have been a random attack by criminal elements and nothing at all to do with the applicant’s father or his church. The Tribunal does not find the statements of either the applicant or [Mr B] to be a credible account or proof of the applicant’s claims.
The applicant has provided no reliable evidence to corroborate claims of persecution by his father and followers of his father’s church and when this was put to him at the hearing, he states that the church was clever at hiding its crimes. The Tribunal put to the applicant that his claims are significant and involve high levels of government and the government’s agencies. The Tribunal put to him that if his father’s church were really as evil and influential as he states and was responsible for deaths and the disappearance of children then surely it would have come to the attention of some human rights organisations, including perhaps Amnesty International. The applicant said that the group keeps changing its name and was difficult to track.
The Tribunal showed the applicant the same information that the delegate had put to him about his father’s activities. This included information about [a school], which his father, [name] had founded. The Tribunal read to him the mission statement which was “[deleted]”. The applicant told the Tribunal that at least three people from the school die every year. He told the Tribunal that the kids who have been dying in the school have been human sacrifices, but he had not witnessed that. He said he only witnessed animal sacrifices. The Tribunal put to him that his father appears dedicated to helping the poor, the needy and the orphans to read and write and accept Jesus Christ. The Tribunal asked the applicant to comment on that and he said that everything on the internet about the school and his father is fake. The applicant told the Tribunal that his brother [also] escaped from Ghana and went to [a country] and then went to [another country] but he has never returned to Ghana. He claims that he has not spoken to his brother because he abandoned their mother. He said that he was not in touch with any of his siblings.
The Tribunal finds the applicant’s claims about the human sacrifice of at least three children from his father’s school every year as fanciful. If such a thing was happening it surely would have been known in the community and result in international outrage. The applicant did not say that he had disseminated this information or told anyone else about it. If it were true, it seems to the Tribunal that that would be the evidence the applicant needed to expose his father and his father’s church for the abomination that he claims it is. He did not. The Tribunal has formed a view that the reason the applicant did not disclose this information anywhere except before the Tribunal for the purposes of supporting the applicant’s claims is simply because it is not true.
The applicant claims that as proof of his abandonment of the church his father did not support his education or pay his university fees. Without wishing to speculate, the Tribunal considers that there would be many reasons why the applicant’s father did not pay for his university education. The Tribunal notes that he obtained a loan for his education and completed his degree.
The Tribunal finds all of the applicant’s claims about his father’s church and the actions of his father and his followers to lack credibility and are in any case unsupported by reliable evidence. The Tribunal does not accept that the applicant’s father, or his father’s followers are evil or have death squads, or that the church is protected by the government and its agencies, or that they “disappear children”, or have had the government and its agencies track the applicant’s movements, or anything else. The Tribunal does not accept that the applicant’s father or members of his father’s church are responsible for the death of his mother. The Tribunal does not accept that the applicant has been or is or will be targeted by his father or his father’s followers, or indeed anyone else, for significant harm because he has left his father’s church, or for any other reason, should the applicant return to Ghana now or in the reasonably foreseeable future.
The applicant was not truthful with the Tribunal about his travel to Africa in 2022. He told the Tribunal that he never went to Ghana. He states that he bought his first ticket to [Country 2] but had to cancel it for another ticket due to fear of [attack]. He states that he spent 14 days in isolation in [City 1] which would make it impossible for him to be in Ghana and the border was closed. Given the Tribunal has accepted that the video is authentic and shows the applicant with his friend in Ghana at the funeral of his parents, the Tribunal gives no weight to the applicant’s claims.
The Tribunal does accept the video evidence showing that the applicant’s father and mother were buried together in Ghana in around March 2022 and that the applicant, and his friend [Mr B] were pall bearers (the applicant at 3.04 of the video, and both he and [Mr B] at 3.06). The applicant states that he does not believe that his father is dead and that his father has fabricated his own death four times in the past. The Tribunal notes that the applicant did not mention his father’s propensity to fabricate his death at any time prior to this, including at the hearing. There is no evidence that the video located by the Tribunal on [social media] has been fabricated and the Tribunal does not accept the applicant’s statement that the person in the video is not him.
The Tribunal does not accept that the applicant did not travel to Australia at the earliest opportunity after he was granted a visitor visa in January 2018 because he wanted another opportunity to reconcile with his father. The Tribunal has formed the view that the reason the applicant did not travel to Australia immediately after his visa was granted in January 2018 is because, on the basis of the evidence before it, the applicant did not have a well-founded fear of persecution for the reason stated, or for any convention-related reason, and therefore had no need to flee.
Credibility
The Tribunal accepts that inconsistencies in evidence can occur, particularly in circumstances of high stress and when applicants are being asked to recount traumatic events which may have occurred several years prior. The Tribunal is also mindful that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
The Tribunal was very clear with the applicant about the aspects of his evidence which it was finding to lack credibility or to be implausible and the applicant was given the opportunity to respond at the hearing. The Tribunal also invited him to respond to adverse information that it had either received or located after the hearing. That adverse information included a video of the applicant being a pall bearer at the funeral of his mother and father in Ghana in March 2022. He was unable to allay the Tribunal’s concerns to its satisfaction. In the Tribunal’s mind, the lack of corroborating evidence, his increasingly implausible responses, and the extent to which the applicant’s account varied across time and even during the hearing reveals a wholly contrived account of events rather than a lived experience of them.
The discrepancies identified by the Tribunal were about significant and central aspects of his claims. Considered collectively and along with the manner in which he testified; the Tribunal is not in any doubt that the applicant has not been truthful.
Conclusion
The Tribunal thus finds that the applicant’s claims about his persecution by his father and his father’s followers are not credible, that his mother did not die as a result of an attack by his father’s followers and that he is of no adverse interest to the Ghanian authorities, or anyone else, such that they would target him or track him or seek to persecute him for any reason at all should he return to Ghana either now or in the reasonably foreseeable future. The Tribunal is not satisfied, on the basis of the information before it, that the applicant has a well-founded fear of persecution for the reason stated or for any other convention related reason.
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 has found the applicant’s account of the harm he fears to be entirely contrived and lacking in credibility. Considering all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ghana, there is a real risk the applicant will suffer significant harm for the reason stated, or for any other reason. The Tribunal therefore 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.
Ann Duffield
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 1483

8 March 2023

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