1833119 (Refugee)

1833119 (Refugee) [2024] AATA 1785 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1833119

COUNTRY OF REFERENCE: Ghana
MEMBER:L. Symons
DATE:13 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 March 2024 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – homosexual male – physical assault – fear of killing – delay in applying for protection – state protection – relationships with women – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 424AA, 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 24 October 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, arrived in Australia [in] August 2015 as the holder of a [Student] visa. This visa was cancelled on 18 March 2018.
On 17 October 2017, the applicant applied to the Department of Home Affairs (the Department) for a Protection visa. On 1 December 2017, he was granted an associated Bridging A visa that expired on 18 January 2018. On 24 January 2018 and 19 June 2020, he was granted Bridging E visas. On 24 October 2018, the Department refused to grant him the Protection visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 9 November 2018, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 5 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ga and English languages.
The applicant is not represented in relation to the review.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 AND FINDINGS
The applicant’s claims in his application for a Protection visa filed on 18 October 2017 are summarised as follows:
·He was born on [specified date] at Accra in Ghana.
·He left Ghana because he is gay and he was in danger of being beaten, molested and killed because of his sexual identity. Being identified as gay put his life in danger.
·Being gay is a crime under the laws of Ghana. He has been beaten and molested. He lived in fear because of his sexual identity.
·Whilst in Ghana he was beaten by people who recognised him as gay. When beaten, he reported the incidents to the Police but was not given any protection. The Police also beat him for being gay. He was beaten at school because he is gay. His teachers did not protect him.
·Gay men are living in a state of fear. Exposure as a gay man will not help a person’s case. When he sought help from the Police he did not receive protection.
·If he returns to Ghana, he will not have the freedom to move around Ghana because he is gay. He will be beaten, molested and killed. He will not be recognised as a citizen. He could be arrested and imprisoned for being gay. The government will not protect him.
·Relocation is not an option as the same law applies throughout Ghana. The treatment of gay people in rural or urban centres is the same. The Police will not intervene if a person is being molested. There is no safety in Ghana.
·His family will abandon him if he is arrested for being gay. His family will believe he has brought shame on them. He is not safe even from his own family members as they are also against his sexual identity. This puts him in danger. If he returns to Ghana, he will face persecution from the general public as there is widespread hatred against gay men.
·He will face harm and mistreatment if he returns to Ghana. He is also in danger from his own family members.
The applicant’s claims in his Statement of Claims contained in a Statutory Declaration dated 12 October 2017 are summarised as follows:
·He escaped from Ghana because he is gay and feared persecution and violence there. He has been in sexual relationships with other gay boys, resulting in persecution, violence and death threats from neighbours.
·Homosexuality is a crime under the Ghanaian Law and people found to be gay are often harassed, beaten up and even killed. The Police do nothing to protect people who are gay.
·His identity as a gay boy was made public when he was seen walking and talking affectionately with his ex-partner in Ghana. He was aged [age] at the time. Neighbours saw and told his father who told him “I will not let you be gay’, “if you want to be gay then you should not come to me for money or I will beat you up”. He left home and went to his brother's house. [One] brother had always looked after him and told him not to hide anything from him.
·In [grade], he was beaten up by some Year 10 and 11 boys at his school. They heard that he was gay and they beat him up after school one day. They punched and kicked him. One of the boys had a knife and he was stabbed twice on his arms. He has scars on each forearm from this assault. He told his teachers but they told him they would not help a gay kid.
·[In] December 2014, about two months after he was discovered to be gay, he was beaten up by neighbours who found out he was gay and threatened to kill him if he did not confess to his homosexuality. Luckily, he was rescued by an unknown passer-by.
·He reported the incident to the [Police Station 1] in Greater Accra but the Police did not offer him any protection. When he reported the incident four Police Officers beat him up. One held his legs, another held his hands behind his back and two of them started punching him in the face. The Police Constable told him, “If you come back again to report something like this, we will beat you up again.”
·On other occasions, he was threatened by his own family members who had disowned him for being gay. At [age] years of age, when his family found out (about his homosexuality), his father and brother's wife started mistreating him. They refused to give him food and he heard them telling the neighbours that he should be beaten. His [brother] was the only one who tried to help him at this time.
·His brother’s wife threatened him that she would poison him if he went to her house. His father supported her. His brother advised him not to come to his house when his wife was around, because his wife hated him for being gay. His brother said she could poison or kill him. Even when he went to his brother’s house, he did not eat for fear that his brother's wife might do something to him.
·He feared his father might tell his paternal uncle about his homosexuality and that his uncle would beat him for being gay.
·He could only visit his father's house if his father and sister-in-law were not there. He could not stay there because he feared his father would attack him. He could only stay at his brother's house when he was there. If his brother was not there, he was homeless and sometimes slept in the bushes. His brother sometimes gave him money for food.
·[In] January 2015, he was walking to meet his brother and get money to buy food when he was attacked by some local boys who knew he was gay. There were about seven boys who assaulted him and called him an animal. He was hospitalised as a result of the assault. Prior to going to meet his brother, he went to his father’s house and asked him for money but he refused to give him money.
·After this incident, he began constantly living in fear. He became an introvert with no friends. He did not go out for fear of violence. His brother and sister, [Sister A], discussed sending him to Australia to further his education and escape the danger he faced as a gay person living in Ghana.
·He arrived in Australia [in] August 2015 on a Student visa. His sister, [Sister A], left Ghana in 2003 to come to Australia. He attended [grade] at [School 1] and [School 2]. He started [grade] at [College 1]. However, he could not afford the fees and was not able to continue his studies. His [brother] had been paying his fees but lost his business, his source of income and was unable to pay his fees.
·On 7 May 2017, he was informed that he could not attend school in Australia on account of the non-payment of school fees. He cannot return to Ghana where he fears persecution and violence because of his homosexuality. His only option was to seek protection in Australia. He has a well founded fear of persecution and harm on the grounds of his membership of the social group of ‘homosexual people in Ghana’.
The applicant provided the Department with a copy of his Ghanaian passport which was issued [in] 2014 and expired [in] 2019, an article in Modern Ghana dated 21 October 2017 and titled “Senior High Schools Breeding Grounds for Gays and Lesbians”, an article in Graphic Online dated 13 April 2013 and titled “Kumasi Wesley Girls High School students punished”, a U.S Department of State Country Information Report titled, “Ghana 2017 Human Rights Report”, a U.K Home Office Country Information Report dated February 2016 and titled, “Ghana: Sexual orientation and gender identity” and an article by Human Rights Watch dated 8 January 2018 and titled, “No Choice but to Deny Who I Am”.
The applicant’s lawyer provided the Department with submissions dated 24 August 2018,
The applicant attended an interview with the Department on 30 August 2018. During his interview, he reiterated and expanded on his written claims. The delegate had issues in relation to his credibility and found that he is not a person in respect of whom Australia has protection obligations. His application for a Protection visa was refused on 24 October 2018.
Receiving Country
The applicant claims to be a citizen of Ghana and has provided a copy of his Ghanaian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Ghana. The Tribunal finds that Ghana is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicant is outside his country of nationality. The Tribunal notes that Ghana is a member of the Economic Community of Western African States. In view of the Tribunal’s findings in relation to his credibility, the Tribunal will not consider the assessment under s.36(3) of the Act any further.
