1900785 (Refugee)

1900785 (Refugee) [2024] AATA 3526 (9 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900785
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:9 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 July 2024 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Ghana – membership of particular social group – homosexual woman – relationships as teen and young adult – pressured relationship with man, and birth of child – threatened and attacked by members of the public, harassed and arrested by police and threatened with disowning by family – laws, societal attitudes and church teachings – credibility – inconsistent claims and evidence of relationships with women and father of child – number, places and timings of claimed incidents – one document not genuine and another not provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIAC v SZGUR (2011) 273 ALR 223
MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 253 ALR 609
SZTGV v MIBP (2015) 318 ALR 450
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 21 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Ghana, applied for the visa on 21 September 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 provided the following relevant information. She was born in Ghana in [Year] in Koforidua, Eastern Region. She has never been married. She speaks, reads and writes English and speaks Akan. She is of Akan ethnicity and she is a Christian.
In Ghana, she has a son who was born in [Year] and who lives at [Address], Koforidua. She also has her father and mother. She is in daily telephone contact with relatives in Ghana. In Ghana, she always lived at the same address of [Address], Koforidua.
She completed High School in [Year] and from September 2007 to June 2010, she studied a course in [Subject] at [Institution]. From July 2011 to March 2018, she was employed as [an occupation 1] with [Employer] in Koforidua. After that, she was unemployed.
She arrived in Australia [in] March 2018 on a [specified visa].
Evidence before the Department
Protection visa application
In her protection visa application form, the applicant makes the following claims:
·     She left Ghana primarily [for a specified reason] and to seek protection in Australia because of her sexuality;
·     She is a lesbian and feels she cannot live a meaningful life in Ghana;
·     She has experienced incessant arrest, threats and assault;
·     She has been threatened by members of the community and harassed by the police;
·     Her family has said they will disown her if she does not desist from this practice;
·     Her family thought being a lesbian brought disgrace to them and the community;
·     Christians in the community think being a lesbian is an abomination;
·     Being a lesbian is illegal in Ghana and so seeking help from the authorities will not assist. The security agencies harass lesbians;
·     Relocating to a different part of Ghana will not help because being a lesbian is illegal;
·     If she returns to Ghana, she fears harassment, threats, violence, arrest, taunts and name-calling, being disowned by her family, and guilt for having brought shame to her family.
Police report
The applicant provided the Department with a copy of a “Police Report on Procuration” dated [October] 2018 from the District Headquarters, Ghana Police Service, Koforidua, which relates to an incident that occurred [in] June 2017. The details of the report are discussed below.
Interview with the delegate
On 19 October 2018, the applicant attended an interview with the delegate to discuss her claims for protection. In the interview, the applicant provided additional detail about her claims, including about past relationships. The Tribunal has listened to a recording of the interview. Where relevant, evidence given by the applicant in the interview is referred to below.
The delegate’s decision
On 21 December 2018, the delegate made their decision. Based on concerns about the credibility of the applicant’s evidence, the delegate did not accept the applicant’s claims about her sexuality or mistreatment in Ghana. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 11 January 2019, the applicant lodged her application for review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision.
Prior to the hearing, the applicant provided a copy of an article dated 28 February 2024 from The Guardian online newspaper entitled “Ghana intensifies crackdown on rights of LGBTQ people and activists”.
