1822732 (Refugee)

1822732 (Refugee) [2023] AATA 4692 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Pablo Ramirez
CASE NUMBER:  1822732
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:31 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 9:25am
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – bisexual – physical assault – fear of arrest – loss of business – relationship with an Australian citizen – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 11 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 is a citizen of Ghana, applied for the visa on 15 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 Accra, Ghana in [specified year]. He has never been married. In Ghana, he has his mother, [and specified family members]. He also has a [sibling] in Germany. His father is deceased. He is in contact with his relatives in Ghana by phone and internet every week or two. He speaks, reads and writes Hausa and English. His religion is Islam.
In Ghana, he completed primary school and high school. He always lived at [an address in] Accra. From [year] to March 2018, he was self-employed as [an occupation 1] involved in the [servicing] of [specified] equipment. From March to May 2018, he was unemployed.
In 2006 he travelled to [specified countries]. In 2009, he travelled to [Country 1]. In 2015, he travelled to [Country 2] twice, [Country 1] twice, [Country 3] three times and [Country 4] once. All these trips were for Business – arranging spare parts. In 2016, he was granted a tourist visa to visit [another country].
He departed Ghana [in] March 2018 and arrived in Australia [later in] March 2018 as [for an international event]. He travelled on his Ghana passport issued [in] 2013.
In the Tribunal hearing, the applicant provided additional background information. He said that in Ghana, he lived with his parents and extended family. He is in regular contact with his mother and siblings. In Australia he lives alone. He is in a relationship with a woman who is an Australian citizen and she has two children from a previous relationship. He has been in this relationship for about 4 years.
Evidence before the Department
Claims for protection
In his protection visa application form dated 15 May 2018, the applicant makes the following claims.
·     The applicant came [for an international event]. He paid almost US$[amount] to a man in Accra to arrange the visa. The real reason he came to Australia was because he was scared in Ghana, as people had discovered he was in a gay relationship.
·     Because he is quite small, other men had thought sometimes that he was gay. He did have same sex attraction but did not follow it until he became involved with a man he was doing business with [selling] goods. The first time the business partner had sex with him, the applicant was unconscious but that later they entered a consensual sexual relationship.
·     The applicant was beaten by others after his girlfriend found him having sexual relations with this man he was having a gay relationship with.
·     He thought he would die from the beating and that he could not go to a doctor to tell what had happened because it is illegal to have a gay relationship.
·     When his father found out that he had been engaging in a sexual relationship with a male, the father had a heart attack and later passed away.
·     The applicant could not seek help because homosexual sex is illegal in Ghana and he was afraid to get into trouble if he complained to anyone.
·     The applicant ran away from his home area and he was a fugitive until he met someone who assisted him to get a visa [for the international event].
·     The applicant is afraid of being hurt or killed or being arrested because gay sex is illegal in Ghana. He is a small man and people can easily catch him and hurt him; he believes he will be a “dead person”.
·     The applicant is worried that if he returns to Ghana he will be harmed by anyone who knows about what happened to him or if anyone thinks in future that he is gay or bisexual the same problem will occur to him.
·     The applicant would continue to have sexual relationships with men if he returned to Ghana.
·     The authorities in Ghana will not protect him because homosexual sex is illegal.
In a statutory declaration made on 26 June 2018 (first statutory declaration), the applicant provided the following additional information about his claims [unedited].
…
1.     In Accra I met someone who I told him that I wanted a visa because of my problem. I had been hiding around Ghana and [Country 1] since 2014.
2.     It took about a month to get the visa. I had come to Accra just to meet that guy who arranged the visa for me and then I went back to Volta.
3.     First, I had narrated my story to someone who had introduced me to that man that I came to Accra to meet and when I met him, that man then said that Ok he was going to help me get out of Ghana because of my situation.
4.     I believe he saw someone else who got the visa, but I didn’t meet that person.
5.     The person that I was dealing with came to me told me Ok that it was ready and showed me a copy of it; so then I paid him for it.
6.     They had kept my passport until I had paid for the visa.
7.     I paid nearly $[amount] US for the visa.
8.     At first he told me he was going to look for the right place for me to at least leave the country. I was willing to go to anywhere where I can be safe so that I can be able to get my peace of mind. Later he had come and told me that the visa would be for Australia.
9.     That money I still had it from my business that I had before. It was savings that I had. I had had to close my business because of the same situation. Because no one want to deal with me after they find out about this issue I had, when they were knowing that I’m a gay.
10. I was able to train almost 20 kids as [occupation 1s] in Ghana now, but after that problem I had to shut down everything; I cannot work again. I just have to hide out.
11. I had a girlfriend; she always come to me. In 2014 when I was with my guy, then she came in surprising me when I was not expecting her and found us. Out of shock, she shouted out and people came in and beated us and we had to run for our lives. I’m afraid what will happen to me if I go back there again; I don’t know.
