1902802 (Refugee)

1902802 (Refugee) [2023] AATA 1224 (3 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr LEONARDO GIAMPIETRO (MARN: 0636473)
CASE NUMBER:  1902802
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Ann Duffield
DATE:3 March 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2023 at 12:56pm

CATCHWORDS
REFUGEE – protection visa – Ghana – member of particular social group – homosexual man – relationship with high-profile man – severely beaten and injured – credibility – inconsistent and implausible claims and evidence – limited account of sexuality and experiences, knowledge of claimed partner and evidence of relationship – conviction and imprisonment in third country – no application for protection there, early release and return to home country – claimed beating happened while applicant in prison – arrival in Australia on false passport in another name, and conviction not declared – delay in applying for protection – authenticity of supporting news reports – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 438
Migration Regulations 1994 (Cth), 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 30 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ghana applied for the visa on 30 May 2016. The delegate refused to grant the visa on the basis that he was not a refugee or a person to whom Australia had protection obligations.
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
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
The issue in this case is whether the applicant is a refugee or a person to whom Australia owes protection obligations.
There is a certificate on the Tribunal file issued under s 438 of the Migration Act 1958 restricting the ability of the Tribunal to provide certain documents to the applicant. Those documents relate to information obtained in relation to the applicant’s false passport, false declarations he made in relation to his past criminal history and his criminal convictions in [Country 1]. The Tribunal found this to be a valid certificate. The Tribunal provided the certificate to the applicant’s representative and sought his views and comments. The representative indicated that he was satisfied with the certificate. The information in the restricted documents was also put to the applicant during the hearing and he provided his comments which are included, where relevant, in the findings below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence before the Tribunal
The applicant provided the Tribunal with a copy of the delegate’s decision along with the application for review.
The Tribunal also has before it a copy of the department’s file along with information, submissions and country information provided by the applicant to the Tribunal. These include an article from [News source 1] entitled “[Headline naming Mr A]” dated [May] 2017; an article from [named person], dated [July 2015] entitled “[Headline naming Mr A]”; a Statutory declaration from [Mr C] and a statement from [Mr D]. The applicant also provided a copy of a press release from the Ghana Police Service dated 21 May 2021 entitled, “21 LGBTQI Members Remanded for Unlawful Assembly in Ho”.
Prior to the hearing the applicant also provided the Tribunal with an article that appeared in [a] Ghanian newspaper, dated [March] 2013, entitled “[Headline]”. This article names the applicant as a victim of a severe beating. The article states that the applicant’s “woes began” when [Mr A] was arrested four months prior, [in] October 2015 for sodomy. The article identifies the applicant as [Mr A’s] gay partner “for some time”. The applicant is reported as saying “am I wrong in opting to become gay? I have found love, for which I’m very happy”.
The Tribunal also accessed a number of articles, including an article by [named person] on [News source 2] [in] January 2023, entitled “[Headline]”; an article from the BBC dated 3 November 2011 entitled “Ghana’s President will “never support” legalising homosexuality”.
The Tribunal also has the applicant’s statutory declarations of October 2018, January 2023 and 25 February 2023 along with submissions provided by him through his representative.
The Tribunal hearing
The applicant claims that he has been persecuted by his family, community and government in Ghana because he is homosexual, and will face persecution again if he is required to return to Ghana.
The applicant told the Tribunal that he and his boyfriend, [Mr A] were attacked by some men from the village when they walked on the roadside. He said that they were holding hands and that the men abused them for being gay. He was severely beaten and [details deleted]. The date of this incident has changed several times. To the delegate he claimed that the incident happened [in] February 2013; to the Tribunal he claimed the incident occurred in March 2013.
The Tribunal reminded the applicant that he was in jail in [Country 1] in February and March 2013. The applicant said that he had been confused about the date as it was a long time ago. In his statutory declaration provided to the Tribunal after the hearing he stated that whilst he did not recall the precise date, he was certain that the incident occurred after he returned from [Country 1] in April 2013. The applicant told the Tribunal that he went to [Country 1] at the beginning of 2012 because people suspected him of being gay and he was under constant suspicion. Asked why he was under suspicion he said that people saw him and [Mr A] together because [Mr A] visited him a lot.
The applicant told the Tribunal that [Mr A] had been visiting him in the village. He clarified that he had been in a relationship with him since the beginning of 2011 and the relationship recommenced after he returned from [Country 1] in early 2013. The applicant told the Tribunal that he and [Mr A] met at [Location 1] one weekend. He told the Tribunal that for a time [Mr A] visited him every weekend for about a year.
The Tribunal asked the applicant for details about [Mr A], for example what kind of [Occupation 1] he was and aspects of his personal life the applicant said that he knew him to be [an Occupation 1] at a [Workplace] and that he was not married at the time. The Tribunal put to him that [Mr A] was a [Specific occupation 1] as it was reported in the articles that he had provided to the Tribunal and that he was married and had [children]. The applicant said that they did not have that kind of relationship.
