1823235 (Refugee)

1823235 (Refugee) [2023] AATA 4193 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Dr Etienne De Villiers Hugo
CASE NUMBER: 1823235

COUNTRY OF REFERENCE: Ghana
MEMBER:Rachel Da Costa
DATE:12 September 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 12 September 2023 at 5:28pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – homosexual – pressured to hide homosexuality – anti-LGBT bill before Ghanaian Parliament – fathered child in Australia – assaulted by group of men – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 438, 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 25 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 10 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 [specified year] in Accra, Ghana. His parents are Ghanaian citizens. He speaks, reads and writes English. He calls his mother in Ghana a few times a week using WhatsApp.
In Ghana, from [birth] to 2012, he lived at [Address 1]. From 2012 to 2014, he lived at [an address in Town 1]. From 2014 to 2016, he lived at [an address in Town 2], [near a specified landmark]. From 2016 to 2018, he lived at [Address 2], [near another landmark].
In Ghana, he attended [College 1] from [between specified years] and [School 1] from [between specified years].
He departed Ghana [in] March 2018 and arrived in Australia [later in] March 2018. He travelled on his Ghanaian passport issued [in] 2017. On his way to Australia he passed through [specified countries].
In the Tribunal hearing, the applicant provided further information about himself and his family and background. In Australia, he is working as [an occupation 1] and has been in this role for more than three years. He has completed a [Qualification 1] and wants to do further education in [a related field]. Previously, he was doing various jobs in [specified occupations]. He is not in a relationship and lives alone. He has [an age]-year-old [child] with a woman with whom he had a complicated relationship that began in 2020. He sees his [child] on weekends.
In Ghana, his father passed away when he was [age] years old. He has his mother, with whom he is in regular contact. She lives alone and works for a church in [a specified suburb]. He has some half siblings from his father’s previous relationship but they are not in contact. Growing up, he and his mother lived together at the [Address 1] property but when he was [age] years old they moved to Kumasi to live with the applicant’s grandfather. Around this time, the applicant’s mother moved to [Country 1] to work and she spent about 10 years there. She sometimes came back to Ghana for visits. The applicant lived with his grandfather in Kumasi until he finished [school level]. Then he moved to Accra in [year] and [completed further studies]. During term time he lived at the school and in the holidays he lived with his uncle in [Town 1]. He finished [school level] in [year]. After finishing [school] he moved out on his own and lived in [Town 2]. He did casual work as [an occupation 2] and continued to study [that occupation]. He lived in [Town 2] for around four or five months and then returned to live in Accra in the middle of 2015 at the house in [Address 1] and lived there alone. This is where he lived until he came to Australia. He used to travel within Ghana sometimes for work and hung around with friends, so he often wasn’t home. He worked full time for a [foreign] company called [name] for two or three years before coming to Australia. The company was based in Accra and he was [in a specified role].
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant made the following claims.
I am seeking protection in Australia because I fear persecution if I was to return to Ghana. I fear persecution as a member of a particular social group (homosexual male). There is no location where I would be safe in Ghana. I cannot get protection from the authorities in Ghana. I will provide a full statement of my protection claims including my fears of returning to Ghana at a later date. I will also provide further information at my protection visa interview.
In a statement provided on 24 May 2018, the applicant claims as follows:
…
Problems in Ghana
6. I started having issues with my sexuality since I realised it in my [specified] school level.
7. But before that time, I have been having this strange desire to be with boys since I was 10 years old. But I have always been ignoring it because, where I come from, it is seen as morally abnormal and never thought it was possible to feel that way because I was a kid.
8. I had a friend during my junior high called [Friend A]. He was 11 years then. He was so nice to me that anytime I was around him, I get some level of happiness and always wanted to be around him. But since I was a kid, I thought it was more likeness I had for him since he has always been there and defended me in several ways.
9. One faithful day, [Friend A] came to my house to visit me and during are playing moments, I kissed him unawares and he got surprised and rushed out crying that I kissed him. My mum got so disturbed about what my friend was talking about so she called me to confirm. At that time, my dad was already dead. Then I told my mum it was unintentional but to me I always feel like doing it all the time. When I told my mum that, she shouted at me and slapped me and told me never to say something like that ever to the hearing of any human being.
10. She took me to her pastor to deliver me because there is an evil spirit within me so I went through deliverance for over a month then the pastor told my mum that I was cleansed.
11. My mum later went to visit [Friend A’s] parents to explain things to them since the whole community and the school got to hear about the incidence including the school I attended. But no one understood but decided to let it go since my mum told them I was cleanser. I nearly got expelled from the school.
12. Since then I had to pretend to people that what happened with [Friend A] was a mere joke but not anything serious. I had to pretend to make friends with ladies so that the boys in my school will feel safe when they come around me and also keep going to school.
13. After completing [grade], I then got admission to [School 1] in [Town 3] to study [subject] on [date].
14. During my time in the senior high, I made friends with both ladies and men but I always felt uncomfortable when females try to get close to me. But when am with guys, I feel so relaxed. I still didn’t understand what the problem was with me because no one ever discussed what happened to me during my [earlier school] period. So when I realized that same feelings coming back, I tried to hide it again because I was scared of being expelled. Because that was how I was made to feel.
15. But there was this senior of my called [Friend B] who always made advances towards me and I liked it. He asked to me visit him in his cubicle since he was a house prefect which made him have his own cubicle. He showered me with gifts and was kind to me.
16. One day in the cubicle, we had sex and it really felt great. I then asked him why I feel good after the sex and that was when he explained what my sexuality status was and gave me several links and books to read more and understand what I am. I then realized I was a gay.
17. Then I remembered that from my village, a man was criticized and hanged when the elders of my community realized he was a Gay. But since we were kids, I didn’t know what a gay was until I had my first encounter with a male.
18. [Friend B], my senior partner then told me it had to be kept a secret because most people are expelled from the school for being a gay. So we kept this as a secret till we [completed our exams] in [year].
19. After school, I came out to accept who I am because I tried being with women and it never goes well.
20. When my extended family got to know about the situation, they refused to help me and my mum and started threatening her to reveal where I am.
21. So I skipped tertiary and decided to move to [Town 2], a different city, to avoid my community.
22. During my time in [Town 2], I found a partner called [Friend C] and we fell in love.
23. When people got to know about my partner and I, the discrimination started. [Friend C] was the one who got much of it because he was new to it. He told his family and they didn’t react well. They disowned him.
24. He became so frustrated and blamed me for destroying his life. I tried to convince him to understand but he couldn’t take the heat. He committed suicide to avoid all the suffering from the people he loved. This happened on [specified date].
25. Because of what happened to [Friend C], I have been scared for my life to open up people about my sexuality.
26. One Saturday afternoon I was walking alone the road and I passed three guys and heard them say “hey you gay”. I turned back and saw stones flying at me with nowhere to hide. I was badly injured even had a cut on my forehead. I fell unconscious and when I woke up, I was at the hospital.
27. This happened about a month after my boyfriend died. I went to the police to report the assault because I had been injured, but after hearing what happened, they refused to take my statement and asked me to leave the police station before they arrested me.
28. I kept hidden to avoid beaten to death. Other even say I have evil spirit inside me.
29. In around May 2015, I went to CHRAJ to complain about what had happened to me, but the person at the front desk told me they couldn’t do anything for me until homosexuality is legalized.

Coming to Australia
30. I started looking for ways to leave the country. I desperately wanted to leave, but it is very hard for people from my country to get a visa for a country where I would be accepted and safe. I started saving up money to be able to leave.
31. I met a friend who works at a [prominent business]. He told me there was going to be [an event in] Australia, so he can help me go with the team. I gave him my passport and $[amount] and he organized the trip for me.
Fear of harm if I return to Ghana
32. I do not wish to back to Ghana as my life would be in danger. I fear that I would be killed if I go back to Ghana.
33. I want to be able to live freely and not to hide my sexuality.
34. The government of Ghana cannot protect me and the whole country hates the existence of homosexuals.
35. Since being in Australia, I have also heard that there is a big investigation into people [in my situation]. It has raised a lot of alarm in Ghana. I fear that, if I return there, I could be arrested, detained and interrogated. I am afraid I could be physically abused by the police in this process.

Interview with the delegate
On 29 May 2018, the applicant attended an interview with the delegate to discuss his claims for protection. In the interview, he responded to the delegate’s questions and elaborated on his claims. The Tribunal has listened to a recording of the interview.
The delegate’s decision
On 25 July 2018, the delegate made her decision. The delegate had a number of concerns with the applicant’s evidence which raised concerns about his credibility. Based on the evidence before her, the delegate found the applicant’s claims were not credible and that he did not genuinely fear harm in Ghana for the reasons stated. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The application for review
On 11 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 documents and witness statements
Prior to and after the hearing, the applicant provided further documents in support of his application for review including the documents described below.
Statutory declaration of the applicant made 16 August 2023 in which he reiterates his claims and provides some additional details. The most significant information contained in the applicant’s statutory declaration is about his relationships in Australia, including his relationship with a woman which resulted in him becoming a father:
Updated information:
18. I would also like to disclose that since arriving in Australia I met a female on one of the dating apps ([specified]) during covid time. Our first meeting was interesting and felt like we knew each other. I got introduced to her family and friends. It felt like I found my new family in Australia. She showed much interest in me and come to visit to allow us to spend a few days together. This lady previously lived in [Country 1] but was born in Australia and all her family are here. She came for a visit to her family and covid hit the world and got stuck here at that time. I wasn't ready to be in a relationship especially staying with a female, after being in Sydney and being with the same sex, bisexual and transgenders. I got enlightened and wanted to see how I will go with [Partner A] as a female partner. She wanted to stay with me because she wasn't comfortable staying at her family’s house and wanted to live with me because I was leaving alone in a two-bedroom. It wasn't my choice, but I wanted to try having a relationship with her. Besides most same-sex I have been with, I do not want anything serious, not that am in need of a relationship but I like consistency. There were ups and downs with me and [Partner A] at some point. But fortunately/unfortunately, she got pregnant. It was a decision for me at the moment to move on with my life or be with someone I will not be happy with for the rest of my life. We separated and it has been a tough journey since, I have anxiety and depression at the moment, started seeing a physiologist. [Partner A] thinks because of the baby then we have to be together, but I don't think I will be in a healthy happy relationship. To be honest, I had difficult times for months now.
19. Before [Partner A], I also had a relationship with a male. His name is [Partner B]. We met about 4 years ago through [a dating app] and dated for 6 months. Due to some personal circumstances, we separated but we do see each sometimes. I still talk to [Partner B] on social media, [specified].
20. After [Partner B], I met [Partner C] around 2 years ago when I played [sport] every weekend at [location] and we had a casual relationship for about one year.
The applicant’s representative provided pre-hearing submissions dated 15 August 2023. These submissions reiterate the background to the applicant’s case, his claims and refer to the new information about his relationships in Australia. The submissions critique some of the delegate’s findings and provide references to, and discussion of, country information relating to the adverse situation for LGBTI persons in Ghana and across the Economic Community of West African States (ECOWAS) countries. This country information is referred to further below. The submissions also refer to cases and guidelines on the approach the Tribunal should take to assessing an applicant’s credibility. It is submitted that the applicant is homosexual, there is a real chance he will face persecution in all areas of Ghana due to his sexual orientation and he faces a real risk of significant harm in Ghana, particularly due to current circumstances with an anti-LGBT bill having been introduced into the Ghanaian Parliament.
Other documents provided by the applicant include:
·     Statutory declaration of [Partner B] made 17 August 2023 in which he declares that he has known the applicant for around four years, they dated for around six months and they are still in contact as friends;
·     Undated photographs of the applicant with [Partner B];
·     Video clip dated 10 March 2023 of the applicant and [Partner B] engaging in intimate contact;
·     Undated photographs of the applicant with [Partner C] sharing a meal and in a swimming pool;
·     Child Support Assessment in respect of the applicant for his child for the period 6 July 2023 to 31 July 2023 and letter dated 11 July 2023 with the applicant’s new assessment for the period 1 August 2023 to 31 October 2024;
·     Emails sent to the applicant from [Organisation 1] which indicate he is on their email distribution list;
·     Copy of an appointment confirmation for the applicant with his psychologist. The Tribunal notes the applicant attempted to obtain a medical report from his psychologist after the hearing but was unable to do so due to the psychologist being on sick leave for a personal condition;
·     Screenshots of chat messages between the applicant and a trans friend from 2019 which include a photograph of the applicant at what could be a Mardi Gras party in March 2019.
The Tribunal has considered all the material provided by the applicant including country information and, where relevant, refers to it specifically below.
The hearing
The applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing, as did an observer from the representative’s office who sat in on the hearing with the consent of the applicant.
Nationality
The applicant claims to be a citizen of Ghana. He provided the Department with the original 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
Non-disclosure certificate
The Department issued a non-disclosure certificate under s 438 of the Act in respect of a document on the Departmental file. The document in question, which is an email dated 6 August 2018, can colloquially be described as a “dob-in” letter and alleges that the applicant and a number of other people made false claims for protection. The certificate states that disclosure of the information covered by the certificate would be contrary to the public interest because it may disclose or enable a person to ascertain the existence of the identity of a confidential source of information. The certificate is dated 17 December 2018 and the Tribunal considers it to be valid.
Section 438 of the Act permits the Tribunal to exercise its discretion in relation to the disclosure of information covered by the certificate. The Tribunal considered the reasons specified in the certificate about restricting disclosure and decided that it was appropriate to partially release the material covered by the certificate to the applicant.
On 28 July 2023, the Tribunal wrote to the applicant notifying him of the existence of the certificate and explaining that the Tribunal had decided to partially release the material covered by the certificate pursuant to s 438 of the Act. The applicant was provided with a copy of the certificate and invited to make comments or submissions on the validity of the certificate by 11 August 2023. The Tribunal provided the applicant with a redacted copy of the document covered by the certificate.
In the pre-hearing submissions dated 15 August 2023, the applicant’s representative submitted that the applicant did not lie to the Department about how he got his visa for Australia and it was not his intention to misuse the immigration system. His only intention in obtaining the [temporary] visa was to leave Ghana where he experienced life-threatening fear.
In the Tribunal hearing, the Tribunal discussed the certificate and the information covered by the certificate with the applicant. The Tribunal explained to the applicant that it did not propose to give the information in the document any weight in making its decision as it did not know who the person was that provided the information, how they obtained the information, why they made the report, if the person knows the applicant or if they are connected to him in any way. The Tribunal invited the applicant to comment and he said he had no idea who the source is.
Despite explaining its proposed approach to the applicant, out of an abundance of caution the Tribunal put to the applicant under the s 424AA process the particulars of the information, its relevance and explained what the consequence might be if it relied on the information. The applicant responded that he doesn’t know why someone would say that about him and he didn’t come to Australia based on a lie.
The applicant’s claims about his sexuality
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 family and personal relationships, residential, education and employment history, migration history, sexuality, the things he claims happened to him in Ghana and why he fears returning there. Overall, the Tribunal found the applicant to be articulate and straightforward in his testimony, and his oral evidence in the Tribunal hearing was for the most part very consistent with his written claims and he was able to provide additional plausible details. His account of his emerging awareness of his sexuality in Ghana was more focussed on events rather than emotions, but the Tribunal found his evidence to be credible and the personal insights he offered to be convincing and not rehearsed. 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.