Assessment of Claims
The applicant gave evidence that his application for a Protection visa was prepared by his lawyer based on his instructions which were true and correct. He is satisfied that his application for a Protection visa is accurate and complete. There have been no changes in his circumstances since he filed his application for a Protection visa.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Ghana, why he left Ghana, his travel to Australia and why he fears returning to Ghana. The Tribunal found aspects of his evidence to be vague, implausible and unconvincing. There were many inconsistencies in his evidence. He made significant new claims during the hearing. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:
First, in his Statement of Claims, the applicant claimed that he was identified as being homosexual in Ghana and this was made public when he was [age] years old. This happened in about [specified year] when neighbours saw him walking and talking affectionately with his ex-partner and told his father. His father told him “I will not let you be gay’, “if you want to be gay then you should not come to me for money or I will beat you up”. He left home and went to his brother's house. [One] brother had always looked after him and told him not to hide anything from him.
In his Statement of Claims, the applicant claimed that his father and his brother’s wife thereafter started mistreating him, refused to give him food and he heard them telling the neighbours that he should be beaten. His brother’s wife threatened him that she would poison him if he went to her house and his father supported her. His brother advised him not to come to his house when his wife was around, because his wife hated him for being gay. His brother said she could poison or kill him. Even when he went to his brother’s house, he did not eat for fear that his brother's wife might do something to him.
In his Statement of Claims, the applicant claimed that he could only visit his father's house if his father and sister-in-law were not there but could not stay there because he feared his father would attack him. He could only stay at his brother's house when he was there. If his brother was not there, he was homeless and sometimes slept in the bushes. His brother sometimes gave him money for food.
At the hearing, the applicant gave a completely different version of events. He stated that he lived with his aunts in [Town 1], which is a suburb in Accra, from the time of his birth in [year] until he left Ghana at the age of [age] years in 2015. He lived with them for [age] years. He has not lived anywhere else in Ghana.
In his visa application, which the applicant was satisfied was accurate and complete, he stated that he lived at the same address in Ghana from the time of his birth in [year] until he left Ghana to come to Australia in August 2015. His evidence in his visa application and his oral evidence to the Tribunal contradict his written claims for protection.
The Tribunal raised as an issue with the applicant these inconsistencies in his evidence in relation to where he lived in Ghana and its concerns in relation to his credibility and the veracity of his claims. He declined to respond.
Second, in his Statement of Claims, the applicant claimed that he had been in sexual relationships with other homosexuals, besides his ex-partner, and this had resulted in persecution, violence and death threats from neighbours in Ghana.
During his interview with the Department on 30 August 2018, the applicant stated that the only person he had been in a homosexual relationship with was a young man named [Partner A full name] when he was [age] years old. During the hearing, he gave evidence that he realised he was homosexual in 2014 when he was [age] years old. He was attracted to a classmate named [Partner A] and they commenced a relationship. He did not have a homosexual relationship with anyone else in Ghana. He did not have casual homosexual encounters with anyone else in Ghana.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this inconsistency in his evidence (in relation to how many homosexual relationships he had in Ghana) raised issues in relation to his credibility and the veracity of his claims. He responded that his relationship with [Partner A] was a real relationship. His relationships with the other guys were not serious. Their interactions did not develop into serious relationships. The Tribunal does not find his explanation to be persuasive and does not accept it. It does not alleviate the Tribunal’s concerns.
Third, during the hearing, the Tribunal discussed with the applicant his relationship with [Partner A]. He stated that he was in a relationship with [Partner A] for a year and it was a sexual relationship. When asked whether he had any concerns about being discovered by someone, he responded that he was afraid but his feelings for him were strong. His relationship with [Partner A] ended because he came to Australia. After he came to Australia, he used to contact him on [social media]. He stopped contacting him about 4 years ago. When asked why he stopped contacting him, he responded that [Partner A] could not come to Australia and he could not go to Ghana and he does not like long distance relationships.
The applicant also gave evidence that he could not remember [Partner A’s] surname. Further, he stated that he did not complete [grade] and left school because he did not like going to school and was not happy. However, according to his application for a Protection visa he completed Secondary School in [year] and moved to a different school in August 2015 to study [the next grade].