The Tribunal asked him why [Mr A] would come and visit him every weekend in a small village and be seen holding hands given the attitude towards homosexuality in Ghana and he said that they didn’t do it on purpose. He said they were just saying goodbye.
The applicant told the Tribunal that after the incident he ran to the Missionary in [Location 1] to ask [Father F] for help. He said that [Father F] told him that he had to find somewhere to hide. He said that immediately afterwards he went to [Village 1] by mini-bus and stayed with his friend [Mr G] for a couple of years.
The Tribunal asked the applicant what happened to [Mr A] after the incident as he had not mentioned that he had travelled with him to [Village 1]. The applicant said that [Mr A] ran back to his car and went home. The Tribunal asked why they didn’t escape together in the car and why he was saying goodbye at the roadside and not at the car, and he said that during the attack they got separated and went in different directions.
The Tribunal asked the applicant to refer to the article from [Newspaper] that he had provided to the Tribunal and asked the applicant why [Mr A] wasn’t mentioned in that article, and he said that [Mr A] had run away in another direction. The applicant said that [Mr A] wasn’t attacked because the mob focussed their attention on attacking him. The Tribunal brought the applicant’s attention to the fourth paragraph in the article which indicated that [Mr A] had been arrested “four months prior” to the alleged attack on him in March 2013. The Tribunal also reminded the applicant that he had not been deported from [Country 1] until April 2013 and put to him that it may form a view that the article was contrived to support his account that he was attacked because he was a gay man. The applicant was unable to respond.
The Tribunal reminded the applicant that the article states that [Mr A] had been arrested four months prior to the attack in which the applicant claims [Mr A] was present and asked for his comments. The applicant said that it happened a long time ago. The Tribunal asked the applicant if he had fabricated the news article and he denied that he had. The Tribunal asked him where he obtained the article and he said that a friend sent it to him when he was in hiding in [Village 1] with [Mr G]. He said that he told only one trusted person where he was. This person also lived in [Village 1] and gave it to him at the time of the assault when he was there. The Tribunal asked him if he had kept it all this time and he said that he had and read it once a long time ago.
Asked if he sought medical or hospital treatment for what could only be considered his quite severe injuries, he said that he could not because he would be treated differently because he was gay. Asked how anyone at the hospital would know that he was gay unless he told them, the applicant said that the nature of his injuries would warrant police attention because he was gay. The applicant said that he would have to tell them that he was gay. The Tribunal put to him that he could simply say that he was beaten up without giving a reason. The Tribunal put to the applicant that it did not accept that the reason he did not seek hospital attention at that time because he would have to declare that he was gay. The Tribunal put to the applicant that it found his account of the beating and his refusal to seek hospital treatment as implausible. The Tribunal put to him that perhaps the reason he didn’t seek hospital treatment at that time was because he acquired his injuries at some other time for some other reason. The applicant did not respond.
The applicant said that it took about a year for his wounds to heal. He said that for the two years he spent in [Village 1] he hid and didn’t go out much. He said that he helped [Mr G] on the farm sometimes. He said that [Father F] was in communication with [Mr G] and told him that he would try to help him leave the country. Asked why [Father F] would help him leave Ghana he said that [Father F] was a missionary who had seen him suffer over the years and wanted to help him because he knew that people would kill him if they found him. The applicant explained that he asked [Mr G] to go and see [Father F] from time to time to find out what was happening.
The applicant said that [Father F] told [Mr G] about the arrangements that had been made for him to depart Ghana. He said that [Father F] did not contact him directly because he was afraid. The applicant said that [Mr G] came back one day in 2016 and he went to the airport. The Tribunal told the applicant that he needed to provide much greater detail about how he got from [Village 1] to the airport and to describe the arrangements whereby he obtained the false passport and boarded a plane. The Tribunal put to the applicant that without relevant detail it may disregard the account of the applicant’s departure from Ghana as contrived. The applicant said that he had no money of his own at all. He said that [Mr G] gave him some money to catch the bus and the passport and airline ticket did not cost him anything. He caught the bus to Accra and [Father F] asked him to meet in a place called [Location]. The applicant said that [Father F] had told him that he had made arrangements at the airport to enable him to leave. The Tribunal asked him to describe what arrangements had been made and he said that he would be able to leave without people noticing him. He said that his photograph was not in the fake passport. He said that after he arrived at the airport he went to check in and nobody asked him any questions and he boarded the plane which went to [Country 2] then [Country 3] and finally Melbourne.
The Tribunal asked the applicant what happened when he arrived in Melbourne, and he said that he was asked a lot of questions for several hours before allowing him to go. He was able to take his passport with him. The Tribunal asked him if he travelled with any funds, and he said that he had around AUD$50 with him when he landed.
The applicant told the Tribunal that he stayed at the train station and caught a train to Sydney. He said he sold his mobile phone for around $100. Asked why he went to Sydney and he said he was not too sure but he had heard of Sydney. He said that he was afraid to stay in Melbourne because he thought that immigration would come and find him.
