1822576 (Refugee)

1822576 (Refugee) [2023] AATA 3631 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Phillip Joel
CASE NUMBER:  1822576
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:17 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 August 2023 at 11:30am
CATCHWORDS
REFUGEE – Protection Visa –Ghana – race – Akan – religion – Christian – sexuality – homosexuality – membership of the particular social group – homosexuals in Ghana – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 65, 499
Migration Regulations 1994, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana, applied for the visa on 21 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his Protection visa application form, the applicant provided the following information. He was born in [Ashanti] region, Ghana in [year]. He speaks and reads Akan. He is a Christian and his ethnic group is Akan. He has never been married. In Ghana, he has two sisters who he contacts once a week. His mother and father are deceased.
In Ghana, from July 1988 to September 2004, he lived in [Brong-Ahafo] region. From September 2004 to September 2007, he lived in [Brong-Ahafo] region. From September 2007 to March 2018, he lived in Accra at the same address in [a town], Greater Accra.
From 1988 to 2015, the applicant was studying and doing national service. From August 2009 to August 2013, he attended [a university] in [Accra]. He completed his [course] in 2013. From January 2016 until March 2018, he was employed as a [occupation] for the [Employer 1].
He departed Ghana on [date] March 2018 using his Ghanaian passport and arrived in Australia on [date] March 2018 as the holder of a [temporary] [visa].
Evidence before the Department
The applicant’s claims for protection
The applicant’s claims for protection are contained in a written statement attached to his protection visa application form. He claims as follows:
My name is [name] and I was born in Ghana on [date].
I left Ghana to attend [an event]. I am unable to return to my country because I fear that I will be persecuted because of my sexuality and I have always preferred the company of men.
I managed to hide my sexuality from some of my friends in Ghana from members of my extended family. I had faced several difficulties including threats to my personal safety on several occasions and physical assaults because of my sexuality when I was in Ghana.
For example, it became very difficult to go to my favourite beach [for] fear of been attached by local gangs particularly when they suspect man hanging out too close together at the beach. On one life threatening occasion, two thugs confronted me and my boyfriend at the beach and ask us for money and if we don’t pay up, they are going to beat us up. For fear for our safety we gave them some money and they left us alone. We went back to the same beach a month later and the same guys menacingly approached us again. On this occasion we didn’t give them money, so they started causing commotion and embarrassing and harassing us in the presence of other beach goers around us by calling us foul anti-gay names and hooting at us. We found out later that that’s what those thugs do in the area to extort money from people they suspect to be gay on the beach as gay men prefer to remain discrete for fear of being attacked. We never went there again for fear of the situation getting out of hand and to protect ourselves from harm. Before we left on the last occasion, they threatened us and warned us to stay away from their local beach and we left the area in a hurry traumatised by the whole incident. I told my sisters about the incident and she said I should go out with girls. I tried but it didn’t work, and I thought perhaps I didn’t meet the right girl.
Another incident occurred on 25 December 2017 on a Friday at [a] suburb in Accra made up of predominantly of the Muslim community to visit my friend who lives nearby at [Area 1] who is a boyfriend I’ve been seeing secretly. As we are walking towards the main road to catch a taxi home, thugs from the community tried to attack us.
We were physically attacked, and I was slapped on the face and they warned us not to set a foot in their community again and threaten to us that they will burn us alive if they see us in their community again. They shouted and hooted at us in public and telling everyone that we are fay, and they caught us doing bad things, which wasn’t true. However, for fear of our safety we hurriedly hailed a taxi passing by and got out of the scene in hurry before things turn out nasty. My friend moved out of the area for fear for his life. I never went to see him again in person in our secret location, but we remained friends and ceased our relationship fear of what the society around us could do to us.
I did suffer several difficulties including threats to my personal safety and physical assault because of my sexuality, which I could not hide when I’m with my gay friends away from the prying eyes of my community and extended family. I am from a fundamentalist Christian household, and my sexuality has always been a major problem for me, because by tradition homosexuality is a serious taboo to my relatives and in the Ghanaian society.
