1711688 (Refugee)

[2021] AATA 2062

1711688 (Refugee) [2021] AATA 2062 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1711688

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Anne Grant

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 May 2021 at 12:45pm

CATCHWORDS

REFUGEE – protection visa – Ghana – particular social group – homosexual male – physical assault – fear of killing – state protection – employment – support organisation fundraising – third country protection – Economic Community of West African States (ECOWAS) – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 dependants.

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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Ghana, applied for the visa on 1 September 2014 and the delegate refused to grant the visa on 5 May 2017.

3. The applicant appeared before the Tribunal on 27 April 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. It was noted that the applicant had not attended a scheduled interview with the delegate and both the applicant and his representative indicated that they did not receive notice of the interview despite them having provided correct contact details to the Department.  The applicant said if he had known about the interview he most definitely would have gone.  The first he heard that a decision had been made on his protection application was when he discovered his visa was about to expire, and he then called his representative.  The applicant’s agent confirmed this information to the Tribunal and it is accepted that there appears to have been a breakdown in communication around the interview arrangements.  The Tribunal draws no adverse inferences from the applicant’s failure to attend the departmental interview.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Mandatory considerations

6. 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.

   Refugee criterion

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. The applicant in this case is a citizen of Ghana.  He has provided information and evidence in support of his Ghanaian nationality.  He is in Australia.  The Tribunal finds that the applicant is outside the country of his nationality, Ghana. 

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. In this case, the applicant claims to be a gay man and to fear persecution from community members throughout Ghana because of his sexual preference.  His claims are outlined in more detail below.  He claims to fear that he will be assaulted, harassed, attacked, possibly murdered; that he will be subjected to discrimination, and that he will be unable to live openly as a gay man in Ghana.  The applicant claims that he has experienced multiple assaults, discrimination and harassment already and has been rejected by his parents and society.  He claims that if he returns to Ghana, he will face violence and harassment, continue to be rejected by society and government and will be unable to earn sufficient income to support himself in Ghana due to that discrimination and harassment.   The applicant claims that the government and authorities of Ghana (including social and religious institutions) consider homosexuality unnatural and are vehemently opposed to it.  Therefore violence, discrimination and other harms against gay community members are tolerated and effectively condoned by the government institutions, such as the police. The Tribunal is satisfied that the persecution that the applicant claims to fear (and to have experienced in the past) involves serious harm and systematic and discriminatory conduct as required by s.91R(1).

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16. In this case, the applicant claims to fear persecution because of his membership of the particular social group which is reasonably characterised as either ‘homosexuals in Ghana’ or ‘Gay men in Ghana’.  The Tribunal is satisfied that the persecution the applicant claims to fear is for one of the reasons enumerated in the Convention definition. 

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

18. As discussed at hearing, general country information, including the reports outlined in the agent’s submission, reflect high levels of societal and official hostility towards members of the gay community in Ghana.  The country information generally reflects that same sex relations between men is considered an unnatural act.  Families are reported to frequently reject or assault same sex attracted family members due to the perception that it goes against Christian and cultural teachings.  In relation to lesbians, they are subject to brutal ‘corrective’ rape and gay men are also subjected to forced heterosexual encounters to ‘correct’ their behaviour.  There is public opposition to any attempts to recognise and support homosexuality from both politicians and community leaders.  As recently as February 2021, a community centre which opened in Accra to assist LGBTI community members and advocate for recognition of equal rights was forced to shut down after only a month due to public outcry.[1]  The workers and advocates from the centre faced abuse and stalking behaviours.  There has also been vociferous opposition to any politician or community leader who shows even mild support for tolerance towards homosexuality in Ghana. For example there were recent calls for the closure of the Australian High Commission after the High Commissioner was condemned for promoting lesbian, gay, bisexual, transgender, queer and intersex interests in Ghana.[2]  In one article about that incident, the National Youth Organiser for the Convention People’s Party is reported as ‘reiterating that LGBTQI is not part of Ghana’s societal norms and no individual or foreign entity should be allowed to promote it in the country.’

    [1] Reported here: Ghanaian LGBTQ+ centre closes after threats and abuse | Global development | The Guardian published 25 February 2021.

