1829016 (Refugee)

1829016 (Refugee) [2023] AATA 4124 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Odartei Samuel Wellington (MARN: 1383180)
CASE NUMBER:  1829016
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:7 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 07 September 2023 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – lesbian and bisexual woman – discreet bisexual relationship – fear of criminal conviction – disowned by family – state protection – protection in Economic Community of West African States – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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 who claims to be a citizen of Ghana, applied for the visa on 12 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 information. She was born in [specified year] in Accra, Ghana. She has never been married. She speaks Ga and she is a Christian.
In Ghana, she has two children born in [specified years]. Her father is alive and living in Ghana and her mother is deceased. She also has [specified family members] in Ghana. She is in contact with her [specified siblings and friends] in Ghana about three times a week on average. In Ghana, she always lived at [Address 1 in] Accra. She completed [specified grades at] school.
In the past, she has travelled to [specified countries as a Ghanaian representative]. In Ghana, she was employed by [Agency 1] as [an Occupation 1] since 2010.
The applicant departed Ghana [in] March 2018 and arrived in Australia [later in] March 2018 using her Ghanaian passport. She held a visa issued to her as a [Ghanaian representative]. Her passport was confiscated by [Ghanaian officials] because she refused to return to Ghana.
Evidence before the Department
Protection visa application
The applicant’s claims for protection are contained in an attachment to her protection visa application form. She claims as follows:
·     She is a lesbian and bisexual woman who is more interested in women than men.
·     She is a [Occupation 1].
·     In Ghana, it is unlawful to be a lesbian or a gay person and to be in a same-sex relationship. In Ghana, people in same-sex relationships are called names, harassed, and verbally abused and shamed in public.
·     She has a discrete same-sex relationship with her partner in Ghana. They always try to meet secretly, and they stay away from family or public gatherings in order not to attract attention to themselves as it is dangerous to be seen together.
·     When she arrived in Australia and knew that she didn’t have to hide or live a secret life, she decided to stay and apply for protection because everyone in Australia is protected irrespective of their sexuality.
·     When she was very young, her family realised that she did not like boys and they threatened to disown her if she didn’t change, so she went out with a boy and became pregnant at a young age. She now has two children; [from the same father]. Despite having children, this did not dampen the suspicion which made her uncomfortable living a life of being unable to be herself in a country that she has proudly [represented].
·     Her children are well-looked after in Ghana by their grandmother, who is the mother of the children’s father. The applicant is not on good terms with her because she refused to marry the father of the children and the grandmother verbally abuses her, accusing her of being a lesbian and pestering her to dress like a woman.
·     As a government [Occupation 1], she has been hiding her sexuality from her [employers] and most people she comes across in her professional career and life in general.
·     She has always lived in fear of being exposed as a bisexual woman in Ghana, which she believes would have ruined her career as [an Occupation 1]. Australia has given her the opportunity to be herself.
·     She never felt safe in Ghana as a discreetly bisexual person, and she suffered discrimination and verbal abuse from some of her relatives and strangers who suspect her to be a lesbian because of her boyish appearance and her attraction to girls.
·     She did not seek help in Ghana because of the laws that prohibit homosexuality and she also did not want to lose her [professional status] and be ostracised in the national media, or have her circumstances publicised by religious evangelical preachers who preach against homosexuality.
·     If she returns, she fears harassment from relatives and member of the public. She would not be able to live freely as a bisexual person. She fears being reported to the police, a criminal conviction and physical harm.
·     Her name has been tarnished in the Ghanaian media due to her refusal to return to Ghana after [representing the country].
Attached to her protection visa application form, the applicant provided various Ghanaian identity documents, evidence of her official accreditation [as an Occupation 1] and a range of country information, including reports from Amnesty International (2017-18) and Human Rights Watch (2017) about the discriminatory and dangerous situation in Ghana for LGBTI persons and Ghanaian media articles refer to statements by the President of Ghana against same-sex relationships. The applicant also provided an article dated [in] April 2018 from an online Ghanaian news site referring to a statement by the [executive] of [her employer] noting that the applicant and another [person] had disappeared [in Australia] and had been declared missing. In the statement, he condemned their actions and said the [people] in question would be prosecuted under Australian laws and then extradited to Ghana to face the full force of Ghanaian law.
Interview with the delegate
The applicant attended an interview on 13 July 2018 with the delegate to discuss her claims for protection. In the interview, she elaborated on her personal circumstances including her relationship with the father of her children and her relationship with her girlfriend in Ghana, the problems she experienced in Ghana and her experiences since arriving in Australia that led to her applying for protection.
