1826672 (Refugee)

1826672 (Refugee) [2024] AATA 3263 (6 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Shuonan Zhao
CASE NUMBER:  1826672
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:6 May 2024
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 06 May 2024 at 9:46am
CATCHWORDS
REFUGEE – Protection Visa – Ghana – homosexuality – sexual orientation – fear harm from her family and also from society in general – membership of the particular social group – a lesbian living in Ghana – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 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 23 August 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 citizen of Ghana and applied for the visa on 11 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 her protection visa application form, the applicant provides the following relevant information. She was born in Accra, Ghana in [year]. In Ghana, she has her father, mother, and two brothers and she is in contact with them occasionally. The applicant speaks, reads and writes Asante and English. Her religion is Christian.
In Ghana, she always lived at the same address in [a district], Accra. She was employed from 2015 to 2018 as a [occupation] with [a company] in Accra. Prior to that, from 2014 to 2015 she worked as a [occupation] for [a company], Accra. Prior to that, she was a student.
In 2014 and 2016, the applicant travelled to [a country] for holidays. The applicant departed Ghana on [date] March 2018 and arrived in Australia on [date] March 2018, travelling on her Ghanaian passport. She arrived as a [Occupation 1].
Evidence before the Department
Claims for protection
In her protection visa application form, the applicant makes the following claims for protection:
·     She left Ghana to come to [an event] as a [Occupation 1]. After the [event], she decided not to go back to Ghana because of her sexual orientation. She would not be able to live in Ghana and have a fulfilling and peaceful life.
·     She has not experienced any extreme harm or torture but she has endured physical abuse, insults and mental torture as a lesbian living in Ghana.
·     She experienced this sort of harm almost every day and it is more excruciating and painful than actual physical harm. She has been struggling with her sexuality up to now. In the face of constant abuse and physical harm, she found it hard to live in Ghana.
·     Christians and Muslims in Ghana do not approve of people with different sexual orientation.
·     There was no point seeking help from the authorities because it might not lead to a good outcome. It is against the law to be homosexual in Ghana.
·     Relocation is not an option because the same hostile attitudes exist all over the country.
·     If she returns to Ghana, she may find it extremely hard to profess her sexuality and live a peaceful and fulfilling life. Secondly, if her sexuality is known there is high probability that she will be discriminated against and not be able to find work. Her friends will shun her and her parents might disown her. She may be harassed by people in society who shun homosexuals.
·     She cannot display any form of public affection for the person she loves. She cannot lead a fulfilling life to the best of her potential.
·     She cannot discount facing police harm and detention due to her sexuality.
The applicant provided copies of the bio-data page of her Ghanaian passport and pages with stamps and visas.
Interview with the delegate
On 31 May 2018, the applicant attended an interview with the delegate to discuss her claims for protection. She elaborated on her personal background and claims. Most significantly, she revealed details of her long-term same sex relationship in Ghana with a woman called [Ms A]. The content of the applicant’s interview is set out in detail in the delegate’s decision.
Information provided after the delegate’s decision
After the interview, the applicant provided a Notification of incorrect answer(s) form in which she provided additional information, stating that one of the major reasons she left Ghana was due to family pressure for her to marry. She said this pressure increased to the point where she could not stand it anymore.
On 6 August 2018, the delegate wrote to the applicant putting potentially adverse information to her for comment. The information related to the absence of any evidence on the applicant’s social media about the existence of [Ms A] but her friendship with a former schoolmate on [social media] called [Ms B], along with photographs on the applicant’s social media of her socialising with men when she claimed in the interview she avoided men.
The applicant responded in a Statutory Declaration made 20 August 2018. She stated that [Ms B] is not her friend, and [Ms A], her girlfriend, does not have a [social media] account. She stated that the photograph she posted of her close to a man is her cousin who she was catching up with at a party.
The delegate’s decision
On 23 August 2018, the delegate made her decision. The delegate had concerns about the credibility of the applicant’s claims, including her inability to expand on aspects of her claims during the interview, the lack of supporting evidence about the applicant’s relationship with [Ms A] or about her sexuality more generally. The delegate did not accept the applicant’s claims about her sexuality and found that she is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Prior to the hearing, the applicant provided the following additional documents in support of her application:
·     Statutory declaration of the applicant dated 11 April 2024 in which she addresses some of the delegate’s concerns and how the passage of time has assisted her to express herself;
·     Written statement of [Ms A] dated 19 February 2024 with English translation by a non-accredited translator;
·     Bio-data page of [Ms A]’s Ghanaian passport;
·     Ghanaian documents supporting the identity of [Ms A];
·     Statutory declaration of Mr [C] dated 21 March 2024, in which he states that the applicant lived in his home when she first arrived in Australia and she confided in him about her sexuality;
