1826325 (Refugee)

1826325 (Refugee) [2022] AATA 5054 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Belinda Christie (MARN: 1682855)
CASE NUMBER:  1826325
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sheridan Lee
DATE:9 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

Statement made on 09 November 2022 at 10:55am
CATCHWORDS
REFUGEE – Protection Visa – Ghana – sexuality – lesbian – gay female of Ashanti ethnicity – membership of the particular social group – third country protection not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 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 dependant.
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 7 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old female from Accra, Ghana. She self-identified as of Ashanti ethnicity and an atheist. She can speak, read and write in English and Twi. The applicant completed high school and holds a [qualification] from [a named university], Ghana. Prior to travelling to Australia, the applicant ran her own roadside stall in Accra.
According to the delegate’s decision record, the applicant applied to enter [Country 1] in 2013 on a different passport and was refused entry. This information was not disclosed by the applicant in her protection visa application. No evidence relating to the applicant’s prior travel or attempted travel to [Country 1] was on the Departmental file provided to the Tribunal. On 7 March 2022, the Tribunal requested that the Department provide all evidence that was relied on to make its decision. The Department’s response will be discussed further below.
The applicant was also refused entry to [Country 2] when she arrived in that country by airplane on [date] June 2016. She was returned to Ghana.
The applicant first entered Australia on [date] March 2018 as the holder of a [temporary visa], granted on 27 November 2017. The applicant was granted the visa on the basis that she was an [Occupation 1]. However, she attended as a [different occupation]. The visa expired on 15 May 2018.
The applicant applied for protection on 28 May 2018 on the basis that she would be persecuted in Ghana as a lesbian.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CONSIDERATION OF Claims and evidence
Application for protection
The applicant applied for protection in Australia on 28 May 2018. The application for protection form outlined that the applicant cannot return to Ghana because she would be persecuted on the basis of her sexuality. The applicant self-identified as lesbian and claimed that it is illegal to be a lesbian in Ghana. The form stated that:
·The applicant was physically and verbally attacked. She has a scar on the back of her head because of an injury incurred during one of the attacks.
·She was robbed and her house was broken into.
·The applicant attended an underground gay club. The police entered the club and assaulted the patrons. The applicant was bitten by the police during the assault.
·Her mother disowned her and tried to make her marry a man.
·The applicant went to the police about the attacks perpetrated by civilians and they did not provide any assistance.
·On one occasion the applicant was arrested and taken to the police station. They eventually let her go.
·Homosexuality is illegal across all of Ghana.
On 17 June 2018, the applicant supplied the Department with a written statement. The statement included the following information:
·During her first year of high school, the applicant was introduced to homosexuality by her lesbian ‘school mother’. This was when the applicant realised that she was a lesbian.
·She didn’t tell anyone about her sexuality until 2008, when she was about [age] years of age. When she started telling people close to her, the information spread in the community even though she tried to be discreet. The applicant noted that she dressed ‘like a tomboy’.
·The applicant’s mother was told of her sexuality and they no longer have a relationship. The applicant’s mother does not believe that the applicant is a lesbian and wants her to marry a man. She has been disowned by her mother and discriminated against by her family because of her sexuality.
·Nobody would employ the applicant because of her sexuality. She ran her own small businesses, which were destroyed by young people who targeted her.
·Vigilante groups whose aim is to eradicate homosexuality exist in Ghana and despite the crimes they commit they are never investigated or punished.
·The police did not offer the applicant protection and she was arrested because of her sexuality. Despite her complaints, no action was taken by the police.
·In 2016, the applicant was dating a white woman from [Country 2]. As a demonstration of love towards this woman, the applicant was forced to ‘come out’ as a lesbian. The applicant felt that while the [Country 2] woman was in Ghana, she was safe because local people did not attack her because of her association with white people.
·When her partner had to return to [Country 2], the applicant wanted to go with her as she was afraid of what would happen once she left Ghana. Her partner arranged the applicant’s travel and visa. When the applicant arrived in [Country 2] she was detained by the authorities as she did not have sufficient funds for her stay in [Country 2] and was sent back to Ghana. The applicant did not know that she could have applied for protection in [Country 2].
·After she returned to Ghana in 2016, the applicant’s house was ransacked several times by local youth, who would break things and threaten her because of her sexuality. At the same time, her roadside business was being targeted by young local people who would threaten her, damage her stand and take her money. Even though the applicant reported these events, nothing was done and no police reports were issued.
