2205397 (Refugee)

2205397 (Refugee) [2023] AATA 2562 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tolbert Tony Assante (MARN: 0960227)
CASE NUMBER:  2205397
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sean Baker
DATE:27 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 June 2023 at 4:42pm
CATCHWORDS
REFUGEE – Protection Visa – Ghana – sexuality – bisexuality – religion – Christian background – lack of detail about his claimed homosexual relationships – applicant not in genuine relationship with former wife – is not homosexual or bisexual – fabricated claims – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AA, 424A, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 29 March 2022 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 6 December 2021. The delegate refused to grant the visa on the basis that they did not find the applicant’s claims about his bisexuality to be credible. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 2 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages. The applicant was represented in relation to the review. The representative did not attend the hearing.
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 there is a real chance of the applicant being persecuted on return to Ghana, or, if not, a real risk of significant harm if he is removed from Australia to Ghana, in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and identity
The applicant provided a copy of his Ghanaian passport to the Department. On the basis of this document, I accept that the applicant is a National of Ghana and is who he claims to be.
Claims
The applicant was sponsored to Australia on a spouse visa by his former wife. He told his former wife that he had had homosexual cravings since high school, but he could not come out and had hidden his inner cravings for his sexuality. He told his former wife he had been healed. They went to Church and underwent all forms of cleansing.
Before he met his wife, he had had no interest in women but thought he could overcome his feelings for men and become a heterosexual person.
The applicant arrived in Australia and lived with his former wife as husband and wife but struggled to understand his new sexual orientation. Initially things went well but then he was going out and coming home late. His wife was unhappy. He was unable to overcome his innate sexuality and it destroyed the marriage. It was his sexual preference which led to the marriage falling apart and ultimately destroyed the relationship.
The applicant hid his sexuality from people in Ghana who had spread rumours and innuendo about him. He believes after his failed marriage that he is publicly known to be a lover of same sex. His wife has portrayed him as a homosexual person on Ghana social media.
The public discourse in Ghana has turned against homosexuals. Recently parliament reasserted its stand against same sex people.
He fears if he returns to Ghana he will be harassed, detained, and imprisoned without trial. His parents will be marginalized. He fears harm from the government, the authorities who will arrest, detain, harass him and require bribery, and humiliation, discrimination and stigmatisation at the workplace and in his family. The Pentecostal church has dedicated a day of prayer to heal homosexual people and the government encourages people to attack gay and lesbian people. This treatment may lead him to commit suicide.
If he sought help it would assist the authorities in subjecting him to spiritual cleansing to wipe away the sexual demonic. He cannot openly come out as a gay person in Ghana.
He cannot relocate to an ECOWAS country as they are all anti-gay and lesbian.
According to the delegate’s decision, at interview the applicant claimed that he had been attracted to men since he was 16, and his first sexual encounter was with a friend from school, [Mr A]. On leaving school they had parted ways. He had gone on to learn [Occupation 1]. He had also had a relationship with another mane, [Mr B], who lived on the same street as the applicant. Their relationship ended when the applicant’s mother discovered the applicant and [Mr B] having sex. The applicant claimed he met his former wife through a customer at the applicant’s [Occupation 1 business]. This customer convinced the applicant to contact his Australian female friend who was looking for a partner. The applicant and this woman then spoke over the phone and married when she came to Ghana in 2014. The applicant claimed he had married to appease his mother and he hoped by getting married he would get over his homosexual tendencies. The relationship with his wife broke down in 2020 when his wife found messages between the applicant and a man named [Mr C]. His wife destroyed the home and kicked him out. He said he and [Mr C] were not in a relationship but planning to be in one and he had met [Mr C] in December 2019 in a shopping centre and had known he was gay by his body language and the way he dressed. Evidence of his correspondence with [Mr C] was on the phone his former wife had destroyed. The delegate found that the applicant had provided vague and undetailed evidence about his claims, and found that the applicant was not a credible witness. The delegate went on to find that they were not satisfied that the applicant had engaged in homosexual relationships in Ghana or was perceived as being homosexual, identified as homosexual or would engage in homosexual relationships in Ghana if he returned.
