1823235 (Refugee)

The applicant, a homosexual male from Ghana, sought a protection visa in Australia. The dispute arose when the Department refused his application, and the matter was brought before the Tribunal for review. The applicant claimed he feared persecution in Ghana due to his sexual orientation, citing past experiences of discrimination, threats, and an assault, as well as the current political climate in Ghana, including an anti-LGBT bill before Parliament.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the applicant to be a refugee with a well-founded fear of persecution. This involved determining if the applicant belonged to a "particular social group" as defined by the Act and whether his fear of persecution was well-founded, considering the circumstances in Ghana and the availability of protection. The Tribunal also considered the implications of a non-disclosure certificate issued by the Department concerning a "dob-in" letter alleging false claims for protection.

The Tribunal reasoned that the applicant's fear of persecution was well-founded, particularly in light of his experiences and the prevailing social and legal attitudes towards homosexual individuals in Ghana. It found that homosexual men constituted a "particular social group" for the purposes of the Act, and that the applicant's fear was not based on a characteristic that was a fear of persecution itself, but rather on his innate characteristic of being homosexual. The Tribunal also addressed the non-disclosure certificate, deciding to partially release the material to the applicant and finding that the applicant had not misused the immigration system.

Ultimately, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the *Migration Act*. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a).