On 9 May 2024, the applicant provided a Statutory Declaration dated 8 May 2024. In her Statutory Declaration, the applicant makes the following claims:
·     She left Ghana [for a specified reason] and to seek protection in Australia because she is a lesbian;
·     Living as a lesbian in Ghana is not welcomed by the government or society and her family consider her behaviour as abnormal;
·     She was arrested and assaulted by police due to her sexual orientation. Her family has threatened and molested her due to her sexual orientation. The community does not accept her as a lesbian;
·     Her family threatened to disown her and they despise her. Being a lesbian in Ghana is viewed as an abomination and does not have any place in Ghana including the religious bodies;
·     In Ghana, she does not have anywhere to go or anyone to turn to;
·     The applicant first realised she was a lesbian when she was in senior high school and realised she did not like men or want them to get close to her;
·     She was in a relationship with a senior student at her school called [Ms A]. [Ms A] was 17 and they dated for over seven years. She felt good when she was with [Ms A]. They hid their relationship and often met when other students were not around. Their relationship ended when one day the applicant went to visit [Ms A] unannounced and found her with another girl. The applicant was 22 at this time;
·     She tried to hide her relationship from friends, parents and the community because of a fear of being punished. She found it hard to hide her feelings;
·     After the applicant broke up with [Ms A] she had a relationship with [Ms B]. They kept their relationship secret;
·     The applicant was under pressure from her parents to have a relationship with a man. She ended up having a relationship with a man and they had a child together. This was to divert her parents’ attention and to prove to them she was not a lesbian and for them to accept her;
·     She has been attacked in Ghana and believes that if she goes back there her life will be in danger. She fears verbal and physical abuse, as well as discrimination and possible imprisonment. She fears being disowned and isolated by family and friends;
·     The Ghanaian Parliament is in the process of introducing laws that further punish LGBTI people and make their conduct illegal and subject to imprisonment;
·     The authorities will not protect her and she cannot relocate;
·     She follows some accounts on [Social media] which advocate for LGBT rights in Africa.
The applicant also provided written submissions which refer to the relevant law and country information about the situation for members of the LGBTI community in Ghana. The applicant submits that she is a lesbian and openly gay and open about her same-sex relationship which is not possible in Ghana. She submits that she has been arrested and tortured in Ghana due to her sexual orientation and that she will be persecuted if she returns. The applicant submits that she meets both the refugee and complementary criteria for the grant of a protection visa. Her written submissions also refer to country information from various sources including DFAT, the US Department of State and Human Rights Watch about the potential for violence and discrimination against LGBTI persons in Ghana.
The hearing
The applicant appeared before the Tribunal on 17 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C] who is a friend of the applicant. An interpreter in the Ghanaian and English languages was present in the hearing but their assistance was not required even though it was offered to the applicant and [Mr C].
The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
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 decision under review should be affirmed.
In the hearing, the applicant gave evidence that she filled out her protection visa application form herself. A friend in Ghana who is studying law helped her to prepare her recent Statutory Declaration and written submissions but she didn’t pay him. She confirmed that everything in her application for protection was true and correct and there were no changes or mistakes she wanted to point out.
In the hearing, the Tribunal discussed with the applicant her personal background, family, education and employment history, relationships and sexuality, travel history, events that took place in Ghana and why she fears returning there. There were a number of significant inconsistencies in the applicant’s evidence between her written claims, what she told the delegate in her interview and what she told the Tribunal. This raised doubts for the Tribunal about the truthfulness of her claims and evidence. As discussed below, the evidence of [Mr C] and the contents of the police report did not overcome the Tribunal’s concerns. The Tribunal has taken into account that the passage of time can cause memories to fade, although the applicant did not claim in the hearing to have issues with her memory. The Tribunal has also taken into account that people can feel nervous appearing before the Tribunal and for many people, talking about sensitive personal matters such as their sexuality can be confronting, potentially awkward and they may be reluctant to share details of their experiences and feelings, particularly if they have grown up in a society where the topic of same-sex attraction and relationships is taboo. The Tribunal was mindful of these factors when questioning the applicant but for the reasons explained below, it does not consider that these factors can fully account for the many significant discrepancies in the applicant’s evidence. The Tribunal’s concerns are discussed in detail below.
The applicant’s relationships with [Ms B and Ms A]
In her protection visa application form, the applicant did not mention her relationship with [Ms B].
In her interview with the delegate, the applicant said that she met [Ms B, surname 1] the same year she broke up with [Ms A]. The applicant said she was 22 at the time she met [Ms B], which would mean they met in [Year]. The applicant also said [Ms B] was 22 when they met, but then changed to say [Ms B] was 25. Later in the hearing, the applicant told the delegate that she was 31 and [Ms B] was 22 when they were arrested (as stated in the police report) in 2017, but when the delegate pointed out that the applicant had previously said [Ms B] was older than her and the ages in the police report would mean [Ms B] was very young when their relationship began, the applicant corrected herself and said that [Ms B] was five years older than her and she does not know why it says in the police report that [Ms B] was 22 at the time of arrest. The applicant gave evidence that [Ms B] worked as [an occupation 2]. The applicant gave evidence that when she met [Ms B], the applicant was studying at the [institution] in Koforidua and they met at a club.