After he arrived in Sydney the applicant said that he met someone called [Mr H] who helped him find a place to stay in [Suburb]. [Mr H] sent him to that house, and he stayed there for some time and started working in [Work sector 1] as [an Occupation 2]. When he got a bit of money together, he did a Certificate III course in [Subject]. He said that he has been working in [Work sector 2] for some time.
The Tribunal put to the applicant two statements that he provided prior to the hearing, including a Statutory declaration from [Mr C] of [Location 1] dated 20 September 2016 which states that the applicant was “caught in gay activities in the town” in March 2013 and a second Statutory declaration from [Mr D] also states that in March 2013 he was beaten by the boys at [a] town. The Tribunal asked how he came by these documents, and he stated that he asked those people to provide some supporting statements after he arrived in Australia. The Tribunal put to the applicant that the statements mention that he was caught in gay activities in town in March 2013. The applicant confirmed that. The Tribunal reminded the applicant again that he was in jail in [Country 1] at that time and asked why these people would say that the attack was in March 2013. The Tribunal asked if it should give the statements any weight at all. The applicant said that the incidents occurred after he returned from [Country 1]. The Tribunal put to the applicant that the statements mentioned that he fled to Accra whereas he claimed he went to [Village 1]. The Tribunal asked if [Village 1] was a suburb of Accra and he said that it was.
The Tribunal asked the applicant what happened when he was arrested when he went to [Country 1] in 2012. The Tribunal put to him that it had information that he was convicted in March 2012 and deported in April 2013.
The applicant said that he was arrested for drug importation, and they found some drugs on him. He said he denied it. The Tribunal put to him that he either had drugs on him or he did not. He claims that he did not. The Tribunal asked him why he was arrested, and he said they did a swab, and it came back positive. The Tribunal put to the applicant that finding drugs in his system would not lead to a drug importation conviction unless he actually had the drugs in his possession. He said that they found drugs in his bag. He says he denied having drugs. Asked then why he was jailed he said it was because the tests came back positive.
The applicant said that he had to say that he was guilty at the time because the swab came back positive, and they said that they found something in his bag. He said the lawyer told him that if he admitted to it then he would serve a lesser sentence.
The Tribunal asked the applicant why, if he held a well-founded fear of persecution by reason of his homosexuality, he did not seek asylum in [Country 1]. The applicant said that was told that he would have to finish a three-year sentence and then wait in jail while his application was processed. He said that he didn’t want to spend any more time in jail. The Tribunal put to him that it may also demonstrate that he did not have a well-founded fear of persecution in Ghana and that his claims were fabricated.

The applicant said that he was afraid of staying in jail for a very long time and he said that if he went back to Ghana he could hide.
The Tribunal asked him what happened when he returned to Ghana and reconnected with [Mr A]. The Tribunal asked the applicant if he knew what happened to [Mr A] after he left and he said that he did not. The Tribunal reminded him that he had provided the Tribunal with a number of articles describing what happened to [Mr A] over the past several years. He said that he was in jail because he was involved in gay related matters. Asked to clarify what he meant by that he said that he was caught in gay activity. The Tribunal asked the applicant why he was not interested in what happened to someone with whom he had a relationship for several years. The applicant said he had left the country. The Tribunal put to the applicant that in his statement to the department in 2018 he said that he did not know if [Mr A] was still alive but read that he had been tortured and suspected that he might now be dead.
The Tribunal put to him that his lack of interest in and knowledge of [Mr A] did not demonstrate to the Tribunal that he knew this person at all, and certainly did not persuade it that he was in a gay relationship with a high-profile man. The Tribunal put to the applicant that it was forming a view that he had found a story about [Mr A] and his arrest for homosexual related crimes and decided that he would make a claim on the basis that he was in a gay relationship with him even if he wasn’t gay himself and didn’t know [Mr A]. The Tribunal put to the applicant that the evidence that he has provided did not appear to corroborate the statements that he has made.
The applicant told the Tribunal that [Mr A] was going through the court process after he left Ghana, however the news articles indicate that [Mr A] was arrested in 2013 and jailed in around July 2015 which was some time before he left Ghana. The Tribunal also put to the applicant that since it questioned his relationship with [Mr A] it also questioned his account of the alleged attack on him and [Mr A]. The applicant said that it happened.
The Tribunal put to the applicant that in his statement of 2018 to the department, he stated that the thugs set upon himself and [Mr A] and beat them up, yet he told the Tribunal earlier that [Mr A] had run away in another direction and got in his car and went home but was unmolested. The applicant said that they beat them both. The Tribunal reminded him that he had told it a short time ago that he was not beaten. The applicant said that [Mr A] was beaten but not as badly as himself.
The Tribunal put to the applicant that in the delegate’s decision, which he had provided to it, he claimed to have been in a relationship with [Mr A] for the twelve months prior to the attack in 2013. The Tribunal put to him that he was in jail in [Country 1] at that time. The Tribunal asked him to specify the time that he was in a relationship with [Mr A] and he said that they met a year before he left for [Country 1], therefore putting their meeting at the beginning of 2011.