The delegate’s decision
On 7 September 2018, the delegate made their decision. Based on the applicant’s evidence, the delegate did not accept that the applicant is a lesbian or is perceived as a lesbian, that she was in a same-sex relationship in Ghana or that she suffered any harm or discrimination in the past as she claimed. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 14 October 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided the Tribunal with a copy of the delegate’s decision.
Further documents and submissions
Prior to the Tribunal hearing, the applicant’s representative provided written submissions in support of the applicant’s case. The submissions recount the background to the case and critique the delegate’s decision and rebut the delegate’s findings at length. The submissions reiterate the criteria for a protection visa and the applicant’s claims for protection and it submitted that the applicant cannot receive protection from a third country in Africa with close ties to Ghana given the attitude and laws against homosexuality in those countries. The submissions refer to country information about the dangerous situation for LGBTQ persons in Ghana and, in particular, to the Bill that is currently before the Ghanaian Parliament that will criminalise homosexuality in Ghana. The submissions contain the following paragraph with new relevant information about the applicant’s claims:
In [specified year], I became a single mother of [a child] from a casual relationship I had with a man in Sydney. A relationship affected by my sexual orientation from the onset and continuing before and after having my [child]. Unfortunately, [this child] suffers from chronic asthma, which has been very daunting. [The baby is an] Australian [citizen] by descent.
The applicant also provided additional documents in support of her claims including:
·     Amnesty International statement from September 2021 about an anti-LGBTI Bill in the Ghanaian Parliament;
·     Human Rights Watch report from January 2018 on discrimination and violence against LGBT people in Ghana;
·     The Memorandum for the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021, which describes the object of the Bill to be:
to provide for proper human sexual rights and Ghanaian family values; proscribe LGBTQ+ and related activities; proscribe propaganda of, advocacy for or promotion of LGBTTQQIAAP+ and related activities; provide for the protection of and support for children, persons who are victims or accused of LGBTTQQIAAP+ and related activities and other persons; and related matters;
·     Ghana 2022 Human Rights Report from the United States Department of State;
·     New South Wales birth [certificate for her child] born in Australia on [date].
The hearing
The applicant appeared before the Tribunal on 31 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Friend A], who is a friend of the applicant. An interpreter in the Ga and English languages was present in the Tribunal hearing by video however the applicant and [Friend A] speak fluent English and so the interpreter was not required.
The applicant was represented in relation to the review.
Nationality
The applicant claims to be a citizen of Ghana. She provided the Department with evidence of her Ghanaian citizenship and identity and the delegate accepted this. In the absence of evidence to the contrary, the Tribunal accepts the delegate’s findings and finds that the applicant is a citizen of Ghana and Ghana is her receiving country for the purposes of assessing her claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
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.
The Tribunal has considered all the written and oral evidence before it, including independent country information about the situation in Ghana for LGBTI persons and, where relevant, refers to it specifically below.
In the hearing, the Tribunal discussed with the applicant her personal background growing up in Ghana including her residential history, family, education, [professional] career, travel, personal relationships and sexuality. The applicant was initially a little reticent about sharing personal information, which is understandable in the circumstances, but the Tribunal reassured her that everything she said was confidential and explained the importance of her being as open as possible with her evidence in support of her claims. The Tribunal found the applicant to be an honest and straightforward witness who did not try to embellish her claims. When challenged on certain matters by the Tribunal, she responded with plausible explanations. She gave her evidence in a manner which led the Tribunal to consider she was speaking from personal experience rather than a script. She provided certain details and explanations about events that the Tribunal considers it is very unlikely that a person who had not experienced the events would have had the presence of mind to fabricate. The applicant’s evidence in the hearing was consistent with her original claims and she provided additional relevant detail in response to the Tribunal’s questions as set out below.
People in Ghana, including the applicant’s family, thought she was a lesbian because of the way she dressed, she did not take care with her appearance and she was [an Occupation 1]. The applicant likes dressing in a masculine way, wearing things like shorts and loose tops rather than skirts and dresses, which is the way her sister dresses. Dressing like this in Ghana means people assumed she was a lesbian. She feels quite masculine. She first started feeling attracted to women when she was around 10 or 11 years old. She is more attracted to women than men and likes being close to women.
The applicant never confided in anyone in Ghana about her sexuality because she was scared about being exposed and what the consequences would be. This made her feel bad because she wanted to explain herself but she couldn’t. People would see her and call her names and say if you are a lesbian you can’t be around children. People didn’t accept her for who she was and she never felt comfortable. It was very hard. She was worried about rejection and being disowned by her family. Because her family already suspected she was a lesbian, she didn’t want to do anything to make the situation with them worse. If ever anyone confronted her about being a lesbian she would deny it because she didn’t want any harm. She would explain her style of dress as simply being her choice.
