1826325 (Refugee)

This matter concerned an application for a protection visa by a lesbian woman from Ghana. The applicant claimed she could not return to Ghana due to persecution based on her sexuality, alleging she had been physically attacked, robbed, had her businesses destroyed, and had been mistreated by police. She also stated her family had disowned her and that she faced discrimination in employment. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant.

The central legal issues before the Tribunal were to assess the credibility of the applicant's claims and, based on accepted facts, determine if she met the criteria for a protection visa under the Migration Act 1958. This involved considering whether she had a well-founded fear of persecution for reasons of membership of a particular social group, specifically her sexual orientation, and whether effective protection measures were available to her in Ghana or any third country. The Tribunal also had to consider the provisions of section 36(3) of the Act, which pertains to the availability of third country protection.

The Tribunal found that the applicant's claims regarding her experiences in Ghana, particularly those related to her sexuality, were accepted and gave rise to Australia's protection obligations. It was satisfied that the applicant was a member of a particular social group (lesbian women) and had a well-founded fear of persecution, as her sexual orientation was an innate characteristic that she could not be expected to conceal. The Tribunal further considered whether third country protection was available, examining the ECOWAS region and concluding that due to widespread societal and official attitudes towards LGBTIQ+ individuals, such protection was unlikely to be effective. Consequently, the Tribunal determined that section 36(3) of the Migration Act 1958 did not apply.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, meaning Australia has protection obligations towards her.