The Tribunal asked the applicant if he told [Mr A] that he was going to [Country 1] and he said that he did. The applicant said that [Mr A] wished him good luck.
The Tribunal put to the applicant that in his statement of October 2018 he said that he wasn’t guilty of anything but that the authorities in [Country 1] were tipped off about him in an attempt by the Ghanaian authorities to have him discredited and arrested in [Country 1] to keep him quiet about what was going on in Ghana. The Tribunal asked him if he stood by the statement and asked him what he thought the Ghanaian authorities had told the [Country 1] authorities in order to have him arrested when he landed. The Tribunal said he had not repeated those claims anywhere else and asked him to explain what he meant.
The Tribunal read to him his direct words, “I strongly suspect that the authorities in [Country 1] were tipped off by the authorities in Ghana in an attempt by the Ghanaian authorities to have me arrested in [Country 1]”. The Tribunal asked the applicant what he thought they wanted him arrested for. The applicant said he thought that they knew he was running away from the country for being gay and that was the reason why he was arrested. The Tribunal asked him to confirm his assertion that he believed he was arrested for being gay and not because he was found to be carrying drugs. The applicant said that as he was leaving Ghana as a gay man the authorities wanted him arrested. The Tribunal asked the applicant how anyone would know that he was a gay man. He said that the underground would know and he said that was why he tried to leave. The Tribunal asked the applicant if he was claiming that the Ghanian authorities told the [Country 1] authorities to arrest him when he landed in [Country 1] because he was gay.
The applicant said that what he meant to say was that he believed that the Ghanian authorities planted drugs in his bag and tipped off [Country 1] authorities so that they found those drugs in his bag when he landed. The Tribunal put to the applicant that he had given earlier evidence that they didn’t find any drugs on him but that he returned a positive swab and that’s why he was arrested and jailed. The applicant said that they did that because they didn’t want him talking about how badly gay people in Ghana were being treated. The Tribunal asked the applicant if he had given the authorities in Ghana any reason to believe that he would be vocal about gay activities whilst he was in [Country 1]. The applicant claimed that the authorities in Ghana knew people who were gay and that’s why they planted drugs on him and tipped off [Country 1] authorities.
The Tribunal put to the applicant that despite the fact that the Ghanaian authorities allegedly planted drugs on him because they knew he was gay, he nevertheless decided not to apply for protection in [Country 1] but to return to Ghana. The Tribunal put to him that on his own evidence the authorities knew that he was gay and planted drugs on him to ensure he was arrested when he arrived in [Country 1]. The Tribunal put to the applicant that it was finding it difficult to accept that his claims were in any way credible and asked him why, if his account was true, he not been arrested as soon as he landed back in Ghana. He said it was because he did not have drugs on him when he returned to Ghana. The Tribunal put to the applicant that he was trying to claim that he was of such adverse interest to the Ghanian authorities because he was gay that they planted drugs on him in order to have him arrested in [Country 1] but, despite this, they showed no interest in arresting him when he returned.
The applicant told the Tribunal that the Ghanaian authorities would not arrest him in Ghana unless he was caught in some gay activity. The Tribunal asked the applicant if he believed that the gay activity the authorities accused him of was holding [Mr A’s] hand. He said that was enough evidence to arrest somebody or to attack somebody. The Tribunal put to the applicant that he had not come to the attention of anyone for his alleged homosexuality particularly as his departure was a year prior to the alleged bashing of himself and [Mr A]. The Tribunal put to him that nobody, including the Ghanian authorities, had any reason to suspect that he was gay such that they would seek to persecute him or plant drugs on him.
The Tribunal asked the applicant why he believed that someone such as himself who had no public profile as a gay man, had not been arrested in the past, was not an advocate, had not claimed to be active in the gay community or an activist for gay rights, would come to the attention of the authorities in Ghana such that they would plant drugs on him to keep him quiet about how gay people were treated in Ghana. He said that they didn’t want people outside Ghana talking about how badly gay people were treated. The Tribunal suggested that he would not be the first person to complain.
The Tribunal put to the applicant that another the article about [Mr A] that he had provided to the Tribunal, showed that he had been treated well in prison. He was [deleted] and did not appear to have suffered any physical harm according to the news reports. The applicant said that [Mr A] was trying to reduce his sentence by [deleted] in the prison.
He said that he had only spoken to [Mr A] once but had not sought to communicate with him further since the incident. The applicant said that his relationship with [Mr A] was only casual and physical and were not a couple. He said they only saw each other from time to time. The Tribunal put to the applicant that he had told it that they saw each other every week for over a year. The Tribunal asked the applicant to clarify how he saw their relationship. The applicant claimed that they did not see each other as partners and were not committed to each other. The applicant kept repeating that they weren’t married to each other. The Tribunal was unable to obtain an explanation from the applicant about what that meant to him or what it was meant to convey to the Tribunal.