She met the father of her children in Ghana, [Partner A], at a local swimming pool in 2010. She was about [age] and he was [age] and they became friends. In time, it developed into a sexual relationship. The applicant was already aware by this stage that she was bisexual (but more attracted to women) and her family was suspicious of her sexuality, so when she was [age] she decided to get pregnant to stop her family from harassing her about it. She was already [an Occupation 1] by this time. The applicant explained that getting pregnant was a strategic decision by her because she didn’t want the pressure of people thinking she was a lesbian and she wanted to continue [her profession], so she thought having children would help. Her [manager] was supportive of her throughout this time.
She loves her children and loves being a mother. After giving birth the first time, she stayed with [Partner A] and his mother in [named town] for about six months. Then her child remained with its paternal grandmother and she returned to [her home town] to live with her family and keep [practising Occupation 1]. [Partner A] wanted to have a settled relationship with the applicant but she did not want that. After giving birth to her second child, she told [Partner A] about her sexuality. He was not happy. His mother criticised the applicant a lot because of the way she dressed. After the applicant left Ghana, [Partner A] told his mother the truth about the applicant’s sexuality and his mother said she didn’t want to see the applicant again. The applicant and [Partner A] remain on good terms and are still in contact because of their children. Her children in Ghana now live with their paternal grandfather as their paternal grandmother died three years ago. She speaks to them every day and provides them with some financial support.
In Ghana, she was in a relationship with a woman called [Partner B]. They met at a club when the applicant was around [age], after she had her first child. The applicant knew [Partner B] was attracted to her the first time they met because after they chatted, when [Partner B] was leaving she shook the applicant’s hand and “scraped” her palm, so the applicant knew it was a signal. [Partner B] dressed like a woman and the applicant dressed like a man. They would meet at each other’s houses sometimes but their families were not welcoming and generally, they used to book a place to stay from time to time far away from where they both lived and spend time together for a day or two. Once they went to a place called [name] and the applicant held [Partner B’s] hand in public. Some guys saw them and pushed the applicant and abused her for dressing like a man and spat on her. They called her and [Partner B] names, so they had to get away. [Partner B] was a bit older than the applicant and she was a good person who advised and helped her. [Partner B] was not happy about the applicant becoming pregnant a second time but she knew the applicant and [Partner A] were not in a relationship and she understood the applicant’s situation. Once the applicant came to Australia, she and [Partner B] both realised they could not continue a long-distance relationship. They have both subsequently met other people.

In Ghana, before her second [child] was born, the applicant went with some friends (who were not lesbians) in her area to watch a soccer match. They were sitting on a wall to spectate. Some guys came over and told the applicant to get down off the wall. One of the guys pulled her leg to try to pull her off the wall and accused her of being a lesbian. Her friends helped her but she was scared. Regularly, people would point at her and abuse her because of her appearance but it didn’t stop her from being who she is.
She did not have a particularly good relationship with her father and siblings at the time she left Ghana (or in the years before that) because of their attitude towards her suspected sexuality, but since being in Australia she has been open with them about who she is and how she feels and why, and their relationship has improved. Despite this, she feels that her father only tolerates her sexuality because she is not in Ghana. She is worried that if she returned there his attitude could change and he would not be nearly as tolerant. Also, she sends her father money from time to time from Australia which she thinks is part of his tolerant attitude towards her from afar. Her siblings are not happy about her sexuality but respect her choice.
The applicant had a casual relationship with a man in Australia about two years ago during the Covid-19 pandemic. She prefers women and being with women. She also sometimes likes men but not for long-term relationships. Initially, she and this man were just friends. She had lost her job and he provided her with emotional support but then they decided to be together and the applicant got pregnant. After this, she told him the truth about being bisexual and he said he didn’t want to be with her. They separated while she was still pregnant.
She is now in a relationship with a woman called [Partner C]. They met about nine months ago. Their friendship developed into a romantic relationship. They don’t live together as [Partner C] lives with her mother and her mother does not know about [Partner C’s] sexuality. The applicant was happy for the Tribunal to call [Partner C] without warning to speak to her about the status of their relationship. In the circumstances, the Tribunal did not consider this to be necessary.
Some of the applicant’s work colleagues know she is a lesbian. They are Africans and they say she is a lesbian and she doesn’t deny it. They say this because of the way she walks and wears her uniform very big and loose. She is not involved with the Ghanaian community in Sydney because they are not generally supportive of same-sex attracted people and so she doesn’t want to mingle with them. She isn’t involved in the gay community in Sydney although she did attend the Mardi Gras party in 2019. She is not involved with any gay parenting groups or other support groups.
The applicant gave evidence that if she had to return to Ghana she could not behave openly about her sexuality in the way she would like to because the law doesn’t allow it. She does not want to hide her sexuality and who she is anymore, so returning to Ghana would not be good for her. She would have to behave in the way she did there in the past because she would be worried about being arrested or worse, because being homosexual there is against the law.
[Friend A] gave evidence in support of the applicant. [Friend A] is an Australian Permanent Resident and is married to an Australian citizen. He has lived in Australia since 2015. The Tribunal found him to be a credible and articulate witness. He gave evidence that knew the applicant from afar when they were both in Ghana because he was [in a related profession] and she [practised Occupation 1]. They [attended] the same [college]. He didn’t know about her sexuality in Ghana but he said there were certainly rumours about her being a lesbian. They met again by coincidence in Sydney when they recognised each other at a work function. They work for the same company. [Friend A] said they have since become colleagues and friends. He corroborated the applicant’s evidence about her relationships in Australia, including her current relationship with [Partner C]. He also gave evidence about some of the struggles the applicant has experienced in Australia with her pregnancy, telling the father she was bisexual and his reaction, and being a single mother. [Friend A] said he had encouraged the applicant to seek assistance from services that are available to her here. He has provided her with support. He said she faced a lot of challenges in Ghana as a [[Occupation 1], and he really hopes things work out well for her and she can be who she wants to be in Australia.
For the reasons explained above, the Tribunal accepts the applicants 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 gave evidence, which the Tribunal accepts, about her family’s long-standing suspicions regarding her sexuality while she was in Ghana and the extreme steps she took to try to alleviate their concerns, including having children. She gave evidence about the rejection she feared if she was open with her family about her sexuality and she explained to the Tribunal why she never felt safe being honest about her sexuality with them. She told the Tribunal that since being in Australia, she has been honest with them and while they are not happy about her sexuality, they tolerate it. However, she is worried about how her father, in particular, may react if she returned to Ghana because she thinks her absence from Ghana contributes a great deal to his attitude. The Tribunal is prepared to accept that due to her sexuality the applicant would not have the support of her family if she returned to Ghana, which could increase her vulnerability. In terms of society more generally, the applicant gave evidence about being verbally and physically abused in Ghana as a result of people automatically suspecting she was a lesbian due to her appearance. The applicant also gave evidence about how she and [Partner B] were discreet with their relationship so that it was not discovered and how she never admitted to people that she was a lesbian even if someone challenged her about it, due to her fear of what may happen, including suffering physical harm. The Tribunal accepts this.
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 2022 US Department of State Country Report on Human Rights Practices: Ghana[1] states that significant human rights issues include credible reports of crimes involving violence or threats of violence targeting LGBTI persons. It states:
Violence against LGBTQI+ Persons: The LGBTQI+ community reported police violence against LGBTQI+ persons. Civil society groups and activists reported police were resistant to investigate claims of assault or violence against LGBTQI+ persons. Stigma, intimidation, and the perceived negative attitude of some police toward LGBTQI+ persons were factors in preventing survivors from reporting incidents of abuse. Activists noted great difficulty in engaging officials on problems facing the LGBTQI+ community because of social and political sensitivity. LGBTQI+ persons in prison were vulnerable to harassment, as well as sexual, mental, and physical abuse, which authorities generally did not investigate.
Attacks by private citizens on LGBTQI+ persons were common and growing in number. The attacks were increasingly well organized, and in some cases targeted outspoken activists. The attacks were sometimes shared on social media to further humiliate and ostracize LGBTQI+ persons.
Increasing harassment forced many members of the LGBTQI+ community to relocate from their homes or sever familial relationships. Two different LGBTQI+ NGOs, one in the Central Region and the other in the Volta Region, reported they had to relocate their operations because of community and police harassment. Civil society groups reported that several LGBTQI+ community members permanently left the country because of increasing hate speech and harassment.
In August unknown assailants in the Ashanti Region kidnapped, assaulted, and blackmailed a prominent human rights advocate because of their LGBTQI+ advocacy. Police never identified the perpetrators.
[1]
Section 104 of the Ghanaian Criminal Code Act 29 of 160 criminalises “unnatural carnal knowledge”, which has been defined at common law to include homosexual male sex. While section 104 is described as a colonial legacy, there are no indications the Ghanaian government has interest in repealing it or decriminalising adult same-sex sexual activity.[2] In fact, the situation appears to be the opposite. Older country information indicates that while the crime of unnatural carnal knowledge is rarely enforced, it is used as a tool of persecution of the LGBTI community by police and individuals across Ghana to abuse people and take advantage of them.[3] However, in 2021, members of the Ghanaian Parliament introduced a draft bill on the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill (the Bill). A key feature of the Bill is criminalising being LGBTI with penalties of up to 5 years imprisonment. The Bill also criminalises public support, advocacy or organising for LGBTI rights and promotes conversion therapy.[4] It also criminalises “gross indecency in public” which includes a public show of affection between people of the same sex. The Bill has the support of church groups and, apparently, wide support in the general community and in the Parliament.[5] While the Bill has not yet been passed into law, in July 2023 Ghana’s Supreme Court dismissed a legal challenge seeking to block Parliament from passing the Bill which has cleared the way for it to receive parliamentary approval and be signed into law.[6] An increasing intolerance for LGBT persons and a rise in violence against them has been reported since the introduction of the Bill.[7] LGBT advocates report raids and arrests by police of LGBT persons and mistreatment by police.[8] The UK Home Office reports that as a culturally and religiously conservative society, most Ghanaians hold negative views of same-sex relations and there is strong societal intolerance and discrimination against members of the LGBT community.[9] This results in many LGBT persons feeling they have to hide their sexual orientation and gender identity, including from their families, due to the risk of harm including violence, psychological harm and being disowned by their families and their community.[10] LGBT persons can face discrimination in various areas of society including access to healthcare.[11] In terms of state protection, the UK Home Office report concludes that the state is able but not willing to offer effective protection.[12] In the Tribunal’s view, the situation will be exacerbated by the likely passage of the Bill through Parliament and into law.
[2]
[3]
[4]
[5] ; (UK Home Office report)
[6] ;
[7] ;
[8]
[9] UK Home Office Report.
[10]
[11] UK Home Office Report.

In the Tribunal’s view, the country information indicates that there is strong cultural opposition to LGBTI persons in Ghana and soon, that is likely to be underpinned by strong laws criminalising being LGBTI and a range of other matters which is likely to further embolden and legitimise societal opposition to LGBTI persons and increase their risk of serious harm. Based on the country information considered above, the Tribunal considers that 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 incidents that occurred in Ghana where she was verbally and physically abused and felt afraid, her fear about her sexuality being revealed in Ghana, the consequences she feared as a result of this and as a result of her appearance, and the actions she took to conceal her sexuality due to fear, including the extreme step of choosing to have children. The Tribunal accepts that if the applicant returned to Ghana and lived as a lesbian or bisexual woman 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 deny her true sexuality and 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 more open about her sexuality in the way she behaves. 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.[13]
[13] DFAT Thematic Report - Economic Community of West African States (ECOWAS) 3 December 2020.

Information sources which the Tribunal has consulted indicate that the ECOWAS Protocols have made legal progress in establishing freedom of movement and residency between ECOWAS member states, including Ghana. However, it appears to the Tribunal that implementation challenges persist, including full freedom of movement and rights to reside being limited by the independent laws and restrictions of individual states, as well as potential administrative harassment, and extortion on the part of member states. In reality, it appears that there are a number of limitations within the individual member states that have affected this right to reside. Given these shortcomings regarding the implementation of the ECOWAS Protocols, the Tribunal is not satisfied the applicant does, at the time of this decision, have a meaningful right to enter and reside in any other ECOWAS member state: s 36(3). There is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside in any other country.

Even if the Tribunal is wrong about this and the applicant does have a meaningful right to enter and reside in an ECOWAS member state, country information indicates that LGBTI issues are taboo across the ECOWAS region, both officially and societally. The DFAT Thematic Report states at 2.17 that:
The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults. In northern Nigeria, consensual same-sex sexual acts are punishable under sharia (Islamic law) with the death penalty. Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, but do not offer any specific protections. Cabo Verde is the only ECOWAS member state to offer employment protection to LGBTI individuals. LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin, Ghana and Mali, and prosecutions of LGBTI individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults.
Other country information supports this and indicates that the situation is negative for LGBTI individuals in West Africa and there is no political will in these countries to support and respect the rights of LGBTI individuals who face the risk of violence and social prejudice.[14]
[14] See (accessed 8 May 2023)
Section 36(4)(a) states that subsection (3) does not apply to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In light of the Tribunal’s finding above that the applicant is a lesbian, and based on the country information referred to above, the Tribunal considers that as a lesbian with her profile, including a masculine appearance, 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4124

7 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction