1818767 (Refugee)

[2023] AATA 3800

1818767 (Refugee) [2023] AATA 3800 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kristie Mellor

CASE NUMBER:  1818767

COUNTRY OF REFERENCE:                   Ghana

MEMBER:L. Symons

DATE:18 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2023 at 5:18pm

CATCHWORDS
REFUGEE – protection visa – Ghana – homosexuality – assessment of claims – credibility concerns – inconsistencies in evidence – delay in applying for protection – claims not accepted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Ghana, first arrived in Australia [in] March 2018 as the holder of a [temporary] visa that was valid until 15 May 2018.

3. On 5 May 2018, the applicant applied to the Department of Home Affairs (the Department) for a Protection visa. On 9 May 2018, he was granted an associated Bridging A visa. On 25 June 2018, the Department refused to grant him the Protection visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 27 June 2018, he applied to the Tribunal for review of that decision.

4. On 30 September 2022, the Tribunal wrote to the applicant and invited him to appear before the Tribunal on 30 November 2022 to give evidence and present arguments. On 7 October 2022, the Tribunal received a Response to Hearing Invitation in which the applicant requested an Akan interpreter for the hearing. On 21 November 2022, the Tribunal received an email from the applicant’s legal representative indicating that the applicant would prefer to proceed with the hearing without an interpreter.  

5. The applicant appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The hearing was conducted as a joint hearing with the application of [Mr A] with the consent of both applicants. The Tribunal also received oral evidence from [Mr A], [Ms B] and [Mr C].

6. The applicant was represented in relation to the review by his legal representative, Ms Kristie Mellor, who attended the hearing. The hearing was adjourned to 22 December 2022 at 9.00am.

7. The applicant appeared before the Tribunal on 22 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].

8. The applicant was represented in relation to the review by his legal representative, Ms Kristie Mellor, who attended the hearing.

9. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

16. The applicant’s claims in his application for a Protection visa and Statement of Claims are summarised as follows:

    ·He was born on [date] at Accra in Ghana and is a citizen of Ghana.

    ·He started his “homosexual practice” while in secondary boarding school amongst a few close student friends he had grown to trust.  

    ·He was recruited into the Ghana Airforce in 1990 after completing his secondary education. He served in the Ghanaian Air Force for 26 years as an [Occupation 1]. Whilst in the Airforce, he obtained a [degree]. He also studied [Discipline 1] and trained as an instructor in [Subject 1]. He travelled on peace keeping missions to various countries including [Country 1], [Country 2], [Country 3], [Country 4] and [Country 5].

    ·During his military service, he would have homosexual encounters whilst on peace-keeping missions in other countries. It became increasingly difficult to hide being a homosexual. He was frequently questioned by Lieutenants due to complaints of him being overly friendly with the other men.

    ·His parents and extended family were unaware that he is homosexual. He married a woman and had [number] children to conceal his homosexuality and to avoid being publicly shamed, humiliated, threatened and killed.

    ·In Ghana, when he exhibited “gay characteristics” he was labelled an abomination to society. Being a homosexual is taboo in his family.

    ·He met his current partner, [Mr A], at a disco club in [Neighbourhood 1], Accra in 2016. They met at the bar and initially engaged in general conversation. From that night they became friends and their friendship blossomed into a relationship. They were highly compatible and had similar experiences about how they concealed their homosexuality. They introduced each other to their families as a friend which allowed them to go out together frequently.

    ·His wife became suspicious of him and [Mr A] and began following them on their outings. She discovered that he and [Mr A] had more than a friendship and told his family and the community. He and [Mr A] then began living their lives under constant threat.

    ·He has experienced food poisoning, threats of violence over the telephone and “unwarranted car accidents” from his extended family and people in his community. He lived in fear and suspense because of his attraction to males. His life was in danger in Ghana.

    ·He and [Mr A] were beaten and harassed, when they were returning from a club, by “some guys” who suspected that they were homosexual.

    ·The Ghanaian laws do not protect LGBT persons. The government/Police cannot protect him. He did not seek help after he was beaten, harassed and threatened by guys. LGBT practices are taboo in Ghana. Currently there are intense threats against LGBT persons living in society. Many are beaten, harmed and even lynched. There have not been any arrests.

    ·He did not try to relocate in Ghana as LGBT persons are abhorred throughout Ghana.

    ·He and [Mr A] researched countries and decided that Australia was their best option. They were comforted by the fact that same sex marriage was legalised in Australia in December 2017. Their aim was to seek protection in Australia so they could live in peace and love for each other and possibly get married.

    ·In Australia, they were warmly welcomed into communities such as [Church 1] in Sydney.

    ·He fears that if he returns to Ghana his life will be in danger because his extended family and the community will harm, harass, threaten, intimidate, harass and kill him because of his homosexual practice. His family will be labelled for discrimination and intimidation and they would be in danger.

17. The applicant provided the Department with copies of his Ghanaian passport issued [in] 2016, a Certificate of Service in the Ghana Armed Forces (enlisted [in] 1990 and discharged on [date]), a Certificate of Discharge dated [date], an undated email message, a character reference from [Ms B] and media articles relating to homosexuality in Ghana dated 27 November 2017, 28 November 2017, 31 March 2018, 20 April 2018, 28 April 2018, 3 May 2018 and 6 May 2018.

18. The applicant attended an interview with the Department on 21 May 2018. During that interview, he reiterated and expanded on his written claims. The delegate found that his claims were not credible and was not satisfied that he is a person in respect of whom Australia has any protection obligations.

19. The applicant filed with the Tribunal an undated and unsigned Statement from him and sixty one photographs.

20. On 16 January 2023, the Tribunal received a post hearing submission from the applicant’s legal representative.

    Receiving country

21. The applicant claims to be a citizen of Ghana and provided copies of his Ghanaian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Ghana. The Tribunal finds that Ghana is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third country protection

22. The Tribunal finds that the applicant is outside his country of nationality. The Tribunal notes that Ghana is a member of the Economic Community of Western African States. However, in view of the Tribunal’s findings in relation to credibility, the Tribunal will not consider the assessment under s.36(3) of the Act any further.

    Assessment of claims

23. The applicant gave evidence that he prepared his application for a Protection visa. The information in his visa application is true and correct. He also prepared the Statement of Claims attached to his application for a Protection visa. The information in his Statement of Claims is true and correct. He is satisfied that his application for a Protection visa and his Statement of Claims are accurate and complete. His written Statement filed with the Tribunal on 23 November 2022, was prepared by his lawyer on his instructions which were true and correct. When asked whether there had been any changes in his circumstances since he filed his application for a Protection visa, he responded that there were no changes in Ghana. In Australia, he has felt free to live his life with [Mr A]. They are public about their identity.  

24. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, his religion, where he lived in Ghana, his travel to other countries, why he left Ghana, his travel to Australia and why he fears returning to Ghana. The Tribunal found aspects of his evidence to be evasive, implausible and unconvincing. There were many inconsistencies within his evidence and between his evidence and [Mr A]’s evidence. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

25. First, in his Statement of Claims, the applicant claimed that he started his “homosexual practice” while in secondary boarding school amongst a few close student friends he had grown to trust.  He claimed that, during his military service, he would have homosexual encounters whilst on peace-keeping missions in other countries. He claimed that it became increasingly difficult to hide being a homosexual. He claimed that he was frequently questioned by Lieutenants due to complaints of him being overly friendly with the other men.

26. During the hearing, the applicant gave evidence that when he was in Secondary School a senior approached him and gave him a kiss. This aroused him. This became a consistent behaviour until the senior left school. When asked whether he had any other casual sexual encounters, he responded no, not until he entered the Armed Forces. After he joined the Armed Forces, he had casual sex with men in the Armed Forces for 26 years. When asked whether this behaviour was dangerous for him, he responded that it was and he would have been sacked if caught. If it was in the community, it would have been more of a threat.

27. The Tribunal asked the applicant whether he had a homosexual relationship with anyone in the Armed Forces. He responded no, it was casual. When asked whether he ever got caught during the 26 years he engaged in this behaviour, he responded once on his last day. It was casual, undercover and not regular. When asked whether anyone in the Armed Forces suspected what was going on, he responded no. Senior officers told him that he was more friendly with people of the same sex than the opposite sex and they saw him with men more than they saw him with women. He had a de facto wife.

28. The Tribunal finds this evidence to be implausible for a number of reasons. Firstly, he would have been about [age] years old [in] June 1983 and about [age] years old when he joined the Armed Forces [in] 1990. It is implausible that he did not have any homosexual relationships or casual sexual encounters with men between the ages of [age] years and [age] years. Secondly, it is implausible that he had sexual encounters with men in the Armed Forces for 26 years and never got caught except on his last day.