In her Statutory Declaration, the applicant does not mention [Ms B]’s age, work or when their relationship began.
In the hearing, the applicant gave evidence that after she broke up with [Ms A], she had a relationship with a woman called [Ms B, surname 2] and this relationship continued until she left Ghana. The Tribunal confirmed with her that [Ms B, surname 2] did not have any other names and was not known by any other names. The applicant said that she was 23 when her relationship with [Ms B] began and [Ms B] was one year older than her. She gave evidence that Elizabeth worked as [an occupation 3, doing job tasks]. The applicant gave evidence that she was doing her National Service when she met [Ms B]. She had returned to Koforidua for the weekend and met [Ms B] at a friend’s party.
In her protection visa application form, the applicant did not mention her relationship with [Ms A]. In her interview with the delegate, the applicant gave evidence that [Ms A] was 17 and the applicant was 15 when their relationship began. They met at school and their relationship lasted for seven years. In her Statutory Declaration, the applicant states that [Ms A] was 17 when their relationship began and she was the applicant’s senior at school. Their relationship lasted for over seven years. In the hearing, the applicant gave evidence that she was 17 when their relationship began and [Ms A] was 18, so one year older than the applicant. The relationship lasted for seven years.
The Tribunal put to the applicant that differences in her evidence over time about [Ms B] in particular, and [Ms A], including their personal details, raised concerns about the credibility of her claims and evidence. The applicant declined to respond.
In relation to [Ms B], the applicant has given different evidence over time about [Ms B]’s surname, how old [Ms B] was when they met, what the age difference between them was, the work [Ms B] did, how they met and what the applicant was doing at the time they met. The extent of the differences in the applicant’s evidence about the person with whom the applicant claims to have had a long-term, intimate relationship and who is central to her claims about being a lesbian raises concerns for the Tribunal about whether she has fabricated the existence of a person called [Ms B], and also [Ms A], for the purpose of her protection visa application.
The differences in the applicant’s evidence about her age and [Ms A]’s age when their relationship began are minor but add to the Tribunal’s many concerns discussed below.
The applicant’s relationship with [Mr D]
In her protection visa application form, the applicant does not refer to a relationship with a man but she does provide the details of her son, [Master E], who was born in [Year].
In the interview with the delegate, the applicant gave evidence that she met [Mr D] while she was doing National Service. She had a relationship with him for about one month and got pregnant. She had felt under pressure to try to change her sexuality. [Mr D] was angry when he found out she was a lesbian. She told him she cannot hide it and she took her son. They broke up after she discovered she was pregnant and she moved back from Ashante to Koforidua and lived with her parents. [Mr D] came to the birth and wanted her to change and marry him but she did not want to.
The applicant does not go into detail about her relationship with [Mr D] in her Statutory Declaration.
In the hearing, the applicant gave evidence that she met [Mr D] in 2014 when she was working and living at home in Koforidua. She had known him a long time ago when he was at school and she met him again in Koforidua when she was in town. She decided to back off from [Ms B] for a while and see if she could have a relationship with a man. [Mr D] lived in [Town 1] and used to come to Koforidua to visit a friend and stayed at the friend’s house. The applicant did not enjoy being in relationship with a man. She and [Mr D] never lived together. They were in a relationship for about five months before she got pregnant and the relationship lasted for about one year. [Mr D] was happy when the applicant found out she was pregnant and he told her parents. At first, the applicant was thinking of aborting the baby but then she realised the child was innocent and wanted to give it life and her mother wanted her to keep the baby. The applicant lived with her parents during her pregnancy and continued to live with them after the baby was born. [Mr D] found out she is a lesbian but not until later when the child was about one year old, as discussed in more detail below.

The applicant told the delegate that her National Service was in Kumasi, which is in the Ashante region of Ghana. She told the Tribunal that she did her National Service in [Town 2] which is in the Eastern Region of Ghana. When the Tribunal raised this inconsistency with her as a concern, she said she had never lived in the Ashante region and would submit her certificate from National Service after the hearing. As at the date of this decision no certificate has been provided.