Pre-hearing submission
The applicant’s representative provided a submission from the applicant dated 12 April 2023.
In this submission the applicant states that he arrived in Australia in May 2015 and that he and his wife were in a marital relationship but due to his sexuality the relationship unravelled, and they ended their marriage.
He restated that he had tried to hide his actual sexual orientation until he was caught out. As a cover up he tried to appease his family and got married unwillingly. His wife leaked all sorts of reasons which led to their marriage breakdown.
He married his wife in 2014. The marriage ended the malicious inaccurate lies his former wife spread about him. People started to treat him as usual.
Since he came to Australia, he felt his sexuality was not an issue and he could be a bi-sexual. He continued his marital relationship with his wife until she discovered his secret liaisons with male counterparts which led the relationship to unravel and her to withdraw her sponsorship.
He explained further his relationships with [Mr A], with whom he had a relationship under the guise of being friends, and [Mr B], with whom he had casual sex in secret places because they could not identify themselves as being in a relationship.
His first wife divulged all sorts of information about him. His life in Ghana was not good.
He claims his wife withdrew her sponsorship when she learned he was gay. She discovered conversations with his friend [Mr C], destroyed his phone, kicked him out of the house and took out an AVO against the applicant, culminating in her withdrawing her sponsorship.
[Mr C] had picked the applicant up from his house, so the applicant had [Mr C]’s address and phone number in case he needed it for Uber.
As a minority gay person, he strives to conduct relationships in secret. Gay men in Ghana hide their sexual orientation.
The applicant noted that Ghanaian government and society has a hostile attitude towards same-sex people. He cites an example of verbal attacks on a NSW member of parliament and notes that if this can happen in Australia it would be much worse in Ghana.
As well as being considered under the refugee grounds he believes he will be subjected to inhuman or degrading treatment as he is from a Christian background and will be harassed, detained discriminated against and extorted because of his sexuality.
At the hearing the applicant provided evidence. I have considered this below.
At the hearing I put information to the applicant pursuant to s 424AA.[1] To further assist the applicant, and as he requested, I sent him a letter pursuant to s 424A/424(2) after the hearing. His responses both at hearing and in that letter and the further information he provided in that letter are considered below.
[1] A certificate purported to be pursuant to s 375A was placed on the applicant’s spouse visa file [deleted]. Having assessed this certificate I found it to be invalid because it did not provide sufficient detail of the claimed public interest reason, stating only that the folios concerned would reveal information from another government department obtained in confidence. I put to the applicant the information of relevance. I did not discuss the purported certificate with him as I had already concluded that it was not valid.
Consideration
Credibility
Claims of his sexuality
As did the delegate, I had concerns with the ability of the applicant to establish his claimed homosexuality. I am aware that questions of a person’s sexuality are among the most difficult and sensitive matters the Tribunal deals with and that questioning and fact finding in this context must be conducted sensitively, carefully, mindful of biases and prejudices, but also rigorously.
I developed concerns when the applicant was not able to describe his claimed homosexual relationships in Ghana with any detail or specificity. The applicant responded with short sentences or single words. He responded to questions about his life as a homosexual in Ghana with very little detail. I appreciated that he may have been reluctant to discuss his sexuality, but he was less forthcoming that his written claims, which appeared odd, and I attempted through a variety of questioning techniques to provide him with an opportunity to give more detail, but he was not forthcoming.
I was also concerned that despite telling me that he had been called a euphemism for a homosexual by his schoolfriends, which he said was not a good phrase, and despite telling me that the general view in his community was that it was a grave sin to be homosexual, and saying that he had not thought it was a grave sin even before realising he was attracted to other men, he was unable to explain how he had reacted and dealt with this apparent contradiction between his personal feelings and the view his friends and community took of homosexuals. He was similarly unable to explain how, despite being called this euphemistic name in the community, he was able to have a sexual relationship secretly with his friend when they were [age] in his house for over a year without his family discovering them or confronting him about it.
