1926298 (Refugee)

[2022] AATA 3830

1926298 (Refugee) [2022] AATA 3830 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926298

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Peter Katsambanis

DATE:15 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 September 2022 at 3:35pm

CATCHWORDS

REFUGEE – Protection visa – Ghana – political opinion – association and membership of the National Democratic Congress (NDC) – applicant had provided conflicting, inconsistent and contradictory information over time – applicant only applied for protection more than six years after he had arrived in Australia– fear of being denied economic opportunities in general was vague and undetailed – applicant was not a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Ghana, applied for the visa on 10 December 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments.

   Criteria for a protection visa

4. 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.

5. 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.

6. 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).

7. 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.

8. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

10. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).

11. 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

12. 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

13. The issues in this case whether there is a real chance that if the applicant returns to Ghana he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

    Protection Visa Application

14. The applicant applied to the Department for a protection visa on 10 December 2018.

15. In his application for protection, the applicant stated that he was born [in the Volta] Region, Ghana on [date]. He claimed that he was currently in a de facto relationship that began on [date] April 2016. He stated that he was in weekly contact by telephone with his father and sister in Ghana. He claimed to be of Ghanaian ethnicity and Christian religion.

16. The applicant stated that he had lived at the same residential address in [Town 1], Ghana from birth until March 2012, and also listed several different residential addresses where he had lived in Australia since March 2012.

17. The applicant stated that he had arrived in Australia on [date] March 2012 on a valid subclass 457 visa. He indicated that he had travelled to [a country] on a holiday in 2017. He also indicated that he had been refused visa applications in Australia on 4 August 2016 and 29 November 2018.

18. The applicant indicated that he was currently employed as a [Occupation 1] and had been employed in this position since September 2017. He had previously been employed in Australia [from] April 2012 to June 2013 and as a [Occupation 1] from May 2014 to August 2017. In Ghana, he had held employment [from] June 2001 to October 2001 in Accra and again from January 2002 to April 2002 in Greater Accra, [from] April 2002 to June 2003 in Greater Accra and again from June 2004 to October 2010 in [Town 1], and as a [supervisor] at a [firm] in Accra from October 2010 to March 2012.

19. The applicant stated that in Ghana he had completed various [courses]. In Australia, he had completed a [two qualifications].

20. The applicant stated that he migrated to Australia from Ghana in 2012 under a subclass 457 skilled visa [and] had been in Australia for almost seven years. He claimed that he had experienced a high level of security and safety in Australia compared to Ghana.

21. The applicant claimed that in Ghana he had experienced some personal attacks from a politically motivated group called Delta Force that belonged to the current political party in government. He claimed this group had attacked him on several occasions and he feels that his life would be under threat if he returned to Ghana, and he may even be killed or persecuted because he had previously been a target of this group when he was in Ghana.

22. The applicant claimed that he reported the group to the police but nothing much was done because he believed that they had some key political personalities who can influence government officials. He claimed that he had tried to seek help from the police on countless occasions, but he could not get any positive outcome. He claimed that he also tried to relocate to other countries, but the political situation was not favourable, and he could not speak their language which was also an issue.

23. The applicant stated that he moved to [Town 1] in the western region of Ghana to find a safe haven, but these groups were well connected and somehow managed to locate him. He claimed he thought about moving to a neighbouring country, but language was a barrier as they all speak French and also have a lot of political conflicts.

24. The applicant claimed that if he returned to Ghana, he feared he would be killed, tortured and persecuted by the political group called Delta Force. He may be kidnapped and subject to torture and could be assassinated or murdered in cold blood. The applicant stated that the lives of anyone who comes close to him could also be in danger as this group is well organised and shares information. The applicant claimed that some government appointees have been attacked in their offices and have had to run for their lives on several occasions. He stated that this group is armed with knives, guns and locally manufactured pistols. They attack their victims at will and the applicant feared he may be killed on arrival in Ghana since they share information and are well informed about their associates.

25. The applicant claimed that he would not be protected by the authorities in Ghana because the security and police personnel are limited in their capacity since the group has some political influence and some key personalities in government influence the activities of the security agencies. He stated that the government also lacked the human resources capacity to protect vulnerable people in many instances.

26. The applicant stated that he could not relocate to neighbouring countries because of the language barrier and the unsafe political situation in most neighbouring countries. He stated that this group was active and had become a threat to people like himself who had been targeted. He claimed that they had recently attacked other people who were their victims, and it was all in the news. He stated that he cannot relocate because this group would definitely harm, kill or persecute him. He also added that he feared he would be tortured and killed by these men.

27. In a statutory declaration dated 10 December 2018 and submitted to the Department with his protection visa application, the applicant stated that he was seeking protection because of his association and membership of the National Democratic Congress (NDC) in Ghana. He confirmed he came to Australia on a Temporary Work (Skilled) Subclass 457 Visa in March 2012 and that all his extended family currently lived in Ghana. He claimed that his family members were not politically active or affiliated to any specific party or group. He stated that he had not returned to Ghana since arriving in Australia and he feared returning because of his association and membership of the NDC.

28. The applicant claimed that he registered with the NDC in 2006 in [Town 1] as a member that was locally known as an NDC foot soldier who assisted in local political campaigns and activities. He claimed that the founder of the party was the military head of state, JJ Rawlings, who had brought the rule of law and democracy to Ghana when he decided to step down as the military head of state. The applicant was impressed with this decision, which was the reason why he joined the NDC party.