The Tribunal put its concerns to the applicant in the hearing about discrepancies in her evidence which raised concerns about the credibility of her claims. The applicant declined to comment. The applicant told the delegate and the Tribunal different stories about where she was living and what she was doing when she met and had a relationship with [Mr D]. She has given different evidence about how long she and [Mr D] had been in a relationship before she got pregnant and how long their relationship lasted. She has also given different evidence about when [Mr D] found out she is a lesbian, which is discussed further below. These differences in her evidence raise concerns for the Tribunal about the truthfulness of her evidence and the credibility of her claims.
How the applicant’s family found out she was a lesbian
In her protection visa application form, the applicant does not describe how her family found out she is a lesbian.
In the interview with the delegate, the applicant explained that her family found out she is a lesbian after she came to Australia. Her flatmate in Ghana had directed the police, who were looking for the applicant, to the applicant’s parents and that is when her parents found out about the police report and the applicant’s sexuality. This was in June 2018. The applicant said her parents did not know she was a lesbian until that police visit.
In her Statutory Declaration, she does not mention how her family found out about her sexuality.
In the hearing, the applicant told a completely different story from what she told the delegate. The applicant said that after giving birth to her son, she and her child continued to live with her parents. One day, when her son was one year old, [Mr D] came to visit. The applicant was not home so [Mr D] went looking for the applicant. On his way to a friend’s house, he went to the plaza in Koforidua and saw the applicant and [Ms B] there and they were kissing in a corner. [Mr D] was angry with the applicant and said he had heard rumours about her being a lesbian but hadn’t seen it for himself. The applicant told him she can’t change her nature. [Mr D] told the applicant’s parents that he had caught her with a woman. Her parents reacted angrily and told the applicant to move out because she had disgraced the family. The applicant moved out with [Ms B] for about six months. Later, she moved home because of her son and told her parents she had left the lesbian lifestyle. In response to the Tribunal’s question, she confirmed that her parents found out about her sexuality when her son was about one year old. Given her son was born in [Year], this suggests that these events described by the applicant would have happened in late 2016 or early to mid-2017, while the applicant was still living in Ghana.
The Tribunal put its concern to the applicant about the discrepancies in her evidence about when and how her family found out she was a lesbian. The applicant asked for clarification. The Tribunal reminded her that she had told the delegate that her parents found out about her sexuality after she came to Australia when the police visited her parents and told them about the police report and the applicant’s sexuality, but she had told the Tribunal that her parents found out about her sexuality while she was still in Ghana after [Mr D] caught her and [Ms B] kissing at the Koforidua plaza and it was [Mr D] who told her parents that she is a lesbian. The applicant responded that she “did not remember that one”. The Tribunal has considered the applicant’s response but does not accept it as it does not respond to the Tribunal’s concerns about the differences in her evidence about what would have been a significant event in her life. The fact that the applicant has given two very different accounts of when and how her parents found out about her sexuality and where she was living at the time, raises concerns for the Tribunal about whether she has fabricated her evidence about these events for the purpose of her protection visa application and casts doubt on her claims and evidence more generally.
The applicant’s problems with the police
In her protection visa application form and her Statutory Declaration, the applicant doesn’t refer to any specific problems she had with the police in Ghana due to her sexuality.
The police report, which is dated 8 October 2018, purports to be about an incident which happened on the morning of 15 June 2017. It describes how the police were given information that about six women were in a guest house in a suburb of Koforidua engaging in lesbianism. The report says the police went to the scene and found the applicant and three other women including [Ms B, surname 1] engaging in lesbianism. The suspects tried to run away but were arrested, apart from the applicant who escaped. The other women were questioned and bailed and said the applicant had lured them to the guest house. The police are attempting to trace and apprehend the applicant who is at large. The report recommends that the investigator should gather more intelligence to find the applicant and apprehend her for prosecution.
In the interview with the delegate, the applicant referred to having problems with the police in a club in 2012, in a club in 2014 and in a hotel in 2017 (which is the incident referred to in the police report). Each time, these problems were due to her being with other lesbians and the police came to get them. She said she wasn’t arrested in 2012 because she managed to escape, but in 2014 she was arrested, taken to the police station, questioned and released on bail and in 2017 the same thing happened.