·     Online news articles about a bill passed by the Ghanaian Parliament in early 2024 which increases criminal penalties for consensual same-sex conduct and criminalises individuals and organisations which promote rights for LGBTI individuals;
·     Transcript of the applicant’s interview with the delegate.
Where relevant, these documents are referred to in more detail below.
The hearing
The applicant appeared before the Tribunal on 15 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [O], who is a friend and former colleague of the applicant in Australia, by telephone. The Tribunal was assisted by an interpreter in the English and Twi languages, although for the most part, the hearing was conducted in English and the applicant only used the interpreter when she felt more comfortable expressing herself in her native language.
The applicant was represented in relation to the review and her representative attended the hearing. The Tribunal was frustrated by the representative’s lack of responsiveness to Tribunal communications and agreed deadlines for the provision of evidence, however, ultimately this did not affect the outcome for the applicant.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the hearing, the applicant gave evidence that she completed her original protection visa application herself and her lawyer helped her with her recent statutory declaration. She confirmed that all the information she had provided in relation to her application was true and correct.
In the hearing, the Tribunal discussed with the applicant her family, education and employment history in Ghana, her migration history, her employment history in Australia, her sexuality, her relationship history in Ghana and Australia and the reasons she fears returning to Ghana. Overall, the Tribunal found the applicant to be a credible witness who has given consistent evidence over time to the Department and the Tribunal about her sexuality and her circumstances more broadly. During the hearing, the applicant answered the Tribunal’s questions confidently and comprehensively, despite speaking about some very personal matters. At times, the applicant elaborated on evidence she had given to the delegate and provided additional detail about people and specific events which the Tribunal found compelling and the type of information which would be difficult for a person to fabricate in a hearing. The applicant also willingly assisted the Tribunal to take evidence without prior warning from a person who was not expecting to be contacted by the Tribunal and who gave spontaneous evidence about their knowledge of the applicant’s sexuality and fears about returning to Ghana, which the Tribunal has no reason to doubt. For all these reasons, along with the statements and other documents the applicant has provided in support of her claims, the Tribunal is satisfied that the applicant is a lesbian and it accepts her claims about her circumstances in Ghana and why she fears returning there.
Based on the evidence before it, the Tribunal accepts that the applicant is still in contact with her parents and siblings in Ghana but they do not know about her sexuality. The Tribunal accepts that in Ghana the applicant always lived with her parents and as time went on, her family members were placing increasing pressure on her to marry which she was not happy about as she had no interest in getting married to a man and wanted to remain in her relationship with [Ms A]. This was becoming increasingly difficult as more people started to suspect the applicant was a lesbian and in a relationship with a woman. Ultimately, the applicant asked a friend who had some contacts to help her leave Ghana and this friend was able to help the applicant to obtain a visa to come to Australia in connection with the [event].
In the hearing, the applicant described having a relationship with a man in Ghana when she was [age], her naivete about sexuality growing up, relatives telling her what the “right thing to do” was and her reasons for following these expectations. The man she had a relationship with turned out to be controlling and abusive and the applicant never had romantic feelings towards him. She ended the relationship due to his behaviour. The applicant was not interested in relationships generally after this, but over time she started to question whether she was romantically interested in women and wanted to explore this. She attempted to confide in an aunt, who was a mentor to her, that she didn’t want to marry and wasn’t interested in a relationship with a man. The applicant described how her aunt reacted badly and so the applicant never tried to confide in anyone else because she knew they would all have the same mindset.
When the applicant met [Ms A] at a party, things moved quickly because the applicant realised who she was and what she wanted for herself. The applicant spoke eloquently about the conflicting emotions she felt at this time because of her situation. In the hearing the applicant provided a level of detail about the development of her emotional and sexual relationship with [Ms A] which the Tribunal found compelling and indicative of a person speaking from personal experience. She said that she never told anyone about her relationship with [Ms A] but she thinks some people who saw them together might have suspected. She was scared and tried to be cautious when they were in public, but over time her wish to be able to express her love for [Ms A] when they were together was hard to restrain and rumours were starting to circulate. She started to worry her family was going to find out, and they were continuing to pressure her to marry.
While in Ghana, the applicant was too afraid to open up to her family about her sexuality because the subject is taboo and she was worried they would not accept her and would disown her. The applicant’s family lived in an area where there was a large Muslim population and once she saw a group of people strip and beat a woman who was dressed as a man. The police came and took the woman away. This made the applicant scared for her life. The applicant never personally experienced harm in Ghana due to her sexuality, but she was very aware of the risks and so tried to conduct herself discreetly, but this became harder over time which the applicant found frustrating and worrying. The applicant’s relationship with [Ms A] ended when she left Ghana. Even though the applicant really loved [Ms A], she didn’t want her family to find out about them and so she decided she had to leave. She felt pressure and there were rumours starting to circulate about her so the applicant was becoming afraid for her safety. She has one photo of her and [Ms A] in her [social media] account, but that is all.
In Australia, the applicant has been able to pursue relationships with women although none of these relationships have turned into anything long-term. She has confided in some friends about her sexuality and she feels safe here. She understands herself better and can express herself better than when she arrived from Ghana.
The applicant fears that if she returns to Ghana she could be killed due to her sexuality because it is something people there don’t tolerate. She would not be able to express her sexuality openly due to fear. She would have to be very discreet and not let people know she was a lesbian because otherwise her life could be in danger. She fears potential physical harm from people in society generally who oppose LGBTI people and also that her family would not accept her and would disown her. She is afraid due to the recent anti-LGBTI laws passed by the Ghanaian parliament and has heard from a lawyer she spoke to that the situation is getting worse for the LGBTI community there.
For the reasons explained above, the Tribunal accepts the applicant’s claims and evidence about her sexuality and her experiences as a result of this.
Does the applicant meet the refugee criterion?
The applicant claims to fear harm if she returns to Ghana due to her sexuality. She claims to fear harm from her family and also from society in general. The applicant’s evidence about this, which the Tribunal accepts, is set out above.
The Tribunal has considered whether being a lesbian 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 lesbian in Ghana is a particular social group as defined by s 5L as the characteristic of being a lesbian 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 she returned to Ghana in the reasonably foreseeable future due to being a lesbian.
The Tribunal has considered country information relating to the situation for LGBTI persons in Ghana, including the country information provided by the applicant.
The 2023 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 reluctant to investigate claims of assault or violence against LGBTQI+ persons. Stigma, intimidation, and the perceived bias of some police toward LGBTQI+ persons dissuaded survivors from reporting abuse. Activists noted great difficulty in engaging officials on problems facing the LGBTQI+ community because of social and political prejudice. 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 frequent and growing in number. Many attacks were well organised and sometimes shared on social media to further humiliate and ostracize LGBTIQ+ persons. A local civil society organisation tracking violence against the LGBTQI+ community reported more than 76 such attacks during the year. In January, assailants disrupted a traditional celebration with a homophobic attack against the chief celebrant. Social media harassment continued following the incident, until the victim left the country. In May, three persons assaulted and robbed a man after contacting him on social media, justifying the assault because they believed the victim was gay. Verified attacks against LGBTIQ+ persons occurred in March, June, July, August and October. Police arrested the perpetrators from the May attack, but the prosecutor repeatedly delayed the case in court. Police never identified the perpetrators in the other cases.
Increased harassment compelled many members of the LGBTQI+ community to relocate from their homes; some family members publicly revealed their LGBTIQ+ relatives’ identities. Civil society groups reported that several LGBTQI+ community members permanently left the country because of increasing hate speech and harassment.
[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] In July 2023 Ghana’s Supreme Court dismissed a legal challenge seeking to block Parliament from passing the Bill which cleared the way for it to receive parliamentary approval and be signed into law.[6] An increasing intolerance for LGBTI persons and a rise in violence against them has been reported since the introduction of the Bill.[7] LGBTI advocates report raids and arrests by police of LGBTI persons and mistreatment by police.[8] The parliament passed the bill on 28 February 2024 with the backing of Ghana’s two main political parties and support from Christian and Muslim leaders.[9] The law will come into effect if the President signs it into law. He has said he will do this if the majority of Ghanaians want him too, however the President has come under pressure from Western donors and human rights groups who are urging him not to approve it and the Ghanaian finance ministry has warned that the country could lose over US$3.8bn in World Bank funding over the next five or six years because of the bill.[10]
[2]
[3]
[4]
[5] ; (UK Home Office report)
[6] ;
[7] ;
[8]
[9] Ghana passes bill making identifying as LGBTQ+ illegal (bbc.com)
[10] Ghana's anti-LGBTQ+ bill: Parliament speaker halts approval of cabinet nominees (bbc.com); Ghana: President Should Veto Anti-LGBT Bill | Human Rights Watch (hrw.org); Ghana’s Leaders Push Back on Anti-LGBT Bill | Human Rights Watch (hrw.org)
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 LGBTI community.[11] This results in many LGBTI 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.[12] LGBTI persons can face discrimination in various areas of society including access to healthcare.[13] In terms of state protection, the UK Home Office report concludes that the state is able but not willing to offer effective protection.[14] In the Tribunal’s view, the situation will be exacerbated by the passage of the Bill through Parliament and potentially into law.
[11] UK Home Office Report.
[12]
[13] 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 the situation in Ghana for LGBTI persons since the applicant left Ghana in 2018 has deteriorated.