29. The applicant stated that he was an active member who engaged and participated in political rallies and also distributed political flags and other paraphernalia. He claimed he also engaged in door-to-door campaigns.

    a.The applicant stated that in 2010, he became a target of people from the rival political party, New Patriotic Party (NPP), that is currently in power. As a result, they attempted to attack and kill him on several occasions, but he luckily managed to escape from this group of politically affiliated people. He claimed that the attack was a machete attack from the group and they also attempted to use locally manufactured bows and arrows to strike him on several occasions, but they missed him by a few inches. The applicant claimed that they ganged up against him in March 2010 but fortunately, a group of people who happened to be members of his political group managed to rescue him from his attackers’ hands during the attack before he fled the scene.

30. The applicant claimed he reported these attacks to the local police but nothing much was done because of the influence on the government officials from the key political personalities. He claimed that he tried to seek help from police on countless occasions but did not obtain any positive outcomes.

31. The applicant stated that he relocated to [Town 1] in the western region of Ghana to find a safe haven, but these groups were all well-connected and somehow managed to locate him and became a major threat to his life once again. He claimed that he then tried relocating to neighbouring countries like Togo, Burkina Faso and Ivory Coast but because of the political instabilities and the situation in those French-speaking countries including the language barrier, he could not relocate. He stated that his security and his life would not have been safe in those countries due to political instability. He claimed that he was lucky to escape from Ghana and come to Australia in March 2012.

32. The applicant stated that if he returned to Ghana, he would be killed, tortured or persecuted by a political group called the Delta Force which was affiliated to the NPP. He may be subject to kidnapping, torture, acid attack or killed brutally by these members of the NPP political party. He feared assassination and cold-blooded murder and also believed that the lives of his family members and other people who associated with him would be in severe danger. He stated that these groups were fully armed and were a big threat to his security and well-being.

33. The applicant claimed that the persecution of people from the NDC would be carried out by the state themselves as they are the ruling government in Ghana, which meant that the government was unable to protect him as they were his persecutors. For these reasons, he was seeking protection from the Australian government.

34. The applicant also provided the Department with copies of his passport and other identity documents, employment references from both Australia and Ghana, and divorce documents from Ghana dated [November] 2016 confirming his divorce from [name deleted].

35. The applicant provided the Department with the following additional documents in support of his claims:

    ·An article dated 13 April 2017 from Mail & Guardian titled ‘Vigilante groups flare up in Ghana’

    ·A statement issued by the United Nations in Ghana dated 10 April 2017 relating to recent violence at Kumasi Circuit Court

    ·An article dated 19 April 2019 from Ghana Web titled ‘UN to assist Ghana to abolish vigilantism’

    ·An unsourced article discussing the effectiveness of policing in Ghana

36. The Department was also provided with a copy of a letter dated [January] 2007 from the National Youth Authority. The letter was signed by [Mr A], [an official]. This letter stated that the applicant had reported a case of assault on him by [Mr B] and a group on[date] December 2006. It was stated that due to harassment, intimidation and threats by the relatives and friends of [Mr B], the applicant was fearing for his life, so he left the shores of Ghana without ensuring that a medical officer endorsed the police medical form that had been given to him when he reported the incident. The letter added that the writer wished to apologise for the inaction of the applicant and advised that the case should be struck out and discontinued without any further police action.

37. The applicant was interviewed by a delegate from the department in relation to his protection visa claims on 15 May 2019. The delegate’s decision record states that at this interview, the applicant made an additional claim that he had criticised the government in Ghana on his social media pages and that this would also place him at risk from the authorities in Ghana and from supporters of the current government.

38. The delegates decision record states that at the interview the applicant confirmed that he had become a registered member of the NDC in 2006 but had supported that party unofficially since 1996. He also produced a copy of his NDC membership card. The decision record indicates that the applicant stated that he was a foot soldier for the NDC and would assist in the lead up to elections by campaigning door-to-door, discussing the party’s policies and principles, and attempting to convince people to support the party. He would also attend party political meetings during an election period.

39. The decision record indicates that at the interview the applicant stated that he had been physically attacked by NPP supporters on three occasions, in 1996, in 2001 and in 2006. Later at the same interview, the decision record states that the applicant also stated that he had been attacked in 2010 but claimed that the most severe attack was in 2006. The decision record indicates that during the interview the applicant stated that the 2010 attack occurred while he was walking with his fiancée and that he believed the person that attacked him was named [Mr B]. The decision record also indicates that at the conclusion of the interview the applicant stated that he had requested documentation from the police in Ghana and the hospital that had treated him for his injuries in order to support his claims. The decision record also indicates that at the interview the applicant stated that he had not applied for protection when he first arrived in Australia because he was unaware of the protection visa process at that time.

40. The delegate refused to grant the applicant a protection visa on 13 September 2019.

    Application for Review

41. The applicant applied to the Tribunal for a review of the delegate’s decision on 18 September 2019. Together with his application, the applicant provided the Tribunal with a copy of the delegate’s decision record.

1. The applicant was initially represented in relation to the review by a registered migration agent however this representation was withdrawn by the applicant on 5 August 2022.