12. After the first ones came in then I think some more came with things to beat us. And I thought that I would die from the beating; I could see stones, wood, everything, that they had to beat me with. I didn’t even think that I would be able to escape from what they were doing that day.
13. I have marks on my head and some part of my body. I could not go to a doctor because I am too scared if he asks me what happened to me.
14. That house this happened is [a specified address].
15. I have to run away and go to the bush; even I don’t know where I was going; just I’m running for my life. I have to hide out until the man said to me to come this place.
16. I had to leave everything and I did not have a stable place to be. My shop is still there and it was shut from the time I left but with things still inside it, but I learnt around 2 weeks ago that they start to break it down to give it to someone new. The reason they are breaking it down is that because I’m a gay they don’t want to have anything to do with anything I touched.
17. My Dad owns the land that the shop was on, so I had built the shop on it.
18. They don’t want to see anything of mine around the area. And if I have to be there again, I don’t know what will happen again.
19. After I ran away, I went to around to the deep bush and to the Volta side and then I went to [Country 1] illegally. But that place even is not safe, because that place if they catch you and being a gay they are going to kill you straight away.
20. In [Country 1] I went to [a town]. I had to meet a friend around the Volta region who had showed me another person in [Country 1] who I had to go and meet to stay there for my safetyness.
21. This all started in 2014. That is when I left my shop. I had been running that shop since [year].
22. I got involved with that guy in 2013. When it first started, I had been upset. He just started to had sex with me when I was sleeping. I was upset because I am a Muslim. But he wanted us to be together as partners and also to do some business together. We were bringing goods from [outside Ghana] to fix it and sell them. So I agreed with that and we were having that relationship for about 1 year.
23. After I ran away, I have been to [Country 1] got almost like 2 years then come out to Ghana, the same place, Volta region because I can’t come out in the open somewhere; I have no safety place around. I have to hide all the time.
24. This was the first time I had a problem in Ghana; I always stay out of trouble before that. I always had that attraction to men and I am quite small and maybe some men think I am cute, but I was ashamed and scared. Because homosexual relationships is illegal in Gahan and it is against the society too and against our religion. But with that guy, I thought it was safe and people won’t suspect us because we are in a business relationship so they expect us to be together a lot.
25. Because my father is like a chief in my neighbourhood, so then from that respect and the people that are following and all this news came out, he went to a shock. That’s where he went to a heart attack. And he died in the same year, 2014; in September 2014.
26. After my father did, I believe there were some problems. It’s about his properties he left. We have [houses], a land, some couple of cows, some money. He had two wives; I don’t know what is happening with it. They only told me a bit about it because they blamed me that my father died; almost everyone blamed me for this.
27. If I go back to Ghana my family won’t help me.
28. I cannot get help from the police. I am afraid to look for their help and they won’t help me anyway.
29. Homosexual relationships is illegal in Ghana. I understand that they do not always put people in gaol for that but also they do not help people if they are beaten up. I can’t get help if people are going to hurt me. I think I would be a dead person in Ghana.
30. This is the same everywhere in Ghana; I have been hiding for some years before I cam to Australia but I cannot hide all the time for the rest of my life.
…
Interview with the delegate
On 26 June 2018, the applicant attended an interview with the delegate. In the interview, the applicant responded to questions and provided further detail about his claims. The Tribunal has listened to a recording of the interview. Where relevant, evidence provided by the applicant in the interview is referred to below.
The delegate’s decision
On 11 July 2018, the delegate made their decision. The delegate accepted that based on the applicant’s evidence, he was in fact claiming to be bisexual rather than homosexual. Based on concerns about the applicant’s evidence, the delegate did not accept that the applicant had been in a homosexual relationship in Ghana with a man called [Mr A]. The delegate had concerns about the credibility of the applicant’s claim to have been beaten after his girlfriend, [Ms B], found him having sex with [Mr A] and did not accept this event occurred. The delegate also did not accept that the applicant had gone into hiding after this claimed event. The delegate found that the applicant is heterosexual and not homosexual or bisexual. As the delegate did not accept the applicant’s claims, he found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 7 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided the Tribunal with a copy of the delegate’s decision.
Additional statutory declaration
On 28 July 2023, the applicant provided an unsworn statutory declaration to the Tribunal. He provided a sworn copy at the hearing on 3 August 2023. In this statutory declaration he states as follows:
·     He continues to maintain all his claims made to the Department.
·     He continues to identify as a bisexual male.
·     He is currently in a heterosexual relationship with a woman in Australia. If he returns to Ghana she would not accompany him. She has children in Australia and it would be hard for her to come to Ghana so they would have to end their relationship.