The applicant claimed that he had met the person he had his second homosexual relationship with, [Mr B], at a market and the applicant claimed that he knew [Mr B] was homosexual because of how he carried himself, so he went up to him and they talked about their previous relationships. After, he claimed, his mother had caught him and [Mr B] in bed, the applicant then had a relationship with a woman, [Ms D], so that his mother would think he had changed and was not homosexual. [Ms D] had eventually concluded that the applicant was homosexual as he did not want to be intimate with her and she had heard he was homosexual, and she kicked him out.
I was curious that the applicant told me that [Ms D] had heard he was homosexual from the applicant’s sister. I confirmed with the applicant my understanding that in Ghana homosexuality was seen as a shame that extended to the family and asked, given this, why his sister would have told [Ms D] that. The applicant said that he had left his family home to go to [Ms D]’s house as he feared his mother would tell the community what she had seen and that he was homosexual. I noted to the applicant my concern that his sister and mother would divulge his homosexuality to anyone given that they would also be shamed by this, as he had concerned. The applicant said that his sister had told [Ms D], as his sister thought he had not changed. He was not able to explain why his sister, or his mother, would have revealed his homosexuality.
The applicant described how he began his relationship with his former wife, [Ms E], contacting her on the phone and then she travelled from Australia to Ghana, and they were married. He said that he thought his relationship with [Ms E] would be different from that with [Ms D] because [Ms E] was different and she talked to him about his preference for men, trying to get him to change. He was not able to explain how [Ms E], coming from Australia, was aware that his preference was for men, his claim that [Ms D] told people who then told [Ms E] was far-fetched. He was not able to explain why he had pursued the relationship with [Ms E] or why he thought it would be different or not fail like his relationship with [Ms D] had.
The applicant said that he had come to Australia in 2015 and moved in with [Ms E] and lived in that house until 2020 when they fell out. I confirmed that he had lived in the house with [Ms E] for five years and he said he had. He had earlier told me that he had been working in [NSW] for six months and prior to that he was working in Melbourne, [doing] two jobs. He said he had been in a relationship with her for those five years although they had had quarrels and problems every now and then.
The applicant described their confrontation in 2020 when his wife had seen a conversation with someone on his phone who he called [Mr F]. He said [Mr F] was a friend he had met at a shopping centre in Melbourne, and they had become friends, he didn’t know his full name, it was just [Mr F]. He said he got his phone number as [Mr F] was Ghanaian like him. He said he had not had a sexual relationship with [Mr F] but that they were beginning to form a strong relationship. I asked the applicant why he had told the Department officer that this person was called [Mr C] not [Mr F] and the applicant said it was [Mr C], he just called him a different name.
The applicant said he had had not had sex with men during the five years he was with his wife. He said since his wife kicked him out, he had not had sex or intimacy with any men, he had just befriended a guy two months ago in the city with a name like [Mr G], but he had been drunk so he wasn’t quite sure, and they had fondled each other. When I asked why he had not been intimate with anyone else he said because he was in a foreign country and not established. I asked if he had explored his sexuality in any other way in Australia and he said he had gone to a gay parade. I asked what gay parade he was referring to and he said last month there was a gay parade in the city, Mardi Gras, and he went there by himself, he wanted to see what they were doing, and he took a lot of pictures and went to a gay club.
After putting to the applicant information pursuant to s 424AA as below, I noted to him that I would send him a letter and allow him a further opportunity to address the main areas of concern with his claims of his homosexuality – a lack of detail about his claimed homosexual relationships, and his lacking explanation for his internal state when he claimed to have realised he was homosexual.