2. The applicant provided the Tribunal with a copy of a letter dated 15 August 2022 from the National Democratic Congress [Suburb 1] Constituency. This letter stated that the applicant had been a member of the [Suburb 1] branch of the NDC since 2001 and had openly campaigned for the party from 2001 to January 2012. It was stated in this letter that the applicant’s life had been threatened by the current ruling government vigilante group called Delta Force and this group had been responsible for the kidnapping and death of some party members. It was claimed that the applicant had also been attacked in several parts of the country by this same group and although complaints had been lodged with the police, they could not prevent any further attacks on him. It was claimed this was part of the reason why the applicant left for Australia in 2012. It was stated that this group could walk into a law court in Ghana with impunity and attack a sitting judge while court proceedings were in session. The group was affiliated to the ruling government and committed dastardly acts but were left off the hook without any punitive action taken against them. The letter stated that the applicant required assistance to stay in Australia with his wife because his life was still under threat as long as the current NPP government continued to be in power.

3. The applicant also provided the Tribunal with the following additional documents in support of his claims for protection:

   ·a news article dated 7 April 2017 titled ‘NDC blames Akufo-Addo, NPP for Delta Force attack’

   ·a news article dated 4 August 2020 titled ‘Video: 5 Voltarians were attacked by NPP Delta Forces in Banda - NDC told’

   ·a news article dated 12 April 2017 titled ‘Delta Force vigilantes attack government building release senior official’

   ·an Australian criminal record check for the applicant

   ·a marriage certificate indicating that the applicant married [name deleted] in Perth, Western Australia on [date] October 2021

   ·a copy of an NDC membership card in the name of the applicant and bearing the applicant’s photo, which indicated that the applicant had paid his membership dues for 2021 and 2022

   ·copies of a contract or agreement between the applicant and a [Country 1] migration lawyer

4. At the Tribunal hearing, the applicant provided the Tribunal with an undated NDC membership card, which he claimed had been issued to him in [Town 1] and which he further claimed was the first membership card he had received from the NDC. The card had provision to record membership dues paid on a monthly and yearly basis, however there was no record of any dues paid beyond the initial payment on this card.

   Tribunal Hearing

5. At the Tribunal hearing on 6 September 2022, the applicant confirmed his date of birth and stated that he was born [in] the Volta region of Ghana. He indicated that his family moved from this part of Ghana to Accra when he was around [age] years old. He claimed that his mother had died in 2011 and his father was currently living in [Town 1], which was located near [Suburb 1] on the outskirts of the city of Accra.

6. The applicant claimed that he was [one] of a family of [a number of] siblings. His [siblings] all lived in Ghana and ranged from [age] years of age to around [age] years of age.

7. The applicant stated that in Ghana he had completed a [qualification] in Accra from 1990 to 1994. He stated that in Ghana he had lived in [Town 1] from 2001 and in 2002 had briefly moved to [Town 2], which was also located on the outskirts of Accra. He claimed that he moved to [Town 1] later in 2002 and remained living there in rented accommodation until 2011 when he started to prepare his visa application to come to Australia. The applicant indicated that whilst living in [Town 1] he would not always stay there when he had days off or when he was on leave. He stated that he would regularly visit the city of Kumasi where he would stay with a friend.

8. The applicant confirmed that he had commenced an apprenticeship in Accra in 1998 but had lost that job in 2000. He had gone to [Town 1] in 2002 to look for work and had been employed there from that time onwards until 2011. At first, he worked in a [company] in [Town 1] and then started working for [another] company.

9. The applicant confirmed that he was married in Ghana in 2011 but the relationship ended in divorce in 2016. He stated that he had no children from this relationship. He claimed that after he was married in 2011, he lived with his wife in [Town 1], but he did not stay long before he left for Australia. He added that the couple were having misunderstandings from around the time that they first became married.

10. The applicant stated that before he travelled to Australia in 2012, he had never been anywhere outside Ghana. He then clarified that in around 1999 or 2000 he had travelled to a border [region]. He stated that he had stayed in this area for around three days and confirmed that he did not need to use a passport or pass through border controls in order to enter this area.

11. The applicant again confirmed that he had never travelled outside Ghana using his passport prior to 2012 when he came to Australia. He added that Australia was the first other country he had been to.

12. The applicant claimed that when he was in Ghana, he would help the NDC as a foot soldier and added that when he went to [Town 1] he had problems, but his problems had started when he was still in Accra. He claimed that he was attacked by Delta Force and had been targeted. He stated that he had been attacked when walking home but he was able to escape.

13. The Tribunal asked the applicant to clarify when this attack took place. He responded that it was around 2002. He added that although he could not remember the exact date the attack happened in a bush area near Accra. He claimed that he managed to get away and he ran to a police station where he could make a report. He stated that the police told him to be careful and to not become too involved in political activities. He expressed his fear that the police were not overly interested in his report because they were affiliated with the ruling party.

14. The applicant stated that he had also been attacked in [Town 1] in 2002. He claimed that on this occasion, he was getting out of the car when political opponents pounced on him. He stated that he reported this attack to the police, but no action was taken.

15. The applicant was asked if he had experienced any other politically motivated attacks in Ghana apart from the two attacks in 2002 that he had mentioned to the Tribunal. In response, the applicant stated that when he was studying in [Kumasi], he had been attacked with a machete around 1996. He claimed that this attack was related to politics on campus, and he had sustained a cut on his forehead.

16. When asked when he had first joined the NDC, the applicant stated that he did not register at the time but around 1992, when he was a [school], he became involved with the NDC. He then stated that he became a member in 2001 when the troubles started. He claimed that he registered with the [Suburb 1] branch in 2001 and had remained a member ever since.

17. The applicant was asked to clarify if the attack in Kumasi in 1996 and the two attacks in 2002 that he had mentioned to the Tribunal were the only times he had been attacked whilst living in Ghana. He responded that he got stuck a couple of times because his political opponents seem to be monitoring people and trying to cause harm. He stated that he got stopped a few times and he suspected that these people were up to something, but he managed to avoid harm.

18. The applicant was asked whether the last major attack he had suffered in Ghana occurred in 2002. He indicated that this was the case but added that he managed to escape other attacks.

19. The applicant claimed that apart from problems associated with politics and the vigilante groups attached to his political problems he had not experienced any other problems in the past in Ghana.

20. The applicant confirmed that he arrived in Australia on [date] March 2012 on a subclass 457 visa. He stated that he worked on this visa for about eight months, but he was then laid off because of issues in the [industry] at the time. He claimed he then transferred to a student visa and studied for two years in Australia. He stated that he had obtained a [qualification] around 2016.

21. The applicant claimed that when he finished his studies in 2016, he was in a de facto relationship and he lodged a partner visa application around 2016 or 2017. He confirmed that he used a registered migration agent to lodge this visa application. The applicant stated that his partner at the time withdrew the visa sponsorship around 2020 or 2021 and the visa was subsequently refused.

22. The applicant confirmed that he had married in 2021 and stated that his wife was an Australian citizen. He claimed that the couple did not have any children. The applicant stated that he had not applied for a partner visa with his current wife because he had been told he was now barred from applying for another partner visa within Australia. He indicated that this was the reason he was looking to apply for a skilled visa to [Country 1] and claimed that the [Country 1] migration documents that he had provided to the Tribunal were in relation to this proposed application. He stated that he would then attempt to apply for an Australian partner visa offshore when he was in [Country 1].

23. The applicant stated that from the time his student visa expired in 2016 he had not been given any work rights to work in Australia until the week before the Tribunal hearing. He stated that without work rights his life in Australia had been horrible and very tough. He indicated that his friends and his wife had supported him through this tough period.

24. The applicant was asked what he feared about returning to Ghana now or in the reasonably foreseeable future. The applicant responded that he feared he might be killed, tortured or kidnapped because he had been criticising them a lot on [Social media]. When asked who he was referring to when he used the term “them”, the applicant stated that it was the government of Ghana and the Delta Force. He added that he used to criticise the government a lot on social media.

25. When asked why he would specifically be targeted for harm if he returned to Ghana, the applicant stated that his political opponents would assume he had come back from overseas with a lot of money which could be used to fund political campaigns against his opponents. He claimed that this was his big fear.

26. When asked if he had any other fears about returning to Ghana, the applicant stated that the country was not very stable economically and he was aware that a lot of people who had returned had been killed, including people who had returned from the United States of America and Canada.

27. When asked why he would be specifically targeted for harm if he returned to Ghana, the applicant stated that some people in Ghana believe that people from overseas have a lot of money and if they have a political profile, they would use this money to influence politics and help to remove the current government.

28. The applicant was asked if he had any documents or other evidence that would highlight any activity that he undertook on [Social media 1] or social media. He responded by saying that he would only go to the comments section on [Social media 1]. When again asked if he had anything that he wanted to provide to the Tribunal to highlight his activity on [Social media 1], the applicant responded that he did not and added that he did not save anything.

29. It was pointed out to the applicant that any posts or entries he would make on [Social media 1] would be automatically saved and could usually be accessed by him at any time. The Tribunal stated to the applicant that the fact he had not provided the Tribunal or the Department with any documents or other evidence to highlight his [Social media 1] activity may indicate that he had not undertaken any such activity as claimed. The applicant responded that generally speaking he would just criticise on [Social media 1], but he did not take the time to save it.

30. The applicant confirmed that at his interview with a delegate from the Department he had also made claims that he had posted comments on [Social media 1] critical of the current government in Ghana and also confirmed that he had not provided any copies of such posts to the Department.

31. When asked if he had any other fears about returning to Ghana that were not related to his political activities, the applicant stated that his real fear was that when you engage in political activities there would always be speculation that somebody has returned to start political campaigning again and he would become a primary target on return.

32. The applicant handed the Tribunal the original of the letter dated [August] 2022 from the National Democratic Congress [Suburb 1] Constituency, the original of the NDC membership card he had previously provided the Tribunal and a further undated NDC membership card. The applicant claimed that this further NDC membership card was the first card he had been issued by the NDC in [Town 1] 2001.

33. It was pointed out to the applicant that this older NDC membership card did not have any date on it and despite having room within the card to indicate the payment of membership fees on a monthly basis, there was no indication that any such fees had been paid. Given the card was undated, the applicant was asked why the Tribunal should accept that it was issued in the period that he claimed it had been issued. The applicant responded that when he spoke to a police friend he had been told that it would be good to get an ID card to show that he was a member of the NDC. He added that they told him he owed them dues and had made him pay dues recently. He confirmed that his new NDC membership card indicated that he had paid fees for 2021 and 2022 only and added that he was out of the country.

34. The applicant was asked to clarify why the letter dated [August] 2022 from the NDC and the newer membership card he had provided indicated that he was a member of the [Suburb 1] branch, whereas the older membership card indicated he was a member of the [Town 1] branch. He responded that the older card was from when he had moved to [Town 1]. When asked why the letter dated [August] 2022 did not reference the fact that the applicant had moved branch, the applicant responded that he started in [Suburb 1] but joined the [Town 1] branch when he moved there.

35. The applicant confirmed that the NDC had party representatives in Australia. He claimed that he told the party representative in Sydney that he had applied for a protection visa and this representative provided him with contact details for the people in [Suburb 1] who the applicant had previously known but had lost contact with. He claimed that he managed to obtain the documentation he had provided to the Tribunal from these people that the Sydney representative had put him in contact with.