There were some discrepancies between the applicant’s written and oral evidence about the extent of threats and mistreatment from his relatives in Ghana, what they knew or suspected about his sexuality and when, and what he did as a result, which in the Tribunal’s view was an attempt by the applicant in the hearing to embellish some of his evidence about past threats of harm from his relatives and potential consequences if he returned. However, the Tribunal does not consider this to undermine the overall credibility of the applicant’s core claims about his sexuality and key events that took place in Ghana. The Tribunal finds that the applicant’s mother knows about his sexuality, that she is a devout Christian, that she is not happy about his sexuality but she would not harm her son. The Tribunal finds that the applicant’s uncle, who is head of the family and a controlling person, suspects the applicant is homosexual, does not approve of it and may cast him out of the family if he returned to Ghana. Based on the evidence before it, the Tribunal does not accept that the applicant’s uncle or other relatives would arrange for the applicant to be killed or sacrificed.
The Tribunal notes that the applicant has provided supporting evidence from Australian sources about his sexuality and involvement with the LGBTI community in Sydney which was not available to the delegate and the Tribunal accepts that this evidence is genuine and further strengthens the applicant’s claims about his sexuality.
A particular concern for the Tribunal was the applicant’s recent evidence about having been in a relationship with a woman in Australia called [Partner A] which resulted in them having a child together. The Tribunal discussed this relationship with the applicant in some detail in the hearing. The applicant gave evidence that he identifies as a homosexual and he is interested in the same sex but he told [Partner A] he is bisexual. The applicant explained that since being in Australia he has had the opportunity to explore his sexuality more and he has been with a trans person and found that interesting. He is getting to know more about himself and is interested in other experiences, but his preference is still same-sex. This exploration is what got him involved with [Partner A]. He didn’t intend to have a relationship with her, but they met during the Covid-19 pandemic, he didn’t have many friends at the time, she introduced him to her family and friends, they became very attached to each other, their friendship was intense and she moved in with him. He was open about trying a sexual relationship but it didn’t go well. [Partner A] got pregnant and she had to continue living with the applicant due to her family circumstances but they were not in a committed sexual relationship after that. The applicant has not been with a woman since, and he has realised it is not what he wants. Unfortunately, since what happened, [Partner A] has been very angry with the applicant and she finds it difficult to accept that he is gay but he has to be true to himself. He loves his [child] very much. The Tribunal found the applicant’s evidence about this situation to be plausible and acknowledges that it is a situation that has caused him ongoing mental distress.
The applicant gave evidence that if he had to return to Ghana he would not be able to live his full life and he would live under the radar. This is because he would not be able to have a relationship with a person he is interested in due to societal attitudes towards homosexuals. People would hate him and he would be afraid.
Based on the applicant’s written and oral evidence, the Tribunal is satisfied that the applicant identifies as a gay man and has a history involving intimate relationships with men in Ghana and Australia and a single relationship with a woman in Australia which has ended.
Does the applicant meet the refugee criterion?
The applicant claims to fear harm from his family if he returns to Ghana because they don’t accept homosexuals. He also fears harm from the community in general in the form of violence and discrimination due to his sexuality. He fears his life would be at risk. The Tribunal accepts that the applicant’s family do not accept homosexuals, that they know or strongly suspect the applicant is homosexual, they may disown him if he returned to Ghana and he would not have their support. The Tribunal also accepts that the applicant was bashed by a group of men while he was living in [Town 2] because they suspected he was gay, and that he required medical treatment. The Tribunal accepts the applicant’s evidence that he had to keep his same-sex relationships in Ghana a secret because he was worried about what would happen if people found out about his sexuality.
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 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 considers that since the applicant left Ghana in 2018, the situation has deteriorated.

As set out above, the Tribunal has accepted the applicant’s evidence about his sexuality, the incident that occurred in Ghana where he was accused of being gay and physically harmed by people he didn’t know, his fears about what might happen if his sexuality was revealed in Ghana, and the actions he took to conceal his sexuality and same-sex relationships in Ghana due to fear of the consequences if he was discovered. The Tribunal accepts that the applicant does not have the support of his family in Ghana and would not have their support if he returned there in the reasonably foreseeable future which would potentially make him more vulnerable. The Tribunal accepts that the applicant would not feel able to live openly as a gay man in Ghana in the way he would wish to and this would be due to a fear of harm from society in general. The Tribunal finds that if he returned to Ghana and lived openly 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 “under the radar” 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 so he could live his “full life”. 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 4193

12 September 2023

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