29. Thirdly, the applicant gave evidence that senior officers told him that he was more friendly with people of the same sex than the opposite sex and they saw him with men more than they saw him with women but made no mention of being frequently questioned by Lieutenants due to complaints of him being overly friendly with the other men as claimed in his Statement of Claims. Fourthly, it is implausible that he would have had casual sexual encounters with other men in the Armed Forces for 26 years, senior officers commented that he was more friendly with males than females and he was frequently questioned by Lieutenants due to complaints of him being overly friendly with the other men and yet no one in the Armed Forces suspected that he was homosexual.

30. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claim that he is homosexual.

31. Second, in his Statement of Claims the applicant claimed that he married a woman and had [number] children to conceal his homosexuality and to avoid being publicly shamed, humiliated, threatened and killed. During his interview with the Department, he stated that his de facto wife [Ms D] was the sister of a senior colleague in the Armed Forces and he introduced the two of them. He then had a sexual relationship with her and she became pregnant. In Ghana, when a woman gets pregnant the man who impregnated her has to present a drink to the family so they are aware that he is taking responsibility for the pregnancy. The two of them then started living together in a de facto relationship and were together for 15 years. She sometimes lived with him in the barracks and sometimes he rented a room for her near the barracks. The two of them then had [number] more children together being a total of [number] children. 

32. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted this evidence is not consistent with his Statement of Claims where he claimed that he got married to his wife as a pretence to cover up the fact that he was homosexual and avoid being publicly shamed, humiliated, threatened and possibly killed for being homosexual. The Tribunal noted that it may come to the conclusion that he entered into a de facto relationship because his de facto wife got pregnant and this had nothing to do with him being homosexual or trying to conceal this fact.

33. The applicant responded that in his culture they have to follow due procedures. At the age of [age] years, he did not have a child and this was surprising. There was pressure from his family. His mother asked him what was happening. His senior officer introducing him to his sister was a coincidence. It started in 2002, when he had to do “nebu”. In [year], she became pregnant. There is no engagement in their culture. They had to show that he was responsible. His de facto wife was in the barracks and, at times, out of the barracks. Fifteen years looks like a long time. He travelled for 11 years doing peace keeping. When he returned he had to have sexual activity with his de facto wife to keep her happy. Then there was the issue of coming out to her and [Mr A]’s wife. It sounds correct that he was forced into that marriage due to family pressure. He does not see any inconsistency.

34. The Tribunal does not find the applicant’s response to be convincing for a number of reasons and does not accept it. Firstly, if he was entering into a marriage to cover up the fact that he was homosexual, he could have got married without the necessity of first impregnating his de facto wife. Secondly, after he entered into a de facto relationship and had a child, there was no need for him to have [number] more children to cover up the fact that he was homosexual. Thirdly, his own evidence contradicts his evidence that he travelled for 11 years doing peace keeping. In his visa application, which he stated was accurate, he stated that he was deployed in [Country 2] for 6 months in 2004/2005, deployed in [Country 5] for 6 months in 2008, deployed in [Country 3] for 6 months in 2010 and had a military engagement in [Country 4] in June 2012. This totals 19 months and not 11 years as he claims. 

35. These issues raise concerns in relation to his credibility and the veracity of his claims.

1. Third, in his visa application, the applicant stated that he and his de facto wife commenced a de facto relationship in 2002. However, during the hearing, he gave evidence that they commenced a de facto relationship right after the birth of their first child in [year]. His de facto wife lived with him at the barracks until he retired from the Air Force in 2016 when they moved into accommodation at [Neighbourhood 2] in Accra. They separated in 2017 after she discovered that he was homosexual and in a homosexual relationship with [Mr A].

2. The Tribunal finds it implausible that the applicant’s wife lived with him for 15 years or, alternatively, 13 years and did not know that he was homosexual particularly if it became increasingly difficult for him to hide being a homosexual as claimed, he had sexual encounters with male colleagues in the Armed Forces for 26 years, senior officers commented that he was more friendly with males than females, he was frequently questioned by Lieutenants due to complaints of him being overly friendly with the other men, her brother was one of his senior colleagues and she lived in the barracks for 15 years or, alternatively, 13 years or, alternatively, lived near the barracks for some of that time.

3. These issues raise further concerns about the applicant’s credibility and the veracity of his claims.

4. Fourth, the applicant’s conduct is not consistent with his claims. His evidence in his visa application is that he undertook a military course in [Country 1] for approximately one month in 2002. If he was homosexual, was finding it increasingly difficult to hide his homosexuality, had been having sexual encounters with male colleagues in the Armed Forces since 1990, was at risk of being sacked from his job if his homosexuality was discovered, was under pressure from his family to get married and was at risk of serious harm from his family and the community if his homosexuality was discovered as claimed, the Tribunal would expect that he would have used the first opportunity he had to undertake some research, seek legal advice about obtaining a permanent visa to live in [Country 1] and apply for protection. However, he did not claim protection in [Country 1]. 

5. The Tribunal raised this as an issue with the applicant. He responded that in Ghana you cannot openly be homosexual. Going to [Country 1] was an activity that was organised by the Armed Forces. Maybe he had the opportunity to seek protection. At that time, there was no issue. He did not have an issue with his de facto wife in 2002. The idea of seeking protection did not occur to him until his de facto wife exposed him publicly. It made him look elsewhere and that is why he chose Australia. [Details deleted].

6. The Tribunal does not accept this explanation particularly in view of his evidence that it was dangerous for him to have sexual encounters with male colleagues in the Armed Forces and he had been doing so since 1990 and he was at risk of losing his job.

7. This raises further issues in relation to the applicant’s credibility and the veracity of his claims.

8. Fifth, there are inconsistencies within the applicant’s evidence and between his evidence and [Mr A]’s evidence in relation to how they met, how they discovered the other was homosexual and how their relationship developed. In his Statement of Claims, the applicant claimed that he met his current partner, [Mr A], at a disco club in [Neighbourhood 1], Accra in 2016. They met at the bar and initially engaged in general conversation. From that night they became friends and their friendship blossomed into a relationship. They were highly compatible and had similar experiences about how they concealed their homosexuality. They introduced each other to their families as a friend which allowed them to go out together frequently.

9. During his interview with the Department, the applicant stated that he met [Mr A] on 7 March 2016 at the [named] Club near the barracks. He stated that in Ghana if someone meets another person who is homosexual, they are meant to tap the person and that person is meant to push their hand away. He did this to [Mr A] and he did not show a negative reaction.

10. During the hearing, the applicant gave another version of events. He stated that he first met [Mr A] in 2016 at a Club in [Neighbourhood 1]. He shook hands with him and used his finger to scratch his palm and he responded. This is a signal in Ghana when a person is homosexual and that is how he realised that [Mr A] is also homosexual. The two of them commenced a relationship straight away. He introduced him to his wife as a friend.

11. In his Statement of Claims, [Mr A] claimed that he met the applicant in 2016 at a disco in [Neighbourhood 1]. The applicant approached him and they talked. He found the applicant to be compatible so they began a relationship and started dating in secret.

12. During the hearing, [Mr A] gave a different version of events. He stated that he first met the applicant in 2016 at a disco club in [Neighbourhood 1]. He was at the club when the applicant came in and sat at the far end of the room. He made a sign to the applicant using his fingers which is a sign in Ghana when a person is homosexual. The applicant did not respond so he made the sign again. The applicant then walked over to him and he gave him a chair beside him. The two of them had a conversation and realised they were compatible. The applicant introduced him to his wife and his family as a friend. He visited his house and the two of them would go out together.

13. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies between his evidence and [Mr A]’s evidence and the inconsistencies within his evidence raised issues in relation to the credibility of his claims.

14. The applicant responded that he was under pressure at the interview. He met [Mr A] for the first time on 7 March 2016. It was Ghana Independence Day and he went to a Club which was a 10 minute drive from the barracks. He saw [Mr A] there and had an intuition that he may be homosexual. He shook his hand and tapped his palm. That was a sign that he was homosexual. [Mr A] responded positively. He did not remember saying he tapped his palm. He made the sign to the delegate. They took it from there. They became friends and started a relationship. He realised they were compatible. He had [number] children and [Mr A] had [number] children and later had another child. They were both born in [specified month]. He is hot and [Mr A] is submissive. He realised this on that day. Their relationship was under cover and could not be exposed. He introduced [Mr A] to his family as a friend until 14 February (2017) when his wife found out that they were homosexual.

15. The applicant’s response does not address the issues raised with him or alleviate the Tribunal’s concerns. These issues raise further concerns in relation to his credibility and the veracity of his claims.  

16. Sixth, the applicant’s evidence in relation to when and how he separated from his de facto wife have changed over time. In his Statement of Claims, the applicant claimed his wife became suspicious of him and [Mr A] and began following them on their outings. She discovered that he and [Mr A] had more than a friendship and told his family and the community. He and [Mr A] then began living their lives under constant threat.

17. During his interview with the Department, the applicant stated that after his de facto wife discovered that he was homosexual on 14 February 2017 she continued to live with him. The two of them then separated in April 2017 when she left the family home without the children. Their children thereafter lived with his mother and she looked after them. He continued to live alone in the family home until March 2018 when he left Ghana.

18. During the first hearing, the applicant gave evidence that he bought some chocolates for his wife on Valentine’s Day on 14 February 2017. He then told her that he was going out with [Mr A]. She made a comment that the two of them looked like they were into each other. He and [Mr A] then went to a club and she followed them to the club. She came into the club and started shouting that the two of them were homosexual. She then left and went to her parents’ home without their children. On the following day, that is 15 February 2017, she went to [Mr A]’s house and told his wife that the two of them were in a homosexual relationship. On 16 February 2017, she returned to the family home to collect her things. That was the last time he saw her face to face. However, during the second hearing he gave evidence that his de facto wife continued to live in the family home until April 2017 and that is when she left. He gave no evidence of being constantly threatened.

19. The applicant’s evidence is that he is satisfied that his application for a Protection visa is accurate. In his application for a Protection visa, he stated that lived at the same address in Accra from November 2016 to March 2018 (when he left Ghana to travel to Australia). He also stated that he worked in [Occupation 2] at [Company 1] from May 2017 to March 2018. He has never claimed that he was in hiding with [Mr A] in regional Accra from February 2017 until March 2018 as claimed by [Mr A].

20. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that these inconsistencies within his evidence and between his evidence and [Mr A]’s evidence raise concerns in relation to his credibility and the veracity of his claims.  

21. The applicant responded that what he initially said in his application for a Protection visa was the same. The evidence he gave during his interview with the Department was a summary. He did not specify days. He said she left home on the following day. He meant that she did not stay in the family house. She went and came back. Her belongings were in the house. In May 2017, she packed all her things. What [Mr A] meant when he said they were in hiding is that their activities were under cover. They had to move under cover. At the end of the day, when his wife packed her belongings in 2017 it was final. From February to April (2017), there was a whole lot of misunderstanding and confusion. He faced a lot of emotional pressure from her. He was not eating what she was cooking. He went through a lot. She left the children and he had to move the children to his mother’s place. Since coming to Australia with [Mr A] he has made sure that he sends money to his mother to take care of his children. Whatever he said in his application for a Protection visa was the same. It was a summary of events.

22. The Tribunal does not find this explanation to be persuasive and does not accept it. On the contrary, it exacerbates the Tribunal’s concerns.

23. Seventh, [Mr A]’s evidence in relation to when and how the applicant separated from his de facto wife and what happened thereafter is not consistent with the applicant’s evidence. During his interview with the Department, [Mr A] stated that after the applicant’s de facto wife, [Ms D], located [Mr A]’s whereabouts, she went to his home and told his wife about his relationship with her husband, he and the applicant then went into hiding in the regions outside Accra and stayed in hiding from February 2017 until he left Ghana in March 2018.

24. During the hearing, [Mr A] gave a different version of events. He stated that the applicant’s de facto wife, [Ms D], followed the two of them to his house on 14 February 2017 and told his wife that the two of them were in a homosexual relationship. The applicant then left his wife and the two of them found a place in Accra to “have their freedom”. [Mr A] was asked whether he rented a place and he said no. The applicant went to his house sometimes and then left. He was asked where the applicant lived between 14 February 2017 and March 2018 and responded that the two of them rented a place in Accra. He was asked whether the two of them lived together in that rented property and he responded that he would go and visit his children and spent time with the applicant as well including staying overnight with him.

25. [Mr A] gave evidence to the Tribunal that he was satisfied that his application for a Protection visa was accurate. In his application for a Protection visa, he stated that he lived at the same address at [Neighbourhood 3] in Accra from January 2014 until March 2018 (when he left Ghana to travel to Australia). He also stated that he worked as an [Occupation 3] at [Neighbourhood 3] from June 2003 until March 2018. He made no mention of being in hiding in the regions outside Accra in his application for a Protection visa or in his Statement of Claims.

26. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that these inconsistencies in the evidence raise concerns in relation to [Mr A]’s credibility as well as his credibility and the veracity of his claims.  

27. The applicant responded that he has talked about [Mr A]’s demeanour. He stammers and when he is under pressure he does not flow. He knew there would be inconsistencies because of pressure on him. His wife left the house not him. [Neighbourhood 2] is the place where he lived and [Mr A] would go to [Neighbourhood 2]. They could not expose themselves in the streets of Ghana. Homosexuals are abhorred in the community in every part of Ghana. They went into hiding because they could not expose themselves as they could have been attacked. They had to do everything under cover. That is what [Mr A] meant when he said they went into hiding.

28. The Tribunal accepts that [Mr A] may have been nervous when he attended the interview with the Department and/or when he attended the hearings. However, the Tribunal does not accept that this explains the significant inconsistencies in his evidence or between his evidence and the applicant’s evidence. There is a significant difference between saying “we had to undertake our activities in secret for fear of been attacked” to saying that they were in hiding in the regions outside Accra from February 2017 until March 2018 as this would have necessitated both of them leaving their respective homes in Accra to go the regions outside Accra. There is also a significant difference between saying the applicant left his de facto wife on 14 February 2017 and the two of them then found a place in Accra to “have their freedom” to saying the applicant remained in his family home after his de facto wife left him on 14 February 2017 and [Mr A] visited him at his family home.

29. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

30. Eighth, the applicant’s evidence is that he met [Mr A] on 7 March 2016 and that they thereafter had a homosexual relationship. His wife discovered that he was homosexual on 14 February 2017 and this resulted in her leaving the family home and separating from him. She informed [Mr A]’s wife that her husband and the applicant were in a homosexual relationship and this resulted in [Mr A] and his wife separating as well.

31. During his interview with the Department, [Mr A] stated that he and his wife separated in February 2017 after she found out that he was homosexual. In his application for a Protection visa, he did not indicate that he had separated from his wife.

32. During the hearing, [Mr A] gave evidence that prior to his departure from Ghana in March 2018 he lived with his wife and children at [Neighbourhood 3] in Accra and lived there for 6 years. He later gave evidence that his wife found out that he was homosexual on 14 February 2017. His sexual relationship with her had broken down a long time before that. The two of them had not had sexual intercourse for a long time prior to 14 February 2017. When asked if anything happened between him and his wife between 14 February 2017 and him coming to Australia in March 2018, he responded that their relationship was bad. He was not interested in her and did not like her anymore. He was only there because of his children. He did not have sexual intercourse with her for a long time.

33. [Mr A]’s evidence in his application for a Protection visa, which he stated was accurate. is that his youngest daughter was born on [date]. That is more than [number] months after he claims that he and his wife separated on 14 February 2017.

34. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this raised issues in relation to credibility and that this may lead it to the conclusion that [Mr A] and his wife did not separate in February 2017 and may still be in a marital relationship. The applicant declined to comment on or respond to this information.

35. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

36. Ninth, in his Statement of Claims, the applicant claimed that he and [Mr A] were beaten and harassed, when they were returning from a club, by “some guys” who suspected that they were homosexual. He did not seek help after he was beaten, harassed and threatened by guys. LGBT practices are taboo in Ghana. The Ghanaian laws do not protect LGBT persons and the government/Police cannot protect him. 

37. During his interview with the Department, the applicant gave a different version of this incident. He stated that he and [Mr A] went out on 1 May 2017. Some guys approached the two of them because they were in a “compromised position” and one of them slapped [Mr A]. He then pushed the man to the side and got a cut on his forearm. The man had a stone and he lost a toenail. During the hearing, he gave evidence that he sought medical treatment for the injury to his arm.

38. [Mr A] gave different versions of this incident. In his Statement of Claims, he claimed that he and the applicant were harassed and beaten when returning from a club by “some guys” who suspected that they were homosexuals. He claimed that he fears mob violence in Ghana because rumours of one being homosexual will prompt a group of people to attack the victim. It is useless to go to the authorities who will not protect him.

39. During his interview with the Department on 24 May 2018, [Mr A] gave a different version of this incident. He stated that he and the applicant were at a bar in February 2017. He was under the influence of alcohol and kissed the applicant at the bar. When he went to the toilet he was challenged and assaulted by another person there. The applicant and others then joined the fight. At that moment, the applicant’s de facto wife, [Ms D], arrived and publicly disclosed that the two of them were a homosexual couple.

40. During the hearing, [Mr A] gave a third version of this incident. He stated that he and the applicant went to a club as partners. As he was going to the toilet, he gave the applicant a kiss. Two or three guys there attacked them and beat them. The applicant has a mark on his hand. They found a way to escape. The Tribunal asked him why he kissed the applicant in a public place if the situation in Ghana in relation to homosexuality is as bad as he claims. He responded that he had been drinking, was in the mood and gave him a kiss. He did not know people were looking at them. When the Tribunal pointed out that it was a club, a public place with other people, he responded that it was a small club with not many people around.

41. The Tribunal asked [Mr A] whether either he or the applicant were injured and he responded that the applicant defended him and has a mark on his hand. When asked whether the applicant sought medical treatment, he responded no. He had a light wound on his hand (pointing to his lower arm).

42. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies in the evidence raise issues in relation to his credibility and the veracity of these claims. He responded that he did not remember saying he lost a toenail during his interview with the Department. He did not lose a toenail. This incident happened on 1 May 2017. It was Workers Day (May Day) and they went out. [Mr A] gave him a kiss and they were attacked. They summarised things during the interview with the Department.

1. The applicant stated that he provided more details in his application for a Protection visa. [Mr A] did give him a kiss. As he was going to the toilet [Mr A] was attacked and he had to go in. The attack was a slap. Because of his military background, he was defending. He got a cut on his right arm. That is still the same. [Mr A]’s telephone was smashed. At the end of the day, they lost the telephone, he had a cut and they had to escape. His de facto wife came in. When asked whether this happened on 1 May 2017, he responded no, it happened on Valentine’s Day. She left their home in April 2017. On 1 May 2017, he was with [Mr A].

2. The Tribunal does not find the applicant’s explanation to be convincing and does not accept it. These issues raise further concerns in relation to his credibility, the veracity of his claims and [Mr A]’s credibility.

3. Tenth, in his Statement of Claims, the applicant claimed that when he exhibited “gay characteristics” in Ghana he was labelled an abomination to society. Being a homosexual is taboo in his family. He lived in fear and suspense because of his attraction to males. His life was in danger in Ghana. He experienced food poisoning, threats of violence over the telephone and “unwarranted car accidents” from his extended family and people in his community. He fears that if he returns to Ghana his life will be in danger because his extended family and the community will harm, harass, threaten, intimidate, harass and kill him because of his homosexual practice. His family will be labelled for discrimination and intimidation and they would be in danger.  

4. During the hearing, the Tribunal asked the applicant what family he has in Ghana. He responded his [children], his mother, his brother and his sister who is now deceased. When asked whether his family found out that he is homosexual, he responded that they did as his de facto wife told them. She made it public and information spreads like wildfire. When asked how they reacted, he responded that they were embarrassed. His mother was disturbed. The rest of the family felt bad. They were all against him. If one member of the family is homosexual it is an attack on the rest of the family. When asked whether this included his brother and sister, he responded “not really”. His brother is still in touch with him. His sister was not too bad. She is now deceased. His nephews and nieces are not happy with him.

5. The applicant’s evidence is that his [number] children have been living with his mother and she has been taking care of them since he separated from his de facto wife on 14 February 2017 or, alternatively, April 2017. During the hearing, he gave evidence that he started working in Australia in March 2018 upon his arrival here (on [date] March 2018). Since then, he has been financially supporting his [number] children and his mother. His mother is reliant on him. He also financially supported his sister until she died of breast cancer in July 2021. He financially supports her children. He provided his brother with financial support a few weeks prior to the hearing. He also financially supports his brother’s children. 

6. The applicant did not mention having any other members in his extended family in Ghana other than his mother, brother, sister and their families. When asked how they reacted to finding out that he was homosexual, he made no mention of them or any of them subjecting him to food poisoning, threats of violence over the telephone and “unwarranted car accidents”. This is highly unlikely as he has been financially supporting them since coming to Australia.

7. The only incident that the applicant gave evidence about in relation to harm from the community was in relation to an incident at a bar on 1 May 2017. Despite being given many opportunities to tell the Tribunal about any other incidents about people in the community, he made no mention of the community or any member of the community subjecting him to food poisoning, threats of violence over the telephone and “unwarranted car accidents”.

8. During the course of the hearing, the applicant gave evidence that around the time of his separation from his de facto wife he did not eat what she cooked. Whilst he may have had concerns that she would poison him, this does not mean that she actually did or that he “experienced food poisoning” as claimed.

9. The applicant’s evidence is that his immediate family, being his [number] children, have remained in Ghana since his wife publicly disclosed that he was homosexual and in a homosexual relationship with [Mr A] at a bar on 14 February 2017. His evidence is that she also informed his family of this and that this information spread like wildfire. His [number] children have continued to live with his mother since then. He has not given any evidence in relation to his immediate or extended family being discriminated against or intimidated or subjected to any harm since it was publicly disclosed that he is homosexual. He has provided no evidence to support any of these claims.

10. These issues raise further concerns about the applicant’s credibility and the veracity of his claims.

11. Eleventh, in his Statement of Claims, the applicant claimed that in Australia he and [Mr A] were warmly welcomed into communities such as [Church 1] in Sydney.

12. During the hearing, the applicant gave evidence that when he was in the Armed Forces in Ghana and living in the barracks he attended Church. After he retired in August 2016, he did not attend Church. He then stated that he would occasionally go to Church.

13. During his interview with the Department, [Mr A] stated that he did not attend Church in Ghana. He stated that he never attended Church in Ghana. He then stated that he went to [Church 2] in [Neighbourhood 3] a very long time ago. During the hearing, he stated that he sometimes attended the [Church 2] in Ghana. He stated that, after coming to Australia, he has attended [Church 1] in [Suburb 1] every Sunday. When asked how he did that when he has been living in Newcastle (since 2020), he responded that he has not attended [Church 1] since he moved to Newcastle and only the applicant attends Church. He does not attend Church in Newcastle.

14. During his interview with the Department, [Mr A] was asked how he found out about [Church 1]. He responded that he asked a stranger at the Railway Station at [Suburb 2] where he could find a Church and was told to go to [Church 1] in [Suburb 1]. When the delegate questioned him why the stranger would send him to a Church in [Suburb 1] when he was at [Suburb 2], he responded that he asked the stranger for a “gay Church” and was told about [Church 1]. The delegate asked him whether he looked on the internet and he answered no. He subsequently lodged with the Tribunal a written statement that was unsigned and undated. In that statement, he stated that the applicant did a search on Google for “LGBTQI friendly Churches”, found out about [Church 1] and both of them then joined [Church 1].

15. During the hearing, the applicant gave evidence that, after coming to Australia, he did a search on Google, found out about [Church 1], contacted [Church 1] and spoke to someone called [Ms E] who gave him directions. He then started attending [Church 1] in April 2018. This was before he filed his application for a Protection visa.

16. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it raised issues in relation to his motivation for attending [Church 1], his credibility and the veracity of his claims. He responded that, at the barracks, military personnel had a duty to attend the military Church. In Ghana, under their system, Muslims and Christians come together. When he came to Australia, he did a search in Google and found out about [Church 1] and its mission. He realised that much of their activities were about neglected and ostracised people like the LGBTQI community. He realised that it looked different so he wanted to try it. He spoke to [Ms E], she gave him directions and they went there.

17. The applicant stated that [Mr A] asked someone in [Suburb 2]. When he is under pressure he says things that are not true. The right thing is that they “Googled” and found out about the Church. They thereafter were involved in the Mardi Gras and attended the Mardi Gras. He volunteers to perform tasks in the Church. He has done Bible readings on Sunday. They joined an activity at the Town Hall. They are involved in activities in the Church and he enjoys that. “Normal” Churches do not take gays or lesbians especially in Africa. In [Church 1], everyone is welcome. They see people like them. They treat them like home. In 2021, he attended the lunch on Christmas day. In 2022, he did not as he went to Newcastle and he told them that he could not participate in the lunch on Christmas day. They have given their all to this Church. It is a different Church for people with a LGBTQI background.  

18. In his response, the applicant did not explain why he searched on the internet for a “LGBTQI friendly Church” in Australia (before he even filed his application for a Protection visa) in circumstances where he attended Church in Ghana until he left the Armed Forces in August 2016 as military personnel had a duty to attend the military Church. His evidence is that he did not attend Church in Ghana after he retired in August 2016 or, alternatively, only occasionally did so. [Mr A]’s evidence is that he did not attend Church in Ghana or, alternatively, went to an [Church 2] in [Neighbourhood 3] a very long time ago or, alternatively, sometimes attended the [Church 2] in Ghana. In these circumstances, the Tribunal would not expect it to be a priority for either of them to attend Church in Australia.

19. The applicant’s response that when [Mr A] is under pressure he says things that are not true is interesting particularly when he is relying on [Mr A] to corroborate his claims. His response does not alleviate the Tribunal’s concerns.

20. Twelfth, the Tribunal explained to the applicant the provisions of s.5J(6) of the Act and raised as an issue with the applicant it concerns that the research he undertook and his attendance at [Church 1] not long after his arrival in Australia was for the purpose of creating a profile that he and [Mr A] are homosexuals and to strengthen his claims for protection. He responded that they came here to claim protection. Their lives were in danger in Ghana. When they got here they did not know anyone, it was not clear to them and they needed baby steps to follow. As humans, they cannot live on an island. Fortunately, because of the internet he was able to read about Australia and LGBTQI activities in Australia. It is one of the countries where LGBTQI people will be protected.

21. The applicant stated that their ultimate aim was to seek protection. Google enables him to find any information he wants. That is why he first did a Google search and knew where to find “bond of relationships”. That is why he “Googled” [Church 1]. They help [Church 1] too. They also visited the office of Immigration Advice and Rights Centre (IARC). They had to comb the whole of Sydney. The feedback from the Department was that they could not give them protection. There is a God and they were able to get to the office of IARC. It is not the fact that they linked themselves to [Church 1] and then claimed protection. At the time they arrived here it was something they looked for. They aligned themselves to that to be affiliated. They were not neglected and were accepted. It was not to make a claim. 

22. The Tribunal has difficulty accepting this response in light of the evidence below that he and [Mr A] met a Ghanaian taxi driver when they arrived in Sydney by train who provided them with food and accommodation. Ten days later, they met another man, who also happened to be from Ghana, with whom they formed a friendship. They therefore had the support of a countryman on their arrival in Sydney and ten days later met another man from Ghana with whom they were able to form bonds or relationships or friendships. The Tribunal does not find his response to be persuasive and does not accept it.  

100.   Thirteenth, the applicant’s conduct and the conduct of [Mr A] are not consistent with their claims. The records of the Department indicate that the applicant and [Mr A] arrived in Australia on [date] March 2018 as the holders of [temporary] visas that were valid until 15 May 2018. The applicant applied for a Protection visa on 5 May 2018. [Mr A] applied for a Protection visa on 8 May 2018. This was shortly before their [temporary] visas expired. Both the applicant and [Mr A] claimed that they decided to come to Australia and claim protection here.

101.   During his interview with the Department, [Mr A] gave evidence that he and the applicant arrived in Queensland and then took a train to Sydney. They hailed a taxi and the driver happened to be Ghanaian. He took them to his house. During the hearing, the applicant gave evidence that he started working in Australia as a labourer in the construction industry in March 2018. [Mr A] gave evidence that he also started working in Australia in March 2018 with the applicant. He then stated that it was April 2018 or May 2018. He has been financially supporting his wife and children whilst in Australia. He sends his wife money for the children’s school fees and for food.

102.   The Tribunal put the above information to the applicant, pursuant to s.424AA of the Act, and noted that, in these circumstances, it would expect that he and [Mr A] would have applied for Protection visas soon after their arrival in Australia. The Tribunal noted that his delay in applying for a Protection visa until just before his [temporary] visa expired may lead it to the conclusion that he applied for a Protection visa to extend his stay in Australia and not because he is homosexual and in need of protection. The Tribunal also noted that it may come to the conclusion that his employment in Australia was a higher priority than seeking protection here.

103.   The applicant responded that they did not come to Australia to work but to seek protection. If you do not work in Australia you cannot look after yourself. The person who took them to his house realised that they were not ordinary friends but homosexuals. His attitude towards them made them leave his place. They met [Mr C] on 24 March 2017 at [location]. He also realised they are from Ghana. He was more friendly than the person they stayed with. They were looking for jobs to wash cars and were paid in cash. They did something to keep themselves going. They did not realise that the time to lodge applications for Protection visas was about to expire. They joined [Church 1] because they needed some help like a family. He read about LGBTQI and same sex marriage before coming to Australia. In Africa, Sydney is popular. They took the opportunity presented [to] come here. They did not know Australian laws. They had to be called for an interview.

104.   The Tribunal does not find the applicant’s response to be convincing. His own evidence is that he undertook research on Australia before coming here and he came here for the purpose of seeking protection. In these circumstances, the Tribunal would expect that he would have undertaken research, prior to coming to Australia, on how to he and [Mr A] were going to support themselves financially in Australia and how they were going to apply for protection.

105.   The Tribunal finds it implausible that the applicant and [Mr A] arrived in Queensland, took a train to Sydney, hailed a taxi and the taxi driver just happened to be a Ghanian man who took them to his home and accommodated them. The Tribunal considers that these arrangements were made prior to their arrival in Australia. The Tribunal also finds it implausible that they were both able to obtain employment in the construction industry soon after their arrival in Sydney. Based on the evidence before it, the Tribunal concludes that arrangements had been made for their accommodation and employment prior to their arrival in Sydney.

106.   The applicant’s evidence is that he met [Mr C] on 24 March 2018. [Mr C]’s evidence (see below) is that he is also from Ghana and is very close friends with the applicant and [Mr A]. He is a permanent resident of Australia and had himself applied for a Protection visa. In these circumstances, the Tribunal finds it implausible that the applicant and [Mr A] did not seek information from him or seek his assistance to prepare their applications for Protection visas.

107.   The applicant’s conduct in Australia and his delay in applying for a Protection visa are not consistent with his claims and raises issues in relation to his credibility and the veracity of his claims.

108.   Fourteenth, during his interview with the Department, the applicant provided the Department with a document which he claimed was a message his brother sent him by email. The message does not contain the name and email address of the sender or the date and time it was sent. The message states that social media and traditional media are looking for him and [Mr A] as people in Ghana suspect that they are in a relationship. The Christian Council and other interested parties came out against homosexual relationships the previous week and were even suggesting the death sentence. The author of the message advised them that Ghana was not safe for them and they should find somewhere that would accept them as they cannot “get it right back home”. The message ends with “Thanks. Yours truly” and does not have a name.  

109.   During the hearing, the applicant gave evidence that it was an email from his brother which he received after [date] March 2018 but could not remember the date. The Tribunal asked him why the email did not have details of the senders name, email address or date. He responded that he could not remember and it was sent to him by email. When asked why it was sent to him, he responded that it was because of the attack and their lives were in danger.

110.   During his interview with the Department, [Mr A] provided the Department with a document which he claimed was a WhatsApp message received by the applicant. During the hearing, the Tribunal asked him who the message was from and he responded that it was from a friend of the applicant. He could not remember the name of the friend or when it was sent but guessed it was sent in 2018. When asked how it was received, he responded by WhatsApp. When asked why it was sent, he responded that it was about what was happening back home and the danger of same sex marriage.

111.   The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the problems with the document and the inconsistencies between his evidence and the evidence of [Mr A] raise issues in relation to the authenticity of this document. The Tribunal noted that it may come to the conclusion that the document was fabricated for the purpose of supporting his claims for protection.

112.   The applicant responded that the email was from his brother and not a friend. The name of the sender is in his documents. It referred to what had happened in his home country, his brother was there and had information. The email was printed from his Android telephone and you can see who the email was from. It was sent to him and not to [Mr A].

113.   The applicant has had plenty of time to send the Tribunal a copy of the email showing details of the sender’s name, email address and the date and time it was sent but has not done so. Besides not having these details on the email, the message also ends with “Thanks. Yours truly” and does not have a name. It is not apparent from the message why the sender is thanking the applicant. More importantly, if the sender is the applicant’s brother as claimed, it is implausible that his brother would have ended the message to him with the words “yours truly” which is customary in a more formal business setting. Further, the message refers to social media and traditional media looking for him and [Mr A] but does not contain any details or links to the social media or traditional media.

114.   In view of these problems with this document and the inconsistencies in the evidence in relation to the document, the Tribunal is not satisfied that it is an authentic document. The Tribunal concludes that the applicant lodged this document with the Department to enhance his prospects of getting a Protection visa.

115.   Fifteenth, the applicant’s conduct is not consistent with his claims. During the hearing, he gave evidence that he decided to come to Australia in 2017. After he and [Mr A] were attacked because they are homosexuals, the threat became unbearable and he started looking for a safe place. In December 2017, Australia legalised same sex marriage, he became interested in Australia and researched how to come here. [Details deleted].   

116.   The applicant gave evidence that [Mr A] moved to Newcastle in 2020 for work and he has continued living and working in Sydney.

117.   The Tribunal raised as issues with the applicant his claims and evidence that he and [Mr A] left their children, families, jobs and homes to come to Australia so that they could be together. He came here because they could live together and get married without a problem. They both stated that their relationship is very strong. Yet they are not living together and have not even lived in the same city for several years. They are also not married. The Tribunal noted that this tends to indicate that their employment is more important than their relationship. The Tribunal noted that it may come to the conclusion that he is not homosexual, that [Mr A] is not his partner and that he came to Australia for the purpose of getting a good job and earning money to support his family.

118.   The applicant responded that their priority in coming to Australia was to seek protection and not to work and support their families. They have children. His de facto wife left his children. He moved them to his mother’s home. His sister and his mother took care of them. His sister subsequently died from breast cancer in July 2021. His mother cannot work to take care of his children. He has to work to take care of his children, his mother and his sister’s children. His ultimate motive in coming to Australia was to seek protection. [Mr A] is in Newcastle due to his work. Initially he was working in the construction industry with him (in Sydney). He is not hard or aggressive. He later decided to (study) [Subject 2]. They have stayed together. 

119.   The Tribunal does not find the applicant’s response to be persuasive. The Tribunal considers that if the applicant and [Mr A] came to Australia so that they could be together and this was important to them, [Mr A] would have obtained employment in Sydney. The Tribunal is not satisfied that [Mr A] would not have been able to obtain employment as a [Occupation 4] in Sydney considering that Sydney has a much larger population and employment opportunities than Newcastle. The Tribunal also takes notice of the fact that there is a demand for [Occupation 4]s in Sydney.

120.   Further, the applicant’s response did not address the issue of why he and [Mr A] are not married considering that that was one of the factors that influenced him to come to Australia.

121.   These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

122.   Sixteenth, the Tribunal has considered the evidence given by [Mr C]. In his written statement dated 11 August 2022, he stated that he is a migrant from Ghana who has been an Australian citizen for a number of years. As a long-standing member of the Ghanaian community, he has had contact with many Ghanaian people in Australia, especially in Sydney. He met the applicant and [Mr A] on 24 March 2018. He was a taxi driver and was parked in front of the [hotel] in [location]. Two men approached him. They were lost and pleaded to be taken home to [Suburb 3]. In the car, they were speaking in his language and he realised that they were Ghanaian. They told him they had arrived (in Australia) on 14 March 2018. They exchanged telephone numbers and engaged in telephone calls from time to time.

123.   [Mr C] stated that, after a few months, the applicant and [Mr A] became frequent visitors to his home and attended family dinners every few weeks. At these dinners, he came to know their stories and why they had fled from Ghana. Hearing that LGBTI individuals are treated inhumanely in Ghana was not a surprise to him. The Ghanaian community in Sydney welcomed them and commended them for their strength, courage and determination. He assessed the genuineness of their relationship by how protective they were of each other when they first arrived. Each one was fearful of being separated from the other for long periods of time “in traumatic fear“ that one will be harassed and taunted. According to them, this was a habit formed in Ghana due to frequent occurrences of public and family mistreatment.

124.   [Mr C] stated that another reason he can attest to the genuineness of their relationship is the boldness of their embrace of their sexuality. Despite their experiences, they are proud of their identity and being able to overcome their circumstances. It was not an easy decision for them to seek protection in Australia. Although they have a deep love for Ghana, they often expressed a sense of betrayal from the people who are known to be loving and liberal. Being ostracised and in a state of constant fear for your life is no way to live. The protection that they have been granted here in Australia has broadened the ability to live life in a more fruitful and endeavouring manner.

125.   [Mr C] stated that the applicant and [Mr A] are resilient, hard-working, have “good social citizenship” and have displayed this in their jobs and social involvement in voluntarily attending and participating at [Church 1]. He has no doubt of their intention to live in Australia or the “validity of their personalities” and they would otherwise not be frequent visitors to his family home. They deserve to continue living out their truths but need Australia to give them a fresh start safe from intentional harm.

126.   During the hearing, [Mr C] gave evidence that he first met the applicant and [Mr A] on 24 March 2018. He was driving a taxi car and was parked in [location]. They approached him and wanted to find their way to [Suburb 3]. When asked whether they asked him where he was from, he responded no. When asked whether he asked them where they were from, he responded no. He volunteered to take them home. In the car, they spoke to each other and he listened to their conversation. He is also from Ghana and they were speaking in his language. They were discussing something that happened to them and he then knew that they were in trauma and fear.

127.   [Mr C] gave evidence that he identified himself to the applicant and [Mr A] and gave them his card. They thereafter frequently went to his house until now. When asked whether they were close friends, he responded “very close.” When asked what else he would like to tell the Tribunal, he responded that he met them, saw who they were and they were people living in fear, persecution and trauma. Since their arrival in Australia, they have had the experience of being protected. They have not sought protection before. Living in Australia, they have come to know how the law protects them. They have come to realise that they could not demonstrate their sexuality in public before. When they realised the law protects them, they are able to embrace their sexual relationship in public and in front of people.

128.   [Mr C] gave evidence that the applicant and [Mr A] are proud to identify themselves in public by kissing and wearing earrings. This is not common where they come from. They call Australia home now. Since he has moved with them, he has seen how genuine they are. They are hardworking people. They have characters that can be trusted. They do not have a criminal history and do not engage in any criminality. He has opened his house to them. He has children who were born here and understand. They are keen to welcome them in their house.

129.   [Mr C] gave evidence that he has pity for the applicant and [Mr A]. Ghana is a traditional country and homosexuals are persecuted and are social outcasts. If one or two people find out that a person is homosexual, that person can be lost at any time. Recently, when people identified as gay or lesbian, they got lost and no one knows where they are. Their families do not have money to go to the Police to report it.

130.   [Mr C]’s oral evidence in relation to when and how he found out that the applicant and [Mr A] had experienced traumatic events in Ghana is not consistent. In his written statement, he stated that he did not find this out until several months after he first met them on 24 March 2018. In his oral evidence, he stated that he found out on 24 March 2018 when he overhead their conversation in the back of his car.

131.   In his evidence, [Mr C] described himself as a very close friend of the applicant and [Mr A]. This is not consistent with the applicant’s evidence that his friends are in [Church 1] community. The Tribunal put this information and the inconsistent evidence given by [Mr C] to the applicant, pursuant to s.424AA of the Act, and noted that it raises issues in relation to the nature of his relationship with him and [Mr A] and his credibility as a witness. The Tribunal noted that, if [Mr C] was a very close friend who had also applied for a Protection visa, it would expect him and [Mr A] to have sought his help with their applications for Protection visas.

132.   The applicant responded that there is a difference in the statement. In their tradition in Ghana, there is a definition to certain words. Friendship means when someone becomes a friend they do it freely. There is no barrier between the two people. They give the person a respectable position in their lives and to them. It cannot relate to the person being a friend. He does not consider him to be like [Church 1] people who they can joke with. [Mr C] has been here for a long time and has a reputable background. He cannot relate to him the way he relates to [Church 1] people. He did not consider him to be a friend. There is no inconsistency there.

133.   The applicant stated that all the people he has met here from the Ghanaian community could be their friends. He can relate more to the people at [Church 1]. He had to make it clear. That is why it was not mentioned. [Mr C] has been supportive to them. He was there and they could not rely on him with their applications for Protection visas. He was the one who said, “what have you done?” They realised they needed to do something to stay here. Everything they did like going to immigration and doing the applications was done by them. He prompted them. They searched on Google and found out the next steps. [Mr C] was not someone to help with everything. They followed him. At the time, it was not like that. There is a space between him and them and they give him that respect.

134.   The Tribunal does not find the applicant’s explanation to be persuasive. As [Mr C] is from the same cultural background as him, the Tribunal would expect him to be aware of and influenced by the same cultural norms. The inconsistencies between [Mr C]’s evidence and the applicant’s evidence raise issues in relation to the nature of their relationship.

135.   The Tribunal finds aspects of [Mr C]’s evidence to be implausible. Firstly, the Tribunal finds it implausible that if the applicant and [Mr A] were lost in [location] at 2.00am on 24 March 2018, were trying to find their way home to [Suburb 3] and approached a taxi driver who looked of African ethnicity like them, neither they nor [Mr C] inquired as to where the other was from. Secondly, the Tribunal finds it implausible that [Mr C], who was working as a taxi driver, would volunteer to drive them from [location] to [Suburb 3] free of charge when he did not know where they were from or anything about them.

136.   Thirdly, the Tribunal finds it implausible that the applicant and [Mr A] would have been discussing something traumatic that happened to them in Ghana in the back seat of a taxi at 2.00am when they were with a stranger, did not know where he was from and whether he could understand them. Fourthly, the Tribunal finds it implausible that [Mr C] would describe his relationship with the applicant and [Mr A] as a very close friend when neither of them agreed with his description of their relationship and the applicant did not even consider him to be a friend. The Tribunal is not satisfied that this inconsistency can be explained by cultural factors.

137.   The Tribunal also finds it implausible that on two occasions when the applicant and [Mr A] needed assistance with transport in Sydney, they happened to come upon a taxi driver who is Ghanaian. The chances of this happening in a large city the size of Sydney is remote.

138.   The Tribunal considers that [Mr C] has not been truthful about the circumstances in which he met the applicant and [Mr A] and the nature of his relationship with them. The Tribunal does not find him to be a credible witness. In these circumstances, the Tribunal is not persuaded by the post hearing submissions made by the applicant’s lawyer that the Tribunal should give considerable weight to his evidence when determining the applicant’s claims. The Tribunal places no weight on [Mr C]’s evidence.

139.   Seventeenth, the Tribunal has considered the evidence given by [Ms B] in support of the applicant’s case. The applicant filed with the Department a written statement dated 16 May 2018 from [Ms B]. She stated that [Church 1] was established [number] years ago and began as an outreach to the gay and lesbian Christian population who were rejected by other Churches. She and her partner have been attending the Church since 1998. She is a member of the Board of Directors [at Church 1] and previously held the role of Coordinator of [a specified] Council for 6 years. The Minister is homosexual and has been the Minister since the inception of [Church 1] [number] years ago.

140.   [Ms B] stated that she first met the applicant when he attended a service at [Church 1]. She instantly liked him. He is intelligent, personable, agreeable and cooperative. He identifies as a “gay man and as a Christian”. He has quickly made friends with others in the Church. He is keen to be accepted within the congregation and has done this with his genuinely warm and amiable nature as has [Mr A]. The applicant and [Mr A] show a keen interest in the Church and becoming more involved. They attended an outing on Sydney Harbour that she organised and impressed their friends. During lunch they were questioned about their journey and “told of horrendous actions against LGBT people in Ghana”. The plight of LGBT people in Africa troubles them both deeply.

141.   [Ms B] stated that, as a Christian, the applicant gives thanks to God for everything. He appears to be a devoted and grateful human being who has found a safe place to worship where he can be himself without fear of retribution or consequence and where he can be with his partner openly and safely. He eagerly volunteers for small tasks at Church and wants to become more involved as time goes on. His devotion to God inspires her to be a better Christian.

142.   [Ms B] stated that she understands that, as an African homosexual, the applicant would be at risk of facing “serious persecution, threats, intimidation or worse, death if he were returned to Ghana”. She regards herself to be a new Church friend of them both and holds grave concerns for their future should the Australian government not grant them Protection visas. She believes “his life would be in grave danger or, at best, his human spirit” and urged that consideration be given to his application to remain in Australia as a refugee. Her Church is not new to the plight of homosexual refugees and they have fought long, hard battles in the past to secure the safety of their Church members. The applicant’s situation seems to be no different. He is a homosexual Christian from a country where both are regarded as intolerable and therefore dangerous.

143.   [Ms B] stated that it is difficult enough to be homosexual in Australia. She cannot imagine, nor does she ever want to experience, the hardship faced by LGBTQI/Christian brothers and sisters in countries such as Africa (sic). She believes his life would be in grave danger or, at best, his human spirit. She strongly and faithfully urges the Department to consider his application to remain in Australia as a refugee under a Protection visa.    

144.   During the hearing, [Ms B] gave evidence that she first met the applicant and [Mr A] at [Church 1] in 2018. They were Christian, seemed to love the Church and being there. They said when they arrived there it felt like coming home. They attended services together until [Mr A] moved to Newcastle and became involved straight away. She was the head of [named] Council and organised gatherings and outings once a month such as visits to the Art Gallery and to Cockatoo Island. When available the applicant and [Mr A] attended. They went to Cockatoo Island, the Christmas Day luncheon at the RSL and sang in the choir at Sydney Town Hall on Christmas Eve (prior to the Covid-19 pandemic). They have not had any outings for a while. The Church has become smaller since the Covid-19 pandemic.

145.   [Ms B] gave evidence that her knowledge of the applicant and [Mr A] is based on what they have told her. She has not been to Ghana. She has done some research since they attended ([Church 1]). She knows them better than most people at the Church. She was asked to write a letter of support. When asked whether they had ever discussed their families, she responded the applicant more than [Mr A]. He told her there were problems in his family. He has told her about his mother, brother and sister.  

146.   The Tribunal referred to [Ms B]’s statement that the applicant “is a homosexual Christian from a country where both are regarded as intolerable and therefore dangerous” in her letter of support dated 16 May 2018 and asked her on what basis she made this statement. She responded on the basis on what the applicant and [Mr A] told her. She stated that being Christian is not highly regarded in Ghana and being LGBTI is not highly regarded and is dangerous. She and her partner did some research on LGBTI in Ghana. When asked whether she was aware of what the predominant religion is in Ghana, she responded no or she has forgotten. When asked whether it would surprise her to know that Christianity is the predominant religion in Ghana and that more than 71% of the population are Christian[1], she responded that it would not surprise her. The focus is on the LGBTI community. Otherwise, they could have gone to another Church.

[1] US State Department, 2022 Report on International Religious Freedom: Ghana (Ghana - United States Department of State)

147.   [Ms B] stated that she is aware that it is important for the Tribunal to accept the applicant and [Mr A] as a gay couple. She told them that unless she is in a bedroom with them, she cannot substantiate that. From their behaviour at the Church, they are touchy, sit close together and have communion together. The applicant is watchful of how [Mr A] is. When they leave they always make sure they find her. There are kisses and hugs. The two of them put their arms around each other. She has not suspected that it is a ruse.

148.   The Tribunal considers that [Ms B] is a genuine and well-meaning person who has befriended the applicant and [Mr A] and wishes to support their applications for Protection visas and “fight the long, hard battle” to “secure the safety of Church members”. It is not her role to test the credibility of the claims made by the applicant and [Mr A] that they are a homosexual couple or the veracity of the information they have provided her. Her evidence is that her knowledge of them is based on what they have told her. Her evidence to the Tribunal is that they were and are Christian, seemed to love the Church and being there and told her that when they arrived at [Church 1] it felt like coming home.

149.   However, the applicant’s evidence is that when he was in the Armed Forces in Ghana and living in the barracks, military personnel had a duty to attend Church. After he retired in August 2016, he did not attend Church. He then stated that he would occasionally go to Church. This is not consistent with [Ms B]’s assessment of his devotion to Christianity.   

150.   [Ms B]’s statement in her letter of support dated 16 May 2018 that the applicant “is a gay Christian from a country where both are regarded as intolerable and therefore dangerous” is based on what the applicant has told her and on what research she and her partner have undertaken in relation to the LGBTI community in Ghana. The applicant has not made any claims for protection in relation to his religion. [Ms B]’s statement above, in relation to being a Christian in Ghana, is not consistent with the country information.

151.   The above evidence indicates that [Ms B]’s assessment of the applicant and his circumstances is based primarily on what he has told her and that he has not been honest with her. His conduct raises issues in relation to his motivation for attending [Church 1] and befriending [Ms B]. Whilst [Ms B] has also relied on her observations of the applicant and [Mr A] and country research she and her partner have undertaken, she is not an independent witness and is motivated by her desire to help him with his application for a Protection visa and “fight the long, hard battle” to “secure the safety” of a Church member.

152.   The substantial evidence referred to herein leads the Tribunal to the conclusion that the applicant and [Mr A] found [Church 1] and started attending this Church, prior to lodging their application for Protection visas, to create the profile of a homosexual couple who are refugees, persuaded [Ms B] of this and then enlisted her assistance to support their applications for Protection visas.

153.   In these circumstances, the Tribunal is not persuaded by the post hearing submissions made by the applicant’s lawyer that the Tribunal should give considerable weight to [Ms B]’s evidence when determining the applicant’s claims. The Tribunal places little weight on [Ms B]’s evidence.

154.   Eighteenth, the Tribunal has considered the photographic evidence provided by the applicant. He provided the Tribunal with about sixty one photographs taken in Australia. Some of the photographs are of him and [Mr A] inside [Church 1] in May 2018, September 2019 and November 2019 and attending various social outings with members of [Church 1] in July 2018, July 2019, August 2019, September 2019, November 2019, December 2019, February 2020 and December 2020. Some of the photographs are of him and [Mr A] attending Mardi Gras events in 2019 and 2020. Some of the photographs are of him and [Mr A] having drinks at [Suburb 4] in September 2019, dinner at [Suburb 4] in December 2021, lunch at [location] in September 2022, at [another location] in September 2022 and near the beach in Newcastle in November 2022.

155.   The applicant and [Mr A] appear to like taking lots of photographs. However, the applicant has not provided the Department or the Tribunal with any photographs of them in Ghana. The Tribunal asked him whether there was any reason why he had not provided any photographs of him and [Mr A] together in Ghana. He responded that his telephone crashed and he lost all the photographs. On their way to Australia, they were in transit in [Country 6]. He turned his telephone off in [Country 6]. When he arrived in Australia and turned his telephone on he had lost everything. When asked whether [Mr A] had any photographs of the two of them in Ghana, he responded that he does not take many photographs. He thinks he has a photograph of them at the airport.

156.   The Tribunal finds the applicant’s explanation for why neither he nor [Mr A] have any photographs of themselves together in Ghana to be implausible and does not accept it. This raises further concerns in relation to his credibility and the veracity of his claims. 

157.   Nineteenth, the Tribunal raised as issues with the applicant its doubts that he is homosexual and the credibility of his claims. He responded that he does not know how he can prove it. Their activities with [Church 1] can be proof. The Covid pandemic set in in 2019 and 2020. They have only been here for 4 years. They were told that the Covid pandemic made the interview restrictive. Two years later they were called. They had the coordinator at [Church 1] take some photographs of them. His telephone crashed. [Mr A]’s telephone was thrown in the drain. Unless photographs are taken of them together.

158.   The Tribunal assured the applicant that its decision would not be based on whether or not he provided photographs of him having sexual intercourse with [Mr A].

Other considerations

159.   The applicant provided to the Department a number of media articles relating to homosexuality in Ghana dated 27 November 2017, 28 November 2017, 31 March 2018, 20 April 2018, 28 April 2018, 3 May 2018 and 6 May 2018. They refer to the treatment of homosexual men, the negative attitude of law makers and the Church of Pentecost towards homosexuality and legalising same sex relationships and the experience of a woman married to a homosexual man. The Tribunal has had regard to this country information and other open source country information. 

160.   The Tribunal has considered the submissions made by the applicant’s lawyer. In her submissions, she submitted that the applicant emphasises that his motivation to remain in Australia is his fear for his safety should he return to Ghana and not for economic reasons. His two witnesses have known and interacted with him for a number of years and believe that he and [Mr A] are in a homosexual relationship. It is unlikely that the applicants have been insincere in their interactions for such a substantial period of time. The witnesses’ evidence is that they have publicly held themselves out to be homosexual including to a member of the Ghanaian community. This perception alone could lead to a real chance of persecution and/or significant harm on return to Ghana.

161.   The applicant’s lawyer submitted that both [Ms B] and [Mr C] have given evidence that the homosexual relationship between the applicant and [Mr A] is genuine based on their interactions with them. While [Mr C] described his relationship with more closeness than they did, their instructions are that this was due to the high regard in which they hold [Mr C] and for cultural reasons they would not refer to him as a friend. In the Australian context, they agree that their relationship with him could be referred to as a friendship. The Tribunal should give considerable weight to their evidence when determining the applicant’s claims.

162.   The applicant’s lawyer submitted that it is rarely possible for a refugee to be able to prove every part of their case and it is frequently necessary to give the applicant the benefit of the doubt. Same-sex activity is illegal in Ghana. The introduction of a draft Bill aims to criminalise LGBTIQ+ people along with rights groups and anyone coming out in their support. It would further marginalise the LGBTIQ+ community in Ghana who could be imprisoned for simply identifying as homosexual. The Bill has been criticised as “State sponsored violence” and its existence perpetuates the isolation of the homosexual community and fear of violence from the community. In a May 2022 report, the UK Home Office found that homosexual people in Ghana were “likely to be subject to treatment from the State that by its nature and frequency amounts to persecution” and cited accounts of violence perpetrated by community members. As such, members of the homosexual community are at real risk of significant and/or serious harm in Ghana.

163.   In view of the many problems with the evidence, referred to herein, and the Tribunal’s findings in relation to [Ms B] and [Mr C], the Tribunal is not persuaded by these submissions.  

164.   The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

Findings

165.   Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa. 

166.   The Tribunal accepts that the applicant was born on [date] at Accra in Ghana. The Tribunal accepts that his father and sister are deceased and that his mother, brother and his family live in Ghana. The Tribunal accepts that he entered into a de facto relationship with a woman named [Ms D] on or about 1 November 2002. The Tribunal accepts that he has [number] children of this relationship.

167.   The Tribunal accepts that the applicant and his de facto wife separated in 2017 and that she left the family home without their children. The Tribunal accepts that he moved his [number] children to his mother’s house and that initially his mother and sister cared for his [number] children. The Tribunal accepts that after his sister passed away in July 2021 his mother has continued to care for his [number] children.  

168.   The Tribunal accepts that the applicant and [Mr A] were friends in Ghana. The Tribunal does not accept the applicant’s explanation for how they obtained [temporary] visas to travel to [Australia]. The Tribunal does not accept that after he and [Mr A] arrived in Sydney by train, they hailed a taxi, the taxi driver happened to be Ghanaian, drove them to his home in [Suburb 3] and provided them with food and accommodation. On the evidence before it, the Tribunal concludes that arrangements for their visas, travel, accommodation, employment and lodging of applications for Protection visas were made prior to their arrival in Sydney. 

169.   The Tribunal is not satisfied that the “email” from the applicant’s brother is an authentic document.

170.   The Tribunal does not accept that the applicant and [Mr A] met [Mr C] in the circumstances claimed or that their relationship with him is as described by them or by him. For the reasons given above, the Tribunal finds that he is not a credible witness and places no weight on his evidence. The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm, if he returns to Ghana now or in the reasonably foreseeable future, because he has informed a member of the Ghanaian community in Australia that he is homosexual and in a homosexual relationship in Australia.

171.   The Tribunal accepts that, after their arrival in Sydney, the applicant and [Mr A] obtained work as labourers in the construction industry. The Tribunal accepts that [Mr A] subsequently obtained employment in Newcastle and moved there in 2020. The Tribunal accepts that the applicant continued to live in Sydney and work in the construction industry.

172.   The Tribunal accepts that the applicant attended Church in Ghana when he was in the Armed Forces and living in the barracks as all military personnel had a duty to do so. The Tribunal accepts that he did not attend Church after he left the Armed Forces in August 2016. The Tribunal accepts that after he and [Mr A] arrived in Sydney, he undertook research to find a “gay Church” and found out about [Church 1]. The Tribunal accepts that the applicant and [Mr A] started attending [Church 1] every Sunday prior to lodging their applications for Protection visas.

173.   The Tribunal considers that [Ms B] is a genuine and well-meaning person who has befriended the applicant and [Mr A], wishes to support their applications for Protection visas and “fight the long, hard battle” to “secure the safety” of Church members. However, for the reasons given above, the Tribunal places little weight on her evidence.

174.   The Tribunal does not accept that the applicant or [Mr A] are homosexual and are or were in a homosexual relationship. It follows that the Tribunal does not accept any of his claims that flow from this.

175.   The Tribunal has considered the provisions of s.5J(6) of the Act and has come to the conclusion that the applicant and [Mr A] initially attended [Church 1] for the purpose of creating the profile of a homosexual couple but subsequently enjoyed participating in the social activities organised by [Church 1] and forming friendships. The Tribunal accepts that they participated in a number of social outings organised by [Church 1] in July 2018, 2019 and 2020. The Tribunal accepts that they attended the Mardi Gras in Sydney in 2019 and 2020.

176.   In view of the above, the Tribunal does not accept that the applicant is of adverse interest to his family members, the community or the Ghanaian authorities. The Tribunal does not accept that he came to Australia for the reasons claimed or that he fears returning to Ghana for the reasons claimed. The Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for reason of his membership of a particular social group or any other reason claimed, if he returns to Ghana now or in the reasonably foreseeable future. 

Does Australia have protection obligations to the applicant under the refugee criterion?

177.   Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Ghana. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

178.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

179.   Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Ghana now or in the reasonably foreseeable future.

180.   Accordingly, the Tribunal is not satisfied 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

CONCLUSION

181.   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) or s.36(2)(aa) of the Act.

182.   There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

183.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…