2210892 (Refugee) - [2025] ARTA 1689

2210892 (Refugee) [2025] ARTA 1689 (24 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2210892
Tribunal:Senior Member G Cullen
Date:24 July 2025

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 July 2025 at 1:23pm

CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – bisexual – homosexual – fear of physical assault – fear of killing – marriage separation – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant, a national of Ghana, arrived in Australia on a Subclass 408 Temporary Activity visa [in] August 2018 which was valid to [November] 2018.
On 7 November 2018 he applied for a protection visa.
A delegate of the Minister on 6 July 2022 refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cath) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 28 July 2022.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
According to his protection visa application, the applicant was born in [specified year] in Accra, Ghana. He separated from his former spouse in 2015 and they divorced in 2020. He has two minor children. His former spouse and children continue to reside in Accra as do his parents. He is Christian. He lived in Accra from February 2007 to August 2018. He ran an [product 1] business in Accra from [specified year] to August 2018 called [name]. He completed secondary school in [year].
In response to questions in relation to his reasons for claiming protection in his protection visa application form, the applicant claimed he was not safe in Ghana due to his homosexual practice which is not accepted in Ghana. He faced serious harm, harassment and mistreatment in Ghana at the hands of his family and community. His life…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2210892 (Refugee)

Details

AGLC: 2210892 (Refugee) [2025] ARTA 1689
Case: [2025] ARTA 1689
Decision Date: 24 July 2025

CaseChat Overview and Summary

The case of 2210892 (Refugee) involved an individual from Ghana seeking a protection visa in Australia, claiming persecution based on their bisexuality. The Tribunal was tasked with reviewing the decision of the delegate, who had previously assessed the applicant's protection visa application and found it did not meet the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth). The applicant argued that they faced serious harm, harassment, and mistreatment in Ghana due to their homosexual practices, which were not accepted in their home country. They further claimed that their family had warned, harassed, and intimidated them since discovering their bisexuality and threatened to harm them if they continued their homosexual practices.

The legal issues before the Tribunal were whether the applicant was a person to whom Australia owed protection obligations and, if so, whether the applicant met the criteria for a protection visa. Central to this was the question of whether the applicant could be considered a member of a particular social group, as defined by the Convention Relating to the Status of Refugees. The Tribunal had to assess the credibility of the applicant’s claims and the risk they would face if returned to Ghana. This included evaluating the evidence of the social and cultural attitudes towards homosexuality in Ghana and the likelihood of the applicant being subjected to persecution based on their sexual orientation.

In reviewing the decision, the Tribunal found that the applicant did not satisfy any of the criteria in section 36(2) of the Migration Act. The Tribunal assessed the applicant’s evidence, including their statement of reasons for seeking protection, and determined that while the applicant’s claims of persecution were credible, they did not meet the threshold for being a member of a particular social group or facing persecution on account of their sexual orientation as required by the Refugee Convention. The Tribunal concluded that the delegate's decision was correct and affirmed it, finding that the applicant’s claims did not establish a well-founded fear of persecution if returned to Ghana.

The final orders of the Tribunal affirmed the delegate's decision, denying the applicant a protection visa. The applicant was given the right to seek review of this decision by the Federal Court of Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.CLAIMS AND EVIDENCEEvidence before the DepartmentProtection visa application According to his protection visa application, the applicant was born in [specified year] in Accra, Ghana. He separated from his former spouse in 2015 and they divorced in 2020. He has two minor children. His former spouse and children continue to reside in Accra as do his parents. He is Christian. He lived in Accra from February 2007 to August 2018. He ran an [product 1] business in Accra from [specified year] to August 2018 called [name]. He completed secondary school in [year]. In response to questions in relation to his reasons for claiming protection in his protection visa application form, the applicant claimed he was not safe in Ghana due to his homosexual practice which is not accepted in Ghana. He faced serious harm, harassment and mistreatment in Ghana at the hands of his family and community. His life was in danger as his family are devoted Christians. His family have warned him, harassed and intimidated him since they found out that he is bisexual. He claimed they threatened to harm him if he continued to practice homosexuality because he disgraced the family. He departed Ghana to avoid harm from his family and the community. He did not report it to the police because there is no law in Ghana protecting homosexuals from being harmed. He did not try and relocate as homosexual practice is not accepted throughout Ghana. He fears being beaten, harassed and killed by his family and the community if he returns to Ghana as well as in any nearby countries. He notes gay practice has not been legalised in Ghana or in any nearby countries. In a statement outlining his protection claims, he claimed that he came to seek protection in Australia as he fears return as the practice of bisexuality is forbidden. He claimed that people found practising homosexuality are forced to leave the community, are discriminated against and rejected by their family and community. He claimed that when he attended Senior Secondary School, he met a friend called [Partner A]. [Partner A] was from a wealthy family and they became close friends. [Partner A] invited the applicant to his house during school holidays. [Partner A] introduced him into gay practice. He claimed they were in a homosexual relationship until they completed school without being exposed. He then met a girl named [Friend A] and they started a boyfriend girlfriend relationship but even while he was with her, he was secretly practising homosexuality. The relationship with her ended because he was not giving her much attention. To cover up his homosexuality he always had a girlfriend. However, he was more inclined to be homosexual. Being bisexual in Ghana is an abomination and he remained reserved in Accra. He managed to search for a companion in certain areas secretly. His attitude became more reserved which worried his family. In 2008 he married due to pressure from his family. He has two children. He was not comfortable with this relationship as he is more inclined to gay practice. As a result, he developed the tendency to go out for entertainment especially on weekends. This is how he met his gay partner, [Partner B] in 2016 at [a named venue in] Accra . Due to a fear, he kept this relationship secret.

Decision

Reasons for decision

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 any of the criteria in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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