·One afternoon in 2017, while the applicant was home alone, a group of young people formed by six males and two females entered her house through the unlocked door and beat her with a wooden stick, resulting in a scar at the back of her head. They indicated that they were there because they knew the applicant was a lesbian and warned her to change her sexuality. On the same occasion the applicant was stripped naked, dragged around and raped, then dragged outside so everyone would see her and know she was a lesbian. The attack continued for two hours and nobody helped the applicant. The attackers told her other people would come back to do the same and the applicant was afraid she would be killed. The applicant obtained a police report related to this attack through a friend who visited the police station on her behalf. A copy was provided as supporting evidence.
·After the attack, the applicant called a friend who took her to the pharmacy to get medication for her injuries. She did not go to the hospital because she believed she would not be cared for due to her sexuality. After this, she went to the police station to file a police report, however the attack was never investigated nor followed up. After the attack the applicant was too afraid to return to her house, where everything had been stolen or destroyed, so she started sleeping on friends’ couches and was living in constant fear of being attacked again.
·The police did not protect the applicant after any of the incidents, and they were also the perpetrators.
·In 2018, while the applicant was at an underground gay club, the police arrived to beat them and the applicant was caught and detained with other people from the club, although they were never charged.
·In 2016 the applicant met a white woman and they became friends, however they later lost contact. In 2018, the same woman returned to the applicant’s town and they reconnected. While they were out together one night, the applicant was harassed and threatened by some people who were aware of her sexual orientation. After realising that the applicant did not feel safe living in Ghana, the woman helped the applicant by applying for the applicant’s visa for her to travel to [Australia].
·The applicant did not immediately apply for protection once in Australia because she wanted to fulfil her duty to [do specified work]. At first, she was not aware that she could apply for protection in Australia; she did not intend to become unlawful but she did not know what to do and she did not feel safe returning to Ghana.
·The applicant does not feel safe in Ghana as a homosexual and she feels that only by hiding her sexuality she would avoid being attacked. She also claims that eventually her sexuality would be discovered no matter where she went.
·She fears that if she returned to Ghana she would be targeted by the authorities on arrival for not returning after the [event], and her sexuality would make matters worse. Even if she was able to make it through the airport, she would have to live in fear of further assault, attack, robbery, rape or even murder because of her sexuality perpetrated by youth and people living around her, as well as the police and the government.
·The applicant would struggle financially because she is unable to secure a regular job due to discrimination related to her sexuality. She would have to hide her sexuality to attend university.
Written submissions dated 17 June 2018 were provided by the applicant’s representative. In addition to the above information, the submissions contained the following information:
·The applicant knew she was a lesbian since high school. She kept this secret, and only shared the information with close friends, who were also lesbians.
·In 2016, the applicant met a white [Country 2] woman, who encouraged the applicant to demonstrate her love by not hiding her sexuality. Once this woman returned to [Country 2], the applicant lost her protection and became the subject of attacks from the community, which were never investigated.
·The applicant was disowned by her family and was unable to gain employment.
·She had to move around, staying on friends’ couches as it was unsafe to live alone.
·Homosexuality is illegal in Ghana, and even if homosexuality was decriminalised the mindset of the local population would not change with a change of the law: the applicant would remain persecuted and discriminated against with fear of violence, rape and death.
·The applicant was unable to list all the addresses of all the places where she lived as she spent time staying on friends’ couches and was unsure of all the addresses.
In addition to the submissions of 17 June 2018, the applicant provided news articles and reports published by foreign governments and NGOs about the treatment of LGBTIQ+ people in Ghana and West Africa. The applicant also provided a document titled ‘Extract from Station Diary’, dated [August] 2017, issued by the Ghana Police Service, [Town 1] Station. The date appears to have been covered over with white out and re-entered. The entry at [time] states that [applicant] visited the station with visible marks of an assault on her body. It was reported that the applicant said she had been attacked several times by youths in the area for being a lesbian. [In] August 2017, a group of young women and men attacked her where she lived. The entry noted that the applicant needed police assistance, but there is no indication of follow-up action to be taken.