    [2] Reported here:  CPP Youth Organiser calls for closure of Australian High Commission office over LGBTQI endorsement (modernghana.com) published 27 February 2021.

19. The Tribunal has paid regard to country information from various respected international sources.  The United Kingdom Home Office has produced a Country Policy and Information Note entitled Ghana:  Sexual orientation and gender identity or expression in May 2020[3].    

    [3] Available here:  sexual orientation and gender identity or expression, ghana (publishing.service.gov.uk)

    2.4.17 Ghana is a culturally and religiously conservative country and anti-LGBTI views are widespread. Sources indicate that there is strong societal intolerance of and discrimination against LGBTI persons. Religious leaders play a role in perpetuating stigmatization of same-sex relations and in some cases, incite violence towards LGBTI persons openly condemning ‘homosexuality’. The media generally portrays LGBTI persons negatively. Anti-LGBTI rhetoric from government figures, as well as by religious groups, magnifies existing societal homophobia (see Constitution, Religious attitudes / treatment, Media, Public opinion and Societal norms and family treatment).

    2.4.18 LGBTI persons face a range of discriminatory treatment from societal actors because they are perceived to be different. They are frequently victims of physical violence and psychological abuse, extortion and discrimination in different aspects of daily life. Some LGBTI persons may conceal their sexual orientation or gender identity out of shame and stigma. There are also reports that LGBTI persons who are known to be or perceived to be LGBTI have been subjected to threats and violent attacks by family and members of their communities, and face harassment, intimidation, blackmail, loss of property and eviction, denial of educational opportunities, loss of employment, education and difficulties in accessing health care (see Societal attitudes and treatment and Access to services).

    2.4.19 LGBTI persons, particularly lesbian and bi-sexual women, may be rejected by their families and experience pressure to enter into heterosexual marriages where they are vulnerable to domestic violence. Transgender men are also reportedly frequently victims of domestic violence and coerced marriage. LGBTI persons have been reported to the police by family members once their sexuality has been exposed. Others have experienced physical violence and psychological abuse and there are some reports of mob violence. Evidence of the extent and frequency of such family and societal violence against LGBTI persons is limited. However, the UN Special Rapporteur on extreme poverty and human rights noted that the absence of statistics relating to LGBTI persons are symptoms of the prevailing discriminatory attitudes (see Arrests, prosecutions and detention, Societal norms and family treatment, Violence and discrimination).

    2.4.20 Sources report that there are a number of organisations operating in Ghana providing various forms of assistance, community engagements and support to LGBTI persons. NGOs have reported difficulties in engaging officials on LGBTI issues because of the social and political sensitivity (see Government and political leaders, Police response: protection and arrests of LGBTI persons and LGBTI ‘community and LGBTI civil society).

    2.4.21 In general, LG and B persons who are open about their sexual orientation, or who are known to be perceived to be LGBTI, are likely to face stigma, discrimination, violence and mistreatment from family members and the wider community which, by its nature and frequency, amounts to persecution. Each case, however, needs to be considered on its facts, with the onus on the person to demonstrate that they face such a risk.Page 11 of 54

    2.4.22 There is limited information about the treatment of T and I persons but there is no indication that such groups are treated differently by societal actors than L, G and B persons.

    2.4.23 For further guidance on assessing risk, see the instructions on Assessing Credibility and Refugee Status, Sexual orientation in asylum claims and Gender identity issues in the asylum claim. Back to Contents

    2.5 Protection

    2.5.1 Where the person has a well-founded fear of persecution from the state, they are in general unlikely to be able to avail themselves of the protection of the authorities.

    2.5.2 Where the person has a well-founded fear of persecution from non-state actors, including ‘rogue’ state actors, decision makers must assess whether the state can provide effective protection.

    2.5.3 The government has established a functioning criminal justice system able to detect, prosecute and punish acts that may amount to serious harm or persecution. However, police treatment of LGBTI persons is variable. There are some signs that police attitudes to LGBTI persons are slowly improving and have provided assistance to some LGBTI people who have been victims of crime because of sexual orientation or gender identity. LGBTI persons may also be afraid to go to the police due to the risk of social stigma, harassment, intimidation and extortion by police officers. Sources report that LGBTI persons have also been arrested because of their real or perceived sexual orientation. It is unreasonable to expect a LGBTI person to seek protection from the authorities if they may themselves face a risk of arrest. (see Criminal code, Arrests prosecutions and detention and Police action, behaviour and responses to anti-LGBTI violence).

