1711688 (Refugee)

This matter concerned an application for a protection visa by a Ghanaian national who identified as a homosexual male. The applicant claimed to fear persecution, including physical assault and killing, if returned to Ghana. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), specifically focusing on Australia's protection obligations under the 1951 Convention relating to the Status of Refugees.

The central legal issue before the Tribunal was whether the applicant qualified as a refugee under Article 1A(2) of the Refugees Convention, as incorporated into Australian law. This required assessing whether the applicant, being outside his country of nationality, had a well-founded fear of persecution for reasons of membership of a particular social group (homosexual males in Ghana), and whether such persecution would involve serious harm and systematic or discriminatory conduct that was official, officially tolerated, or uncontrollable by the Ghanaian authorities. The Tribunal also considered the concept of state protection, including the capacity of the Economic Community of West African States (ECOWAS) to offer protection.

The Tribunal reasoned that the applicant was outside his country of nationality and that the fear of persecution must involve "serious harm" and "systematic and discriminatory conduct" under sections 91R(1)(b) and (c) of the Migration Act. It noted that persecution could be directed at an individual or a member of a group and that the threat of harm did not need to be a product of government policy, but could arise from the government's failure or inability to protect the applicant. After considering the available country information and the applicant's evidence, the Tribunal was satisfied that the applicant met the criterion set out in section 36(2)(a) of the Migration Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act, meaning Australia has protection obligations towards him under the Refugees Convention.