·     If he returns to Ghana, he remains fearful of the things that made him leave.
·     He cannot choose whether he will be a with a female or male in the future if he were in Ghana but he will be faithful to that person.
·     When he had a girlfriend in Ghana and had a gay relationship with a man at the same time he felt bad about it.
·     He does not want to be limited to heterosexual relationships for fear of being assaulted, arrested or killed for following the same-sex part of his nature.
·     His family is still against him in Ghana and they blame him for his father’s death. They will not help him.
·     He is small and has “cute” features which are not strongly “masculine” and people in Ghana often assume he is gay without him doing anything.
·     If people remember what happened in the past in Ghana, that will be a problem for him.
·     The situation in Ghana for LGBTQ people is getting worse because of the new laws that are being passed.
Pre-hearing submissions
Prior to the hearing, the applicant provided a copy of an article from Jurist dated 7 July 2023 which discusses the passing by the Ghanaian Parliament of a bill which will tighten laws against members of the LGBTIQ+ community, including criminalising the promotion, advocacy, funding and acts of homosexuality.
The hearing
The applicant appeared before the Tribunal on 3 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted in English as the applicant speaks the language confidently. An interpreter in the Akan (Ghana) and English languages was present and available in the hearing by videoconference however their assistance was not required.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal is satisfied that the applicant had the opportunity to participate fully in the hearing in a meaningful way.
Post-hearing submissions
On 11 August 2023, the applicant’s representative provided post-hearing submissions in response to some of the concerns raised by the Tribunal in the hearing.
It is submitted that inconsistencies in an applicant’s evidence are not unusual when people have spent a lifetime hiding facts and this does not necessarily undermine the truthfulness of their asylum claims. It is submitted that it is harder to provide sexuality claims when a person is from a country where non-heterosexual identities are penalised. Applicants may hide aspects of their identities, as may their sexual partners, including their names, for fear of exposure.
The submissions include copies of, and hyperlinks to, a number of articles with some short excerpts provided in the body of the submissions. The submissions do not direct the Tribunal to any particular parts of the articles or reports as particularly relevant. One article relates to the deportation of a gay asylum seeker from the UK to Nigeria. It is submitted that applicants, particularly from Ghana, can have difficulties obtaining supporting evidence from people such as partners or friends because of the veil of secrecy and stigma that surrounds same-sex relationships. It is submitted that the applicant has been awaiting some letters of support from Ghana regarding his sexuality but they have not been forthcoming.
There is a Human Rights Watch report entitled “No Choice but to Deny Who I Am” which discusses the negative experience for many LGBT Ghanaians, including the risks of social and family rejection and physical violence, along with economic difficulties. There is a 2023 article from the BMC Public Health journal which discusses sexual stigma among men with same-gender experience (men who have sex with men) in Ghana. It is submitted that the legal and social consequences of identifying as bisexual in Ghana are dangerous to an individual’s mental health and bodily integrity. It is submitted that as a diminutive man, the applicant has reported that people perceive him as gay and so he is vulnerable due to his appearance. It is submitted that the only way for him to avoid this perception may be not only to hide his sexuality but also to dress and/or act in a hypermasculine way to deflect potential speculation. It is submitted that the psychological stress on the applicant due to his experiences have affected him, although he has not been diagnosed with a psychiatric illness, and as a result he may not be the best witness to his own circumstances. It is submitted that people suppressing their sexuality may experience cognitive issues. In this regard, the submissions direct the Tribunal to a 2010 article entitled, “The Cognitive Effects of Hiding One’s Homosexuality in the Workplace”.
The Tribunal has considered the applicant’s submissions and the country information provided and, where relevant, refers to this material below.
On 15 August 2023, the applicant provided a written statement of support dated 14 August 2023 from [Witness A]. This is considered in detail below.
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 decision under review should be affirmed.
During the hearing, the Tribunal discussed with the applicant his family, relationships and sexuality, travel and migration history, education, employment, what he claims happened to him in Ghana and why he fears returning there. The Tribunal has concerns about differences in the evidence the applicant has given over time about key aspects of his claims, and his explanations for this, which give rise to doubts about the credibility of his claims. The Tribunal also has concerns about the credibility of the applicant’s evidence in respect of other aspects of his claims, such as his sexuality.
The Tribunal’s concerns are discussed below.
The name of the applicant’s same-sex partner
In his protection visa application form and first statutory declaration the applicant did not name the man and the woman he claims to have had relationships with in Ghana.
In the interview with the delegate, as set out in the delegate’s decision, the applicant named the man as “[Mr A]” and the woman as “[Ms B]”. He told the delegate that he did not know [Mr A’s] surname and he only knew him [by the one name]. He said [that] his girlfriend was [Ms B full name].