Homosexuality is also a taboo among the tribes in Ghana and particularly among the tribal elders who judge homosexual as dirty, abominable and a curable disease, which can be cure by voodoo incantations. Those who are Christian in Ghana believe that homosexuality is a curse that can be removed from a person by fasting and prayers, which is completely ridiculous. All churches and church leaders in the country demonizes homosexuality and preaches against it all the time on television, which also made it impossible for me to live as openly gay men in Ghana. Therefore, apart from by close gay friends, I held a fear of someone accusing me to be a homosexual in public, which has happened on different occasions.
I’ve been very fearful for my safety and wellbeing in Ghana and I believed that the harassments and continuation of public shaming could one day seriously endanger my life and any one I may be with at the time, and that I may seriously hurt, or be killed one day. Some people who suspect me to be gay tend to gossip behind my back.
When I was in Ghana I have always managed to keep my sexuality hidden from the elders of our family and relatives, because the consequences of been found out to be gay can be catastrophic. I wished I could live as an open gay person in Ghana, but I could not because of the fear for my live, fear of harassments and the fear of been singled out and beaten up because of my sexuality, which I can’t change.
In Australia, I’ve met other gay friends and I feel very welcome and liberating because I feel comfortable to be myself since I found out that I’m more attracted to men than women. It’s a great feeling which words can’t describe, and I feel sad and sorry for my gay friends and some of my old boarding school class mates back in Ghana who has no choice than to live in fear of being harassed and probably killed.
I have been assaulted on several occasions when I am found in the company of my gay partner. I was not able to make any report to the police because the police themselves consider being gay a crime, and in fact, it’s a crime to be a homosexual in Ghana.
I could not move to another part of Ghana because harassment and discrimination against gay and lesbians is a problem which exits in all regions of the country and most parts of Africa. It’s a criminal offence to have a homosexual liaison with another person and I cannot relocate to any African country because most of all the countries in Africa also consider homosexuality as a taboo and a crime. The authorities will not protect me if I return to Ghana because they consider me a criminal. The authorities will not protect me because of the criminality of being gay in Ghana.
I’m providing the above story of my life in Ghana knowing it to be true and I’m sincerely asking the Australian government to provide me with a protection visa to allow me to live peaceful as a gay man in Australia without living in fear for my life as I did in my country before arriving in Australia.
The applicant also provided country information in support of his application, including the section on Ghana from the Amnesty International Report from 2017/18 “The State of the World’s Human Rights”, and a Human Rights Watch report from 8 January 2018 entitled “Ghana: Discrimination, Violence against LGBT People”.
Interview with the delegate
On 3 July 2018, the applicant attended an interview with the Department to discuss his claims for protection. In the interview, he provided further detail on his claims. The Tribunal has listened to a recording of that interview and, where relevant, refers to it below.
The delegate’s decision
On 17 July 2018, the delegate made their decision. Based on the applicant’s evidence, the delegate was not satisfied of the applicant’s claims to be homosexual, or that the claimed events occurred, or that he had been in a relationship with a person called [Mr A] in Ghana. The applicant’s evidence in the interview about his lack of involvement with the gay community in Australia were also a concern for the delegate, compared to his written claims. Overall, the delegate did not accept the applicant’s claims and found that he is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The application for review
On 5 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal and provided the Tribunal with a copy of the delegate’s decision.
Additional documents and witness statements
Prior to the Tribunal hearing, the applicant provided additional documents:
·     Statement of support from Pastor [A], [a] Church, [suburb], NSW dated 15 July 2023, stating that the applicant is a constant attender and member of the church and he participates in church activities;
·     Links to country information about the situation for LGBT people in Ghana which it is submitted establishes the ongoing and significant discrimination against gay people in Ghana;
·     Copy of the applicant’s Ghanaian birth certificate;
·     Rental bond Advice of Lodgement in the names of [the applicant] and [Mr B] dated 24 May 2023;