    2.5.4 In general, the state is able but not willing to offer effective protection. However, each case must be considered on its facts, with the onus on the person to demonstrate that they will not be able to obtain effective protection.

20. The Tribunal is satisfied that the country information reflects that homosexuality is not accepted at any level of Ghanaian society, and that gay men and women experience serious and ongoing discrimination, assault and social rejection which impacts on their capacity to survive, including being at risk of serious violence, hardship in social and familial rejection and ongoing difficulty finding and maintaining employment in Ghana.  To subsist without experiencing serious harm requires the successful concealment of their sexual preference.  The Tribunal considers that the country information suggests that gay men and women are unable to live openly without facing a real chance of persecution in Ghana. The Tribunal now turns to consider the applicant’s specific claims about the persecution he has suffered and fears that he will suffer due to his membership of the particular social group of gay men in Ghana.

    Is the applicant a gay man?

21. The applicant’s written claims included significant details and events of persecution related to his sexual preference: 

    ·He is gay and faces stigmatisation, isolation and neglect from Ghanaian society.  He had to pretend that he was heterosexual at all times to protect himself.  He wants to live a quiet life in Ghana but has experienced nothing but turmoil due to his sexuality. 

    ·He started ‘gay practice’ in high school and has ever since been a homosexual.  He does not think it is right for him to live and pretend to be heterosexual when he is not.

    ·Ghana is a very conservative religious society.  People found practicing homosexuality are beaten, forced to leave their locality, rejected by their family and the community, are denied government protection, harassed and punished accordingly.  He lost his business and his home was ransacked a number of times.  He has been denied the means of earning a livelihood and faced discrimination.  He has attempted suicide several times as he feels he has nothing to live for.

    ·He worked as an [Occupation 1] for five years, and had his own business.  He stopped working as an [Occupation 1] in 2011 after rumours started circulating about his sexual orientation.  One of his competitors saw him with his gay partner at a drinking spot, and then confronted him at his business.  Even though he denied it to protect his business and his life, the rumour spread very quickly.  Most of his customers stopped coming to the shop for their repairs because they heard another nearby [Occupation 1] discussing that he is gay and therefore that ‘he is a devil who will bring bad luck into their lives’.

    ·He purchased his own [vehicle] and started working in Kumasi metropolitan area.  In 2013, he was attacked by members of his community again due to rumours about his sexual orientation.  His [vehicle] (and his only source of income) was destroyed.

    ·His landlord also evicted him from his rented apartment.  He claimed that the applicant being gay is a ‘demonic act’ and couldn’t allow him to live there as it would bring nothing but evil and bad luck.

1. The applicant gave the following additional evidence (in summary) at hearing about his experiences and claims in Ghana. 

   ·The applicant described how he had grown up in Kumasi and has always been attracted to men and never to women.   He realised he was gay in High School. He has no desire to marry and has never had a girlfriend – he is only attracted to men.  In High School he became close to a boy called [Mr A], who he went on to have a long relationship with.  He described how, when they were both still in school, they realised their feelings for each other. He said one day they were playing and each told the other ‘I like you’ - but then talked about how this kind of thing is forbidden and they could never tell anyone else.  They continued to see each other but kept it secret.  They were still together until the applicant left Ghana.   They did not show open affection in public, but did go to areas and clubs where gay men were known to hang out over those years.  When they left a nightclub, they would walk home apart from each other (on opposite sides of the street) for fear of being assaulted by other men who were intent on terrorising gay men in the area. On several occasions the applicant was attacked merely for being suspected of being gay because he was in the area where gay people hang out (an area known as [name]).  On one occasion, he was so badly beaten in Kumasi that he lost a front tooth.  He showed the Tribunal member how he has a gold capped/false front teeth, (clearly visible in any event) and said that on that occasion, he went to hospital due to being beaten so badly.  He named the hospital.

   ·The applicant described how he never discussed his sexual preference with his family but someone ‘outed him’ to them during high school, in around [year].  Even though he and [Mr A] weren’t open about their relationship, it was suspected by other friends and they were constantly in fear of being discovered.  His parents demanded the truth and he told them that he was a gay man and they rejected him.  They kicked him out of the family home and have not seen him since then.  They demanded he change his ways and told him that they would never accept him ‘as a gay’. He finished his schooling whilst living with an uncle who was a bit more tolerant.  His two brothers still talk to and support him, but his parents do not.

   ·In relation to the incident where his ‘competitor’ discovered him with his boyfriend, this occurred after he had been ‘spotted’ at a club displaying affection to [Mr A].  Rumours had started circulating in the community and this other [Occupation 1] in the area had then hatched a plan to trap or confirm the applicant as gay, so he could ruin him.  He came to the applicant’s [business] one evening when the applicant was there with [Mr A], ostensibly to borrow a tool of some kind, but found them kissing.  He then told everyone, including all customers, that the applicant was a gay man and that if they used his services, they would have bad luck.  He said that Ghanaians say that gay people are ‘demons’, and described a widely held view that if you associate with them, they will ruin your life and your children.  Even though the applicant tried to deny that he was gay (to save his business) the damage was too great.   He had no customers.  He had to close down his business. 

   ·After this, he was very depressed.  He had no family support.  He had previously had several good years in his [Occupation 1] business, but all his hard work had come to nothing overnight.  He felt he had no future in Ghana.  He tried to take his own life, by hanging himself in a nearby reserve.  However, he was discovered by a hunter before he died, and the hunter cut him down.   The applicant was distressed when describing this experience during the hearing.   He said this was in [year] before he started the [transport] business.  The Tribunal found the applicant’s distress and description of the circumstances to be genuine and compelling.  He noted that he has been assaulted and abused many times and he felt he had no future in Ghana.

   ·After he lost his business, he repaired and drove a [vehicle] to earn income.  One evening, he [worked with] a customer who he overheard talking about the situation for gays in Africa.   The man had been involved with [Organisation 1] and the applicant said that they started talking and he later went to the [organisation] to learn about HIV and also ‘how to live as a gay man’ in Ghana.  He helped them with fundraising, just collecting funds.  They provided assistance to people who needed it. It was only voluntary work.  He was not a paid ‘educator’. The applicant said he was only able to run his [transport] business for about six months, because one night he [accepted a job] to travel back to his own community and he was recognised.  On arriving at the destination, they (members of his community) attacked him and wrecked his [vehicle] – and their reason was simply because he was gay. 

   ·The applicant said that [Mr A] left Ghana and travelled to [another country] after the applicant had already left Ghana.   Not long after the applicant left Ghana, they lost contact with each other because the applicant lost his phone.  Though they intended to continue their relationship, he said that they lost touch and he doesn’t know any more where [Mr A] is. 

   ·In Australia, the applicant said that he has really only had one serious relationship with a man named [Mr B].  It ended badly after a few months because the man was physically and emotionally abusive.  The applicant gave evidence that he met [Mr B] at [a named] nightclub.  Since then he has been on some dates, but he is not currently in a relationship.  He gave evidence that he has made friends in Australia and has found that women from the African Australian community are more tolerant of gay men than are male members community.  Still, most of his friends know he is gay but there are some that he hasn’t told.

   ·The applicant described himself as a religious man, still.  He continued to attend church in Ghana but had to travel to one where he was unknown, in another community, once his parents and community found out about him being gay.  When asked how he reconciles the generally reported opposition of the evangelist churches to homosexuality with his faith, the applicant said that he is unable to deny who he is, even though he is aware that some (many) in the evangelical church community don’t accept homosexuality.  He said he just focuses on the Christian messages overall. 

2. The Tribunal noted that the applicant had travelled to Australia on a visitor visa allegedly sponsored by [Organisation 1] to attend [an international event] in [2014]. The applicant explained that he had been involved with [Organisation 2] in Ghana. He had participated in volunteer work for them. [Mr A] had also helped sometimes. The opportunity to travel to Australia arose and was partially sponsored by [Organisation 1] and authorities associated with them, but he still had to raise most of the airfare costs himself. He saved some money, but then he was robbed. As a consequence, he was delayed getting to Australia and missed the [event]. He gave evidence that he still wanted to come to learn as much as he could about HIV and gay rights. Once he arrived in Australia, he did reach out to local contacts who had been involved in [an organisation]. At hearing the applicant claimed he never intended to stay in Australia but that during his visit, he realised that if he returned to Ghana, he would continue to be persecuted as before and he decided to ask for protection.

3. On the Departmental file was a document assessing the applicant’s visitor visa application.  The Tribunal noted that the document refers to filed supporting documents suggesting the applicant was studying a course in [Subject 1] for three years and was a ‘student advocator and educator’.   This was put to the applicant who said that he studied a [Subject 1] course at school but was not studying when he applied for the visa and he was not a ‘student educator and advocate’.  He stated he was not aware that some information on his visitor visa application was false.  He employed an agent to organise his visa.  He told his agent his information, but did not know what the agent had put on the visa application itself.  He maintained that he genuinely intended to travel to Australia to attend the [international event], but was prevented from getting here on time due to his being robbed.  The Tribunal had some difficulty accepting this evidence and advised the applicant that the fact of him entirely missing the [event] suggested that he in fact had no intention of attending – but instead that he used the [event] to get a visa to get out of Ghana.   The applicant did not agree with this suggestion.      

4. When assessing claims and making findings of fact, it is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[4] The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[5]

   [4] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

   [5] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

5. This approach is supported in numerous judgements and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

6. The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

   refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

7. Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

   Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[6]

   [6] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

8. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

9. Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts: Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).

10. The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, trauma related issues and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, language and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[7] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [7] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

    Having assessed the applicant’s evidence and the consistency and coherence with which he has described his experiences generally, the Tribunal found the applicant to be a credible witness when describing his past experiences of harm and his sexuality.  The Tribunal has some concerns about his claims to have been legitimately intending to attend [an international event] in 2014, but has decided to give the applicant the benefit of the doubt and accept that he genuinely had a desire to gain education about the global challenges posed by HIV and strategies in managing it around the world. The Tribunal considers that the inaccurate information he provided in his application for a visitor visa, even if untrue in part, does not weaken or undermine his protection claims, nor does it suggest that his evidence about his protection claims should be disbelieved.

11. The Tribunal accepts the applicant’s evidence about his past harm and that he is a gay man who would choose to live openly as a gay man if he returned to Ghana.  The Tribunal considers that the conduct and harm described by the applicant was consistent with the country information, is plausible and accepts that the applicant has suffered discrimination, violence and the threat of violence in Ghana due to his sexuality, in the past.    There is nothing in the country information which suggests any improvement in the situation for LGBTI people in Ghana since the applicant left the country. 

12. The Tribunal has accepted that the applicant has experienced persecution in Ghana because of his membership of the particular social group of gay men in Ghana.  Noting the Tribunal’s assessment about the country information which suggests that that gay men and women in Ghana face a real chance of discrimination, violence, social isolation and potential official prosecution, the Tribunal concludes that there is therefore a real chance that the applicant will suffer serious harm (being constantly subjected to social ostracism, discrimination, assault, harassment and being vulnerable to prosecution or the threat of same) now or in the reasonably foreseeable future if he returns to Ghana.

    Is the applicant able to avail himself of the protection of his country?

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

14. The Tribunal notes the country information generally reflects that anti-gay discrimination happens at all levels of Ghanaian society, including in government.   Even encouraging discussion of gay rights triggers open backlash, as seen in the recent hostile reaction to the Australian diplomat who spoke in defence of gay tolerance.  The Tribunal considers that the country information suggests that gay citizens who are targeted cannot expect or rely on protection from harm from the Government of Ghana; and even that the Ghanaian authorities lack the willingness to advance gay rights and protect its gay citizens from discrimination and violence.  The Tribunal concludes that the applicant is therefore unable to avail himself of the protection of his country from the persecution he fears.  As noted above, there is no indication that the situation for gay men and women in Ghana is likely to improve in the foreseeable future.

    Is the applicant able to reasonably relocate within Ghana to avoid the persecution he fears?   

15. The Tribunal is satisfied that the real chance of persecution persists throughout Ghana and that the applicant is unable to reasonably relocate within his country to avoid persecution on that basis.

16. The Tribunal concludes that the applicant has a well-founded fear of persecution because of his membership of the particular social group of gay men in Ghana.

    Third country protection

17. The Tribunal has also considered whether the applicant could obtain third country protection from countries in Africa with close ties to Ghana.

18. According to Department of Foreign Affairs and Trade[8], the Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.  Countries in ECOWAS are largely grouped on Anglophone, Francophone and Lusophone bases. The Anglophone countries within the region are The Gambia, Ghana, Liberia, Nigeria and Sierra Leone.  The goals of ECOWAS suggest ease of travel, residence and trade between member countries – although various reports generally suggest there have been significant limitations imposed by member countries on multiple aspects of residence and travel rights.

    [8] Department of Foreign Affairs and Trade Thematic Report:  Economic Community of West African States (ECOWAS) December 2020.

19. DFAT understands that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries.

20. Notwithstanding that all states have ratified the Free Movement Protocol, and there are gradual efforts to progress implementation, there have been a number of implementation challenges. A key challenge is inconsistency between ECOWAS Protocols and national laws and policies. Some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion.

21. Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws particularly as each State determines the admissibility of non-citizens. Commentators have suggested that until States agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by States' recourse to overly broad or arbitrary grounds of inadmissibility. A now somewhat outdated report commissioned by the UNHCR detailed inadmissibility provisions in ECOWAS countries. According to the report, 'the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would-be migrants seemingly without need of explanation or process'. The report suggests that most countries require some form of medical or health certificate.

1. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission. Further, a non-citizen's right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.

2. The Ghana News Agency, in a report appearing on the Government of Ghana Official Website, refers to a meeting between 'Representatives of civil society, the private sector and the media from the ECOWAS member-states' held in Accra, Ghana, that attempted 'to fashion out practical ways to stem harassment on the highways and borders within the region'. The report commented on restrictions to 'free movement' between ECOWAS member states, such as 'illegal barriers and roadblocks', 'the extortion of money from travellers', 'systematic racketeering', and some 'immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document'. While this report was in 2008, these kinds of impediments are still commented on and recognised by ECOWAS itself. An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.

3. A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:

   Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments.

   National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”

4. Over the past year, the COVID19 Pandemic has further significantly affected free movement within the ECOWAS community.  The Tribunal notes that in a recent publication by Cambridge.org[9] it was noted as follows: 

   In the ECOWAS context, restrictions on the right to enter have led to a progressive disintegration of the legal regime of free movement of persons. A number of factors have contributed to this development.

   According to the Dakar Protocol, the right of entry implies the guarantee that ECOWAS citizens can enter the national territory of all ECOWAS member states without a visa. The only condition is possession of valid travel documents. This is a first and indispensable step for making the free movement of persons effective because it conditions the expression and the effectivity of the other rights (namely of residence and establishment). For example, Nigerian nationals can only exercise their rights of residence and establishment in Ivory Coast or in Senegal if they have been authorized to enter the territory of those states. However, under pressure of the coronavirus, 66 percent of the 352 points of entry within the ECOWAS space were closed altogether, and 26 percent were only open to transport of goods and/or returning nationals.8 This constitutes a substantial obstacle to the right of entry.   …

   COVID-19 measures have merely amplified the obstacles to the community principle of free movement, handicapping the integration dynamic which relies on the practices and realities of peoples in West Africa.

   [9] Free movement of persons in West Africa under the strain of COVID-19, American Journal of International Law, 9 November 2020

5. Allowing for the restrictions, requirements and permits in place across ECOWAS both before and now as a consequence of the pandemic, the Tribunal is not satisfied that the applicant has a presently enforceable right to enter and reside in any third country within the ECOWAS.  There is no suggestion in this case that the applicant has a right to enter and reside in any other country (apart from ECOWAS countries.)     

6. The Tribunal concludes that the applicant has a well-founded fear of persecution in Ghana. 

7. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Anne Grant
   Member