As set out above, the Tribunal has accepted the applicant’s evidence about her sexuality, the steps she took to conceal her sexuality in Ghana and how difficult this was for her and the consequences she fears as a result of her sexuality being revealed in Ghana. The Tribunal accepts that if the applicant returns to Ghana and lives openly as a lesbian in the way she would wish to, she 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 her membership of a particular social group, namely, lesbians in Ghana, and there is a real chance that she would be persecuted for this reason if she 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 her membership of a particular social group, it involves serious harm to her 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 from the Ghanaian authorities 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 she returned to Ghana she would feel compelled to behave in a discreet manner to hide her sexuality out of a fear of serious harm. The Tribunal also accepts that the applicant would like to be open about her sexuality in the way she behaves if she were in Ghana. The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour in future so as to avoid a real chance of persecution in Ghana because it would require her to alter her sexual orientation or gender identity or conceal her true sexual orientation and gender identity. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her membership of the particular social group, namely lesbians in Ghana.

The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she 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 she 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.[15]
[15] DFAT Thematic Report - Economic Community of West African States (ECOWAS) 3 December 2020.

On 27 January 2024, Mali, Burkina Faso and Niger announced their withdrawal from ECOWAS due to internal political instability and the imposition of sanctions by ECOWAS against their military regimes.[16]

[16] Ecowas: west African trade bloc shaken as three member states withdraw and form their own alliance (theconversation.com)

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 little or no political will in these countries to support and respect the rights of LGBTI individuals who face the risk of violence and social prejudice.[17]

[17] See (accessed 8 May 2023); Being queer in Africa: the state of LGBTIQ+ rights across the continent (theconversation.com) (accessed 5 May 2024)

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 lesbian, and based on the country information referred to above, the Tribunal considers that as a lesbian who wishes to live openly, the applicant has a well-founded fear of persecution for reason of her membership of a particular social group (namely, lesbians), 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.
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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.
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[2024] AATA 3263

6 May 2024

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