36. It was pointed out to the applicant that the statutory declaration he provided to the Department in support of his claims for protection clearly indicated that he had first become a member of the NDC in 2006. The applicant responded that he thought he made an error. When it was pointed out that he had signed a declaration on this form that the information he was providing was true in every particular, the applicant responded that he did sign this declaration, but he must have made a written error. When asked why he had not corrected this error when it came to his attention, the applicant stated that it was an oversight and added that he knew he had a membership card.

37. The Tribunal pointed out to the applicant that although he had provided two membership cards from the NDC, there was no date on the card he claimed to be the earlier card and there was no indication on either of the cards that he had ever been a member or had ever paid dues to the NDC prior to 2021. The applicant responded that if the Tribunal would listen to the interview with the delegate they would notice he had told the delegate he had lost contact with most NDC people. He added that the only contact he had was a person in [Town 1] and he had provided the Department with a letter from this person.

38. The Tribunal pointed out to the applicant that he had provided conflicting, inconsistent and contradictory information over time about the timing of the attacks he claimed to have endured in Ghana from political opponents. In his statutory declaration submitted to the Department with his claims for protection, the only attack the applicant had mentioned was an attack in 2010. At his interview with the Department, the decision record indicates that he had mentioned attacks in 1996, 2001 and 2006. Later at this interview he had confirmed that he had also been attacked in 2010 but had claimed that the most serious attack had taken place in 2006. However, at the hearing, the applicant had claimed that he had been attacked in Kumasi in 1996, once in Accra in 2002 and then once in [Town 1] in 2002. It was pointed out that he had made no mention of any attack in 2006 or 2010 at the Tribunal hearing.

39. In response the applicant stated that if the Tribunal listened to the interview with the delegate it would see that he told the delegate there had been a lot of attacks and he could not remember some dates. He added that his political opponents would stalk him and pounce on him, and he told the Department he had been attacked on a series of occasions.

40. The Tribunal pointed out to the applicant that the significant inconsistencies and contradictions over time relating to when he had been attacked in Ghana by political opponents created credibility concerns about the evidence he had provided over time. The applicant responded that the truth was sometimes things would happen and he could not remember all of the things that happened. He stated that he could not remember the dates, but he had been attacked. He added that even when he came to Australia, he was not aware about the existence of protection visas until 2016 when he read about these visas online.

41. The Tribunal pointed out to the applicant that he had previously provided a letter from the National Youth Authority to the Department discussing the claimed attack in 2006 and the decision record indicated that he had told the Department the attack in 2006 was the most serious attack he had endured in Ghana. Given he had made no mention of this attack at the Tribunal hearing, the applicant was asked why the Tribunal should accept the claim that this attack ever happened or accept any of the other claims in relation to the attacks in Ghana. The applicant stated that [Mr A], the writer of this letter, was a friend of his who had gone to the police with him, but he had later lost contact with him. It was pointed out to the applicant that this was not a responsive answer to the question he had been asked. The applicant then responded that sometimes the trauma was challenging and depressing so he told people to help him. He stated that the 2006 case was in a house where an NPP member had a machete and wanted to attack the applicant.

42. It was pointed out to the applicant that this letter from the National Youth Authority was dated [January] 2007 and clearly stated in the letter that after the attack in 2006 the applicant was in fear of his life and had left Ghana. In response, the applicant asked the Tribunal if he had said that. When it was pointed out that this statement was contained in the letter dated [January] 2007, the applicant responded that he had already told the Tribunal he would not stay in [Town 1] on his days off but would instead go to Kumasi. When asked why the writer of this letter would make a claim that the applicant had left Ghana at that time if it was not correct, the applicant responded that maybe the writer thought he had left the country. The applicant added that he had asked [Mr A] to write a letter for him and this man had done so.

1. The applicant was asked why the Tribunal should accept that the documents he had provided over time were genuine given that there were significant inconsistencies in the applicant’s claims and given that country information indicated that document fraud was a common problem in Ghana. The applicant agreed that document fraud was a common problem in Ghana but stated that if you are not a member of the party there was no way they would give you a card. He added that he was a member of the party.

2. The applicant was asked to respond to concerns that he had only applied for protection more than six years after he had arrived in Australia and only after he had exhausted other visa options in Australia, including a partner visa application. The applicant responded that you cannot leave the country for so long and not have fears about returning to that country. He added that this was the reason he was now looking to go to [Country 1] so he could lodge a partner visa from there because he feared returning to Ghana. He stated that if he did not have such fears he would have gone back by now.

3. The applicant confirmed his claim earlier at the hearing that he had first found out about protection visas in Australia in 2016. On this basis, he was asked why he had delayed making an application for a protection visa until 10 December 2018. The applicant responded that he had a lot of stress and he did not have a lot of money to apply for visas. He stated that the lack of financial support and his financial constraints did not allow him to apply earlier.

4. It was pointed out to the applicant that a protection visa application is one of the least expensive visa options in Australia whereas a partner visa has a far more expensive application fee. The applicant stated that his partner had borrowed money from [Bank] to apply for the partner visa and added that they also had to pay the migration agent to act on their behalf. When it was pointed out to the applicant that he could have discussed alternative visa options, including a protection visa, with the migration agent at the time, the applicant claimed that he did discuss it.

5. When asked if he had anything else he wanted to tell the Tribunal, the applicant stated that generally speaking his life had been very stressful in Australia. If he went back to Ghana, he feared looking for employment because when they know you are from the NDC they make life harder for you in Ghana. He claimed that the government was in power in the next election was not until 2024. He added that as long as the government were in power it would be hard for him to get employment. He asked the Tribunal if there was any way he could apply for a partner visa whilst remaining in Australia so that he could stay here with his family.

6. It was pointed out to the applicant that when he was living in Ghana in the past, the NPP were the governing party, as they are now, yet the applicant had managed to gain and hold down employment which would indicate that he would not have any problems obtaining employment because of any issues with the government or the NPP upon his return. The applicant responded that his employment was with a [company], but he became more active politically when he was in [Town 1]. He added that now things have changed, and friends had told him it was hard to find employment if you were an opponent of the NPP, so life is unbearable in Ghana.

   Post Hearing Submissions

7. After the conclusion of the hearing on 6 September 2002, the applicant provided the Tribunal with links to three [Social media 1] sites. Also provided was some documentation evidencing a personal loan taken out with [Bank] by the applicant’s former partner in April 2017, letters evidencing the employment and termination of employment for the applicant in the past in Ghana, and details of the applicant’s [studies].

8. The [Social media 1] links provided were as follows:

   ·A link to an article posted by the Pulse Ghana Facebook page on 26 August 2022 titled ‘Ghana receives $750m loan from Afriexim Bank’

   ·A link to an article posted by the JoyNews Facebook page on 2 September 2022 titled ‘Nigerian church donates to National Cathedral of Ghana – MyJoyOnline.com’ 

   ·A further link to the JoyNews Facebook page which contained recent news articles posted on this page.

9. The applicant also provided the Tribunal with a copy of a media article highlighting the lack of demarcation of parts of the Ghana/Togo border and copies of correspondence from the Department relating to the applicant’s previous partner visa application.

10. On 8 September 2022 the applicant provided the Tribunal with copies of further employment records in Ghana, his certificate and diploma obtained in Australia and an Australian skills recognition certificate recognising his [skills]. On this date, the applicant also provided the Tribunal with links to recent videos and articles on various Facebook pages operated by Joy 99.7 FM, UTV Ghana, 3FM 92.7 and JoyNews. These Facebook pages appear to be operated by media organisations in Ghana.

11. On 9 September 2002 the applicant provided the Tribunal with copies of personal documents that had previously been provided to the Department and the Tribunal.

12. On 12 September 2022 the applicant provided the Tribunal with links to recent videos and articles appearing on the Facebook pages of UTV Ghana, Bigscout Media, GhanaWeb, Modern Ghana Web, JoyNews, and Daily Guide Network as well as to the Facebook link which had been removed before the Tribunal could access it.

13. On 15 September 2022 the applicant provided the Tribunal with more links to recent videos and articles appearing on the Facebook pages of Naana Donkor Arthur – NDA, Joy 99.7 FM, With All Due Respect – Loud Silence Media, Net2 TVGH, GhanaWeb and JoyNews.

14. The Tribunal has read, viewed and considered this information prior to making its decision in this matter.

    FINDINGS AND REASONS

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. There is no issue as to identity. The applicant arrived in Australia on a valid Ghanaian passport and bearing a valid Australian visa. The Tribunal therefore accepts that the applicant is a national of Ghana and has assessed his claims accordingly.

100.   The applicant has claimed that when he was in Ghana, he was an active member of the National Democratic Party (NDC) and that he was active in campaigning for this party in a role he has described as a ‘foot soldier’. The applicant has claimed that through his membership of, and campaigning for, the NDC he came to the attention of political opponents in Ghana from the ruling National Patriotic Party (NPP) and their associated vigilante group known as Delta Force. He has claimed that these political opponents attacked him on multiple occasions in Ghana, causing him injury on some occasions. He has claimed that because of these attacks and fear of future harm he attempted to relocate within Ghana. He has further claimed that he left Ghana in 2012 to come to Australia because he feared further harm from political opponents.

101.   However, over time, the applicant has provided conflicting, inconsistent and contradictory evidence in relation to when he joined the NDC and about when the claimed attacks from his political opponents occurred.

102.   In relation to attacks on the applicant by his political opponents the applicant claimed in his statutory declaration dated 10 December 2018, which the applicant provided to the Department with his protection visa application, that he had been attacked by political opponents in 2010. At the interview with the delegate of the Department, the decision record indicates that the applicant claimed he had been attacked by political opponents in 1996, 2001 and 2006. He later agreed with the delegate that he had also been attacked in 2010 but indicated that the most severe attack he had endured was in 2006. At the Tribunal hearing, the applicant claimed that he had been attacked once in 1996 and twice in 2002, with the attacks in that year occurring in two different cities. When given the opportunity at the Tribunal hearing to discuss any further attacks he had not previously mentioned, the applicant made some general claims about being stuck on several other occasions but added that he avoided harm on those occasions and did not provide any further details or dates about any other specific attacks.

103.   When asked at the hearing to explain why he had provided three different and conflicting sets of claims over time in relation to when he was attacked by political opponents in Ghana, the applicant stated that he had been attacked many times and could not remember all of the dates. The Tribunal does not accept this explanation because the applicant did not simply forget certain dates but provided three distinctly different sets of claims over time with clear dates on each occasion. The Tribunal accepts that an applicant may forget some dates or some attacks but does not accept that this would apply to the 2006 attack which the applicant did not mention at all at the hearing, given that he had previously told the Department that this 2006 attack was the most serious he had endured in Ghana.

104.   The Tribunal has considered the explanation offered by the applicant at the hearing that he may not have been able to recollect the attack in 2006 because of challenging and depressing trauma created by the attacks he had allegedly endured. However, the Tribunal does not accept this explanation given that the applicant had not only been able to recollect this alleged 2006 attack at the interview with the Department but had also stated at this interview that the attack in 2006 was the most serious he had endured. Accordingly, the Tribunal would expect that the applicant had some recollection of an attack he had previously described as the most serious he had endured.

105.   The Tribunal has considered two letters provided to the Tribunal in support of the applicant’s claims he had been attacked by political opponents in the past in Ghana.

106.   The letter dated [August] 2022 from the National Democratic Congress [Suburb 1] Constituency states that the applicant had been attacked in the past in Ghana but the statement is vague and undetailed and provides no details as to the dates of these attacks, the places where the attacks took place or how the writer came to know about these attacks. Accordingly, based on these vague and undetailed contents in the letter, the Tribunal has placed no weight on the claims in this letter when making findings on any attacks that were made by political opponents on the applicant in the past in Ghana.

107.   The letter dated [January] 2007 from the National Youth Authority discusses an incident that allegedly occurred to the applicant on [date] December 2006. However, as discussed with the applicant at the hearing, in this letter the writer claims that after this particular attack the applicant had fled from Ghana in fear of his life. Given that the applicant himself clearly indicated at the hearing that he had not fled Ghana at any time prior to 2012, which is after the letter was written, and given the applicant did not mention this incident that allegedly occurred 2006 in his evidence at the hearing, the Tribunal has placed no weight on this letter when making findings in relation to any attacks on the applicant in the past in Ghana.

108.   Based on the conflicting, inconsistent and contradictory evidence provided by the applicant over time in relation to when he had been attacked by political opponents in Ghana, the Tribunal finds that the applicant was not a witness of truth in relation to these claims and further finds that his evidence in this regard lacks credibility.

109.   Accordingly, based on the evidence before it, the Tribunal finds that the applicant was never attacked by political opponents the past in Ghana as claimed. Based on this finding, the Tribunal also does not accept the applicant’s claim that he had to move within Ghana to attempt to escape from any further harm from his political opponents.

110.   In relation to the applicant’s membership of the NDC, in his statutory declaration dated 10 December 2018, the applicant claimed that he first joined the NDC in 2006. The delegate’s decision record indicates that the applicant also told the Department at an interview on 15 May 2019 that he joined the NDC in 2006 but added that he had supported the party on an unofficial basis since 1996. At the Tribunal hearing the applicant stated that he had joined the NDC in 2001, although he claimed that he had been a supporter of the party since around 1992. The applicant also provided a letter dated 15 August 2022 from the National Democratic Congress [Suburb 1] Constituency stating that he had been a member of the NDC since 2001.

111.   When asked at the hearing to explain these contradictory and inconsistent claims over time about when he joined the NDC, the applicant claimed that he must have made an error in his statutory declaration. When asked why he did not correct any such error when he became aware of it, the applicant stated that it was an oversight and made reference to his membership cards that he had provided to the Tribunal.

112.   The Tribunal does not accept the explanation offered by the applicant that the claim in the statutory declaration that he joined the NDC is an error. The date that he joined a political party is a matter about which an applicant would be expected to have personal knowledge and provide consistent evidence over time, especially given that the membership of the party and subsequent events that followed from his alleged membership of this party were central parts of the applicant’s claims.

113.   The Tribunal has considered the two membership cards produced by the applicant. The card the applicant claims is the earlier card is not dated and does not indicate that the applicant has paid any of his monthly membership fees. The second card only shows that the applicant has paid membership dues in 2021 and 2022, when he has been living in Australia. Neither card indicates in any way that the applicant was a member of the NDC from 2001 or from 2006, as variously claimed over time, or that he was ever a member of the NDC at any time before 2021. Accordingly, the Tribunal has placed no weight on these membership cards when making a finding as whether the applicant was ever a member of the NDC at any time before he came to Australia.

114.   The Tribunal has considered the letter dated [August] 2021 stating that he had been a member of the NDC since 2001. However, this claim is directly contradicted by the applicant’s own claim in his statutory declaration that he joined the NDC in 2006. In addition, the applicant stated at the hearing that he sought assistance from NDC representatives in Sydney, Australia to assist him to procure documents after he lodged his application for protection. Given that the claims in the letter regarding when the applicant joined the NDC are contradicted by claims previously made by the applicant and given that the applicant sought to obtain the letter and the recent membership card only after lodging his protection visa application, the Tribunal has placed no weight on this letter when making a finding as to when the applicant joined the NDC or whether he was ever a member of the NDC before he came to Australia.

115.   Based on all of the above, the Tribunal does not accept that the applicant was ever a member of the NDC in the past in Ghana as claimed. The Tribunal does accept that the applicant sought assistance from NDC representatives in Australia to assist with his claims for protection and accepts that he has paid membership fees to the NDC in 2021 and 2022. However, based on the conflicting, inconsistent and contradictory evidence provided by the applicant over time, the Tribunal finds that this membership in 2021 and 2022 was undertaken whilst he was in Australia for the sole purpose of enhancing the applicant’s claims for protection in Australia.

116.   Accordingly, on the evidence before it, the Tribunal finds that the applicant was never a member of the NDC in Ghana prior to coming to Australia as claimed.

117.   The applicant has claimed that since he came to Australia in 2012, he has made [Social media 1] comments that are critical of the current government in Ghana, the NPP and Delta Force. However, as pointed out to the applicant at the hearing, despite having the opportunity to do so he has not provided any copies of such [Social media 1] posts or comments that have been made by him to either the Department or the Tribunal.

118.   The Tribunal does not accept the applicant’s claim at the hearing that although he had made some comments on [Social media 1] and social media, he not taken any copies of the comments. As was pointed out at the hearing, if the applicant had made his own posts on [Social media 1], the site itself would retain a copy that he would be able to access at a later date. The applicant has not provided any explanation as to why he would be unable to access such historical posts and provide copies of them to the Tribunal. It is accepted by the Tribunal that comments made on posts that appear on [Social media 1] pages of other people, or organisations, may only be accessible if the owners of those pages do not delete the post entirely, or do not delete the specific comment. However, despite the opportunity to do so, the applicant has not suggested in any way that any comments he may have made on other posts have been deleted by the owners of the pages involved and has not provided any other explanation as why he may not be able to access such comments.

119.   The Tribunal has considered the links to the various Facebook pages provided by the applicant after the Tribunal hearing. However, the Tribunal has not placed any weight on these Facebook pages when making its findings on this matter because these pages are from third party news sites and there is no indication from the information provided by the applicant, or from an examination of the content contained in the links provided, as to the applicant’s involvement or engagement with these pages, or how they may impact on his claims for protection.

120.   Based on the evidence before it, the Tribunal does not accept that the applicant has ever made any posts on [Social media 1] or other forms of social media that are critical of the current government in Ghana, the NPP or Delta Force as claimed.

121.   The applicant has claimed that if he returned to Ghana now or in the reasonably foreseeable future, he feard harm from his political opponents in the current government, including the NPP and Delta Force, because of his profile as an NDC political operative and because it would be assumed that he would be returning to Ghana from overseas with significant financial resources that could be used to fund political campaigns against his political opponents. He has also claimed that his political opponents would deny him employment opportunities if he returned to Ghana.

122.   However, the Tribunal has already found that the applicant was never a member of the NDC in Ghana prior to coming to Australia as claimed and the Tribunal has further found that the applicant was never attacked by political opponents in Ghana in the past as claimed. The Tribunal has also found that the applicant has never made any posts on [Social media 1] or other forms of social media that were critical of his political opponents as claimed.

123.   The Tribunal has accepted that the applicant joined the NDC whilst in Australia, however the Tribunal has found that he joined this party for the sole purpose of enhancing his claims for protection in Australia. There is no evidence before the Tribunal to indicate that this membership taken out in Australia would be known to the government of Ghana or to any political opponents of the NDC in Ghana. Given the finding that the applicant joined the NDC for the sole purpose of enhancing his claims for protection in Australia, the Tribunal also finds that if the applicant returned to Ghana now or in the reasonably foreseeable future, he would not continue with his membership of the NDC and would therefore not have or establish any political profile that would identify him as a member of the NDC. Accordingly, the Tribunal finds that the applicant has no political profile that would be considered adverse to the current government in Ghana, the NPP or Delta Force.

124.   Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant was to return to Ghana now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm amounting to persecution for reasons of his political opinion as an actual or perceived opponent of the current government in Ghana, the NPP or Delta Force.

125.   The Tribunal has considered the applicant’s claims that if he returned to Ghana he would be targeted for harm by political opponents because he would be perceived as a wealthy returnee with a political profile who may choose to use any such wealth to fund political campaigns against his political opponents. However, the Tribunal has already found that the applicant has not had any such claimed political profile in the past in Ghana and would not have any such claimed political profile if the returned to Ghana. On the basis of these findings, the Tribunal is not satisfied that if the applicant was to return to Ghana now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm amounting to persecution for reasons of any perception that he is a wealthy individual with a political profile who may choose to use his wealth to fund political campaigns against his political opponents.

126.   The applicant has made some vague claims that he fears that he would be denied employment opportunities in Ghana because of general economic instability in the country. However, the Tribunal finds that this claim does not fall within one of the five reasons for persecution under s 5J(1).

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

128.   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).

1. 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 considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Ghana, there is a real risk that the primary applicant will suffer significant harm as defined in Section 36(2A) of the Act.

130.   At the Tribunal hearing, the applicant made a claim that he feared he would be denied employment opportunities in Ghana because of the general economic instability of the country. It was somewhat unclear whether this claim was a standalone claim, or whether it was made in conjunction with his claimed fear of harm for reasons of his political opinion, which has already been discussed above. However, the Tribunal has considered this claim on a standalone basis, unrelated to any alleged political profile, in relation to the alternative criterion in s 32(2)(aa).

131.   The applicant’s evidence at the hearing in relation to his fear of being denied economic opportunities in general was vague and undetailed. As pointed out to the applicant at the hearing, he had been able to secure employment in the past in Ghana. The applicant provided no supporting evidence, apart from his own claim, or any country information to indicate that he would be denied such employment in the future, and the Tribunal has not accessed any country information to indicate that this would be the case.

132.   Accordingly, based on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he were to return to Ghana because he may be denied economic opportunities because of the general economic instability of the country.

133.   The Tribunal has already found that the applicant does not have any adverse political profile in Ghana and that he would not face any serious harm on the basis of any adverse political profile or because of any perception that he is a wealthy individual with a political profile who may choose to use his wealth to fund political campaigns against his political opponents. Based on these findings, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm for these reasons if he were to return to Ghana.

134.   The applicant has not made any other claims that he fears harm for any other reason in Ghana, and no further claims arise on the facts before the Tribunal.

135.   Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Ghana. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. 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

137.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Katsambanis
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(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.

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