1831982 (Refugee)

The first named applicant sought a protection visa, claiming fear of persecution upon return to Ghana due to past sexual assault by her uncle and having children out of wedlock. The second named applicant, her son, also sought a protection visa. The dispute concerned whether these applicants met the criteria for a protection visa under the Migration Act 1958 (Cth).

The court was required to determine whether the first named applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically women and girls who have experienced past sexual assault. It also needed to consider whether Australia had protection obligations towards her under the complementary protection criterion, which requires substantial grounds for believing there is a real risk of significant harm upon removal from Australia. For the second named applicant, the court had to ascertain if he was a non-citizen eligible for a protection visa.

The court found that the second named applicant was an Australian citizen by birth, as his father was an Australian permanent resident at the time of his birth. Consequently, he did not meet the criterion of being a non-citizen and was therefore ineligible for a protection visa. Regarding the first named applicant, the court accepted her evidence of being raped as a child, the subsequent community ostracism, and the lack of effective state protection in Ghana. It was satisfied that the harms she faced in her home area, including severe social isolation and discrimination, amounted to significant harm. However, the court was not satisfied that this risk extended to all areas of Ghana, and therefore she did not meet the refugee criterion under s 36(2)(a).

Nevertheless, the court found that the first named applicant met the complementary protection criterion under s 36(2)(aa). It concluded that it would not be reasonable, in the sense of practicable, for her to relocate within Ghana given her circumstances as a single mother with a child with medical needs, facing significant financial hardship, and lacking accommodation and employment prospects in another region. The court also considered that the ECOWAS protocols did not provide an existing and legally enforceable right to enter and reside in another member state, meaning s 36(3) did not exclude Australia's protection obligations. The matter was remitted for reconsideration with a direction that the first named applicant satisfied s 36(2)(aa), while affirming the decision not to grant the second named applicant a protection visa.