·     Residential Tenancy Agreement dated 8 May 2023 naming [the applicant] and [Mr B] as tenants;
·     Photo of “[Mr B and the applicant] at Sydney Airport May 2021” and four other photos of the applicant which are undated but appear to be taken at a Mardi Gras event or similar;
·     Statutory declaration of [Mr B] made 25 July 2023 and a copy of the bio-data page of his [Country 1] passport. [Mr B] states that he has been in a gay relationship with the applicant for approximately three years. They mostly spend their time at home. [Mr B] finds it hard to “come out” and so they do not make their relationship public. He has two children and the issue is sensitive. Their social life is mainly having friends around for dinner. Sometimes they go to [nightclubs].
·     Statutory declaration made 25 July 2023 of [Mr C] and a copy of the bio-data page of his Australian passport. [Mr C] states that he knew the applicant in Ghana a long time ago and met him again in Australia. [Mr C] has known the applicant was gay for many years and met his boyfriend in Ghana. He knows the applicant’s partner [Mr B] and has been to their house regularly. They are friends of [Mr C] and his family here. He believes their relationship is continuing and genuine. He knows there is great discrimination against gay people in Ghana.
·     Statutory declaration of [Ms D] made 25 July 2023. [Ms D] states that she met the applicant a few years ago and knows he is in a gay relationship with [Mr B]. She visits their home often and they have visited her home. She says the applicant and [Mr B] are happy together.
The hearing
The applicant appeared before the Tribunal on 1 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B] by telephone. An interpreter in the Twi and English languages was present via videoconference. The applicant did not require the assistance of the interpreter as he speaks fluent English. [Mr B] gave his evidence with the assistance of the interpreter.
The applicant was represented in relation to the review.
Nationality
The applicant claims to be a citizen of Ghana. He provided the Department with a certified copy of the bio-data page of his Ghanaian passport and the delegate was satisfied that he was using his own identity. Based on the delegate’s findings and in the absence of evidence to the contrary, the Tribunal finds that the applicant is a citizen of Ghana and Ghana is his receiving country for the purposes of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing, the Tribunal discussed with the applicant his background, education, family, employment, sexuality and relationships, social life, migration history, what happened in Ghana and why he fears returning there. The Tribunal found the applicant to be an honest and credible witness. He gave his evidence in a straightforward and natural way and did not give the impression of trying to embellish his story or reframe his evidence in response to concerns raised by the Tribunal. The applicant conceded that some of the things he said in his original written statement were not entirely accurate and he had done this on the advice of his representative at the time, when he was a bit naïve. The applicant spoke with confidence and insight about his feelings and experiences. His oral evidence to the Tribunal about key claims and events was sufficiently consistent with his written claims and was presented in a manner and with details that indicated to the Tribunal he was speaking from personal experience rather than recounting a rehearsed or memorised set of claims.
The Tribunal heard oral evidence from [Mr B] and also found him to be an honest and credible witness. The Tribunal is grateful to him for his frankness in sharing personal information which for cultural reasons, he clearly finds uncomfortable to reveal. Having heard from the applicant and [Mr B], the Tribunal did not consider it necessary to hear from [Mr C] or [Ms D].
In the Tribunal hearing, the applicant explained his family history growing up and where he lived after his parents died, which was with his grandmother and then his aunt. His aunt was a farmer and earned money and she paid for the applicant’s education. In 2004, he moved to [an area] and that is where he completed high school. In 2008, the applicant moved to Accra and lived with his elder sister. In 2009, he started university and lived in residential college at the university. He studied there until 2013. The applicant was [age] when he finished university. Then he spent one year doing national service [and] travelled back and forth to Accra where he was again living with his sister. After that, he obtained a job with the [Employer 1] in Ghana as a [occupation]. This is the job he did until he left Ghana in 2018. He is still in regular contact with his sisters in Ghana. They are both married and have children. They are his only immediate family.
The applicant had been thinking about ways to try to leave Ghana and he found out through a friend about obtaining a visa [in] Australia. He didn’t tell this friend the reason he wanted to leave Ghana. The friend helped the applicant to obtain the visa and he paid about A$4000.

The applicant explained to the Tribunal that he is gay. In high school, when he was around [age], some of his friends started having girlfriends and the applicant didn’t have one. His friends laughed at him but the applicant knew the reason he didn’t have a girlfriend was that he was not attracted to women in the way that his friends were. He felt attracted to men and he hid this from his friends. At this time, thinking he was gay made him feel scared because it was not a normal thing. He didn’t know any other gay people or speak to anyone about it.
He first met [Mr A], whose real name is [name] and who is also known as [alias], when they attended the same university. The applicant is one year older than [Mr A]. The applicant thinks they both knew they were attracted to each other because they used to talk about things but they didn’t do anything about it because they were scared at the time. It wasn’t until the applicant was about [age] or [age] in about 2015 after finishing university that he got back in touch with [Mr A] that they started a relationship. This confirmed for the applicant that he was gay and he felt more confident about who he was. After reconnecting with [Mr A], the applicant told his sister he was gay. He didn’t tell anyone else, including the person who helped him arrange his visa. He wanted to confide in others but he was worried about the consequences. He thinks some people suspected he was gay, particularly after the “beach incident” when he and [Mr A] thought they were in a private area and alone and were kissing, but some people saw them and abused them.
At the time his relationship with [Mr A] began, the applicant was living with his sister and [Mr A] was living in [Area 1] alone so they used to see each other secretly at his place. They enjoyed going to the beach but people were suspicious of them. Sometimes they went to a restaurant in Accra where they could eat and dance, but the applicant still tried to hide that he was gay. The relationship with [Mr A] lasted for three years until the applicant left Ghana. They decided that they could not continue their relationship only over the phone so they decided to end it. After leaving Ghana, the applicant and [Mr A] lost contact but about one year ago they got back in touch through the applicant’s sister who knew about [Mr A].
When the applicant told his elder sister in 2016 that he is gay she was not happy. She was shocked and asked him what happened. He told her it is the way he was born. She told him to try to find a woman and see if he could make a relationship work. She introduced him to a woman and he tried to have a relationship with her but he wasn’t interested and it didn’t work so the woman left. The applicant was still with [Mr A] at this time and his attention was focussed on [Mr A] rather than this woman. The applicant did not tell his other sister about him being gay as he is not as close to her. Nobody at his church knew he was gay.
The applicant gave evidence that he was scared as a gay man in Ghana because he could not express himself. When he went out with [Mr A] he could not behave in the way he wanted to, such as hugging or other things. He was always scared going out and tried to hide what was going on. During the beach incidents, the applicant and [Mr A] were harassed by people who saw them together. The applicant said that they thought they could not be seen at the beach and they would not have behaved in the way they did if they had known people could see them. After the hooligans approached them, they were scared and had to leave because they felt unsafe. During the [Area 1] incident, the people who approached them tried to flog them. The applicant and [Mr A] had to give them money to leave them alone and then they fled in a taxi. After this, the applicant and [Mr A] didn’t do anything in public and always met in secret.
After arriving in Australia the applicant eventually met [Mr B] ([Mr B]). [Mr B] is not comfortable with being gay. They met in 2020 when [Mr B] came looking to rent a room in the house where the applicant was living. He is part Ghanaian and part [Country 1]er. [Mr B] moved into the house and soon started mentioning that he hadn’t seen the applicant with a girlfriend. The applicant didn’t say anything because he didn’t want to talk about his sexuality. [Mr B] kept asking the applicant where his girlfriend was and eventually the applicant told him he was into guys. [Mr B] responded that that was good and the applicant wondered why. Later, [Mr B] said he was also interested in guys. They began a relationship. The applicant is attracted to [Mr B] because he is jovial, good looking and friendly. They enjoy doing things together like cooking, watching television, playing games and they enjoy living together. They also go to some Ghanaian community events but when they do this, [Mr B] doesn’t want people to know he is gay. The applicant doesn’t mind people knowing he is gay, but [Mr B] is concerned, perhaps because of his background and because he has been married and has children.
Sometimes they go out to nightclubs [in] Sydney. They know people at these places but don’t socialise with them otherwise, although the applicant has a friend called [Mr E] who is [nationality] and is married to another guy. The applicant went to the Mardi Gras party in March this year and [Mr E] is one of the people in the photos provided by the applicant. The applicant joined in the Mardi Gras parade and danced and had fun, but [Mr B] didn’t attend. The applicant thinks [Mr B] is trying to keep things separate. The Tribunal asked the applicant if it could call [Mr E] from the hearing and asked what he would say about the applicant’s sexuality. The applicant spontaneously provided the Tribunal with [Mr E]’s phone number (he was not someone the applicant had proposed as a witness) and confirmed that [Mr E] would say the applicant is gay. Based on the applicant’s response, the Tribunal didn’t consider it necessary to call [Mr E].
The applicant said that he would behave differently if [Mr B] wasn’t so concerned about being “out”. He said he would go out, take photos and socialise more but because [Mr B] doesn’t want to do that it restricts him a bit. If [Mr B] wanted to be open, the applicant would like to do more of that. The applicant is not “out” to people at his work. He hasn’t told them and nobody has asked him. Given he is in a relationship he doesn’t feel the need to let people know, but if he were single he might feel differently.
If the applicant had to return to Ghana as a gay man, he said he would have to hide his sexuality because he is worried about being harmed. He thinks the situation is worse there now than when he left.
[Mr B] gave evidence that he is of Ghanaian background and a [Country 1] citizen. He is about [age] years older than the applicant. They met in 2020 when he was looking for a place to rent. They got to know each other and [Mr B] found out the applicant is gay. [Mr B] was interested but didn’t let anyone know because of his cultural background. Eventually he and the applicant got to know each other and became a couple a few months later. [Mr B] was married in the past. After his marriages he “stayed quiet” and then later he realised he was also attracted to men. He is concerned about his sexuality due to his cultural background. He does not want people to start spreading rumours. It was only later in life, when he came to Australia, that he started to realise he was attracted to men. His children are adults and he speaks to them weekly. One lives in Ghana and one in [Country 1]. They do not know he is gay and nor do his two ex-wives.
[Mr B] said that Ghanaian culture frowns on gays so he doesn’t want people to know his sexuality. He said the applicant is more accepting of his own sexuality and wants to express himself more openly, but [Mr B] doesn’t want to. He feels comfortable around their friends [Mr C] and [Ms D]), but not many other people. Part of the reason he isn’t comfortable expressing his sexuality more openly in Australia is that he is worried about people in Ghana finding out. If people in Ghana find out he is gay he will be beaten and his family won’t accept him and he won’t fit in culturally. He is attracted to the applicant because he is a bit quiet and they understand each other. They mostly spend time at home and go shopping. They go to Ghanaian programs or activities but don’t show people they are a couple. [Mr B] last visited Ghana in 2021.
The Tribunal accepts the evidence of the applicant and [Mr B] as set out above.
Does the applicant meet the refugee criterion?
The Tribunal has considered whether being a homosexual in Ghana makes the applicant a member of a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a homosexual in Ghana is a particular social group as defined by s 5L as the characteristic of being homosexual is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic and is so fundamental to the member’s identity the member should not be forced to renounce it, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.
The Tribunal has considered whether the applicant would face a real chance of serious harm if he returned to Ghana in the reasonably foreseeable future due to being homosexual.
The Tribunal has considered country information relating to the situation for homosexuals in Ghana, including the country information provided by the applicant.
The 2022 US Department of State Country Report on Human Rights Practices: Ghana[1] states that significant human rights issues include credible reports of crimes involving violence or threats of violence targeting LGBTI persons. It states:
Violence against LGBTQI+ Persons: The LGBTQI+ community reported police violence against LGBTQI+ persons. Civil society groups and activists reported police were resistant to investigate claims of assault or violence against LGBTQI+ persons. Stigma, intimidation, and the perceived negative attitude of some police toward LGBTQI+ persons were factors in preventing survivors from reporting incidents of abuse. Activists noted great difficulty in engaging officials on problems facing the LGBTQI+ community because of social and political sensitivity. LGBTQI+ persons in prison were vulnerable to harassment, as well as sexual, mental, and physical abuse, which authorities generally did not investigate.
Attacks by private citizens on LGBTQI+ persons were common and growing in number. The attacks were increasingly well organized, and in some cases targeted outspoken activists. The attacks were sometimes shared on social media to further humiliate and ostracize LGBTQI+ persons.
Increasing harassment forced many members of the LGBTQI+ community to relocate from their homes or sever familial relationships. Two different LGBTQI+ NGOs, one in the Central Region and the other in the Volta Region, reported they had to relocate their operations because of community and police harassment. Civil society groups reported that several LGBTQI+ community members permanently left the country because of increasing hate speech and harassment.
In August unknown assailants in the Ashanti Region kidnapped, assaulted, and blackmailed a prominent human rights advocate because of their LGBTQI+ advocacy. Police never identified the perpetrators.
[1]
Section 104 of the Ghanaian Criminal Code Act 29 of 160 criminalises “unnatural carnal knowledge”, which has been defined at common law to include homosexual male sex. While section 104 is described as a colonial legacy, there are no indications the Ghanaian government has interest in repealing it or decriminalising adult same-sex sexual activity.[2] In fact, the situation appears to be the opposite. Older country information indicates that while the crime of unnatural carnal knowledge is rarely enforced, it is used as a tool of persecution of the LGBTI community by police and individuals across Ghana to abuse people and take advantage of them.[3] However, in 2021, members of the Ghanaian Parliament introduced a draft bill on the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill (the Bill). A key feature of the Bill is criminalising being LGBTI with penalties of up to 5 years imprisonment. The Bill also criminalises public support, advocacy or organising for LGBTI rights and promotes conversion therapy.[4] It also criminalises “gross indecency in public” which includes a public show of affection between people of the same sex. The Bill has the support of church groups and, apparently, wide support in the general community and in the Parliament.[5] While the Bill has not yet been passed into law, in July 2023 Ghana’s Supreme Court dismissed a legal challenge seeking to block Parliament from passing the Bill which has cleared the way for it to receive parliamentary approval and be signed into law.[6] An increasing intolerance for LGBT persons and a rise in violence against them has been reported since the introduction of the Bill.[7] LGBT advocates report raids and arrests by police of LGBT persons and mistreatment by police.[8] The UK Home Office reports that as a culturally and religiously conservative society, most Ghanaians hold negative views of same-sex relations and there is strong societal intolerance and discrimination against members of the LGBT community.[9] This results in many LGBT persons feeling they have to hide their sexual orientation and gender identity, including from their families, due to the risk of harm including violence, psychological harm and being disowned by their families and their community.[10] LGBT persons can face discrimination in various areas of society including access to healthcare.[11] In terms of state protection, the UK Home Office report concludes that the state is able but not willing to offer effective protection.[12] In the Tribunal’s view, the situation will be exacerbated by the likely passage of the Bill through Parliament and into law.
[2]
[3]
[4]
[5] ; (UK Home Office report)
[6] ;
[7] ;
[8]
[9] UK Home Office Report
[10]
[11] UK Home Office Report

In the Tribunal’s view, the country information indicates that there is strong cultural opposition to LGBTI persons in Ghana and soon, that is likely to be underpinned by strong laws criminalising being LGBTI and a range of other matters which is likely to further embolden and legitimise societal opposition to LGBTI persons and increase their risk of serious harm. Based on the country information considered above, the Tribunal agrees with the applicant’s assessment that since he left Ghana in 2018, the situation has deteriorated.

As set out above, the Tribunal has accepted the applicant’s evidence about his sexuality, the incidents that occurred in Ghana where he was threatened with physical harm and felt afraid, his fear about his sexuality being revealed in Ghana, the consequences he feared, and the actions he took to conceal his sexuality due to fear. The Tribunal accepts that even though the applicant has the support of his sisters in Ghana, if he returned to Ghana and lived as a gay man in the way he would wish to, he faces a real chance of serious harm in the form of significant physical harassment or significant physical ill-treatment.

Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his membership of a particular social group, namely, homosexuals in Ghana, and there is a real chance that he would be persecuted for this reason if he returned to Ghana in the reasonably foreseeable future. For the reasons explained above, based on the country information and the applicant’s profile, the Tribunal finds that the real chance of persecution relates to all areas of Ghana.

The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his membership of a particular social group, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant.

In light of the applicant’s evidence and the country information referred to above, the Tribunal is satisfied that effective protection against persecution would not be provided to the applicant by the Ghanaian State and that the Ghanaian State is able, but not willing to offer such protection. In the Tribunal’s view, it appears that in the reasonably foreseeable future being LGBTI will be criminalised in Ghana which means that effective state protection will not be available to such people from the Ghanaian authorities once that happens as the State will be the agent of the persecution. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant in Ghana.

The Tribunal accepts the applicant’s evidence that if he returned to Ghana he would feel compelled to behave in a discreet manner to hide his sexuality out of a fear of serious harm. The Tribunal also accepts that the applicant would like to be more open about his sexuality in the way he behaves. The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour in future so as to avoid a real chance of persecution in Ghana because it would require him to alter his sexual orientation or gender identity or conceal his true sexual orientation and gender identity. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of the particular social group, namely homosexuals in Ghana.

The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.

As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Right to enter and reside in a third country
Even when an applicant is found to meet the refugee criterion in s 36(2)(a), Australia is not taken to have protection obligations in respect of a person who has not taken all possible steps to avail themselves of a right to enter and reside in another country apart from Australia: s 36(3).
This is relevant to the applicant because Ghana is one of the member states of the Economic Community of West African States (ECOWAS). According to the current DFAT Thematic Report from 2020:
The Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.[13]
[13] DFAT Thematic Report - Economic Community of West African States (ECOWAS) 3 December 2020.
Information sources which the Tribunal has consulted indicate that the ECOWAS Protocols have made legal progress in establishing freedom of movement and residency between ECOWAS member states, including Ghana. However, it appears to the Tribunal that implementation challenges persist, including full freedom of movement and rights to reside being limited by the independent laws and restrictions of individual states, as well as potential administrative harassment, and extortion on the part of member states. In reality, it appears that there are a number of limitations within the individual member states that have affected this right to reside. Given these shortcomings regarding the implementation of the ECOWAS Protocols, the Tribunal is not satisfied the applicant does, at the time of this decision, have a meaningful right to enter and reside in any other ECOWAS member state: s 36(3). There is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside in any other country.
Even if the Tribunal is wrong about this and the applicant does have a meaningful right to enter and reside in an ECOWAS member state, country information indicates that LGBTI issues are taboo across the ECOWAS region, both officially and societally. The DFAT Thematic Report states at 2.17 that:
The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults. In northern Nigeria, consensual same-sex sexual acts are punishable under sharia (Islamic law) with the death penalty. Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, but do not offer any specific protections. Cabo Verde is the only ECOWAS member state to offer employment protection to LGBTI individuals. LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin, Ghana and Mali, and prosecutions of LGBTI individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults.
Other country information supports this and indicates that the situation is negative for LGBTI individuals in West Africa and there is no political will in these countries to support and respect the rights of LGBTI individuals who face the risk of violence and social prejudice.[14]
[14] See (accessed 8 May 2023)
Section 36(4)(a) states that subsection (3) does not apply to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In light of the Tribunal’s finding above that the applicant is a gay man, and based on the country information referred to above, the Tribunal considers that as gay man with his profile, the applicant has a well-founded fear of persecution for reason of his membership of a particular social group (namely, homosexuals), in the other ECOWAS member states. Accordingly, the Tribunal finds that section 36(3) does not apply in respect of the other ECOWAS member states and the applicant is not excluded from the operation of Australia’s protection obligations on this basis.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
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.
…

[2023] AATA 3631

17 August 2023

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