The Tribunal asked the applicant how he came to realise he was gay and what his life and experience had been as a gay man in Ghana. Despite encouragement to provide more detail, the applicant’s account was brief and unpersuasive.
The applicant said he realised at around seventeen that he was attracted to men and that because of people’s attitudes to gay men he kept his homosexuality to himself. He said that he read about homosexuality and heard about it and said that he came to understand that there was nothing he could do to change his sexual orientation and that he just had to live with it. He said that his family kept asking him why he didn’t have a girlfriend. He reiterated that he never talked to anyone about it. He didn’t have gay friends but got information in the news about how gay people were tortured in Ghana and this confirmed in his own mind that he needed to keep it to himself.
The applicant said that he had some casual relationships before he met [Mr A] (he was around [Age] years old at that time he met [Mr A]). He said that when he was [age], he met some men. He said that there is a popular beach where some gay men congregated. He said that there was a secret signal that they used to indicate that they were gay. He said that you tied a white handkerchief to your finger and men would approach you. The Tribunal put to the applicant that it seemed unlikely that such a signal could remain secret if it was so openly used and people knew about it. The Tribunal put to him that given the attitude to homosexuality in Ghana it seemed risky for people to openly advertise themselves as gay in such a way. The applicant said that maybe the police knew.
The applicant said that he had been working and living at [Suburb] after he arrived. Asked about his experience in Australia as a gay man he said that he realised that its ok to be gay here and he is not targeted in any way. He said he had a few casual relationships in Sydney but is not in a relationship at the moment. He came to Canberra in July 2021. He said that he has chosen not to mix with other members of the Ghanian community in Australia because he didn’t want to be victimised. He said that most of them still have the mindset that being gay is an abomination. He has not told any of them that he’s gay. He said that he has had traumatic experiences because he was a gay, and he lives in a private way. He said that some of the people in the Ghanian community might know that he is gay. Asked how they might come to know that the applicant said because they had not seen him with a woman, and he is not married.
The Tribunal asked the applicant and his representative if there was anything they wanted to add or clarify about the evidence put before the Tribunal, particularly in relation to some inconsistencies in the evidence.
The Tribunal put to the applicant that it found his account of his arrest and the reasons for it to be highly implausible. The Tribunal put to the applicant that he was arrested because he had tried to take drugs into [Country 1] not because they were planted on him by Ghanian authorities because he was gay or because the Ghanian authorities were scared he would speak out about how badly gay people in Ghana would be treated. The Tribunal put to the applicant that he fabricated a relationship with [Mr A] after he read about him in the newspaper and the Tribunal did not accept that he was in a homosexual relationship with [Mr A] or that he was a homosexual man and sought the applicant’s comments.
The applicant through his representative said that it would defy logic to claim to be a gay man and attract the persecution that comes with it if it were not true. He said that the applicant’s relationship with [Mr A] was complicated and lovers in the homosexual community are different to heterosexual lovers and they may not have been in an exclusive relationship. He said the fact that he didn’t know everything about [Mr A] should indicate that.
The Tribunal summarised for the applicant and his representative its concerns about the credibility of the applicant’s evidence that it had put to them during the hearing and invited them to take some time to reflect and then provide some written submissions addressing those concerns in three weeks hence (28 February 2023). The applicant agreed to this, and the Tribunal subsequently received a submission on 27 February 2023. The applicant’s response to the Tribunal’s concerns is included, where relevant, in the findings and reasons below.
In that submission, the applicant clarified that the incident in which he claimed to have been beaten by a group of men in his village because he was gay occurred in April 2013, but he is unclear about the actual date. He states that he just knows that it occurred after he returned from [Country 1]. Also, he states that he had a relationship with [Mr A] for about a year before he went to [Country 1] and resumed that relationship upon his return from [Country 1].
The applicant states that he accepts that the Newspaper article dated [March] 2013, which he provided to the Tribunal, had some incorrect information and dates in it. He states that he accepted it at face value when it was given to him. He strongly disagrees with the Tribunal’s suggestion that he fabricated the article or had anything to do with the errors contained in it. He states that other articles on the same page also had errors which he attributes to the newspaper and not himself.
The applicant stated that he only knew [Mr A] as [an Occupation 1] because that is what he had told him. He said that [Mr A] had told him that he was married and had [children] and his limited knowledge and interest in the personal life of [Mr A] was because they only had a physical relationship. He says that his relationship with [Mr A] was not one of boyfriend and boyfriend in the traditional sense, the relationship was mainly physical, and they didn’t spend a lot of time together to get to know each other.
The applicant states that he did not go to hospital after the incident because the doctors would be required to inform the police and his injuries would show that he was beaten. He states that he would have to tell the police the reason he was beaten because he could not lie to the police as they would find out the truth. He says that he as ashamed and scared and didn’t want anything to do with the Ghanian authorities or the police.
The applicant states that he did not apply for asylum in [Country 1] because he was informed that he would have to remain in prison for longer until his asylum application was decided. He sates that he wanted to get out of prison, so he let the [Country 1] authorities return him to Ghana.
Findings and reasons
Identity
The applicant arrived in Australia on a false [Country 4] passport in the name of [Alias]. He made his application for a protection visa under the name [the applicant]. The Department of Home Affairs seized his false passport on 16 August 2018.
The Department of Home Affairs also discovered that under the name [the applicant] the applicant had been charged with drug importation [in Country 1] where he served around 10 months of a 3 year and nine-month sentence and was deported. He did not declare any of these matters to the Department of Home affairs in his application for a protection visa.
The applicant was afforded the opportunity to respond to the false information he provided to the department in his application, and he stated that he was sorry for lying but was afraid that if he told the truth he would be returned to Ghana where he feared persecution.
The Department received additional identity documents from the applicant which satisfied them that the applicant was [the applicant], born [Date] in Ghana. The Tribunal accepts that the applicant’s identity has been confirmed and has proceeded to make its assessment on the basis that the applicant is who he now claims to be, and his receiving country is Ghana.
There is no evidence before the Tribunal that the applicant has the right of entry or residence in a third country.
Alleged attack on the applicant and [Mr A] in 2013
The applicant’s evidence in relation to the alleged incident during which he claims that he and [Mr A] were beaten, and [details deleted], because they were suspected by the local men of being in a gay relationship is contradictory, lacking in relevant detail and unpersuasive.
The applicant has provided two sworn statements he solicited from friends in Ghana after his arrival in Australia. He arrived in Australia [in] March 2016 and the statements are dated September 2016. In both statements, the declarants state that the applicant was beaten by the boys in the town because he was caught in gay activities. Both declarants state that this incident occurred in March 2013. This date is inaccurate as the applicant was in jail in [Country 1] at the time.
Equally, neither declarant states that there was another person with the applicant when he was attacked. It seems to the Tribunal, that if the account of the attack had any truth to it, the applicant would have told his friends that he and his gay partner were attacked, and the date would have been correct. That would have added more credibility and weight to their statements. As they stand the Tribunal gives them no weight as corroborative of the applicant’s account of the incident, or of him being a homosexual man.
The applicant has repeated on several occasions and in several statements that the incident occurred in March 2013, and further that he has told others that the incident happened in March 2013, and they have sworn to that fact. This strongly indicates to the Tribunal that the applicant did not make a mistake, nor did he misremember the time of the alleged attack. A mistake or forgetfulness can be used to explain a onetime occurrence, but this lie was premeditated and repeated many times. The Tribunal has formed a view that the applicant has concocted a date in early 2013 to align with his own movements, the arrest and incarceration of [Mr A] and to support a false protection claim.
The applicant’s own account of the alleged attack lacked relevant detail and also changed when tested by the Tribunal. He has stated that both he and [Mr A] were beaten but on other occasions states that [Mr A] fled in another direction and got in his car to go home. The applicant has also stated that [Mr A] came to see him every weekend for about a year, and it took an hour and a half for him to get to [Location 1] by minibus. On the occasion of the alleged beating, however, the applicant told the Tribunal that [Mr A] got into his own car and fled. Neither the newspaper article, nor his friends’ statutory declarations mention that [Mr A], or indeed anyone else, was beaten or even with the applicant at time of the alleged beating.

The Tribunal does not accept that the newspaper article provided by the applicant corroborates his account that he was attacked because he was gay. A search of the [Newspaper]’s website did not locate the article in question, but in any case, if the Tribunal accepts that the article is a genuine article that appeared in the [Newspaper], it will also have to accept that [Mr A] was not with the applicant at the time of the alleged attack, because according to the article he had been arrested “four months prior”. It would also have to accept that the incident occurred in March 2013 when the applicant was in jail in [Country 1].
The applicant told the Tribunal that he received this article from a friend living in [Village 1] at the time that was hiding out there with his friend [Mr G], shortly after the attack. If the Tribunal accepts that, it will also have to accept that the applicant, through all his alleged trials and tribulations and having abandoned all his worldly possessions, would nevertheless be able to keep a newspaper article over the course of some ten years.
The Tribunal does not accept that the newspaper article which allegedly appeared in [Newspaper] [in March], 2013 and provided by the applicant is a genuine article, but fabricated by, or for the applicant for the sole purpose of supporting his claims.
The Tribunal does not accept that the applicant did not go to hospital after the alleged attack, despite the severity of his injuries, because he was afraid. The Tribunal does not accept that the applicant would have to tell the police that he was gay as he states. There are any number of equally plausible explanations why he may have been beaten in Ghana, including a random attack or robbery. The Tribunal has formed a view that the reason the applicant did not go to hospital at that time is because his injuries did not occur at that time. Had he stated that he had gone to hospital after his alleged attack, he would have been asked to produce some hospital records or other evidence to the delegate, or the Tribunal, which simply would not have existed for the time stated.
Departure from Ghana
The Tribunal does not accept that the applicant went to [Father F] to seek his help to escape Ghana after the alleged beating, or that he travelled to [Village 1] to stay with his friend [Mr G] for two years because he was beaten because he was gay. If the applicant did go to [Village 1] to stay with [Mr G], then it was for another reason. The account given by the applicant of his procurement of a false passport from [Father F] lacks relevant detail and is also implausible. Furthermore, its difficult to imagine, that if the applicant was in fear of his life, he would not have tried to leave the country earlier or travelled further away from [Location 1], but instead chose to remain in [Village 1] for two years, where he was apparently undetected despite his claims to have been of such adverse interest to the Ghanian authorities that he feared persecution. In the Tribunal’s mind there was no impediment for the applicant to depart Ghana on his own passport except that he did not have an Australian visa. Had he tried to apply for one he would likely have been refused because of his criminal record and deportation from [Country 1].
Drugs and arrest in [Country 1]
The Tribunal does not accept that the applicant had drugs planted on him by Ghanian authorities prior to his departure to [Country 1] in 2012 for the reasons claimed or for any other reason.
At the time the applicant departed for [Country 1] in early 2012, he did not claim to have come to the attention of the authorities by reason of his homosexuality or for any other reason. It was prior to the alleged incident in April 2013 which was also not reported to the authorities. He was not an advocate for gay rights, a leader or even a member of a gay rights group, or indeed any kind of association comprised of gay people. He had not been arrested because he was gay or involved in any gay activity. He had never spoken publicly about the ill-treatment of gays in Ghana or anywhere else. He had not participated in any rallies, demonstrations, or public events where he may have been identified as gay. He did not claim to frequent or even attend gay clubs.
If any part of this account is true and the Ghanian authorities wanted to harm the applicant because he was gay, or for any other reason, it would not be unreasonable to expect that they would have detained or arrested him upon his re-entry to Ghana, particularly as he would have returned as a criminal deportee. The applicant did not claim to have been detained or even questioned by the authorities upon his return. He stated that they would not be able to arrest him unless they caught him in some gay activity. This in itself contradicts his earlier claims that the Ghanian authorities wanted to persecute him, and planted drugs on him, because they knew he was gay because he was caught in some gay activity, viz, holding hands with [Mr A]. However, he was not seen holding hands with [Mr A] until a year later.
Failure to apply for asylum in [Country 1] and in Australia immediately upon arrival
The Tribunal is not satisfied that the applicant was of any adverse interest to the authorities because he was gay, or for any reason at all, such that they would plant drugs on him and “tip-off” the [Country 1] authorities. If any part of this account were true, it would seem to the Tribunal that the applicant would have declared it to the [Country 1] authorities at the time of his arrest and used it as the basis for him to claim asylum. However, he did not. He did not. at any time whilst he was in [Country 1], declare to the authorities that he was a homosexual man who feared persecution in Ghana and the proof of that claim was that he was being framed for drug importation. Instead, he did not contest the charge and pleaded guilty. He claims it was because he was told that he would have to stay incarcerated until his claim was heard. The Tribunal does not accept that this was the reason he did not claim asylum
More tellingly is the fact that the applicant did not claim asylum when he entered Australia [in] March 2016, but indeed, fled Melbourne because he was afraid that immigration would find him. If the applicant did fear persecution, for any reason, it seems to the Tribunal that he would have been motivated to inform the first official he came across in Australia, particularly an immigration official, upon his arrival. However, the applicant did not make a protection claim until 30 May 2016, some three months after his arrival.
The Tribunal has formed a view that the applicant did not make a claim for asylum in [Country 1] or immediately upon his arrival in Australia simply because he was not fleeing persecution in Ghana on the basis of his sexuality or for any other Convention-related reason.
Homosexuality and alleged relationship with [Mr A]
The Tribunal does accept that homosexuality between men in Ghana is criminalised and that homosexuals are subject to arbitrary violence and treatment which could be considered cruel and inhuman, and they are unable to access effective state protection.
However, the Tribunal found the applicant’s evidence in relation to his alleged homosexuality and his relationship with [Mr A] to lack credibility. His evidence was inconsistent, lacking in relevant detail and wholly unpersuasive. The Tribunal is not satisfied that the applicant was or is a homosexual man or that he was in a homosexual relationship with [Mr A], or indeed anyone else in Ghana.
Given ample opportunity and encouragement to talk about his life as a homosexual man in Ghana and Australia, the applicant was not able to provide any insights, details, or personal reflections on his sexuality and what that meant to him. In forming this view, the Tribunal has been very mindful that in communities and countries where homosexuality is considered an abomination and unlawful, there is often limited opportunity or willingness to develop a way of openly communicating that with others.
However, the applicant’s account of his life as a gay man in Ghana was limited to a few sentences. His account of gay men congregating on a public beach using a white handkerchief tied around a finger as a sign of homosexuality is unsupported. It seems to the Tribunal that such a signal would soon become known to others, including police. In a country that criminalises homosexuality, it’s hard to accept that such an account could be truthful.
Be that as it may, the applicant has now been in Australia for 7 years and whilst it would be understandable for him to be tentative in his exploration of how, or if, he would express his homosexuality, he continues to hide his alleged homosexuality, doesn’t discuss it openly or engage with the gay community in Australia. He has found no meaningful way to talk about his own experiences.
The Tribunal has considered the two statutory declarations provided by the applicant’s friends in Ghana attesting to him being caught in “gay activities” and that he was a “practicing GAY’. These statements provide no other details or information, or context in which they could, or should, be accepted as meaningful or probative. In any case, both statements have been found to contain incorrect information and do not mention that the applicant was involved in a gay relationship with [Mr A] or that [Mr A] was assaulted at the same time as the applicant. The Tribunal gives these statutory declarations no weight.
The applicant’s account of his alleged homosexual relationship with [Mr A] is equally unpersuasive. The length of the relationship with [Mr A] has changed in the applicant’s recounting of his claims. First, he stated that he was in a relationship with [Mr A] for the year prior to the beating, however he was in jail in [Country 1] for that period. Then he stated that he began a relationship with him from around the beginning of 2011 and that it resumed after he returned to Ghana upon his release from prison in [Country 1] in 2013.
The applicant’s knowledge of [Mr A] was scant at best. He at first told the Tribunal that [Mr A] wasn’t married, then when corrected, admitted that he knew that but had forgotten. He did not know what kind of [Occupation 1] he was. The applicant said repeatedly that he and [Mr A] were “not married” but didn’t explain to the Tribunal what meaning he intended that to convey.
The applicant was not able to provide any details about the reasons why [Mr A] was arrested or what has happened to him since his arrest and imprisonment. He stated only that he was arrested because of “some gay activity” but did not know what. Given that the applicant provided media reports detailing the quite serious crime of which [Mr A] had been accused, it seems to the Tribunal that it would not be unreasonable to expect the applicant to know what had happened to him. He did not. He claims that he did not seek to reconnect with [Mr A] except through a third party, after the incident.
The applicant has also stated at other times that his relationship with [Mr A] was close and they saw each other every weekend for about a year. He referred to [Mr A] on several occasions in his statements as his “partner”. Also, given that [Mr A] lives at least an hour’s drive away, and that he worked at a [Workplace] as [an Occupation 1] and was married with [children], it seems to the Tribunal that the frequency of his visits was indicative of a fairly committed relationship. For the applicant to then go on to deny they were in a relationship; that it was “just physical”, and they didn’t have time to get to know each other seems to the Tribunal to be a deflection of its questions about [Mr A] that the applicant simply could not answer because he had never met him.
For the reasons above, and given the applicant’s lack of credibility, the Tribunal is not satisfied that the applicant was in a homosexual relationship with [Mr A] or that he even knew him. The Tribunal has formed a view that it was not until after his arrival in Australia 2016, that the applicant concocted his claim for protection that he has presented to the Tribunal, and before it, to the immigration department.
Credibility

100. The Tribunal accepts that inconsistencies in evidence can occur, particularly in circumstances of high stress and when applicants are being asked to recount traumatic events which may have occurred several years prior. The Tribunal is also mindful that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
101. The Tribunal was very clear with the applicant about which matters it considered to be implausible or that lacked credibility and the applicant was given the opportunity to explain the inconsistencies in his evidence at the hearing. The Tribunal also gave him time to reflect upon its concerns and invited him to respond to those concerns in written submissions to be received three weeks after the hearing. He was unable to allay the Tribunal’s concerns to its satisfaction. In the Tribunal’s mind, the lack of detail and the extent to which the applicant’s account varied across time and even during the hearing reveals a contrived account of events rather than a lived experience of them.
102. The discrepancies identified by the Tribunal were about significant and central aspects of his claims. Taken into account collectively and along with the manner in which he testified; the Tribunal is not in any doubt that the applicant has not been truthful.
Conclusion
103. The Tribunal thus finds that the applicant’s claims about his homosexuality are not credible, that he did not have a homosexual relationship with a man named [Mr A], or even knew that man, was not attacked in April 2013 for the reasons claimed, nor was he identified or targeted by the Ghanian authorities or anybody else for being a gay man or considered by anybody to be a gay man. The Tribunal is not satisfied that the applicant identifies himself as a gay man in any context, except for the purposes of making this application.
104.
105. Having found that the applicant is not homosexual and has not been persecuted in the past in Ghana for reasons of his homosexuality the Tribunal finds that he does not have a well-founded fear of persecution in Ghana for the reason claimed. Furthermore, on the basis of the evidence before it, the Tribunal is not satisfied that that the applicant will be persecuted for any other convention-related or non-convention related reason should he return to Ghana either now or in the foreseeable future.
106. 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).

108. The Tribunal has found the applicant’s account of the harm he fears to be entirely contrived and lacking in credibility. Considering all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ghana, there is a real risk the applicant will suffer significant harm. The Tribunal therefore 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

110. The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1224

3 March 2023

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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