On 18 June 2018, the applicant participated in an interview with the delegate. In addition to the information provided in writing, the applicant gave the following evidence:
·The applicant told the delegate that she had travelled to [Country 2] but was detained at the airport and deported because she had no money. She originally said that other than [Country 2], she made no attempts to enter another country. When specifically questioned about her application to enter [Country 1], the applicant had no comment. Towards the end of the interview, the applicant explained that she had misunderstood the questions about her travel. The applicant clarified that she had applied for a visitor visa to travel to [Country 1] but her application was refused. She confirmed that she applied with an earlier passport that was subsequently lost.
·The delegate asked how it was possible that the applicant’s mother had disowned her but had also tried to make her marry a man. The applicant said that in about 2008 or 2009, her mother visited Ghana and tried to make her marry a man. The applicant refused because of her sexuality and her mother stopped talking to her after that.
·The applicant said she was attacked many times in Ghana. She said the worst time was in 2017 when six boys and two girls came to her house in the afternoon. They destroyed her house, dragged her into the street and stripped her naked.
·When asked if she had relations with men, the applicant said that she was once drugged by a friend who arranged to have her rapped by a man. When she woke in the morning, she discovered blood in her pants. She asked her friend what happened, and her friend told her that she had arranged for a man to have sex with her so she could experience what it felt like.
·On one occasion, the applicant was attending an underground club when the police attended. She was taken to a police station and detained overnight. She was not held in the cells and was released without charge. The club patrons that were detained were beaten, harassed, and told not to go back to the club. She was reluctant to disclose the details of the club to the delegate, describing it as ‘confidential’. The applicant said she would go to hidden clubs with her girlfriend often, sometimes Friday, Saturday and Sunday.
·Since arriving in Australia, the applicant said she had been to a place on [a named] Street about four times and seen girls together and boys together. She didn’t know the name or location of the place and was unable to provide a description.
·Online news had reported that fifteen people had lost their jobs for their roll in assisting Ghanaian’s to travel to Australia as part of the [event]. The applicant expressed fear that she would be threatened or beaten because she departed Ghana to travel for the [event].
The delegate refused the application. In her decision, the delegate outlined that she considered aspects of the applicant’s claims to be fabricated. The delegate did not accept that the applicant held a fear of harm on return to Ghana because of insufficient credible evidence supporting the applicant’s claims and inconsistencies and omissions in her testimony.
The delegate noted that the applicant claimed her phone was destroyed during an attack on her home in 2017. This was proffered as one of the reasons the applicant had no evidence of her involvement in the LGBTIQ+ community or same-sex relationships. Further, the applicant claimed that she was afraid to return home after the attack and stayed with friends. With no telephone and no fixed address, the delegate found it implausible that the applicant was called by a woman named [name] in 2018 with an opportunity to depart Ghana. The delegate also noted that the applicant was granted a temporary visa on the basis that she was an [Occupation 1] [for] the [event]. Overall, the delegate felt that the applicant had demonstrated a willingness to provide false information and withhold relevant information to secure a visa. The delegate made a negative inference in respect of the applicant’s general credibility.
The delegate considered that the applicant’s evidence about her past relationship was sparce given the length of time she was allegedly in a relationship and the stated importance of that relationship to the applicant. The applicant knew limited details, was no longer in contact with her ex-partner and alleged that any evidence she had of the relationship was destroyed when her home was attacked.
In relation to the arrest and attack on the applicant’s home, the delegate was again concerned by the lack of detail provided by the applicant when questioned. The delegate noted that the applicant lived in [Town 2] when her home was allegedly attacked and noted that the police report was made some distance away in [Town 1]. The delegate further noted that the police report was of poor quality, was uncertified and contained no security features. No weight was given to the police report.
The delegate did not accept the applicant’s claim that her original passport was lost when her house was attacked, noting that her second passport was issued prior to the alleged attack.
Application for merits review
The applicant applied for merits review with the Tribunal on 10 September 2018, providing the Department’s refusal notification letter and decision record to the Tribunal at the time of application.
On 5 May 2022, submissions were made to the Tribunal in advance of the scheduled hearing. The representative submitted that the delegate had expected certain behaviours from the applicant to prove her sexuality. In particular, participation in the LGBTIQ+ community here in Australia.
In relation to the police report, it was submitted that the applicant had reluctantly reported her attack to the police and was unsurprised there were inconsistencies in the report. It was argued that the police report supported a finding that the police are reluctant to investigate or even entertain a report of violence from a member of the LGBTIQ+ community.
The representative drew attention to proposed anti-LGBTIQ+ laws in Ghana and highlighted another decision of the Tribunal (differently constituted) that a gay man from Ghana was owed protection in Australia.[1] Four Tribunal decisions were provided to demonstrate that relocation to another member country of the Economic Community of West African States (ECOWAS) was not always guaranteed or appropriate for LGBTIQ+ individuals.[2]
[1] 1711688 (Refugee) [2021] AATA 2062
[2] 2015540 (Refugee) [2021] AATA 3668, 1908684 (Refugee) [2021] AATA 3668, 1611949 (Refugee) [2020]
Attached to the submissions was a copy of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021 (Ghana), extracts from the Department of Home Affairs and Trade (DFAT) Thematic Report: ECOWAS[3] and guidelines on assessing claims related to sexual orientation and gender identity, and several online news articles about the treatment of the LGBTIQ+ community in Ghana.
[3] 3 December 2020
The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi (Akan dialect) and English languages. The applicant’s oral evidence will be discussed below where relevant.

The applicant made submissions, dated 20 May 2022, providing clarification on several points that were raised in the hearing on 11 May 2022. First, the submissions addressed the applicant’s citizenship, which will be discussed below. Second, the submissions noted that the applicant was nervous and found it difficult to speak about her relationship with [Ms A]. Finally, the submissions outlined that the applicant had misunderstood the word violence during the hearing. When I asked if she had experienced violence from the police, she said no. In fact, she had been detained and beaten by the police. However, she understood the word violence to mean an attack with a serious weapon, such as a knife or gun.
Attached to the submissions was a written statement regarding the applicant’s relationship with [Ms A]. The statement provided some background about how the couple met and the time they were together. The applicant said that it broke her heart when she was unable to stay with [Ms A] in [Country 2]. They stayed in touch for some time, but the applicant lost [Ms A]’s number when her phone was stolen. The applicant felt that it was for the best because it made her sad that they couldn’t be together.
Disclosure of information contained on the Departmental file
As previously outlined, on 7 March 2022 the Tribunal requested the Department provide all evidence that was relied on to make its decision. In particular, it was noted that on page eight of the primary decision record, the delegate indicated that the applicant had applied to enter [Country 1] in 2013 on a different passport. The Department file in the Tribunal’s possession provided no information on how the Department found out about the applicant’s previous attempted travel to [Country 1] with a different passport. On page nine of the decision, the delegate provided a summary of country information related to [a] ‘visa scandal.’ A Client of Interest note dated 12 June 2020 referred to file [number], which allegedly contained further details on the protection applications related to the [event]. The Tribunal requested any information contained on file [number] related to this applicant.
On 8 June 2022, the Tribunal was advised that there was no information relating to [the applicant] contained on the cited file. In fact, that particular file number was an empty container.
The Department responded to the remaining request on 5 August 2022. A document titled Onward Disclosure Request and a certificate issued under s 438 of the Act in respect to the document were saved into the Departmental file.
The Onward Disclosure Request appears to be a document that was sent to immigration authorities in [Country 1] seeking agreement to disclose information about the applicant’s interaction with those authorities. The response listed on the document reads ‘No Objection’. The document is published on an Australian Government Department of Home Affairs header and there are no signatures or insignia for the counterpart in [Country 1].
On 17 August 2022, the Tribunal wrote to the applicant to inform her about the certificate which was placed onto the Departmental file and to inform her about some potentially adverse information.
The letter advised the applicant that the Department’s file for this application contains a certificate issued on 27 June 2022 under s 438 of the Act. The certificate sought to restrict the disclosure of certain information within the document titled Onward Disclosure Request, contained on the same file. A copy of the certificate was attached to the letter for the applicant’s reference.
I exercised my discretion under s 438(3) to disclose the Onward Disclosure Request with some minor redactions. The redactions were made to prevent the disclosure of contact details and client identifiers used to exchange information between foreign governments.
The applicant was invited to make submissions concerning the certificate, including but not limited to its validity.
The letter further advised that in conducting the review, the Tribunal was required by the Act to invite the applicant to comment on or respond to certain information which it considered would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were as follows:
·A delegate of the Minister for Immigration refused the application for a protection visa on 28 May 2018. On page eight of the decision record, the delegate indicated that the applicant applied to enter [Country 1] in 2013 using a different passport. No evidence relating to the prior travel or attempted travel to [Country 1] was on the file provided to the Tribunal.
·On 7 March 2022, the Tribunal requested the Department provide all evidence that was relied on to make its decision.
·On 5 August 2022, the Department provided the document titled Onward Disclosure Request. The document reports that the applicant was fingerprinted in Accra when seeking entry into [Country 1]. This document also indicates that the applicant used a passport with the number [deleted], which expired [in] 2018.
·The applicant was granted a visa to enter Australia on [date] November 2017, using a passport with the number [deleted], issued [in] 2016.
The letter advised the applicant that the information was relevant to the review because it suggested that she applied for a visa to enter [Country 1] using a different passport and may have used a false identity to secure that passport or the passport used to enter Australia.
The applicant was advised that the information may cause the Tribunal to question the authenticity of her identity documents and the overall credibility of her claims. If the Tribunal were to rely on the information in making its decision, it would affirm the decision under review.
The applicant was invited to give comments on or respond to the information in writing by 31 August 2022.
Submissions from the applicant’s representative were received by the Tribunal on 31 August 2022. The submissions outlined that:
·the applicant applied for a visa to enter [Country 1] but was refused. She was assisted to apply for the visa by a friend.
·the passport was obtained through legal channels using the applicant’s genuine identity.
·the applicant did not recover her documents from her friend when the visa was refused by [Country 1].
·When the applicant decided to travel to [Country 2], she required a new passport. She again obtained a passport through legal channels.
·[Country 1] visa application was discussed with the delegate during the interview.
Having considered the evidence before me, I accept that the applicant obtained two official passports using her genuine identity.
Criteria for a protection visa
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.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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 AND FINDINGS
Citizenship
In her application for protection form, the applicant recorded that her mother is [Country 3 citizen]. At the hearing, the applicant confirmed that her mother is [Country 3 citizen] and resides in [Country 3] with one of her brothers and one of her sisters. She also noted that she no longer has a relationship with her mother.
I discussed the possibility that the applicant is a [Country 3] citizen by birth with her during the hearing. Section 4, paragraph 1 of the [Country 3] Nationality Act states that a child acquires [Country 3] citizenship by birth if one parent has [Country 3] citizenship. If at the time of the birth only the father is a [Country 3] national, and if for proof of descent under [Country 3] law recognition or determination of paternity is necessary, acquisition is dependent on recognition or determination of paternity with legal effect under [Country 3] law; the declaration of recognition must be submitted or the procedure for determination must have commenced before the child reaches the age of 23.
The applicant was unsure of any citizenship entitlement she might hold under [Country 3] law. She said she didn’t raise the possibility that she was [Country 3] with authorities when she attempted to enter [Country 2]. The applicant had never enquired with [Country 3] authorities about her citizenship to that country. I provided the applicant with additional time to submit information about her citizenship after the hearing.
On 20 May 2022, the applicant’s representative made submissions. It was outlined that the applicant’s mother was not born in [Country 3] but moved there with a partner after the applicant was born in Ghana. The applicant could not remember the year her mother moved.
As previously outlined, I accept that the applicant holds a genuine passport issued by the Republic of Ghana. In addition, she provided a copy of her birth certificate, issued by the Registrar of Births and Deaths. The certificate lists the mother’s nationality at the time of the applicant’s birth as ‘Ghana’.
On the available evidence, I am not satisfied that the applicant is a [Country 3] citizen or that she holds a right to reside in that country.
I accept that the applicant is a citizen of the Republic of Ghana and have assessed the applicant’s claims against Ghana as her country of reference for the purposes of s 5H(1)(a) and her receiving country for complementary protection purposes.
Sexuality
Having considered the evidence submitted to the Department and the Tribunal and the applicant’s evidence at the Tribunal hearing, I accept that the applicant is a gay female of Ashanti ethnicity.
The applicant gave broadly consistent evidence in respect of her sexuality throughout the application and review process. In summary, she came to realise her attraction to women at school. As an adult, the applicant primarily met other women at underground clubs while living in Accra. She had a long-term relationship with a woman named [Ms A] who was a citizen of [Country 2]. The relationship ended when the applicant was unable to gain entry to [Country 2] and the couple did not remain in touch. The applicant felt that she was identifiable as a lesbian in Ghana because she adopted a masculine dress style.
Despite her training as an [occupation], the applicant was unable to secure formal employment in Ghana. Instead, she ran a roadside stall selling food. I consider that her difficulty finding employment supports her claim to have been discriminated against on the basis of her sexuality.
In her application form, interview with the delegate and at the Tribunal hearing, the applicant gave evidence that her home was attacked, and she was physically and sexually assaulted in 2017 and that on one occasion she was detained by police when attending an underground club frequented by lesbians. The applicant consistently claimed to have suffered additional attacks, including a sexual assault orchestrated by someone that held herself out to be a friend. I accept that the applicant was attacked on the occasions described and on other occasions not described. I accept that she was detained and assaulted by the police. I further accept that the applicant would be at risk of similar assaults and discrimination if she returned to Ghana.
At the Tribunal hearing, the applicant gave evidence that she had been open about her sexuality since living in Australia. She felt that everyone accepted her. She was not in a relationship at the time of the hearing but said she had met some people through [a LGBTIQ+ dating app] and in person.
I note that the applicant was unable to provide detailed information about various topics when question by both myself and the delegate. Nevertheless, the applicant was able to provide further information and clarification in writing. Any inconsistencies, such as when she lost her phone or passport, were minor and did not detract for the applicant’s evidence in respect of her sexuality. I observed the applicant to be nervous during the hearing and she confirmed this to be the case in post-hearing submission. The applicant’s account was consistent with independently available information about the situation for lesbian women in Ghana.
The independent evidence before me indicates that members of the LGBTIQ+ community, including lesbians, in Ghana possess common characteristics and attributes that make them distinguishable from the rest of society and these are not the shared fear of persecution. A sexual and romantic attraction to other women is the reason for the discrimination and other forms of mistreatment to which lesbians in Ghana are subjected. Based on prevailing social, cultural and religious norms in Ghana, I find that they constitute a particular social group within the legislative meaning. I accept therefore, that lesbians constitute a particular social group in Ghana and that the applicant shares the characteristics shared by members of this group.
The United States Department of State reported that LGBTIQ+ persons in Ghana face stigma and discrimination which made it difficult for them to find work and were at risk of police harassment and extortion.[4]
[4] United States Department of State, 2020 Country Reports on Human Rights Practices: Ghana, 30 March 2021
Travel advice published by the Australian Government outlines that ‘same-sex activity is illegal. LGBTIQ+ relationships and identities are interpreted as illegal by society. Violence, threats, extortion, eviction and arbitrary arrest of LGBTIQ+ people occur. LGBTIQ+ travellers should consider travel plans and personal security carefully’.
In the circumstances of the applicant, the agents of persecution are considered to be both the State itself and Ghanaian society in general. I find that the real chance of persecution is not restricted to the applicant’s home area of Accra; the real chance of persecution exists in all areas of Ghana.
In this matter, I find that the applicant:
·is a national of Ghana;
·is outside her country of nationality;
·has a well-founded fear of persecution in Ghana for reasons of membership of a particular social group – being lesbians.
Owing to that well-founded fear of persecution, I find that the applicant is unable or unwilling to avail herself of the protection of Ghana.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Migration history
I had some concerns about the credibility of the applicant’s evidence in respect to how she arranged her travel to Australia and her prior attempts to enter [Country 1] and [Country 2]. Nevertheless, the attributes listed above have been accepted and give rise to Australia’s protection obligations. Further, I accept that the applicant’s actions were motivated by her desire to find safety outside Ghana.
Third Country Protection
According to s.36(3), Australia is taken not to have protection obligations in respect of a person who has not taken all possible steps to avail themself of a right to enter and reside in, whether temporarily or permanently and however that right arose and is expressed, any country apart from Australia. I have therefore considered whether the applicant could obtain third country protection from countries in Africa with close ties to Ghana.
According to DFAT, the ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. The goals of ECOWAS suggest ease of travel, residence and trade between member countries – although various reports generally suggest there have been significant limitations imposed by member countries on multiple aspects of residence and travel rights.
The DFAT Thematic Report on ECOWAS outlines that international observers report LGBTIQ+ issues are taboo across the ECOWAS region, both officially and societally. Activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTIQ+ in Benin, Ghana and Mali, and prosecutions of 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.
In the circumstances, I do not consider that third country protection would be available to the applicant. I conclude that s.36(3) does not apply in the applicant’s case.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.
Sheridan Lee
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.
…

[2022] AATA 5054

9 November 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Natural Justice

Procedural Fairness