In the Tribunal hearing, the applicant gave evidence that he had only had two relationships in Ghana. When first asked whether he had ever had a relationship with anyone in Ghana, he said “my girlfriend [Ms B]”. When asked if he ever had a relationship with anyone else in Ghana, he replied only the man he was doing business with. Later, when asked about having his first intimate contact with a man, the applicant spoke about the person who had been a business partner from 2013, their relationship becoming sexual in about August 2014 and lasting until 2015 when they were found out. The Tribunal asked the applicant the name of that man and he said “[Mr C]”. The Tribunal asked him whether he knew that person’s full name or if he was known by any other name, and he said he did not and confirmed that he only knew him as [Mr C]. The Tribunal put to the applicant that he had told the delegate that the man was called “[Mr A]” and that was the only name he knew this man by. The Tribunal explained that this discrepancy raised a concern about the credibility of his claim. The applicant responded that this was his lifestyle and he didn’t keep things in his head. He said he knew this man was [Mr C] and he doesn’t know if the other name was [Mr A’s name].
The Tribunal has considered the applicant’s response but does not accept it. In the Tribunal hearing, the applicant gave evidence that he had a business relationship with this man from 2013, the relationship became sexual in around August 2014 and lasted until 2015, suggesting they were in close contact both in a business and personal sense for an extended period of time. According to the applicant’s claims, this relationship was highly significant given this man was his first and only same-sex partner in Ghana and it was the discovery of their sexual relationship that led to all his problems. The fact that the applicant told the delegate he knew this man by one name only, “[Mr A’s name]”, and also told the Tribunal he knew this man by one name only, “[Mr C’s name]”, raises concerns for the Tribunal about the credibility of the applicant’s claims. If the applicant “didn’t keep things in his head”, as he claims, the Tribunal considers it would have been more likely for him to say that he had forgotten the man’s name rather than giving a different name. The applicant did not suggest to the Tribunal that he might be mistaken about the man’s name or that he was unsure of it. In any event, given the significance of this man to the applicant’s claims the Tribunal would expect the applicant to be able to remember his name consistently. In contrast, the Tribunal notes that the applicant has given consistent evidence about his girlfriend’s name, “[Ms B]”, who is another significant person in his story.
The Tribunal has considered the applicant’s post-hearing submissions which submit that applicants may hide aspects of their identities, as may their sexual partners, including their names, for fear of exposure and that inconsistencies in evidence need not undermine the veracity of claims. In the applicant’s case, whether or not the applicant’s same-sex partner was truthful with him about his name is not the point. The Tribunal’s concern is that the applicant’s evidence to the delegate and the Tribunal is that he knew this man by one name only, but he has told the delegate and the Tribunal different names and the man’s name is something the Tribunal would expect the applicant to be able to recall consistently.
The different evidence the applicant has given to the delegate and the Tribunal about the name of his same-sex partner in Ghana raises concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
The timing of the applicant’s relationships with [Mr A]/[Mr C] and [Ms B]
In his protection visa application form, the applicant does not say when his relationships with [Ms B] or the man began or when the beating incident took place (when the applicant claims [Ms B] discovered the applicant and the man having sex).
In the interview with the delegate, as set out in the delegate’s decision, the applicant said that his relationship with [Ms B] began in 2010. He told the delegate that his relationship with the man began sometime in 2013, by which time he was already in a relationship with [Ms B], and the beating incident took place in 2014 but he couldn’t remember the month.
In his statutory declaration provided following the interview, the applicant does not specify when his relationship with [Ms B] began. He says he got involved with “that guy” in 2013 and they had a relationship for about one year and the beating incident took place in 2014.
In his statutory declaration made on 3 August 2023, the applicant does not refer to the timing of these relationships or the incident.
In the Tribunal hearing, the applicant was asked about these relationships. He gave evidence that he was in a relationship with [Ms B] for about one-and-a-half years or maybe less. He gave evidence that the business relationship with the man started in 2013, became sexual in around August 2014 and lasted until 2015 when they were found out and beaten. He gave evidence that the relationship with the man began before his relationship with [Ms B] started.
The Tribunal put to the applicant that he had given different evidence to the delegate about the length of his relationship with [Ms B] and whether it began before or after his relationship with the man. The applicant said he and [Ms B] didn’t start in 2010 and maybe when he spoke to the delegate he wasn’t thinking because he was depressed and wasn’t himself. The Tribunal has considered the applicant’s response, but it does not overcome the Tribunal’s concerns.