In the Tribunal hearing, the applicant said she only had problems with the police or other authorities in Ghana once. This was when she was 22 (which would be in [Year]). She was at a pub with [Ms B] and two other lesbian friends called [Ms F and Ms G]. The police came and took them to the police station for questioning. The police told them they should not dress in the way they did and that they should not be out without a man, particularly that late at night. The police let them sign a bond which was put on file and then they let them go. This was the only time the applicant had a problem with the police in Ghana because after that she decided only to socialise in private. She told the Tribunal she did not know any other lesbians in Ghana apart from [Ms B, Ms F and Ms G] because she didn’t socialise with lesbians and after meeting [Ms F and Ms G], which she had earlier said was in 2013, she didn’t see them again. It is not clear to the Tribunal how the applicant could have been with [Ms F and Ms G] in [Year] given she had earlier told the Tribunal she did not meet them until 2013.
The Tribunal put its concern to the applicant about the discrepancies in her evidence about her interactions with the police, including how many times she had problems, when those problems took place and what happened. The Tribunal specifically referred to the police report about the claimed 2017 incident, which the applicant did not mention in the hearing. The applicant declined to respond.
The applicant gave quite specific evidence to both the delegate and the Tribunal about her problems with the police in Ghana, but this evidence is sufficiently different in various respects, including the timing and number of claimed incidents, that the Tribunal cannot reconcile the different versions. The applicant has not offered an explanation for the differences. These discrepancies in the applicant’s evidence about her interactions with the police raise concerns for the Tribunal about the credibility of her claim to have had problems with the police in Ghana due to her sexuality and about her claims more generally.
Further, the discrepancies between the applicant’s oral evidence to the Tribunal and to the delegate compared to the contents of the written police report about the 2017 incident lead the Tribunal to find that the police report is not genuine. As mentioned above, the applicant did not refer to this 2017 incident in the hearing despite it being the only event for which she has provided independent documentary evidence and the incident apparently leading to her absconding and being sought by the police (according to the content of the police report), which sounds significant. The document refers to [Ms B, surname 1] (the name the applicant gave the delegate for her girlfriend) as being 22 at the time of the incident which does not accord with the applicant’s own evidence about [Ms B]’s age or the surname she gave to the Tribunal. Also, the names of the other two women in the report who were allegedly also present at the guest house and were arrested are different from the two names the applicant gave the Tribunal as the only other lesbians she knew in Ghana and whom she said she met in 2013 and did not see again. In addition, the police report refers to the applicant absconding from the guest house and remaining “at large”, whereas the applicant told the delegate that she was arrested, questioned and bailed by the police after the incident. As noted above, the applicant did not mention this incident to the Tribunal at all when being asked about her problems with the police, which the Tribunal finds surprising if it truly occurred. For all these reasons, along with the Tribunal’s more general concerns about the credibility of the applicant’s evidence, the Tribunal finds the police report is not genuine and gives it no weight.
In relation to the various concerns set out above, the Tribunal notes that much of what the applicant told the delegate in the interview and which the Tribunal has referred to is set out in the delegate’s decision. There are some details of the applicant’s evidence which the Tribunal has referred to that are not contained in the delegate’s decision, but the Tribunal considers these matters go to the applicant’s credibility[1] and that they are not ‘information’ for the purposes of s 424A as they do not, in their terms, contain a rejection, denial or inherently undermine the applicant’s claims to be a person to whom Australia owes protection obligations.[2] For this reason, the Tribunal did not put them to the applicant using the s 424A or s 424AA process. However, there are other concerns set out below which the Tribunal did put to the applicant using the s 424A process as it considered those matters fell within the scope of the section.
Where the applicant was living in Ghana
[1] SZBYR v MIAC (2007) 253 ALR 609 at [18]; MIAC v SZGUR (2011) 273 ALR 223 at [9], [77]; SZTGV v MIBP (2015) 318 ALR 450 at [102], [103]
[2] SZBYR v MIAC (2007) 253 ALR 609
In the hearing, the Tribunal raised a concern with the applicant about differences in her evidence relating to where she was living, when, why and with whom which was relevant to different aspects of her story. The applicant declined to comment. After the hearing, the Tribunal wrote to the applicant about these concerns using the s 424A process. Relevantly, the letter states:
…
The evidence about where you were living and when and why
The particulars of the information are:
·In the interview with the delegate, you gave evidence that you lived in Koforidua, Ghana, since childhood but after you were arrested by the police in June 2017, on 2 November 2017 you went back to Kumasi in the Ashante region of Ghana and stayed there for some months, before returning to Koforidua. The implication of your evidence is that you went back to Kumasi to avoid the police because they were monitoring or harassing you due to your sexuality after the June 2017 incident. Later in the interview, you said you met the father of your son while you were doing National Service and when you realised you were pregnant you moved from the Ashante region back to your parents’ place. The implication of your evidence is that you were doing you National Service in the Ashante region in 2014, and returned home in early 2015, given your son was born in [Year].
·In the hearing, you gave evidence that you lived at home with your parents in Koforidua until you did your National Service in [Town 2] in the Eastern region of Ghana from late 2010 to July 2011. After this, you moved back home. You lived in [Town 3] in the Eastern region because of your work from 2012 until part way through 2013, when you moved home to Koforidua and you lived at home until you left Ghana in 2018. Later in the hearing, you said that when your son was about one year old, you moved out of home to live with [Ms B] for about six months because [Mr D] and your parents found out you were a lesbian, and you subsequently moved back home after that. In the hearing, you said you had never lived in the Ashante region and that is not where you did your National Service.
This information is relevant because the differences in your evidence about where you lived and when and why, may lead the Tribunal to doubt the truthfulness of your evidence and to consider that your claims about being a lesbian lack credibility.
If the Tribunal relies on this information, it may lead the Tribunal to find that you did not leave Koforidua in November 2017 and go to live in Kumasi for some months to avoid the police, or for any other reason, and that you did not move out to live with [Ms B] for around six months when [Mr D] and your parents found out you are a lesbian. This may lead the Tribunal to find that you are not a lesbian and that you do not have a well-founded fear of persecution if you return to Ghana in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Ghana. If the Tribunal does not accept that you have given truthful evidence, you may not be entitled to a protection visa.
…
In her written response dated 31 May 2024, the applicant states as follows:
I relied on my evidence and submitted that:
- I lived at home with my parents in Koforidua until I was assigned to do my National Service in [Town 2] in the Eastern Region of Ghana from 2010 to July 2011.
- I submit that I moved back home and lived in [Town 3] also in the Eastern Region due to my work commitments from 2012 until 2013.
- I moved back to my parents’ home in Koforidua and lived there until I left Ghana in 2018.
- I moved and lived with my partner [Ms B] when my son was [Age]. I lived with [Ms B] for about six months but moved back home because at that time [Mr D] and my parents realised, I was a lesbian. I was forced by then to moved back home. I moved back home because I did not want the whole community to know that I was a lesbian and was living with my female partner.
- I submit that I did not do my National Service at Kumasi in the Ashanti Region. I relied on my evidence that I did my National Service at [Town 2].
- I relied on my evidence at the hearing that I had never lived in the Ashanti region and that I did not do my National Service in the Ashanti Region as stated above.
The Tribunal has considered the applicant’s response but does not accept it as it does not overcome the Tribunal’s concerns about the discrepancies in her evidence. The applicant has not offered an explanation for why she gave different evidence to the delegate and the Tribunal about where she lived and when and why. The discrepancies in her evidence about these matters raise concerns for the Tribunal about the credibility of her claims and evidence.
The applicant revealing her sexuality to [Mr C]
As discussed above, the applicant asked the Tribunal to take oral evidence from [Mr C]. [Mr C] was a friend of hers in Ghana who now lives in Australia. They have known each other since High School. [Mr C] is an Australian citizen.
In the hearing, [Mr C] gave evidence about the circumstances that led him to know about the applicant’s sexuality. After [Mr C] had given his evidence, the Tribunal explained to the applicant that it had some concerns about aspects of his evidence. After the hearing, the Tribunal wrote to the applicant about these concerns using the s 424A process. Relevantly, the letter states:
…
The evidence about revealing your sexuality to [Mr C]
The particulars of the information are:
·In the hearing, you gave evidence that you came out to [Mr C] about your sexuality when you did National Service together. You told the Tribunal he came to visit you one day at your place and saw the lady. He said not to hide it and that he already suspected a long time ago when [Ms B] came to visit one day.
·In the hearing, [Mr C] gave evidence that you knew each other when you were at school (different schools) and used to talk together. You told him you were not “into guys” but he could not remember whether you told him this while you were at school or when you were doing National Service. When asked if he knew the names of any specific people you had a relationship with in Ghana, he said he thinks there was a lady called [Ms A]. He could not name anyone else. He did not mention anything about a person called [Ms B].
This information is relevant because the differences between your evidence and that of [Mr C] may lead the Tribunal to doubt the truthfulness of that evidence and to consider that your claims lack credibility.
If the Tribunal relies on this information, it may lead the Tribunal to find that you did not come out to [Mr C] as you and he claim and that you are not a lesbian. This may lead the Tribunal to find that you do not have a well-founded fear of persecution if you return to Ghana in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Ghana. If the Tribunal does not accept that you have given truthful evidence, you may not be entitled to a protection visa.
…
The applicant responded to the Tribunal’s letter in writing on 31 May 2024. She stated that:
I relied on my evidence and submitted that:
- I told [Mr C] about my sexuality during our time together working as National Service personnel in [Town 2] in the Eastern Region of Ghana. I submit that it has been over 14 years since this revelation to [Mr C] occurred. We were young and [Mr C] might have forgotten that I came out and told him about my sexuality and my sexual orientation as an LGBT person.
- It is difficult in Ghana to come out as a gay person and for me to tell my best friend that I am gay is not something that will be repeated among ourselves. I can therefore understand if [Mr C] does not remember some events leading to me telling him that I am a lesbian.
- It was a brief visit for [Mr C] coming over to visit me and because [Ms B] was around and both of us looking awkward at that time when [Mr C] came over, [Mr C] left very quickly without wasting time or spending time with us. I believed [Mr. C] has forgotten about the incident of him coming to my house that day, because we never talked about it, [Mr C] has also never talked about it and no further discussions has occurred after that.
- When [Mr C] came to visit on that day, I did not introduce [Ms B] to him and therefore I believed he does not know who [Ms B] was and who [Ms A] was. He knew I was seeing someone, and the name I mentioned briefly to him was [Ms A]. When he came over to visit me, I believed he knew the lady in my house was a lesbian.
- [Mr C] and I knew each other, and we used to talk, but we never talked about my sexuality. In Ghana, it is difficult to even say such things to even your close friends.
- I told [Mr C] that I was into guys when he came to visit me and realised that I was with a female friend. This was the time when we were doing our National Service together.
- It will be very difficult for [Mr C] to recount any specific people that I had relationship with in Ghana, because in Ghana being a lesbian or gay is something you absolutely keep secret for fear of stigmatisation and fear of being harmed by the society and also your parents denying you for who you are. I therefore agree that [Mr C] could not name anyone else. Even as a friend I tried to hide my sexuality from him, because sometimes you cannot trust your friends for fear that, they will reveal your secrets to your parents or other friend.

The Tribunal has considered the applicant’s response. It finds aspects of her explanation confusing and aspects of her explanation, including that she never talked to [Mr C] about her sexuality, to contradict both her evidence in the hearing that she came out to him and his evidence that she did speak to him about her sexuality. In any event, given the Tribunal’s extensive concerns set out above about the credibility of various aspects of the applicant’s evidence, the evidence of [Mr C] and the applicant’s response to the Tribunal’s s 424A letter are not sufficient to overcome the Tribunal’s concerns.
In her hearing response form, the applicant had indicated that she also wanted the Tribunal to take oral evidence from her brother. In the hearing, she told the Tribunal that her brother was in [another country] and was not available and so the Tribunal should just rely on what was in the hearing response form. In that form, the applicant has stated that her brother:
…knew how my extended family and parents somehow disowned and did not take funeral contributions for other family members and promise not to be involved in any future social events that will call for the entire family’s support, because of my lesbian practice. In furtherance to that, he is aware of our parents pronouncement and vows that I should not attend their funeral rites if I do not stop my lesbianism.
Given the Tribunal’s concerns set out above and the fact that the Tribunal has not received direct evidence from the applicant’s brother, it gives no weight to the applicant’s explanation about the evidence her brother was going to give.
Findings
Having considered all the applicant’s claims and evidence, for the reasons set out above the Tribunal does not accept the applicant’s central claim that she is a lesbian. It follows that the Tribunal does not accept the applicant’s claims which flow from this.
The Tribunal does not accept that the applicant came to Australia to seek protection due to her sexuality. As the Tribunal does not accept that the applicant is a lesbian, the Tribunal does not accept that she cannot live a meaningful life in Ghana due to being a lesbian, that she has experienced arrest, threats and assault due to her sexuality, that she has been threatened by community members and harassed by the police, that her family has threatened to disown her or has actually disowned her due to her sexuality, that her family thought her being a lesbian brought disgrace to them and their community, that her family considers her behaviour as a lesbian to be abnormal or that they have threatened and molested her, that she first realised she was a lesbian when she was in High School, that she had same-sex relationships in Ghana with women called [Ms A and Ms B], that she tried to hide those relationships from family, friends and the community, that she socialised with other lesbians in Ghana or that she had any issues with the police in Ghana as a result of her sexuality. As the Tribunal does not accept the applicant is a lesbian, it does not accept that her parents found she was a lesbian while she was still in Ghana or after she came to Australia. As the Tribunal does not accept the applicant is a lesbian, it does not accept that she confided in [Mr C] about her sexual orientation as a LGBTI person or otherwise gave him reason to believe that she is a lesbian.
The Tribunal accepts that the applicant has a son in Ghana who lives with her parents and that the father of her son is a man named [Mr D] to whom the applicant has never been married. The Tribunal accepts that the applicant’s parents wanted her to have a relationship with a man but the Tribunal does not accept the applicant entered into her relationship with [Mr D] to divert her parents’ attention away from her sexual orientation as a lesbian. The Tribunal accepts that the applicant did her National Service in [Town 2] in the Eastern Province of Ghana and that otherwise, she lived at home with her parents apart from a brief period when she lived in [Town 3] for work. As the Tribunal does not accept the applicant is a lesbian or that she had a same-sex relationship with a person called [Ms B], the Tribunal does not accept that the applicant ever lived with her same-sex partner [Ms B] or that she lived in Kumasi for a while to evade the police. The Tribunal is prepared to accept that the applicant follows some accounts on [Social media] which advocate for LGBTI rights in Africa but this does not change the Tribunal’s finding that she is not a lesbian.
Based on the evidence before it, and for the reasons explained above, the Tribunal does not accept that the applicant suffered harm in Ghana for the reasons claimed or for any other reason, or that she left Ghana for reasons connected to her claimed sexual orientation as a lesbian.
Does the applicant meet the refugee criterion?
In her protection visa application form, the applicant claims that she fears returning to Ghana because being a lesbian is illegal and as a lesbian, she fears harm from her family and the community and the authorities. In her Statutory Declaration, the applicant claims that as a lesbian, she fears her life will be in danger if she returns to Ghana. She fears imprisonment and being disowned by family and friends, as well as discrimination and abuse. In the Tribunal hearing, the applicant gave evidence that if she returns to Ghana she fears discrimination and hatred from the community due to her sexuality, including the possibility of jail and she would not receive protection from the police. The Tribunal has found above that the applicant is not a lesbian and therefore it does not accept her claims about the harm she fears she would face if she returned to Ghana now or in the reasonably foreseeable future, as those fears are all based on her claim to be a lesbian. In light of this, the Tribunal finds that if the applicant returned to Ghana in the reasonably foreseeable future she would not face a real chance of serious harm arising from these circumstances. The applicant has not raised any other reasons as to why she fears harm if she returns to Ghana and the Tribunal does not consider that any other claims arise on the material before it.
In the applicant’s oral evidence, written submissions and the country information she has provided, she refers to the negative attitudes and potential risks faced by LGBTI persons in Ghana. In general terms, this accords with country information the Tribunal has about the situation for LGBTI individuals in Ghana. However, as the Tribunal has found the applicant is not a lesbian it finds that her oral evidence, written submissions and the country information about this are not relevant to her and therefore gives that material no weight.
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Ghana now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet 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, it has considered whether she meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[3] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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 she 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).
[3] MIAC v SZQRB [2013] FCAFC 33
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2024] AATA 3526

9 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction