2205386 (Refugee) - [2025] ARTA 1376

2205386 (Refugee) [2025] ARTA 1376 (9 April 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Ashrita Zeeshan
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2205386

Tribunal:Senior Member G. Cullen
Date:9 April 2025

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2025 at 1:02pm

CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – refusing to become traditional Chief – religion – Christian – attack on home – fear of poisoning – fear of killing – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant, a national of Ghana, arrived in Australia on a [Temporary] visa [in] March 2018, valid to [May] 2018.
On 18 June 2020 he applied for a protection visa.
A delegate of the Minister on 31 March 2022 refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 4 April 2022.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
According to his protection visa application and in a subsequent notification of incorrect answers, the applicant is a married male born in [specified year] in [Town 1] in Central Ghana. He has [number] children. He claims he was [an occupation 1] with [Employer 1] […] from [specified year] to April 2018 in Accra. He lived at the [employer residence 1] in [Town 1] in Central Ghana from [birth] to [March] 2018, although at the Department interview and hearing he said he lived with his wife in Accra at the [employer residence 1] as she is [an occupation 2]. He visited [Country 1] for business purposes in [specified years]. He also visited [Country 2] in June/July 2013. At hearing he additionally said he visited [Country 1] in 2016. He was self-employed from [date] to [arch] 2018 in a [product 1] business in Accra. He completed school [between specified years] in Ghana and [between specified years] attended [College 1].
In response to questions in relation to his reasons for claiming protection in his protection visa application form, the applicant provided the following information. He left Ghana to take part in [occupation 1 work] held in Australia, however, his primary reason for leaving was that he had been threatened over the years for refusing to become Chief. His uncle is a Chief and as tradition demands he is to inherit the role as he is his successor. His reason for turning down the chieftaincy is because as a chief he would be bound by customs and traditions to perform certain duties which are not consistent with his Christian faith. To avoid the predicament, he left Ghana.
He was harmed in Ghana when he turned down the chieftaincy as he was deemed to have reproached their ancestors, as well as his matrimonial inheritance. This was deemed abominable. His store was burnt down which was his main source of livelihood and then they burnt down his house to force him to live in the chieftaincy house. He was still reluctant to accept his fate. They harassed and threatened him in so many ways and then he started to experience bad luck and had accidents so many times. He lost US $[amount] in [Country 1]. He decided that he had had enough so he left Ghana to avoid further calamity. The people who perpetrated these atrocities against him are the elders in conjunction with the youth of the town. He referred to these people as the palace boys who run errands for the chief. These palace boys or security boys are charged to maintain law and order in the chiefdom.
He answered no to the question as to whether he sought help within the country after the harm. He submitted that he did not seek help because seeking help would not stop the harm and threats he faced daily. He submitted that seeking help would publicise his situation which would bring further hardship upon him and increase the threats that he faced. He submitted the chieftaincy matters are not bought before the courts as these are matters of traditional law which is not in the Constitution.
He answered no to the question as to whether he moved to another part of the country to seek safety. He submitted that relocating or moving to another part of the country would not offer any meaningful sanctuary for him and that wherever he went in Ghana it would not take away the harm and he cannot hide from himself.
As to what will happen to him on return, firstly, he will experience systematic harm which will amount to persecution because his life will not be worth living. Secondly, he cannot conduct his normal business which means his source of livelihood will be curtailed. Thirdly, an attempt will be made to frustrate his life to the extent that he relents and accepts the chieftaincy. Fourthly, if he does not give in to their pressures he may be poisoned by clandestine means. He claimed that if he is alive tradition does not allow them to appoint a successor and therefore the logical thing for them to do is to eliminate him so they can appoint someone else who is prepared to be installed as a chief.
In answer to the question of the harm or mistreatment he will face on return, he said when he turned down the chieftaincy this action was deemed as having defied his ancestors and he referred to the past harm he faced.
He answered in the negative as to whether he could relocate to another part of the country on return. He submitted that it will not offer him sanctuary and will not take away the harm and threats he would receive. He cannot hide in perpetuity.
Supporting documents
He did not provide any supporting documents.
Pre-interview submission
Prior to the interview, he provided a Notice of Incorrect Answers, the information which is included above.
The interview
The applicant attended an interview with a delegate of the Minister on 18 March 2022. He was assisted by an interpreter in the Akan and English languages. His representative attended the interview.
He reiterated his claim to fear return as he does not want to be chief as it conflicts with his belief in Christianity.
The Tribunal has listened to a recording of that interview and where relevant the evidence from that interview appears in this decision.
Post-interview submission and documents
No post-interview submission or documents were provided.
Summary of the delegate’s decision
The delegate accepted that the position of chief was offered to the applicant but found his claims in relation to the harm suffered as not credible. The delegate outlined independent information as to the treatment of those who do not wish to accept the chieftaincy. The delegate was not satisfied that the applicant faces a real chance of serious harm in Ghana. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act. He was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ghana, there was a real risk he would suffer significant harm as defined in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submission
The applicant did not submit a pre-hearing submission or additional documents relevant to his claim to meet the protection criteria.
The Tribunal sent the applicant on 4 February 2025 an outreach letter.
The hearing
The applicant appeared before the Tribunal on 7 April 2025 to give evidence and present his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan/Tiwi (Ghana) and English languages.
The applicant’s representative did not attend the hearing.
The applicant reiterated his claim to fear return because he refused to accept the offer of the chieftaincy as it conflicts with his Christian beliefs. The Tribunal asked numerous questions as to his claims. It raised concerns as to the credibility of his evidence as to his claims. It raised with him as of concern his delay in applying for a protection visa. It raised with him independent information as to the treatment of those who refuse to accept the chieftaincy. It noted that the information does not indicate there is any punishment for rejecting the offer of being Chief.
Where relevant, the applicant’s oral evidence and his responses to the concerns raised at the hearing are considered below.
Post-hearing submissions
No post-hearing submissions were provided.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has considered the following, to the extent that they are relevant to the decision under consideration:
· Department of Foreign Affairs and Trade (DFAT), Country Thematic Report ECOWAS, 3 December 2020.
· Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. This involves considering whether the applicant:
· has a well-founded fear of persecution in relation to Ghana and meets the refugee protection provisions of the Act.
· meets the protection obligations under the complementary protection provisions of the Act.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of the applicant’s claims
Having sighted a copy of the applicant’s identity documents, and on the basis of his evidence at hearing, the Tribunal accepts that the applicant is a national of Ghana for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) the Tribunal accepts that Ghana is the receiving country.
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of the applicant’s claims and evidence, there are other aspects of his claimed circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts that the applicant has a spouse and [number] children living in Ghana, they live at the [employer residence 1] in Accra and his wife is [an occupation 2]. It accepts he had a [product 1] business in Accra and is from the town of [Town 1] in Central Ghana. It accepts he is a Christian.
The applicant has repeatedly claimed that he fears serious harm on return at the hands of the palace boys or chieftain makers or his family or members of his village as he refuses to accept the role of Chief in his hometown of [Town 1]. He has consistently claimed he does not want to accept the Chief role as it conflicts with his religious belief in Christianity. He has claimed as a result of his failure to accept the offer of chieftaincy he faced serious harm in Ghana, fled in fear and fears being harmed and even killed on return.
However, for the reasons that follow, the Tribunal does not accept that the applicant’s evidence is credible as to these claims. It follows, the Tribunal does not accept the applicant fears return for the reasons he claims or faced any of the difficulties he claims at the hands of the chieftain makers or place boys or his family or members of his village or anyone else for the reasons he claims. It finds his testimony to be inconsistent as to these claims and is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.
The applicant’s uncle
The applicant claimed both to the Department and Tribunal that the reason he has been repeatedly asked to be Chief was because his uncle is or was Chief. At the Department interview he gave evidence that the Chief role passes down the maternal line and his uncle was his mother’s brother. He has claimed that his failure to accept the offer led to the difficulties he faced, which ultimately led him to depart in fear and why he fears return. However, he provided the following inconsistent evidence as to when his uncle ceased being Chief and whether his uncle was alive and acting as Chief at the time of the Department interview.
At the Department interview, held on 18 March 2022, he indicated his uncle, being his mother’s brother, is still the Chief in [Town 1]. He indicated that his uncle is sick and that is why they now want him to be Chief. He referred to his mother having one brother who is alive. However, in contrast, at the Tribunal hearing he stated and confirmed that his uncle, who was the Chief, died 25 years ago. He confirmed his uncle was his mother’s brother and that the chieftaincy has been left vacant since his death and the chieftain makers want him to be Chief, which was the cause of the problem.
When the inconsistency was raised at the hearing and the Tribunal questioned the credibility of his claim, he said he is telling the truth and referred to not wanting to die which would happen to him if he returned home and did not accept the offer to be Chief. His response does not explain the inconsistency. The Tribunal is of the view if the cause of the difficulties and his fear of returning is due to his refusal to become Chief because he is a Christian, succeeding his uncle who was Chief as it passes down the maternal line, he would be consistent as to whether his uncle was alive and acting as Chief at the time of the Department interview or not and when his uncle ceased being Chief.
This inconsistency leads to the Tribunal to find his uncle is or never was Chief and he was never his successor. It adds to the finding he did not face the difficulties in Ghana he claims nor fears harm on return on account of his refusal to become Chief as his uncle was the Chief and he is the successor. It adds to the finding he has not provided credible evidence as to his claims.
Difficulties faced in Ghana
The applicant has provided the following inconsistent evidence between the Department and Tribunal as to the difficulties he faced following his refusal to accept the offer of being Chief, which he claims led him to depart in fear and why he fears being harmed and even killed on return.
In his application for the visa, when recounting the harm and difficulties he faced, he referred to both his store and home being burnt down to force him to become Chief. He also referred to being harassed and threatened as well as facing bad luck. In the Department interview when asked the problems he encountered, he said in December 2016 while he was building a house in Accra, due to labour being expensive he hired a worker from his hometown, [Town 1]. He said that person went back and said he was getting rich and they destroyed his home and burnt the shop. When asked for clarification why the things started, he said it all happened after he met the contractor, and he said it was linked to them wanting him to be Chief.
In contrast, at the Tribunal hearing, he said and confirmed that while he knew he was in line to ascend to the chieftaincy from [a young age], in 2016 the chief makers came to his shop in Accra, he ran away and went to the construction site where he was building a house. When they came there, he ran away, and they destroyed the building blocks in the construction site. He did not refer to his shop or house being burnt down or the involvement of a contractor in telling the chief makers where he was or what he was doing, despite being asked on numerous occasions to provide the details of what happened to him.
When the Tribunal raised as of concern the inconsistencies in evidence as to the difficulties he faced, he said it is true because of labour costs he hired a construction worker from his hometown, and that construction worker made the chief makers aware of him and his construction site. The Tribunal does not accept this response explains the significant inconsistency in his evidence as to the difficulties he faced. It is of the view if he fled Ghana due to the difficulties he claims he faced, he would be consistent as to what happened to him to the Department and Tribunal, especially as he was repeatedly asked of the difficulties he faced and whether he had provided all the evidence as to his claims at both the Tribunal hearing and Department interview.
The above inconsistencies add to the finding he did not face the difficulties in Ghana he claims. It adds to the finding he has not provided credible evidence as to his claims.
Relocating or fleeing from village to village
The applicant has also provided inconsistent evidence as to fleeing from his home in Accra due to the difficulties faced, going from village to village from 2016 to 2018.
At the Tribunal hearing the applicant claimed that after they destroyed his construction site he kept running away and went from village to village, from 2016 until he departed in 2018. He said he kept moving from village and village so that the chief makers did not find him. He said he hardly came back to his home at the [employer residence 1] in Accra, only once per month and he would not often go to his shop but his aunt on his father’s side managed it.
However, in contrast, to the Department in his application for the visa he indicated he did not move to another part of the country as it did not offer meaningful sanctuary. At the Department interview he also did not refer to moving from village to village to escape the harassment from the chief makers even when asked whether he moved to another part of Ghana to avoid the harm. In response to that question at the Department interview, he said wherever he is, even in Accra and the surrounding country, they will find him.
When the inconsistency was raised as to whether he had relocated to avoid the harm and gone into hiding from village to village; he said he was not asked the question at the Department interview about moving elsewhere; however, the evidence indicates he was directly asked about whether he moved to another part of Ghana. He also said he did not completely leave his home and returned monthly.
The Tribunal does not accept the applicant’s response explains the inconsistency. The Tribunal is of the view, given its significance, that if the applicant from 2016 until he departed in 2018 fled from village to village to avoid the harm, effectively relocating from Accra, he would be consistent as to this in his evidence to the Department and the Tribunal. The above inconsistency adds to the finding he did not flee going from village to village from 2016 to 2018, relocating to avoid the harm for the reasons he claims. It adds to the finding he has not provided credible evidence as to his claims.
Delay in applying for a Protection Visa
The applicant arrived in Australia on a [Temporary] visa [in] March 2018, valid to [May] 2018, and applied for the protection visa on 15 June 2020.[1] He claims he fled due to threats and as he was in fear of his life. The Tribunal is of the view if he were genuine in his claim, he fled in fear due to the threats he faced, he would have applied sooner than two years and three months after he arrived and over two years after he had been in Australia without a visa. When the concern was raised at hearing, he said he feared being deported as had heard this on the news. He said he did not apply and was supported by the Church. The Tribunal does not accept his explanation and is of the view if he faced the difficulties he claims and fled in fear of harm seeking a safe place, while he may have had some concern in approaching the authorities, he would have applied for a protection visa as soon as he could and/or sought migration advice. The Tribunal therefore does not accept this response explains the extensive delay in applying for a protection visa. It is of the view if he feared harm on return as he claims, especially if he left in fear and faced the difficulties he claims, he would have applied for protection sooner than over two years after his arrival. His delay in applying for a protection visa leads the Tribunal to find he is not genuine as to his fear of returning, did not depart in fear and is not genuine as to fearing return due to the past harm he encountered at the hands of the palace boys, chief makers, the elders, youth or his family. This adds to the finding his evidence is not credible as to his claims which led him to leave Ghana in fear and why he fears return.
[1] As raised at hearing via s 359A.
Credibility summary

For all the above reasons, considered cumulatively, the Tribunal does not find the applicant’s evidence to be credible, truthful and reliable as to why he fears return and the difficulties he claims he faced and will face on return. Accordingly, for all of the above reasons, in light of its findings that his evidence is not reliable as to the difficulties he claims he faced in Ghana and why he fears return, the Tribunal has no confidence in accepting that his evidence about the key aspects of his claims and the harm he faced was based on personal or actual experiences or for any of the reasons he claims. It considers his evidence was fabricated to create a claim to be owed protection.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, fear and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning. It does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant was not a reliable witness as to his protection claims.
In making this finding, the Tribunal has also considered that some information has been consistent over time, including that he departed in fear because he would not accept the chieftaincy as it conflicts with his Christian beliefs and he faced harm. However, the Tribunal considers that these matters are relatively easy matters to recall, and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant has not provided credible evidence as to his claims for protection.
In making this finding it has considered his evidence that if he did not face the difficulties he claims for the reasons he claims, why would he leave his wife and children to come to Australia. However, this claim does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant has not provided credible evidence as to his claims for protection.
Therefore, based on the applicant’s lack of credible evidence, and on the evidence before it, the Tribunal does not accept the applicant was in line to inherit the chieftaincy as his uncle was or is a Chief in [Town 1], was ever offered the chieftaincy and because of his belief in Christianity he did not accept it. It follows it does not accept he faced any of the difficulties he claims as he refused to accept the offer and as a result he was viewed negatively, as defying his ancestors and/or as they were trying to force him to accept it or as they wanted to eradicate him so they could appoint someone else. It follows it does not accept he was ever approached by palace boys, the chief makers, the elders, the youth, anyone form his village or his family or anyone else to be Chief. It follows it does not accept when he refused, he was threatened with harm, his shop and house were burnt down, the building blocks in the house he was constructing were destroyed, his shop and business closed and he was unable to earn livelihood and consequently faced bad luck losing money. It follows it does not accept because of the difficulties he faced he fled to other parts of Ghana where he went from village to village to avoid the harm. It also does not accept that after he hired labour from his hometown to build his home because he was wealthy or because he had not agreed to being the Chief, that labourer or builder reported on him back to his village which also led to the difficulties he faced.
It follows it does not accept he was of interest at the time of his departure to the palace boys, chief makers, elders, youth, anyone form his village or his family or anyone else as he has refused to be Chief or as he will be forced to be Chief or that he will have to relent and accept to be Chief or for any of the reasons he claims. It follows it does not accept he fled in fear or was in fear of harm for the reasons he claims at the time of his departure in March 2018.
It follows, based on his lack of credible evidence, the Tribunal does not accept that the applicant did not return to Ghana when his visa expired because he feared for his life or he feared he would be attacked, harmed or killed at the hands of the palace boys, chief makers, his family, the leaders, youth, anyone from his village or anyone else. It follows it does not accept he did not return as he will be unable to practise his religion, being Christian as he will be forced to be a Chief and this is inconsistent with his beliefs.
Does the applicant have a well-founded fear of persecution in relation to Ghana and meet the refugee protection provisions of the Act, and does he meet the protection obligations under the complementary protection provisions of the Act?
Based on its findings as to the applicant’s credibility and findings of fact outlined in the paragraphs under the heading Credibility summary, the Tribunal does not accept that, were he to return, he and his immediate family will be targeted by the palace boys or the chief makers or anyone from his village or his family or anyone else for any of the reasons he claims. It follows it does not accept he will be arrested, killed, harassed, threatened, attacked, beaten, tortured, poisoned, his life will be frustrated or he will be unable to earn a livelihood. It does not accept he will be unable to practise his religion as it is inconsistent with being Chief.
It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Ghana in the reasonably foreseeable future at the hands of the palace boys, chief makers, the elders, the youth, anyone from his village or his family as he has refused to be Chief or as he will be forced to be Chief or as they want to name a different successor or for any of the reasons he claims. Similarly, based on the findings above on his lack of credible evidence as to his claims, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Ghana at the hands of the palace boys, chief makers, the elders, the youth, anyone from his village or his family as he has refused to be Chief or as he will be forced to be Chief or as they want to name a different successor or for any of the reasons he claims.
The applicant has claimed to be a Christian. When asked at hearing whether he will be able to practise his religion on return after raising with him independent information that 71 percent of the population of over 34 million are Christians[2] and Christians are able to practise their religion in Ghana;[3] he responded that while Christians can practise his issue is that they want him to be Chief. He referred to Chiefs being appointed under traditional law and being unable to practise his religion as it is inconsistent. However, as the Tribunal does not accept his evidence is credible that he was ever offered the Chieftaincy or would ever be one and did not face any of the difficulties he claims as a result; it follows it does not accept he would face a real chance of serious harm on his return to Ghana on account of his religion, as he will be unable to openly practise his religion or that he would be prevented from practising Christianity due to any fear of harm or fear expressing his faith openly as a Chief or for any of the reasons he claims. Similarity, based on the findings above on his lack of credible evidence as to his claims and the above country information, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on account of on account of his religion, as he will be unable to openly practise his religion or that he would be prevented from practising Christianity due to any fear of harm or fear expressing his faith openly as a Chief or for any of the reasons he claims.
[2] US Department of State Ghana 2018 International Religious Freedom Report, , 21 June 2019, p. 2, 20190625084805 and CIA The World Factbook: Ghana’, CIA: Accessed 18 November 2024.
[3] United States Department of State 2023 Report on International Religious Freedom: Ghana’, >
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Ghana in the reasonably foreseeable future. On the basis of the above, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons, if he returns in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm as defined in s 36(2A), on the basis of his claims considered individually or cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:              7 April 2025
Representative for the Applicant:              Ms Ashrita Zeeshan
APPENDIX – CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–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.
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.
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.
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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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