In terms of the applicant’s state of mind, in the hearing, he claimed on several occasions that he was having trouble with his memory and he could not remember certain things because what he went through torments him, things reflect in his mind and recently he has been going through a lot. He also referred to having been depressed in the past but did not claim to be depressed currently. The Tribunal asked him whether he had ever sought medical treatment for his issues and he said he had not. At other points in the hearing when the Tribunal raised concerns about potential discrepancies in his evidence over time, the applicant said he was starting to remember things now better than he did before. The Tribunal has considered the applicant’s post-hearing submissions about the cognitive effects of hiding one’s sexuality which can be particularly significant for applicants from countries where the penalties for divergent sexuality are extreme. The Tribunal accepts that a person’s memory and their mental health, as well as their performance as a witness, can be adversely affected by traumatic experiences, however the applicant has not provided any objective evidence, such as medical evidence, to indicate he has suffered from depression or has memory or other cognitive issues and he gave evidence that he has not sought medical treatment. Based on the evidence before it, the Tribunal does not accept that the applicant’s claimed mental health or memory issues account for the discrepancies in his evidence about the length and timing of his relationships with [Ms B] and the man, or other key discrepancies in his evidence referred to elsewhere in these reasons.
As set out above, the applicant told the delegate that his relationship with [Ms B] began in 2010 and ended in 2014 when the beating incident took place, meaning they were in a relationship for about four years. He said that his relationship with the man began sometime in 2013, when he was already in a relationship with [Ms B], and ended in 2014 when the beating incident took place. In the Tribunal hearing, the applicant said that his relationship with the man began in 2013, before his relationship with [Ms B], and that his relationship with [Ms B] lasted for one-and-a half years or less, and these relationships both ended when the beating incident took place in 2015. In the context of the applicant’s claims, these discrepancies are significant and relate to matters the Tribunal would expect the applicant to be able to recall quite accurately if he was speaking about events that truly took place. The inconsistencies in the applicant’s evidence about whether he was in a relationship with [Ms B] for four years or one to one-and-a-half years, and whether his relationship with [Ms B] began before or after his relationship with the man raise concerns for the Tribunal about the applicant’s credibility as a witness and the genuineness of his claims.
The applicant’s sexuality
The Tribunal accepts that the applicant claims to be bisexual. The Tribunal has a number of concerns about the applicant’s evidence about his sexuality, as discussed below.
In the Tribunal hearing, the applicant gave evidence about his sexuality. He said that he discovered he was bisexual when he was about three or six years old. School mates started saying that to him because of the way he reacted and talked and used his hands. He used to help his mother with shopping and cooking. He was first attracted to men when he was around 15 and to women when he was around 25 or 28 years old. This felt normal to him but he was afraid of the consequences. He never spoke to anyone about how he was feeling. Later, he said he discovered he was bisexual at around the age of 25. He said that growing up as a bisexual man in Ghana was very hard because you have to hide yourself. When asked to elaborate, he said it was very bad and all people say its bad. When asked whether he ever experienced any intimidation or harassment he said he always hid himself until the “incident”.
The Tribunal acknowledges that for many people from countries and cultural backgrounds that are not accepting of same-sex relationships, discussing their sexuality can be uncomfortable, particularly given it is something they may have become accustomed to hiding. The Tribunal acknowledges that a person’s ability to reflect on and discuss their sexuality, which is a very sensitive and personal matter, can be affected by many factors, including their culture, upbringing and personality. The Tribunal has also considered the applicant’s post-hearing submissions on this point, as referred to above. Even taking the above into account, the Tribunal has concerns about the applicant’s evidence about his bisexuality. The Tribunal found his evidence to be quite vague and superficial and even when given a chance to elaborate, as set out above, the applicant’s responses were very brief and did not give the Tribunal the sense that he was speaking from personal experience about something that was fundamental to his identity. The Tribunal does not consider these concerns can be completely accounted for by the applicant’s background and experiences. Another example is that when discussing the applicant’s first and only same-sex relationship and being invited by the Tribunal to tell it about “[Mr C]”, the applicant responded that he was tall and liked to talk. The Tribunal asked the applicant whether there was anything else he wanted to say and he said there was not. Combined with the Tribunal’s concerns about the applicant’s credibility referred to in these reasons, the applicant’s evidence about his bisexuality raises concerns for the Tribunal about the genuineness of his claims.
The Tribunal notes that in his written claims, the applicant has mentioned being a small man with “cute” features which are not strongly masculine and so people in Ghana often assume he is gay. He did not elaborate on this in the hearing or claim that he had experienced discrimination or harassment as a result of his appearance as he became an adult man. His evidence is that he did not have any problems in Ghana before becoming involved with “the man”. He also has not provided any independent country information to support the claim that small men in Ghana are perceived as gay. The applicant has not provided evidence about his actual height, or the average height of adult men in Ghana, and the Tribunal is not prepared to make assumptions or findings about this even having observed the applicant in person.[1] The Tribunal considers the description and perception of an adult man’s features as “cute” or not strongly masculine to be subjective and does not accept that the applicant was perceived to be gay or bisexual for this reason. Further, the applicant has not provided any independent probative evidence to support this claim or that he suffered harm in Ghana as a result of his appearance.