During his interview with the Department on 30 August 2018, the applicant gave a completely different version of events. He stated that [Partner A] left Ghana in 2014 and went to [Country 1] with his parents. They then ceased contact with each other. When asked whether he had contacted [Partner A] after coming to Australia, he responded that he searched for [Partner A] online but was unable to find him. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence (in relation to length of his relationship with [Partner A], when they stopped having contact with each other and the whereabouts of [Partner A]) raised issues in relation to his credibility and the veracity of his claims.
The applicant responded that he mentioned that he stopped talking to [Partner A] 4 years ago. He was not sure of the date and gave an approximate date. He told the officer that he searched for [Partner A] on [social media] and could not find him. Later he found him and they started chatting. The Tribunal does not find his explanation to be persuasive and does not accept it. It does not alleviate the Tribunal’s concerns.
Fourth, in his Statement of Claims, the applicant claimed that he was attacked and assaulted on three occasions because he is homosexual and when he reported the second assault to the Police he was beaten by Police Officers. He claimed that the first assault took place when he was in [grade] and was beaten by some Year 10 and Year 11 boys at his school. They punched and kicked him and one of the boys stabbed him twice on his arms with a knife. His teachers told him that they would not help a gay kid. The second occasion was [in] December 2014 when he was beaten by neighbours who threatened to kill him if he did not confess to being homosexual. He was rescued by an unknown passer-by.
In his Statement of Claims, the applicant claimed that when he reported the assault [in] December 2014 to the [Police Station 1], four Police Officers beat him and threatened to beat him again if he returned with a similar complaint. The third occasion was [in] January 2015 when he was attacked by about seven local boys. He was hospitalised as a result of the assault.
During the hearing, the applicant gave a different version of events. He stated that he was first attacked by some local boys in about 2014. One of them had a knife and stabbed both his hands. He went to the hospital to seek treatment for his injuries. He was in hospital for 6 months. When he reported this incident to the Police, four Police Officers beat him. He was attacked for a second time by some school students who beat him in 2015. He did not report this incident to the Headmaster or anyone else. When asked if there were any other incidents, he responded no. The Tribunal gave him several opportunities to provide further evidence and asked him at the end of his evidence whether he had anything else he wished to say and he responded no.
There are a number of inconsistencies in the applicant’s evidence. Firstly, in his Statement of Claims he claimed that he was attacked three times and beaten by the Police when he reported the second assault by neighbours. His evidence to the Tribunal was that he was attacked twice and beaten by the Police when he reported the fist assault by some local boys in about 2014. Secondly, in his Statement of Claims he claimed that he was stabbed with a knife by one of the boys at his school. His evidence to the Tribunal was that he was stabbed with a knife by a local boy. Thirdly, in his Statement of Claims he claimed that he was stabbed in his arms. His evidence to the Tribunal was that he was stabbed in his hands. Fourthly, his evidence of the dates when these incidents took place is inconsistent.
The Tribunal raised as issues with the applicant the inconsistencies in his evidence in relation to the assaults and its concerns in relation to his credibility and the veracity of his claims. He responded that he mentioned approximate dates and times as he could not remember exact dates and times. It happened a long time ago. He was a child then.
The Tribunal accepts that a considerable period of time has lapsed since these incidents and the applicant’s memory of the dates of these incidents could have faded over time. However, the Tribunal is of the view that being stabbed is an unusual and traumatic incident and one that he is likely to remember details such as who stabbed him and where on his body he was stabbed. His explanation does not alleviate the Tribunal’s concerns.
Fifth, in his Statement of Claims, the applicant claimed that he was stabbed in his arms by some Year 10 and Year 11 boys at his school when he was in [grade] (2014). He claimed that he was attacked by some local boys [in] January 2015, assaulted and hospitalised as a result. His lawyer lodged written submissions dated 24 August 2018 with the Department in which she stated that the applicant was hospitalised for 2 months as a result of this assault. During the hearing, he gave evidence that he was attacked by some local boys in about 2014, one of them had a knife and stabbed both his hands and he was hospitalised for 6 months as a result of this assault.
The Tribunal raised as an issue with the applicant the inconsistency in his evidence in relation to how long he was in hospital. The Tribunal also raised as an issue his failure to provide any documentary evidence from the hospital to support his claims and noted that this raised concerns in relation to his credibility and the veracity of his claims. He responded that he could not remember how long he spent in hospital. He did not explain why he stated it was 6 months to the Tribunal if he could not remember how long it was. The Tribunal does not find his response to be satisfactory. It does not address why he had not provided any supporting documents from the hospital. His response does not alleviate the Tribunal’s concerns.
Sixth, in his Statement of Claims, the applicant claimed that he was threatened by his own family members who had disowned him for being homosexual. His father and brother's wife mistreated him. [One] brother was the only one who tried to help him at this time. During the hearing, he claimed that his step-mother also mistreated him.
During the hearing, the applicant gave evidence that he used the name ‘[name]” on social media. During his interview with the Department on 30 August 2018, the delegate put to him adverse information from his [social media] page, pursuant to s.57 of the Act, and he was given an opportunity to comment on this information.
During the hearing, the Tribunal put to the applicant information from his [social media] page, pursuant to s.424AA of the Act, and noted that the comments cover a period from 2015 to 2018. They indicate that he was in contact with family members and this raised doubts about his claim that he had been disowned by family members, other than his [brother] and [Sister A], for being homosexual. There were also a number of photographs of women on his [social media] page with his comments. His comments about these women portrayed him as a heterosexual man. The Tribunal noted that this raised issues as to whether he was homosexual or bisexual.
The applicant responded that the comments he made were about women who were [social media] friends. After he came to Australia they all started warming up to him and being friendly with him because he was in Australia. They thought that if he made money he could send them some money. That is the only reason they started talking to him again.
The Tribunal does not find the applicant’s response to be convincing and does not accept it. The Tribunal is of the view that his [social media] page accurately reflects his sexual orientation and his relationships with family members. It raises concerns in relation to his credibility and the veracity of his claims.
Seventh, on 19 November 2018, the Tribunal received an email from [Sister A’s email] with a statement. It is purportedly from the applicant’s sister, [Sister A] and appears to be in response to matters raised during his interview with the Department. The first paragraph starts with “I would like to start my statement by saying that we had a [legal] representative ……” and thereafter refers to details of his legal representation.
The second paragraph states “It is true that [the applicant] was abandoned by his family after they found out that he was gay. He was denied food and money and was homeless. Not all houses in Ghana have house numbers on them so he always uses his family house number as his address that is why he only mentioned single address in the statement. He actually lived in uncompleted buildings and abandoned houses which has no street names nor house numbers on them. In developing countries lifestyle is complicating and certain things are not easy to understand.” This paragraph appears to have been written by [Sister A].
The next seven paragraphs appear to have been written by the applicant in respond to issues raised during his interview with the Department. The tenth paragraph refers to the applicant by name and appears to have been written by [Sister A]. It denies that he or she ever said that she reported the school incident to the media. The final paragraph again refers to the applicant by name and appears to have been written by [Sister A]. It refers to him having a stutter and this impacting on his ability to communicate. The bottom of the email states “Kind regards, [Sister A]”.
This email raises a number of concerns in relation to who wrote this email. The Tribunal sought to discuss this with the applicant during the hearing. He gave evidence that he did not remember anything about the email. The Tribunal informed him that the email was sent from the email address [Sister A’s email] but most of the email appears to have been written by him. He responded that he did not remember.
On the evidence before it, the Tribunal is not satisfied that this email was sent by the applicant’s sister, [Sister A]. The Tribunal concludes that the email was sent by the applicant using his sister’s email address and purporting to be from her. When the Tribunal raised this as an issue with him, he responded that he could not remember the email and asked that the Tribunal remind him of the contents of the email. The Tribunal responded that the email was a response to some of the issues in the Department’s Decision Record that he disagreed with. He responded no. His response does not alleviate the Tribunal’s concerns.
The Tribunal is not satisfied that this email was in fact from the applicant’s sister, [Sister A].
Eighth, during the hearing, the applicant gave evidence that after he arrived in Australia (in 2015) he personally told his sister [Sister A] that he is homosexual. She was already aware of this as a result of his previous discussions with [one] brother. She was supportive of him. The Tribunal is of the view that [Sister A] would have been an important witness to support his substantive claims. However, she did not provide a written statement to the Department or the Tribunal or attend the hearing to give oral evidence.
The applicant was represented by a lawyer at the time he filed his application for a Protection visa and would have had the benefit of obtaining legal advice from his lawyer. His failure to provide a written statement from his sister to the Department to support his claims for protection leads the Tribunal to the conclusion that she would not have assisted his case.
The Tribunal raised this as an issue with him. He responded that his sister has mental health problems and is at [Hospital 1] receiving treatment. That is why she could not attend the hearing. When asked how long she has had mental health problems, he responded that her mental health problems started about 7 months ago. She was initially treated at [Hospital 1] for about 2 months. After she was discharged from hospital, her mental health deteriorated. She was taken back to [Hospital 1] and that is where she is now.
The Tribunal accepts that the applicant’s sister may not have been able to provide a written statement in support of the applicant’s case in the last 7 months or to attend the hearing to give oral evidence on his behalf because of her mental health problems. However, the Tribunal notes that the Department refused the application for a Protection visa on 24 October 2018 because the delegate was not satisfied with the credibility of his claims. The Tribunal would expect that his sister would have provided the Tribunal with a written statement at the time the application for review was filed with the Tribunal on 12 November 2018 or shortly thereafter.
The lack of supporting evidence from the applicant’s sister, [Sister A], raises further concerns in relation to his credibility and the veracity of his claims.
Ninth, the applicant’s conduct was not consistent with his claims. The records of the Department indicate that he was granted a [Student] visa on 31 July 2015. He arrived in Australia [in] August 2015. His Student visa was cancelled on 18 January 2018. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he were homosexual and suffered persecution in Ghana as claimed he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. His delay until 17 October 2017 to apply for protection, more than 2 years after he arrived in Australia, may lead it to the conclusion that he applied for a Protection visa to extend his stay in Australia (because he knew that his Student visa would be cancelled) and not because he was in need of protection. The Tribunal noted that his conduct raised issues in relation to his credibility and the veracity of his claims.
The applicant responded that he did not know that his (Student) visa was a temporary visa. He just knew that he was coming to school in Australia. He thought he would go to school, attend University and find a job. The situation in Ghana contributed to his coming here. He came here to go to school and to get away from his situation in Ghana. He did not know his visa was temporary. If he had known, he would have applied for protection earlier.
The Tribunal does not find the applicant’s response to be persuasive. His evidence is that his [brother] in Ghana and his [sister] in Australia organised his Student visa. He lived with his sister after he came to Australia. He confided in his sister that he is homosexual and she is supportive of him. His sister has lived in Australia since 2003 and is an Australian permanent resident and Australian citizen. Even if he did not know that a Student visa is a temporary visa, which the Tribunal does not accept, his sister would have known this.
The Tribunal would expect that the applicant’s sister would have organised for him to get some immigration advice if he had told her that he is homosexual and was persecuted in Ghana for this reason so that he could explore his options for obtaining permanent residence in Australia as he could have been at risk of harm if he returned to Ghana. His response does not alleviate the Tribunal’s concerns.
Tenth, during the hearing, the Tribunal discussed with the applicant his lifestyle in Australia. When asked how he had taken advantage of the freedoms he has in Australia, he responded that he had been in relationships with men in Australia but they had not been long term relationships because his partners were not serious. He then corrected his evidence and stated that he had been dating but it had not developed into relationships. He used [dating Apps] and was dating while attending school in Australia. When asked when he first started dating, he responded in 2018.
The Tribunal reminded the applicant of his earlier evidence that he stopped attending school in Australia in 2017 and noted that he could not have been dating while attending school if he only started dating in 2018. He then changed his evidence and stated that he did not date while attending school. He just chatted to men [online]. When asked whether he had any relationships in Australia, he responded no. He chatted to guys and asked them questions and realised they were not serious.
The Tribunal asked the applicant whether he had dated any women in Australia. He responded that when he was in Ghana he had feelings for both males and females. He felt more strongly about men. Since being in Australia, he has had relationships with women. These are new claims and directly contradict his earlier evidence to the Tribunal. He earlier stated that he realised he was homosexual when aged [age] years because when he interacted with boys and girls he noticed that he had romantic feelings towards boys rather than girls. This raises doubts about his new claim that he had feelings for both males and females when he was in Ghana.
The applicant gave evidence that he has been in a relationship with a Ghanaian woman named [Partner B] for 2 years. He met her [online]. He loves her very much, they are planning to get married and have a future together. She is a permanent resident of Australia. When asked whether he is now heterosexual, he responded yes.
The Tribunal raised a number of issues with the applicant. The Tribunal noted that, despite his claims that homosexuality is unlawful in Ghana and he was persecuted for being homosexual he had a homosexual relationship in Ghana. However, despite the freedoms he has in Australia, he has not had a homosexual relationship in Australia. He has had heterosexual relationships in Australia and is now in a serious and long term relationship with a woman. The Tribunal raised issues in relation to whether he was ever homosexual or bisexual and noted that it may conclude that he has always been heterosexual.
The applicant responded that the reason why he has not been in any (homosexual) relationships is because none of the men he met were serious about being in a relationship. He kept trying but did not want to waste his time. Maybe that is the lifestyle in Australia where people do not want serious relationships. It was difficult to find a man who wanted to be in a serious relationship. When he was in Ghana he was interested in both men and women although he felt more strongly about men. When it was not working out with men he thought he should try with women. He does not think he is heterosexual. He has always been interested in males and females. This contradicted his earlier evidence that he is now heterosexual.
In view of the many problems with his evidence, the Tribunal does not find the applicant’s response to be convincing and does not accept it. On the evidence before it, the Tribunal does not accept that he was or is homosexual or bisexual.
Other considerations
The Tribunal has considered the submissions made by the applicant’s former lawyer to the Department together with the supporting country information. These submissions refer to the applicant’s claims and to relevant country information that supports his claims. The submissions concluded that the applicant has a well-founded fear of persecution in Ghana for reason of his homosexuality. For the above reasons, the Tribunal does not find these submissions to be persuasive.
The Tribunal has also had regard to the country information in the media articles provided by the applicant to the Department.
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

The Tribunal accepts that the applicant was born on [date] at Accra in Ghana. The Tribunal accepts that both his parents are deceased. The Tribunal accepts that his [brother], [another sibling], step-mother and step-siblings live in Ghana. The Tribunal accepts that [one] sister lives in Australia, has lives here since 2003 and is an Australian citizen. The Tribunal accepts that he came to Australia in 2015 as a student and stopped studying in 2017 as his fees were not paid. The Tribunal accepts that his Student visa was cancelled on 18 March 2018.
The Tribunal does not accept that the applicant was or is homosexual or bisexual. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was or is of adverse interest to the Ghanaian authorities, his family members or members of the community for reason of his sexual orientation. The Tribunal does not accept that he came to Australia for the reasons claimed or that he fears returning to Ghana for the reasons claimed. The Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for reason of his membership of a particular social group or any other reason claimed, if he returns to Ghana now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Ghana. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Ghana now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
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.
…

[2024] AATA 1785

13 March 2024

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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