The applicant responded to my letter with a statutory declaration declared 12 June 2023. Relevantly to this area of concern, he stated that when he was in Ghana he could not come out as a fully fledged gay person because of attitudes there, and in Australia he was trying to come to terms with his sexuality vis a vis his wife and how to handle the situation amicably. He said he had been treading carefully in his relationship with [Mr H] because he had hidden it from his wife. His relationship with his wife broke down when she found out about his communications with [Mr C]. He went on to say that when he had met [Mr H] in Sydney last year, they took time to know each other and saw each other on weekends, going to gay clubs and eating out. they celebrated Mardi Gras and took photos together. They are developing their relationship. He is not flamboyant as his friends are hostile to same sex persons. He is discreet. He also lives in [an area] which is not a gay-friendly area. He participated in Mardi gras and has been to most gay bars and clubs in Sydney and [certain] suburbs. His friend [Mr H] has introduced the applicant to his gay friends and their families, and they look forward to spending their life together as being in a relationship.

In common with his earlier written claims, the applicant has provided significantly more, and inconsistent, evidence in writing compared to his oral evidence to me at hearing. He has claimed in writing that his relationship with [Mr H] was ongoing at the time he was with his wife, which he said had ended when she kicked him out in 2020, he claims that he met [Mr H] last year in Sydney and they had taken time to get to know each other, eating out and going to clubs, celebrating Mardi Gras together and their relationship was developing. He claims [Mr H] has introduced him to people and they look forward to spending their life together. This contrasts with his evidence at the hearing that he had met [Mr G] two months previously, and they had fondled each other, he wasn’t sure of [Mr G]’s name as he had been drunk. This was the only information the applicant provided about [Mr G] or [Mr H] at the hearing despite me asking him about any intimacy or relationships in Australia or any other explorations of his homosexuality. The applicant had also told me he had gone to the Mardi Gras parade by himself and did not mention going with anyone, including [Mr G]. He did not mention their developing relationship, looking forward to spending their life together or having been introduced to [Mr G]’s homosexual friends and their families.
The applicant provided four photographs to evidence his attendance at Mardi Gras. One shows the applicant at a train station with a pride flag, another shows him with another man, another two show the applicant in the street with others dressed in pride rainbows, one of him standing alone in the street, and one of several other men dancing. There is no way to tell if the man he is standing with is [Mr H] or anyone else, there are no further photographs of this person.
I have carefully considered the evidence the applicant has provided. I continue to have real concerns that his oral evidence at the hearing was less detailed, and in important respects, inconsistent with, his written claims. I do not wish to speculate for the reasons for this, but I find the inability of the applicant to describe his experiences in as much, and consistent, detail as his written claims, to be of concern. I am concerned that the applicant could not engage and discuss with me his thoughts and feeling when he was realising, he was homosexual in an environment overwhelmingly negative towards same sex attracted persons. I am concerned that the applicant could not discuss or explain in detail his claimed homosexual relationships in Ghana. I am concerned that he could not explain how his female partners became aware of his homosexuality in a deeply homophobic environment. These concerns are reinforced by his claims about his relationship with [Mr H] where I find his written claims about this relationship completely at odds with what he told me at the hearing. No explanation for this discrepancy has been provided.
Credibility
His relationship with his wife
This leads me to a consideration of his relationship with his wife [Ms E], because this is central to his claims of his repressed sexuality, attempt to marry and live with a woman, and for why the relationship with his wife ended. I accept that the applicant and [Ms E] married in 2014 but, for the following reasons, I find that they were not ever in a genuine relationship. This leads me to further doubt the applicant’s claims and the general credibility of his claims.
The applicant told me at the hearing that he had moved in with [Ms E] on arrival in 2015 and lived in the house for five years until [Ms E] kicked him out in 2020. He had been in a relationship with her for those five years. He had told me he had worked in [Melbourne].
I put to him at the hearing and sent him a letter with the following information which appeared to contradict his earlier written evidence and what he had told me at the hearing.
On 4 July 2018 the Department of Human Services supplied information to the Department of Immigration in relation to [Ms E]. She had declared that she had lived at a Victorian address since 2013. She declared that she had been in a de facto relationship with another man which ended in March 2013 and from that date (until the date the information was supplied) declared herself separated, that is, not in a relationship, and she received the parenting payment single, for single parents, from 2013 to 2015.
When the applicant attempted to substantiate his relationship with [Ms E] in his spouse visa application, he provided financial statements from 2016 and 2017 which largely included transactions by him in Sydney, which appeared to indicate he was living in Sydney. He only provided proof of residence at the Victorian location of [Ms E] in February 2018, after the Department sent a request for further information.
This, with a lack of other evidence of their relationship, led the Department decision maker to conclude that the applicant was not in a spousal relationship with [Ms E] at any time and had entered into the marriage to bypass immigration pathways.
I explained to the applicant that this information is relevant because the information in his spouse visa file may lead me to conclude that he had not been truthful when describing his relationship with [Ms E]. It may lead me to conclude that he had entered into a non-genuine relationship to gain residency in Australia. Given the centrality of the marriage to his claims of his repressed sexuality and given the suggestion of fraudulent activity to gain a migration outcome, it may lead me, alone or with other information to doubt the general credibility of his claims and to disbelieve all of his claims in relation to his sexuality.
The applicant chose to respond at the hearing but also asked that he could respond after the hearing, which I agreed to.
At the hearing he told me that when he arrived in Australia, he had lived in the house with her for a month. [Ms E] told him to find a job. The applicant searched for one in Melbourne but could not find one and his sister in Ghana told him that a friend of hers found work in Sydney. He spoke to [Ms E] and told her that he would go to Sydney and work and if he became financially independent, he would come back to her. He went to Sydney and would go back to Melbourne every two weeks. He described how [Ms E] told him she had received a letter from Immigration about their relationship. The applicant suggested he move back to Melbourne and look for a job, but he was not successful. The applicant said his boss in Sydney wanted him to come back or would give his position to someone else. She said [Ms E] told him to come back to see the letter from Immigration and did not tell him she had been called by immigration asking where he was. He said that [Ms E] cancelled their joint bank account. He asked [Ms E] about this, and she got upset and said she had opened a new account. She said she would give him the numbers later. He said all of this happened. Usually when he came to Melbourne there would be little fights and he would have to go and live with his friend. The applicant said he told his boss he would have to move back to Melbourne. When he brought up the Immigration Department with his wife, she would get angry and threaten to send him back to Ghana. She did not tell him why she threatened this. he said he went to Centrelink with his wife and they asked why he lived in Sydney and he explained that his wife supported this. He claimed that his wife had a large Centrelink debt and his wife would take $200 from his salary to repay the debt. She would not tell him how the debt was incurred. He said that in these situations he was at a disadvantage as he did not know how to read and write so his wife had the upper hand. He said that when she kicked him out of the house she said to him that she would tell Immigration there was no relationship between them.
In his statutory declaration of 12 June 2023 he states that:
·He stayed in Melbourne for three months from his arrival in June 2015. He found a job in Sydney and relocated from Melbourne to Sydney. He travelled to Melbourne to visit his wife every two weeks. He provided Bus and train receipts for travel 13 November 2015 to 21 November 2015 and 29 June 2018 to 2 July 2018, as well as a receipt for ‘transfer fees’ dated 27 August 2018. He claims that he tried to get the company to print more but they could not.
·He states that his wife had a single parenting payment from 2013 to 2015 and from his arrival they notified Centrelink and Centrelink used his weekly payments to determine how they would pay her. He states that they provided all of their evidence to prove to the Department that the relationship was genuine and they lived together in Melbourne until he moved to Sydney. He notes that he provided a letter from the Department of Health addressed to him at the Victoria address.
·When he was working in Sydney his weekly wages were deposited in their joint bank account in Melbourne. He has provided a copy of several payslips which state that his pay was deposited to [a bank] branch in Victoria as well as his letter of offer, payslips and ATO documents all of which record his address as the address of his wife in Victoria.
·He refers to his Driver’s licence which he renewed in 2018 and showed his address as the address of his wife in Victoria (as does the letter from the Department of Health and his payslips and offer of employment).
·He states that he lived at this address from June 2015 to December 2020 when she threw him out of the house. Even when working in Sydney he was commuting every second week and considered Melbourne his home. The idea he lived in Sydney between 2016 and 2017 is far fetched and has no factual basis. He was living in Melbourne except that he worked in Sydney.
·The financial statements were provided by his wife and show transactions in Sydney because he was working there, they do not concretely show he was living in Sydney. He states that he did not enter into the relationship to bypass immigration pathways, he met his wife when he was in Ghana and fell in love. His wife sponsored him out of love and her own volition.
I have carefully considered the explanations given by the applicant at the hearing and in his statutory declaration. Considering his responses with my concerns however, I find that his explanations do not adequately address the concerns raised with him. The applicant has not explained why his wife has represented herself as separated, that is, not partnered, from March 2013 to July 2018, including three to four years in which the applicant and she were married and claimed to be in a spousal relationship. He claims that they declared their relationship to Centrelink and that his pay was used to calculate her payments but this is contrary to the information provided by the Department of Human Services and I prefer the information from the Department because it is a contemporaneous record of the situation at the time.
He has attempted to explain whether he was living in Sydney or Melbourne over the period 2015 to 2020 but I did not find the explanations and evidence he has offered to be compelling or convincing. I note that early in the hearing the applicant claimed to have been living at the Melbourne address consistently from his arrival in 2015 to 2020 when he claims his wife threw him out. He also told me that prior to working in Sydney for the last six months prior to the hearing, he had been working [in] Melbourne. He did not mention travelling to Sydney to work. He did not mention living there prior to the end of the relationship in 2020, even if only part time as he claims. When the information was put to him that he had provided financial statements from 2016 and 2017 which largely included transactions by him in Sydney, and only provided proof of residence at the Victorian location in February 2018 after the Department sent a request for further information, he explained he had been working in Sydney but travelling back to Melbourne every second week. He explained the reasons for doing so as being that he could not find a job in Victoria and that he travelled there at the agreement of his wife. He claimed that his wife had threatened him and had acted against his interests.
The written response provides further detail, he claims he travelled every two weeks to Melbourne, but he has provided only two or possibly three receipts of travel back and forth, once for a week and once for three days, over a three-year period. He claims he could not obtain further information from the travel company. Given the period of time that has elapsed this may be the case, but the evidence he has provided does not establish his claim that he travelled back with any degree of regularity. He notes that the Victorian address is on his payslips and other work documents and the letter from the Department of Health and that his pay was deposited to a bank branch in Victoria. But this does not address the fundamental problem that the majority of his time, and the transactions on his account, appears to have been in Sydney. His Drivers licence was obtained in 2018, after the Department sent a request for further information of the relationship.
The written response asserts that he was commuting very second week and considered Melbourne his home, even the financial statements do not concretely show he was living in Sydney. I do not accept this claim. The applicant has only provided two or possibly three trips back and forth. Sydney and Melbourne are very far apart. I simply do not accept that the applicant can credibly claim that he was commuting between the two for close to five years, this is not plausible, and he has not provided evidence sufficient to support this claim. As noted, there were only two or three trips substantiated, the fact that his pay and employment documents listed the Victorian address, and that his bank branch was in Victoria, do not address the difficulty that his transactions on that account appear to have been largely in Sydney. I find that the weight of evidence indicates that he was living in Sydney between 2015 and 2020 and occasionally travelled to Victoria.
When taken with the information that his wife did not declare their relationship to Centrelink, and that there was insufficient other information of the relationship for the Department to be satisfied that there was a genuine relationship, and his difficulties explaining why he had pursued a relationship with [Ms E] after his failed relationship with [Ms D], this information is strongly suggestive that the applicant was not in a genuine relationship with [Ms E].
I find on the information before me that the applicant was not ever in a genuine relationship with [Ms E]. I find that the applicant has manufactured his claims to have tried to be in a relationship with a woman, that he lived with her in Victoria, that she knew of his attraction to men but hoped to heal him of it, that she threw him out of the house because she found a chat with a man on his phone. I find that the applicant manufactured a claim of him having a relationship with [Ms E] in order to bypass immigration pathways. I find that the applicant’s untruthfulness about the relationship leads me to have concerns with the credibility of all of his claims.
Looked at carefully, the claims of the applicant do not add up. He has claimed to have been in homosexual relationships in Ghana, but has not been able to provide significant details of those relationships. He has not been able to explain how he viewed himself as a homosexual despite growing up in a deeply, dangerously homophobic environment. He has not been able to explain the conflicts between trying to have a relationship with a woman in Ghana and how she came to learn of his sexuality. He has lied about being in a genuine relationship with [Ms E]. He has provided inconsistent information about his claimed relationship or interaction with [Mr H]. He has provided little information or evidence to be able to establish his claims where his oral evidence has been so lacking and there has been disparity between his written claims and his oral evidence. I find on considering his claims and the concerns raised against his responses, that the applicant has not been credible in his evidence about his claims and I find him not to be a credible witness.
On the basis of these findings, I find that the applicant is not homosexual, nor has he ever been perceived to be homosexual. He has not represented himself in Ghana to be a homosexual. He has not had homosexual relationship or been intimate with men in Ghana or Australia. I do not accept that he has hidden his homosexuality or bisexuality from people in Ghana because he is not homosexual or bisexual. His mother has not discovered him in bed with another man. I do not accept that people in Ghana have spread rumours or innuendo about him. He did not enter into a relationship with [Ms D] or [Ms E] or anyone else in an attempt to prove to himself, his family or the community that he was not homosexual. I do not accept that [Ms D] or [Ms E] or anyone else has portrayed him as a homosexual person on Ghana social media. He was not in a genuine relationship with [Ms E] and she did not kick him out of the house because she found chats with another man on his phone. I do not accept that after his failed marriage he is publicly known to be a lover of same sex.
I accept that he attended Mardi Gras in Australia on one occasion recently, as evidenced by the photographs. I do not accept that anyone in Ghana would be aware of these photographs, nor that, if they were, they would believe he was homosexual because of these photographs and given that I have found he has not ever been or represented himself as or been perceived to be homosexual in Ghana.
I have carefully considered whether the applicant will be persecuted on return to Ghana. He has not provided any other claims or basis for fearing persecution on return than those above – which I have found not credible.
I find that the applicant will be able to safely return and live in Ghana. I find he will be able to gain [employment], as he has in the past. I find that there is no real chance that he will harassed, arrested, detained, imprisoned without trial, humiliated, discriminated against or stigmatised or harmed in any other way for reasons of his claimed bisexuality/ homosexuality or imputations of such, which I have found not to be credible, or for any other reason by the authorities, society or anyone else if he returns to Ghana now or in the reasonably foreseeable future. I do not accept that his treatment in Ghana as a homosexual/bisexual, which he is not, nor imputed as such, will lead him to commit suicide.
The applicant, when asked, did not claim there was any other basis on which he would be harmed on return to Ghana. On the basis of the above reasoning,
I find that there is no real risk that he will harassed, arrested, detained, imprisoned without trial, humiliated, discriminated against or stigmatised or otherwise significantly harmed because of his claimed bisexuality/ homosexuality or imputations of such, which I have found not to be credible, nor significantly harmed on any other basis by the authorities, society or anyone else if he returns to Ghana now or in the reasonably foreseeable future. As above, I do not accept that his treatment in Ghana as a homosexual/bisexual, which he is not, nor imputed as such, will lead him to commit suicide.
Conclusions
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.
Sean Baker
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 2562

27 June 2023

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