[1] The Tribunal notes there is no suggestion that the applicant suffers from a congenital issue that might classify him as a person of “short stature”.
In the interview with the delegate, when asked whether his relationship with [Ms B] was “physical” he confirmed it was. The Tribunal has listened to a recording of the interview and in the Tribunal’s view, in the context of the questioning it was clear that in using the word “physical” the delegate was talking about a sexual relationship and the applicant understood this.
In the Tribunal hearing, when asked when he had his first intimate contact with a woman, the applicant paused for a long time and said he was trying to remember but he thinks it was in Australia. He said he and [Ms B] were going to get married even though he was not completely keen on her and so he told her they could not “do anything” until they got married. He said his relationship with [Ms B] was not sexual.
The Tribunal put to the applicant its concern about this difference in his evidence. The applicant said he and [Ms B] kissed, but he did not have sex with a woman until he came to Australia. The Tribunal asked him how soon after arriving in Australia this happened and he said he thinks it was about six months but he doesn’t keep a lot of things in his mind.
In the Tribunal’s view, in the hearing the applicant tried to downplay the significance and extent of his relationship with [Ms B] in order to bolster the significance of his same-sex relationship in Ghana. The inconsistency in the applicant’s evidence about the nature of his relationship with [Ms B] raises a concern for the Tribunal about the applicant’s credibility and the genuineness of his claims.
In the Tribunal hearing, the applicant was asked whether he was in a relationship with anyone in Australia. He gave evidence that he is in a relationship with a woman who he thinks is an Australian citizen. They have been in an exclusive and committed relationship for about four years and they met online when the applicant “went looking”. She has two children from a previous relationship. The applicant stays at her place on weekends and at his own place during the week.
The applicant gave evidence that he has not had any other relationships since being in Australia but he “nearly” had a relationship with a man around three years ago. He does not have any evidence of this because he may have had some text/chat messages with this person but his phone keeps deleting things. He does not have any evidence of contact with gay people or the gay community in Sydney as a bisexual man and has not had any involvement with that community. He does not have any friends the Tribunal can speak to who might support his claim to be bisexual. He has not told his Australian partner that he is bisexual because he is trying to be loyal to her and she might want to get out of their relationship. He has not told her why he left Ghana.
The Tribunal raised its concern with the applicant about the lack of evidence to support his claim about being bisexual (specifically, the same-sex attracted element), as opposed to being heterosexual, along with the broader concerns about his credibility. The applicant responded that when he came to Australia he said things without thinking because of his situation, he was not stable and it was affecting him a lot but recently he started to think he was coming back into his inner self a bit. The Tribunal has considered the applicant’s response but it does not overcome the Tribunal’s concerns. The Tribunal has addressed the applicant’s mental health and memory situation above. The Tribunal also pointed out to the applicant that he has had legal representation throughout his application and review process.
The applicant’s evidence about his lack of engagement with the LGBTI community in Sydney as a self-identifying bisexual man, his evidence that he has not had a relationship with a man since coming to Australia, along with the fact that he has not told his partner he is bisexual or about the events that led to him leaving Ghana raise further doubts for the Tribunal about the genuineness of his claims, particularly when combined with the Tribunal’s concerns about the credibility of other aspects of the applicant’s claims and evidence discussed above.
The Tribunal asked the applicant if he was still in contact with friends in Ghana and he said he is still in contact sometimes with some loyal friends. The Tribunal asked why, if any of those people know what happened, they hadn’t provided statements in support. The applicant responded that it was a long time ago and there is no evidence from back then. He said these friends tell him if something happens to a gay person in the neighbourhood and give him updates. The applicant said he has a friend who could provide a statement but he wasn’t there when the incident happened; the applicant told him what happened and this person helped him. After returning from a short break, the applicant said he no longer has the contact details for any witnesses in Ghana and [Ms B] has blocked off contact. His mother didn’t go to school so she can’t give much evidence due to lack of education.

The Tribunal notes the applicant’s post-hearing submissions which explain the potential difficulty of obtaining statements or support and that at that time, the applicant had been awaiting some letters of support but so far they had not arrived. [Witness A’s] statement was provided to the Tribunal shortly after this.
As referred to above, on 15 August 2023, the applicant submitted a written statement from [Witness A], a resident of [the applicant's neighbourhood], dated 14 August 2023. In his statement, [Witness A] says he “witnessed the said issue of [the applicant] which happened in the year 2014.” [Witness A] states he was surprised to hear the applicant is still alive because “how he was attacked with his white partner, he never thought he will survive”. [Witness A] states he just heard the applicant managed to go to Australia and he has advised him not to return to Ghana because a programme was held in June this year about anti LGBTQ+ in the area and the applicant’s name was mentioned amongst the most wanted by the youth of the neighbourhood nine years after the incident. The statement attaches copies of a “Press Conference Invitation” dated 10 June 2023 from “Agbadzena and Concerned Muslims Against Homosexuality”.
The Tribunal has considered the statement of [Witness A], but in light of the Tribunal’s concerns about the credibility of the applicant’s claims set out above and the fact that [Witness A’s] statement was provided after the Tribunal had put its concerns to the applicant about his claims and evidence, including the lack of supporting evidence and the applicant’s response to that particular concern, the Tribunal gives the statement no weight.
Findings
Having considered all the applicant’s claims and his written and oral evidence, for the reasons set out above, including the Tribunal’s concerns about the credibility of aspects of the applicant’s evidence, the Tribunal finds as follows. The Tribunal does not accept the applicant’s central claim about being bisexual. In light of this, and in light of the Tribunal’s concerns about the applicant’s credibility and the truthfulness of his evidence more broadly, the Tribunal also does not accept the applicant’s claims which flow from his central claim about his sexuality.
The Tribunal accepts that in Ghana the applicant lived with his parents, siblings and extended family. The Tribunal accepts he had his own business in Accra working as [an occupation 1] [servicing] equipment and that he works in that industry in Australia. The Tribunal accepts the applicant travelled to neighbouring countries and other countries in the region to obtain spare parts for his business.
The Tribunal accepts that in Ghana, the applicant had a girlfriend called [Ms B] and that he did not have other girlfriends in Ghana. The Tribunal accepts that this relationship had ended by the time he left Ghana. The Tribunal finds that the applicant’s relationship with [Ms B] began in 2010 and lasted for around four years. The Tribunal finds that it was a sexual relationship.
The Tribunal is prepared to accept that the applicant entered into a business relationship with a man in around 2013 related to his [business], and that this business relationship lasted until around 2015. For the reasons explained above, the Tribunal does not accept that this man was called [Mr A] or [a name variant]. The Tribunal does not accept that the business relationship with this man developed into a sexual relationship. It follows that the Tribunal does not accept that the sexual relationship began after the man possibly drugged the applicant and had sex with him while he was unconscious or asleep and after that, the applicant entered into a consensual sexual relationship with the man. The Tribunal does not accept that the applicant’s relationship with [Ms B] began after the business or sexual relationship began with the man. As the Tribunal does not accept that the applicant had a sexual relationship with this man, it follows that it does not accept that the sexual relationship lasted for around one year or any other length of time.
As the Tribunal does not accept that the applicant was in a sexual relationship with this man, the Tribunal does not accept that in 2014 or 2015 or at any other time, the applicant’s girlfriend, [Ms B], walked in on the applicant and the man having sex. It follows that the Tribunal does not accept that [Ms B] shouted and other people came in and beat them with stones and wood and other things, and they had to run for their lives. It follows that the Tribunal does not accept the applicant was injured from the beating and thought he would die, or that he was too afraid to see a doctor because it is illegal to have a gay relationship or for any other reason. The Tribunal does not accept that any scars the applicant may have on his body are due to this beating, as it does not accept this beating took place. The Tribunal is prepared to accept that the applicant’s relationship with [Ms B] ended in 2014 or 2015 but not because [Ms B] found the applicant having sex with the man, as the Tribunal does not accept that this happened.
As the Tribunal does not accept that this beating incident took place as claimed, it follows that the Tribunal does not accept that the applicant ran away and went into hiding in Ghana and [in other] countries until he left Ghana and came to Australia in March 2018. It also follows that the Tribunal does not accept that after the beating incident, the applicant had to shut his business, stop work, and leave everything behind and cut off contact with his family and the community, or that the [business] was dismantled because people didn’t want to deal with him or have anything to do with things the applicant touched because he is gay (or bisexual).
The Tribunal accepts that the applicant’s father died in 2014 or 2015, but for the reasons set out above, it does not accept that the cause of death was a heart attack due to his father finding out that the applicant had been engaging in a sexual relationship with a man. The Tribunal is prepared to accept there were some property issues that arose after the death of the applicant’s father but the Tribunal does not accept that people blamed the applicant for this or for having caused his father’s death due to his sexual relationship with the man, as the Tribunal does not accept the sexual relationship ever took place.
The Tribunal accepts that the applicant met someone in Accra who helped him to obtain a visa to come to Australia in connection with the [international event] even though the applicant was not connected to the [international event]. However, as the Tribunal does not accept that the claimed events leading to the applicant wanting to leave Ghana took place, the Tribunal does not accept that the person agreed to help the applicant to leave Ghana due to those events and the applicant’s situation.
For the reasons set out above, the Tribunal does not accept that the applicant is bisexual (or gay) or that he has ever had a sexual or other romantic relationship with a man in Ghana or Australia. It follows that the Tribunal does not accept that the applicant felt bad about being in a gay relationship with a man in Ghana at the same time as being in a relationship with his girlfriend, or that he felt ashamed or scared about his sexuality as a bisexual man. The Tribunal finds that the applicant is a heterosexual man who had a girlfriend in Ghana and is in a settled relationship with a woman in Australia.
For the reasons set out above and based on the evidence before it, the Tribunal does not accept that in Ghana, men sometimes thought the applicant was gay because he is small or has “cute” features, even without him doing anything. Based on the evidence before it, the Tribunal finds that the applicant did not experience harm in Ghana due to his physical appearance or that he was perceived to be gay for this reason or any other reason.
Based on the evidence before it, and for the reasons explained above, the Tribunal does not accept that the applicant suffered harm in Ghana for the reasons claimed or for any other reason, or that he left Ghana for the reasons claimed.
Does the applicant meet the refugee criterion?
The applicant claims that he fears returning to Ghana because he will be arrested, hurt or killed for having gay sex and gay relationships which are illegal in Ghana. He also claims in this context that as a small man, he will be easy to catch and hurt. His family will not help him because of what happened in the past and if anyone remembers him from before and what happened, that will be dangerous for him. For the reasons set out above, the Tribunal has found that the applicant is heterosexual and not bisexual or gay and that he has not had a sexual or romantic relationship with a man in Ghana or Australia. The Tribunal has also found that the claimed events in Ghana where the applicant was discovered having sex with a man, severely beaten, went into hiding and was rejected by his family and the community, did not occur. Therefore, the Tribunal does not accept the applicant’s claims about what will happen to him if he returns. The Tribunal does not accept that as a heterosexual man the applicant will have gay sex or enter a gay relationship in Ghana in the future and therefore his claim to be easy to catch and harm as a small man is not relevant and the Tribunal does not accept it. In light of this, the Tribunal finds that if the applicant returned to Ghana now or in the reasonably foreseeable future he would not face a real chance of serious harm arising from the claimed circumstances.
The Tribunal has considered the applicant’s submission about being a small man and having “cute” features and that people in Ghana sometimes assume he is gay without him doing anything. For the reasons explained above, the Tribunal has not accepted this submission in relation to past harm claimed by the applicant. The Tribunal has also considered whether the applicant’s physical appearance would expose him to harm if he returned to Ghana in the reasonably foreseeable future.
In his post-hearing submissions, it is submitted that this perception of the applicant puts him at risk and the applicant considers that the proposed new anti-LGBTI laws in Ghana will embolden the community to take up against people who are perceived to be sexually divergent from the approved norm. It is submitted that with the applicant’s appearance and natural demeanour (which is not explained), the only way for him to avoid this perception may be to hide his sexuality and dress or act in a hypermasculine way. As referred to above, the applicant has not provided any objective or independent evidence about his actual height, his height in comparison to other men in Ghana or independent country information which says that small men with certain physical features are or may be perceived in Ghana to be gay or sexually divergent from the accepted norm. As the Tribunal stated above, the concept of an adult male being perceived as having “cute” or not strongly masculine features seems very subjective. In relation to the reference to the applicant’s “demeanour” in the submissions, the applicant himself has referred in his evidence to his physical features but he has not given evidence that as a man he has, for example, what might be perceived by some people in a stereotypical fashion as effeminate gestures or mannerisms. Even if the Tribunal accepts the applicant’s evidence that when he was around three to six years old his school mates told him he was bisexual because of the way he talked and used his hands, which seems doubtful, the applicant has not claimed that as an adult man he has physical mannerisms which might lead others to think he is gay. Nor has he made any specific claims about discrimination or harm he suffered in Ghana as an adult male before the claimed incident with his same-sex partner. The Tribunal has found that the applicant is heterosexual and not bisexual or gay. The Tribunal has also found that the applicant has not suffered harm in Ghana in the past despite his claims about his physical appearance. For these reasons, along with the lack of independent country information to support this claim, the Tribunal does not accept the applicant’s claim or his submissions in relation to this claim. In light of this, the Tribunal finds that if the applicant returned to Ghana in the reasonably foreseeable future he would not face a real chance of serious harm as an adult man due to his physical appearance.
Given the Tribunal’s findings above about the applicant’s sexuality, the Tribunal does not accept the remainder of the applicant’s post-hearing submissions or the country information provided as it finds they are not relevant.
The applicant has not claimed that he fears returning to Ghana for any other reason.
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Ghana now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[2] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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).
[2] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 4692

31 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing