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 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.
He was using his marriage to cover up his activities because he did not want his family to know. His family are devoted Christians. He was terrified that his homosexual relationship would be discovered.
His wife discovered messages with his gay friend on his phone which generated an argument. She informed her parents and he was accused of being filthy and unfit to continue being married to their daughter. His parents also became angry for causing them embarrassment and disgrace. This led to the separation of their marriage in 2015.
In June 2015 five of his wife’s family members came to his house in the night to attack him because he was homosexual and had destroyed their sister’s life. He was saved by a neighbour otherwise he would have been killed. The head of his family immediately confronted him. He warned and threatened him that if he continued being gay, he is a disgrace to the family and the community.
As his family and his wife’s family were harassing and intimidating him, he had to hide from them. He decided to find freedom outside Ghana.
He was the [occupation 1] for [Mr A] who was coming to Australia for [an occupation 1 event]. He took the opportunity to come with him to seek asylum, so he could express his sexuality. He fears that should he be forced to return to Ghana and if his true sexuality is discovered his life will be a disaster. He will be harassed, beaten and discriminated by the community. If he returns to Ghana, he cannot live openly as a homosexual because he will be seriously harmed by the community and his family as a member of a particular social group of LGBTQ+ persons.
Supporting documents
He provided evidence from the Ghana [occupation 1] authority that he is [an occupation 1].
He also provided independent information as to the human rights violations against LGBTQ+ people in Ghana.
Pre-interview submission
Prior to the interview he provided news articles outlining the backlash against the LGBTQ+ community in Ghana and that Ghana is one of the most homophobic countries in Africa, refusing to recognise same sex unions.
The interview
The applicant attended an interview with a delegate of the Minister on 11 March 2022.
He reiterated his claim to fear return as he is a bisexual who has engaged in gay or same sex relationships in Ghana and Australia. He was asked numerous questions as to his sexual practice and relationships in Australia and Ghana.
The Tribunal has listened to a recording of that interview and where relevant the evidence from that interview appears in this decision.
Post-interview submission and documents
No post-interview submission or documents were provided.
Summary of the delegate’s decision
The delegate did not accept the applicant’s evidence as credible as to his sexual orientation, that he is or ever was a bisexual and/or a homosexual man. The delegate was not satisfied that the applicant faces a real chance of serious harm in Ghana. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ghana, there was a real risk he would suffer significant harm as defined in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submission
The applicant’s representative, via a written submission dated 31 March 2025, repeated much of the applicant’s evidence as outlined in his statement attached to his application for the visa. He additionally attached and outlined in detail country information regarding the treatment of gay and bisexual persons in Ghana. The applicant’s representative noted that the delegate rejected the applicant’s claim to have had same-sex relationships and presented the following arguments in support of the applicant.
·The delegate’s decision was flawed because the delegate placed greater importance on the applicant’s need to demonstrate a history of intimate same-sex relationships and bisexuality as well as the public perception of him as a gay person. While he did this to the best of his ability it was deemed far-fetched by the delegate.
·The applicant answered the delegate’s questions truthfully to the best of his ability, although he informed the case officer who interviewed him of his unwillingness to continue the interview without a Ga language interpreter, being the applicant’s native language.
·He was coerced by the delegate to proceed with the interview despite his insistence that he required an interpreter.
·The applicant’s inability to fully understand the case officer’s questions in English regarding the terms homosexuality and bisexuality, which are used interchangeably without knowing the consequential differences, stems from being a person from Ghana who enjoys being with both sexes.
·His life experiences are profoundly shaped by his time in Ghana and the country’s unique cultural context is supported by the information. That his family and relatives inflicted harm upon him indicates his life is at risk which was a concern downplayed by the delegate.
·The delegate incorrectly relied on personal perceptions of what it means to be gay or bisexual in an Australian context as well as on general behaviours based on their expectations within Australian and Western society. This perception negatively impacted the applicant without considering the unique cultural context of Ghana, where some men typically engage in relationships with both sexes without categorising their sexuality into a single label.
·The applicant could not provide the physical evidence one would ordinarily expect from a gay man or bisexual person in Australia. This should not undermine his claims regarding his sexuality and the actual harm he may face if forced to return to Ghana.
In addition, the following was submitted.
·     A statement by the applicant, similar to that submitted with his application for the visa.
·     Extensive country information as to the difficulties faced by gay and bisexual men in Ghana.
·     Photographs of the applicant on the streets at the Mardi Gras in Sydney with Mardi Gras participants.
The hearing
The applicant appeared before the Tribunal on 18 April 2025 to give evidence and present his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Ga and English languages. The applicant’s representative attended the hearing. As the applicant said he could not understand the interpreter, as he was not a native Ga speaker, the hearing was rescheduled.
The applicant appeared before the Tribunal on 2 June 2025 to give evidence and present his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Ga and English languages. The applicant said at hearing he understood the interpreter and would utilise the interpreter if required, which he did not.
The Tribunal also received evidence from three witnesses, [Friend B] and [Friend C] in person and via telephone from [Country 1], [Spouse A]. The latter is the applicant’s spouse.
The applicant reiterated his claim to fear return because he is bisexual. He said his life would be in danger if he returns to Ghana due to his sexuality.
He added that he married in Mach 2022, [Spouse A], a [Country 1] citizen and that she has sponsored him to emigrate to [Country 1] as her spouse. He said they have submitted the documentation to [Country 1] authorities for him to obtain a visa. They are awaiting an interview.
The Tribunal asked numerous questions as to his claims. It raised concerns as to the credibility of his evidence as to his claim of being homosexual, bisexual or gay and having had same sex relationships including one-night stands in Ghana and Australia. It raised inconsistencies between his evidence and that of the witnesses via s 359A in the manner outlined below.
Where relevant, the applicant’s oral evidence and his responses to the concerns raised at the hearing are considered below.
Post-hearing submissions
No post-hearing submissions were provided.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has considered the following, to the extent that they are relevant to the decision under consideration:
· Department of Foreign Affairs and Trade (DFAT), Country Thematic Report ECOWAS, 3 December 2020.
· Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. This involves considering whether the applicant:
· has a well-founded fear of persecution in relation to Ghana and meets the refugee protection provisions of the Act.
· meets the protection obligations under the complementary protection provisions of the Act.
Another issue is whether he has a right to enter and reside in any other country.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality and a right to enter and reside in any other country
Having sighted a copy of the applicant’s identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of Ghana for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa) the Tribunal accepts that Ghana is the receiving country.
While the Tribunal finds that the applicant is a national of Ghana, the question is whether he has a “right to enter and reside” in [Country 1] in terms of s.36(3) of the Act, as he is married to a [Country 1] citizen.
Information from the US Department of State indicates that it is not an automatic right and is at the discretion of the decision maker after assessment, including via an interview.[1]
[1] [Source deleted.]
Current legal authority indicates that the right referred to in s.36(3) must be a presently existing right, and not a past or lapsed right, or a potential right or expectancy. The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant ‘and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.’[2]
[2] MIMAC v SZRHU (2013) 215 FCR 35 per Buchanan J at [45], citing Allsop J in V856/00A v MIMA (2001) 114 FCR 408 (at [31]). The construction by Allsop J was endorsed by Buchanan J (at [89]), with all other members of the Court agreeing (Tracey J at [7]; Flick J at [93]; Robertson J at [130]; and Griffiths J at [131])
With regard to the particular circumstances, as the decision to grant a visa appears at the discretion of the decision maker, the Tribunal finds it is not an existing right as it is conditional on the discretion of the decision maker. The Tribunal therefore finds that the applicant does not have a right to enter and reside in [Country 1] in terms of s.36(3) of the Act.
Ghana is one of the partners states of the Economic Community of West African States (ECOWAS) established by the ECOWAS Treaty signed in 1975, with the aim of promoting regional economic integration. ECOWAS consists of 15 partner states including Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Sierra Leone, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Sierra Leone and Togo. DFAT reports that:
The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[3]
[3] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 3.2
According to DFAT while all member states have ratified the Free Movement Protocol, gradual efforts to progress the ECOWAS protocols at the national level across members states are ongoing and implementation challenges persist. There has been some success at the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.[4] Further, few ECOWAS member states have adapted their legislation to be in accordance with the 1979 protocol and supplementary protocols. [5]
[4] As above at 3.4
[5] As above at 3.5
The granting of rights of residence and establishment to ECOWAS community citizens is not guaranteed and refusal is possible on public order, public security, and public health grounds. Also, most member states’ national labour legislation does not set specific provisions for access to employment by ECOWAS citizens, which jeopardises the implementation of the Right of Residence. Poverty also continues to be a major challenge in the region. DFAT reports that more than half of ECOWAS’ total population live on less than one dollar per day, and 10 of the world’s poorest countries in 2018 were in the ECOWAS.[6] The reliability and efficiency of passport processing at land border crossings are variable, and rivalry between Francophone and Anglophone countries can occasionally manifest in the rejection of other countries’ documents.[7]
[6] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020
[7] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020
Given the limitations in freedom of movement between ECOWAS countries, the Tribunal is not satisfied that the applicant could exercise a right to enter and reside in another ECOWAS state. Therefore, the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3).
Assessment of the applicant’s claims
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of the applicant’s claims and evidence, there are other aspects of his claimed circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts that the applicant has a former spouse and two minor children living in Ghana. It accepts he separated from his former spouse in 2015 and they divorced in 2020. It accepts he continues to financially support his two minor children in Ghana. It accepts he lived in Accra as well as owned and worked at an [product 1] store until his departure. It accepts he came to Australia as [an occupation 1]. It accepts he married [Spouse A] when she visited Australia in March 2022. It accepts he has applied for a [Country 1] spouse visa.

Notwithstanding the above, for the reasons that follow, the Tribunal does not accept that the applicant is a credible witness as to his claims for protection and fears return for the reasons he claims. It follows the Tribunal does not accept the applicant was ever involved in any same sex relationships including one-night stands and interactions in Ghana or Australia and identifies as bisexual or homosexual or gay. It follows it does not accept he faced any of the difficulties he claims in Ghana because of his claimed sexuality as he is homosexual or bisexual or gay or as he engaged in any same sex relationships including one-night stands in Ghana. It follows it does not accept he fears return because he will be viewed as a bisexual, homosexual or gay man and/or a member of the particular social group of LGBTQ+ persons. It finds his testimony to be inconsistent, vague and lacking in detail in the manner outlined below as to these claims. It is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.
Sexuality
Central to the applicant’s claims as to why he fears return is that he is bisexual, homosexual or gay[8] who has had and will continue to have same sex relationships, including one-night stands and same sex interactions on return to Ghana.
[8] He has used all three terms to describe his same sex relationships. The Tribunal draws no adverse inference as to the use of the terms he used to describe his claimed practice of being involved in same sex relationships, one-night stands or interactions.
As evidence of his claim to be bisexual, he has repeatedly referred to same sex relationships including one-night stands and activities he has undertaken in Ghana and Australia. However, he has provided the following inconsistent evidence as to these activities and relationships which leads the Tribunal to find he has not provided credible evidence as to ever being involved in any same sex relationships including one-night stands and encounters as claimed.
Attending LGBT/gay hotels or pubs
Firstly, at the Tribunal hearing he said that as he is not in an ongoing same sex relationship in Australia, he frequents gay or LGBT pubs and hotels in Oxford St, Sydney and sometimes in Newtown when he wants a same sex affair. He said this is where he meets men to have same sex one-night stands. He also referred to having met a man at a train station.
When asked as to the pubs or hotels he attends in Oxford Street, he said he goes to the Royal located on Oxford Street at the city end. He said the Royal is frequented by mainly men and is known as a LGBT or gay bar. He said it is on the right side of Oxford Street as it travels towards the city. He said he also goes to the Louisiana Hotel or something with a similar name, which is also a gay or LGBT pub or hotel. He said the Louisiana is located across the road from the Royal and it is also located on Oxford Street. He said he goes about twice a month on Friday or Saturday to these places. He said and confirmed he frequents these establishments about ten times a year with the hope of a same sex encounter or one-night stand. He said he started attending these pubs or hotels in this frequency after he attended Mardi Gras in March 2021. He confirmed he had been to these pubs or hotels, referring to the Royal and Louisiana, about forty times.
However, despite this claim the Tribunal could find no information as to the existence of any pub or hotel or establishment known by these names on Oxford Street and any pub or hotel or establishment which are known LGBT or gay places on Oxford Street with these names or anything similar[9]. When the Tribunal raised this as of concern with the applicant and that it may find he did not attend these places for the reasons he claims, he said the last time he attended was at the time of the last Mardi Gars which was in March 2025. He said he may be mistaken as to the names. The Tribunal does not accept that a person who had attended an establishment approximately forty times would not know its name. It views the inconsistency to be significant and is of the view if the applicant attended these claimed establishments to meet other men to engage in same sex relationships including one-night stands there would be independent information to support that they exist.
[9] Sources consulted include internet searches, google maps searches, government and non-government records and domestic media outlets.
This inconsistency leads to the Tribunal to find he never attended these establishments nor any LGBT, homosexual or gay establishment called the Royal or Louisiana (or something similar) in the frequency as claimed with the aim of meeting men to have same sex one-night stands, relationships or affairs. This adds to the finding he is not a credible witness as to his claim to be a bisexual, homosexual or gay man who has engaged or wishes to engage in same sex relationships, affairs or one-night stands. It adds to the finding he is not a credible witness.
Same sex relationships and one-night stands in Australia
He has provided the following inconsistent and confusing evidence as to the same sex relationships including one-night stands he has engaged in since his arrival in Australia as follows.
Firstly, the applicant provided the following internally inconsistent and confusing evidence at the Tribunal hearing as to the same sex relationships, affairs and one-night stands he has had in Australia.
·At the Tribunal hearing when asked as to the same sex relationships he has had in Australia; he initially said he had a one-night stand with Filimon and twice before that he had one-night stands.
·When questioned in detail he said:
othe last time he had a same sex one-night stand was when he met a man named Filimon at the Royal Hotel in 2023 at the time of the Mardi Gras. He said he first went to the Mardi Gras parade as a spectator, then went to the Royal Hotel and then went back to Filimon’s house. It was a one-night stand and they had sexual relations. He confirmed his last relationship was in 2023 with Filimon and that it was a one-night stand.
oHe then said he had a relationship with Issa in 2019/20. When asked if that was a relationship or one-night stand. He said it was a short relationship.
oThe applicant confirmed they were the only two same sex relationships he had had in Australia. He confirmed when asked about the same sex relationships he had in Australia that he had had a one-night stand with Filimon and a short relationship with Issa in 2019/20 and no others.
When the Tribunal began to raise as of concern the inconsistency with his earlier evidence at the hearing where he had stated that he had same sex one-night stands twice before Filimon, around the time of the Mardi Gras; he said there were other same sex one-night stands. He said there were other same sex one-night stands when he visited the Royal and/or Louisiana and he said he could not count and in a year he had about two or three.
When the Tribunal raised with him its concern as to the inconsistency in his evidence regarding how many same sex relationships he has had in Australia; he said he was confused between relationships and one-night stands, and they are two different things. He said he had had two or three same sex one-night stands each year. The Tribunal then questioned whether he was being truthful as to being confused as previously when the Tribunal asked him about his previous same sex relationships, he referred to the one-night stand with Filimon.
The Tribunal then asked him that if he was having two to three same sex one-night stands per year whether Filimon in March 2023 was the last same sex one-night stand he had. He confirmed the last same sex one-night stand he had was with Filimon in 2023. When asked to describe in detail any same sex relationships including one-stands he had before Filimon, he said he had some and he could not remember. He then said he met Frank at the Festival in Granville around August 2022 and that was a one-night stand. He then said and confirmed he had three same sex relationships including one-night stands in Australia in total. He confirmed he had one with Filimon in 2023, one with Frank in 2022 and a short relationship with Issa in 2019. He said he could not remember any others. He again confirmed that he has had in total three same sex relationships including one-night stands since his arrival in Australia.
When the Tribunal raised with him the inconsistency that he had said before he was having two to three same sex one-night stands per year, that his evidence as to his same sex relationships including one stands was confusing, inconsistent and lacking in detail; he responded that he is bisexual and he said he did not know. He said whatever information he has given is true.
The Tribunal does not accept this response as explaining the confusing and inconsistent evidence as to his same sex sexual activity in Australia. It is of the view if he was engaged as he claimed he would be able to provide consistent and clear evidence as to these same sex relationships, one-night stands and encounters. This adds to the finding his evidence is not credible as to his claim to have engaged in same sex relationships including one-night stands, affairs and encounters in Australia. It adds to the finding he is not a credible witness as to his claim to be bisexual or gay or homosexual and to have engaged in same sex relationships including one-night stands with men in Australia. This adds to the finding he is not a credible witness as to these claims.
Further, the applicant provided the following inconsistent evidence between the Tribunal hearing and Department interview as to his same sex relationships including one-night stands he has had in Australia. Specifically, as to his male partners or relationships in Australia, at the Tribunal hearing he ultimately said and confirmed that he has had three same sex relationships including one-night stands with men in Australia. He said these were a one-night stand with Filimon in 2023, a one-night stand with Frank in 2022 and a short relationship with Issa in 2019/2020. He said and confirmed these were the only same sex relationships including one-night stands he has had in Australia. However, in contrast at the Department interview held on 11 March 2022 he said he had a same sex relationship with a man named Marvin. He said at the Department interview that Marvin was his last same sex relationship and they broke up in November 2021. He said he spent weekends with him and weekdays. He said he and Marvin would sometimes socialise together as a couple. He did not refer to having had a relationship with Marvin at the Tribunal hearing. When the inconsistency was raised, he did not explain the inconsistency. He said he just remembered Marvin and they were together three times. He said Marvin was Ghanian and a permanent resident. The Tribunal is of the view if he had a same sex relationship with Marvin, he would have referred to this when repeatedly asked about his same sex relationships including one-nights stands he has had in Australia at the Tribunal hearing. This leads the Tribunal to find he never had a same sex relationship with Marvin. It adds to the finding his evidence is not credible as to his claim to have engaged in same sex relationships including one-night stands, affairs and encounters in Australia. It adds to the finding he is not a credible witness as to his claim to be bisexual, gay or homosexual. It adds to the finding he is not a credible witness.
Further, of concern is that at the Department interview he never indicated he was in a same sex relationship with a man called Issa, despite claiming at the Tribunal hearing he was in a same sex relationship with Issa in 2019/2020, which was prior to the Department interview held on 11 March 2022. Specifically, when asked at the Department interview who knew he was a bisexual man; he said that his friend Issa knew. He did not ever say he was in a relationship or had a one-night stand with Issa. He said that he told Issa he is a bisexual man and that he was going to Marvin’s house when Issa asked him why when they go to a club for women, he does not show any interest. When the Tribunal raised at hearing as of concern the inconsistent evidence regarding his relationship with Issa; he responded that he later had a same sex relationship with Issa. However, the Tribunal does not accept this response explains the inconsistency as he said and confirmed at the Tribunal hearing prior to the inconsistency being raised that he was in a same sex relationship with Issa in 2019/2020. The Tribunal is of the view if he was in a same sex relationship with Issa in 2019/20, he would have mentioned this at the Department interview when asked questions as to his male partners in Australia. The above inconsistency leads to the finding the applicant was not ever in a same sex relationship with Issa. It adds to the finding his evidence is not credible as to his claim to have engaged in same sex relationships including one-night stands, affairs and encounters in Australia. It adds to the finding he is not a credible witness as to his claim to be bisexual, homosexual or gay. It adds to the finding he is not a credible witness.
Same sex relationships and partners in Ghana
The applicant has repeatedly referred to the same-sex relationships he had in Ghana as evidence of his claim to be bisexual, homosexual or gay. He also claims this is the reason he faced harm and difficulties from his ex-wife, her family and his family and will on return.
However, he has provided the following inconsistent evidence and/or evidence vague and lacking in detail as to these same sex relationships. This leads the Tribunal to find he did not engage in same sex relationships in Ghana. It adds to the finding he is not a credible witness.
Firstly, while he has repeatedly referred to [Partner A], his wealthy school mate as the first person he had a same sex relationship with while in his final years at school; his evidence was inconsistent as follows.
·In his application for the visa and statement, the applicant indicated that they became close friends and during one school holiday his friend invited him to spend the break at his house and [Partner A] introduced him to same sex relationships. He said he participated in these activities with him secretly without anyone discovering them.
·At the Department interview when asked if [Partner A]’s family knew of their same sex relationship, he said he did not know whether [Partner A] told them about their relationship but they never showed anything to him.
·However, in contrast at the Tribunal hearing when asked whether [Partner A]’s family knew that they were in a same sex relationship with [Partner A]; he said [Partner A]’s parents knew. He said the reason he knows the family knew was that [Partner A]’s sister saw him in town when he and [Partner A] were at loggerheads and she asked him why he did not come to the house anymore. The sister said [Partner A] likes him a lot. He said the sister wanted him to be with [Partner A]. He said he then realised the family knew they had a same sex relationship.
When the Tribunal raised the inconsistency as a concern and raised why he had not previously referred to [Partner A]’s family knowing of their sexual relationship and this discussion with [Partner A]’s sister at the Department interview, he said he did not hear that question at the Department interview. However, the Tribunal has listened to a recording of the Department interview and the following was asked and stated at that interview.
Q:       What about his family, were they open to him being with you?
A:       We were from the same class, so we studied together.
Q:       But did they know you were more than friends?
A: I don’t know whether [Partner A] told them but they never showed anything to me.
The Tribunal has below considered and rejected his explanation for the inconsistency; that the lack of an interpreter at the Department interview caused this and other inconsistencies. The applicant’s response therefore does not explain the inconsistency. His inconsistent evidence as to whether [Partner A]’s family knew and the discussion with [Partner A]’s sister adds to the finding he is not a credible witness as to his claims.
Further, while he indicated at the Tribunal hearing consistent with his claim at the Department interview that he had a relationship with a man named [Partner B], the applicant’s evidence was vague and lacking in detail as to his relationship with [Partner B]. When asked when the relationship began, he said he met him after he was married in 2008. When asked again when it started; he said he could not recall. When asked how long after he was married did he begin the relationship with [Partner B]; he said he could not remember. When asked how long before he came to Australia did the relationship end; he said he could not provide an answer. He said they were together for about two to three years. When asked whether he was with [Partner B] when the relationship with his wife ended in 2015; he said he could not recollect, although as noted below he later said she saw his messages with [Partner B] which led to the relationship ending in 2015. When asked why the relationship with [Partner B] ended, he initially said he could not recollect and then he said [Partner B] stopped with him as he found someone else . The Tribunal views his vague evidence lacking in detail as to his relationship with [Partner B] who he claimed he was in relationship with for three years to undermine his claim that he was ever in a relationship with him in Ghana. This adds to the finding he was never in a relationship with [Partner B].
Further, his evidence was inconsistent between his statements and Department interview as to when he met [Partner B] and started a relationship .
·In statements submitted to the Department and Tribunal he said he met [Partner B] in 2016.
·At the Department interview and at the Tribunal hearing the applicant claimed that his relationship with his former spouse ended in 2015 when she discovered his texts with his male partner at the time. When asked at the Department interview and later at the Tribunal hearing who the man was who his wife discovered he was having a relationship with after seeing the text messages; he said it was [Partner B].
When the Tribunal raised the above inconsistency as of concern, he did not provide an explanation. The Tribunal is of the view that if the relationship with his former wife ended in 2015 because she found text messages between him and [Partner B] and as he has repeatedly and consistently claimed the relationship with his former wife ended in 2015, it is of the view he would be consistent that he was in a relationship with [Partner B] at that time. While not solely determinative this adds to the finding he did not have a same sex relationship with [Partner B] and adds to the finding he is not a credible witness as to his claims.
Further, the applicant has provided inconsistent evidence as to his relationship with a man called James. At the Department interview he said he had three male partners in Ghana: being [Partner A], [Partner B] and James as well as casual partners. He said he was in a relationship with James before coming to Australia and he had been in a relationship with him for about four to five years before coming to Australia. However, in contrast at the Tribunal hearing he said he had two relationships with men in Ghana and referred to [Partner A] and [Partner B]. He confirmed there had been no other same sex relationships other than casual partners. When the Tribunal raised as of concern why he had not mentioned his same sex relationship with James which he had claimed at the Department interview to have lasted for four to five years, although he was not sure, he did not explain the inconsistency. The Tribunal views the inconsistency as significant and leads it to find he did not have a same sex relationship with James in Ghana. It adds to the finding he is not credible as to his claim to have engaged in same sex relationships and to be bisexual, gay or homosexual. It adds to the finding he is not a credible witness.
Difficulties faced in Ghana

Central to his claim as to why he fears return are the difficulties he claims he faced in Ghana after his former spouse discovered he was in a same sex relationship. However, he has provided the following inconsistent evidence as to these claims.
While he has been consistent his former spouse found text messages about his same sex relationship in 2015, he has provided the following inconsistent evidence as to the details.
·At the Department interview he said that his former spouse was always quarrelling with him accusing him of being gay and he denied it. He said one day he was doing something in the backyard and he had left his phone inside. He said she saw messages from his gay partner. She then sent the messages to her phone. On that day she did not talk to him but the next day she asked him questions and showed him the messages between him and his gay partner. He said the messages were between him and [Partner B] and he was with [Partner B] while he was married. He said that was the beginning of the separation. He said she attacked him with a knife on the cheek and he went to the hospital. He said he went to her family but she had told them about his sexual orientation. He said he showed them what had happened and said that his former wife should not use a knife against him. He said he told [Partner B] about it.
·At the Tribunal hearing he said his wife found the messages on the phone and then she started quarrelling with him. When the Tribunal asked about the sequence of events that led to this; he said he did not know whether it was the same day or the next day after she found the messages and he did not know how she found the messages. The applicant said some messages from his gay partner also came when he was on the bed with his former spouse. He said they quarrelled and she hit him with a cup or something like that. He said she threw something at him and he had to go to hospital. He said he does not remember telling [Partner B] about it. He said he did not go and talk to her family.
When the Tribunal raised with him at hearing the above inconsistencies, including the sequence of events that led to his former spouse finding out he is bisexual and whether he went and spoke to her family; he responded that he does not know. The applicant said when he was quarrelling with his then wife, she was referring to old messages and he realised his then wife had started monitoring him. He said he has forgotten everything. The Tribunal does not accept the applicant’s response explains the above inconsistencies. It is of the view considering the significance of his former wife founding out, even though it was some time ago that he would be able to consistently recall what happened when his wife found the text messages and whether he went and spoke to her family consistently between the Department interview and Tribunal hearing.
When the Tribunal also raised with him that he had said she used a knife against him at the Department interview rather than throwing a cup as he had said at the Tribunal hearing; he said he took the knife from her and she then threw a cup after he took the knife away. The Tribunal does not accept this response and is of the view, given its significance, that he would consistently recall what was thrown at him, including a knife, not only state this after the concern was raised.
These inconsistencies lead to the Tribunal finding the applciant is not a credible as to his wife discovering the text messages from his same sex partner in the manner claimed and that she threw a knife at him as a result. It adds to the finding he is not a credible witness.
Further, while he has consistently claimed he was attacked by her family after his former wife found out he was bisexual and his leg was hurt, he has provided the following inconsistent evidence.
·In his statements submitted to the Department and Tribunal he said five family members of his former wife came to his home late at night to attack him. He said a neighbour saved him otherwise they would have killed him. He said the head of his family also confronted, warned and threatened him that if he continued being gay, he would disgrace the family and his community. He claimed that his and his former wife’s family continued to harass and intimidate him while he was in Ghana and he tried to avoid the harassment but decided to leave.
·At the Department interview he was asked if there had been any incidents following the revelation of his sexual orientation to his former wife and her family. The applicant stated that his former wife’s cousin, called Sisi and his friends came to his home in the night. He said he was hit and his leg was twisted but he was lucky as his neighbours were around otherwise he would have been killed. He said he kept safe in Ghana as he kept away from his former wife. He referred to his senior brother finding him and advising him that his family does not support his activities, and he should not come close to them. He did not refer to being attacked by her senior brother.
·At the Tribunal hearing the applicant said after the incident with his former wife on two occasions he was attacked by his former wife’s family. When asked who from her family attacked him; he said his former wife’s uncle and her senior brother. He referred to his leg being hurt. He did not refer to her cousin Sisi attacking him.
When the Tribunal raised the inconsistencies as to who attacked him; he said there were more than six people on two occasions. The Tribunal is of the view if he was attacked as claimed he would be consistent between the Department and Tribunal as to the specifics of these attacks, particularly whether it was her cousin, uncle or senior bother given the significance. While not solely determinative it adds to the finding he is not a credible witness.
Interpretation
In making the above findings the Tribunal has considered the claim that the above inconsistencies arose as the applicant did not have a Ga interpreter available at the Department interview as GA is his native language.
In particular, the applicant’s representative submitted that at the Department interview the applicant answered the questions to the best of his ability, although he informed the delegate of his unwillingness to continue the interview without a Ga language interpreter being available. The representative submitted that the applicant informed him that he was coerced by the delegate to proceed with the interview despite his insistence that he required an interpreter.
The Tribunal has listened to a recording of the Department interview and there is no evidence that he informed the delegate of his unwillingness to continue the interview without a Ga language interpreter and that he was coerced to continue without an interpreter. When this was raised at the Tribunal hearing; he said he requested a Ga interpreter for the interview which the Tribunal accepts. He then said the delegate said he should continue until he could not continue. He said the delegate said she would stop the interview if she saw he was having difficulties. However, there is no evidence of this in the recording of the interview.
The Tribunal in making the findings has considered the claim that inconsistencies and omissions arose because of the lack of a Ga interpreter available at the Department interview. However, for the reasons below the Tribunal does not accept that any of the concerns raised above arose due to this factor. Firstly, at no time during the interview, the recording which the Tribunal has listened to, did the applicant raise that he had any difficulty proceeding without an interpreter or required one. The Tribunal is of the view if he raised this, there would be evidence in the recording of the interview, which there is not. Rather the delegate advised that the interview was being conducted in English and to let her know if a phrase or sentence needed to be rephrased. When the delegate said this, he did not respond. Secondly, at no time did he indicate that he did not understand or was having difficulty expressing himself in English which the Tribunal would expect if he was having difficulty understanding or expressing himself without an interpreter. The Tribunal is of the view if this was the case he would have advised the delegate. Further, at the end of the hearing when asked by the delegate whether he had any final comments or whether there is anything he would like to comment on, he did not refer to any difficulties understanding or expressing himself in English, which the Tribunal may expect if he had difficulties understanding or expressing himself in English. The Tribunal also notes this concern was only raised in March 2025, three years after the interview in a submission by his representative to the Tribunal and not earlier which the Tribunal may expect if this was the case. Finally, from the recording of the interview the Tribunal is satisfied the applicant was able to effectively understand the questions asked and was able to express himself in English.
It therefore does not accept that any of the inconsistencies or concerns outlined above arose because of the lack of an available Ga interpreter at the Department interview.
Evidence of [Friend B], [Friend B] and spouse
In making the findings above and the credibility finding below the Tribunal has considered the evidence of the witnesses.
The applicant said at the Tribunal hearing before evidence was given by [Friend C] that he knows her as she lived with her grandmother a few metres from his house in Ghana. He said she knew he was bisexual or gay in Ghana. as he told her while they were in Ghana. He said she tried to have an affair with him, so he told her. He said she also saw him with someone and that was different to the event where [Friend B] saw him, as outlined below. The Tribunal raised with the applicant that he had given evidence he had to be secret about being bisexual, yet he now is saying [Friend C] knew. It raised of concern why he had not given evidence of her seeing him with a man in Ghana. In response he said he thought she was interested in him and he told her that he was interested in men. He said he met [Friend C] again at the yearly festival in Australia and that was in 2021 and/or 2022 and now they are working at the same place. He said he thinks that was before the Department interview.
[Friend C] said she first met the applicant in Ghana as she used to live near him in Accra from about 2016. She said she came to Australia in 2020 and is a permanent resident. She said they became friends again in 2023 as they met at the Granville Ghana festival. She said he wants protection because he is gay. When asked how she knows he is gay; she said she became close to him and the applicant told her he does not want a relationship as he likes men. She said she was surprised. She said she also saw him with a guy kissing in an uncompleted building. She said she was surprised; she heard a noise in an uncompleted building and went to see what it was. She said she did not know the guy he was with. When asked whether she told the applciant she saw him, she said she shouted when she saw them as she was so surprised and she said in a loud voice “Jesus” . When asked why he would say people did not know other than his former wife, her family and his family at the Department interview; she said some people knew. She said when she saw it, she was surprised and told others. She said she saw it with her own eyes.
The applicant said he knew [Friend B] as they went to school together and they grew up together and he knew him in Senior High School. He said in Ghana they became friends in 2020/1 in Australia. He confirmed it was before the Department interview in 2022 when they became friends. He said he had not had a sexual relationship with him. The applicant said [Friend B] knew he was gay when he was in Ghana. The applicant said he was caught by passersby when he was with a new same sex partner. He said this happened when he was at school in his final year. He said he was caught having an interaction with a male partner in an uncompleted building. He said it was a different person to [Partner A]. The Tribunal raised with him why he did not mention this previously; he said it escaped him. The Tribunal raised with him that it may expect he would tell the Tribunal and Department of being caught with a man in a sexual encounter and therefore that people knew. The Tribunal raised with him as of concern that he had said previously that no one knew he was gay at school as the relationship was secret.
[Friend B] said that he knew the applicant in Ghana from high school. He said they were friends at high school. He said they became friends in Australia. He said in Ghana he knew him and heard a lot about his sexuality. He said he heard that one time he was caught by two men, not by him. When asked what he was doing he said “guy by guy” and he said they were actually having sex. He said it was after the time he left school, about one year after he left school. He said he did not see it but heard about it. He said this rumour spread and it was well known. When asked if he knew of any relationships the applicant had; he said he heard he had children. The Tribunal asked if he knew of any same sex relationships the applicant had in Ghana; he said he did not. When asked if he knew of any same sex relationships the applciant had engaged in while in Australia, he said he did not know of any.
The Tribunal raised with the applicant why when asked at the Department interview who in Australia knows he is a bisexual male; he referred to Jimmy and Issa and did not refer to the two witnesses. He said Jimmy helped him draft the story, so he knows. It asked him again why he would not refer to the two witnesses knowing when asked at the Department interview when he now says they also knew in Ghana. He responded that it did not occur to him.
The Tribunal raised with the applicant via the process outlined in s 359A that [Friend B] had heard he was having sex with a man about a year after he left school and he was seen; yet when the Tribunal asked him, he referred to being caught while at school. He said they were not having sex they were kissing. The Tribunal raised with him why he would not have mentioned at the Department interview being caught with a man as it would be significant; he said it did not occur to him. It asked whether he faced any difficulty by being caught kissing and/or having sex with another male and he said one of the people who caught him threw a stone at him and hit him in the head. He said he was hit on the head by the stone. The Tribunal raised as of concern why the applicant did not previously raise the two incidents the witnesses gave evidence about. He said he could not remember. It raised with him of concern that he said at the Department interview that nobody knew he was bisexual, referring to prior to 2015. He said he was referring to his and his former wife’s family. It also raised with him that at the Department interview he said the reason he was able to live at his home and run his [product 1] store was that nobody knew of his relationships with men in Ghana other than his and his former wife’s family as well as his former spouse but that is in contrast to his evidence, later repeated by the witnesses. He said his and his ex-wife’s family knew.
The applicant’s representative said they were just rumours, and he may not have known.
In making the findings above and the credibility finding below the Tribunal has considered the evidence of [Friend C]. The Tribunal has significant concerns with her evidence. Firstly, it is from a friend, and not independent. Secondly, it views as of concern why if he was caught kissing a man by her, he would not have mentioned this significant event previously, in his statement to the Department and in the interview with the Department. Thirdly, it views as of concern why he did not say she knew he was gay when he now claims he told her in Ghana. Due to these concerns and the significant credibility aspects outlined above with the applicant’s evidence, the evidence of [Friend C] does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making the finding the Tribunal has considered the evidence of his friend, [Friend B]. The Tribunal has significant concerns with his evidence. Firstly, it is from a friend, and not independent. Secondly, it views as of concern why when asked at the Department interview who knew he was bisexual in Australia; he did not refer to [Friend B] who he said at the hearing knew he was gay in Ghana and they rekindled their friendship in Australia in 2021/2 prior to the Department interview. It also views as of concern why if he was caught kissing a man, which led to him having stones throwing at his head he would not have mentioned this event, given its significance, previously in his statement to the Department and in the interview with the Department. Due to these concerns and the significant credibility aspects outlined above with the applicant’s evidence, the evidence of [Friend B] does not lead the Tribunal to change its view that the applicant is not a credible witness.
The applicant’s current spouse, [Spouse A] gave evidence from [Country 1] via telephone. When asked what his spouse would say before she gave evidence, he said she would say she is aware he is such a person. He said she is aware of his male relationships when asked. His spouse said she met him and had known him in Ghana. She said she visited Australia for two weeks and they were married. She said initially they wanted to marry in Ghana and she wanted to come earlier but there was a problem because of Covid. She said she visited Ghana for holidays in 2017/18, sometimes for six weeks. She said they began talking in 2013/4 after she travelled to [Country 1] and they were talking about being together. She said they were in a relationship when she met him in Ghana but they were not in bed, not married and not engaged. She said she knew he was bisexual and she spoke to him about it and told him he had to stop as she is religious. She said that the applicant said he had to move and then there was a break in their relationship. Then after he came to Australia, they were talking again and she said to him that she did not want to be in a relationship if he was also with men. She said he is no longer seeing men and he stopped after he came to Australia. She said she is not aware of him being in any relationship with men after he came to Australia. She confirmed that she knows he was with men in Ghana and that is why he had to leave Ghana. The Tribunal raised with the applicant via the process outlined in s 359A that previously at the hearing he had said his wife knows of his relationships with men, and that he has had relationships in Australia; whereas his wife said he had not been in relationship since they were married. He said they are in love and he has not told her about relationships after they married.
In making the finding the Tribunal has considered the evidence of his spouse. The Tribunal has significant concerns with her evidence. Firstly, it is from his spouse, and not independent. Secondly, it views as of concern the inconsistency between her evidence and that of the applicant as to his same sex activity while in Australia despite saying earlier in the hearing she knew about it. When raised with him he said they are in love and he has not told her about the same sex relationships after they were married. The Tribunal does not accept this response and is of the view he would have stated this to the Tribunal earlier in the hearing when asked whether she knows he is bisexual. On the basis of these concerns and the significant credibility aspects outlined above with the applicant’s evidence, the evidence of his spouse does not lead the Tribunal to change its view and the finding below that the applicant is not a credible witness.
Summary of credibility findings

100. For all the above reasons, considered cumulatively, the Tribunal does not accept the applicant is a credible witness as to his claimed sexual orientation, same sex relationships and activities and the difficulties he claims he faced in Ghana as he is bisexual, homosexual, gay or a member of the particular social group of LGBTQ+ persons. The Tribunal is of the view that the claims have been fabricated and evidence concocted to achieve an immigration outcome.
101. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning. It is also sensitive to the length of the process and that frustrations can arise in this regard. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicant is not a reliable witness as to these claims.
102. In making the finding the Tribunal has considered the independent information submitted and referred to as to the difficulties faced by men who engage in same sex relationships in Ghana or who are viewed as bisexual, gay or homosexual. However, based on the Tribunal finding that the applicant lacks credibility as to his claim to be bisexual or homosexual or gay or to have engaged in same sex relationships including one-night stands, the Tribunal does not accept the provision of this information explains or excuses the concerns which, cumulatively have led it to find that the applicant not being a reliable witness as to his claims.
103. The Tribunal has also considered the submissions made by the representative but does not accept these outweigh its concerns that the applicant is not a credible witness as to his claim of being bisexual, gay or homosexual and having had the same sex relationships including one-night stands he claims and faced the difficulties he claims.
104. In making this finding the Tribunal has also considered that some information has been consistent over time including that he was in a relationship with [Partner A] at school and would have sexual relations with him at his home, he had a relationship with a man named [Partner B]; his ex-spouse found text messages between him and [Partner B] in 2015 which led to the divorce, he subsequently faced difficulties from his and her family and hurt his leg. However, the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
105. In making this finding, the Tribunal has considered the scar he pointed to on his cheek as evidence of the fight with his ex-wife and a knife being thrown at him. The Tribunal is of the view there are numerous other reasons why a person could receive such marks and the evidence of such marks does not necessarily indicate that they were received in the circumstances he claims. The Tribunal therefore does not accept that the scar was received for the reasons the applicant claims.
106. In making this finding the Tribunal has considered the photos of him watching the Mardi Gras and with those involved. The Tribunal accepts he watched the Mardi Gras parade and took the photos at the Mardi Gras as claimed. While being part of the audience of in a Mardi Gras event my indicate a person is bisexual, homosexual or gay, his attendance as portrayed in in the photos does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to his claims.
107. In making the finding it has considered above the evidence of the witnesses. For the reasons above and the significant credibility aspects outlined above with the applicant’s evidence, the evidence of the witnesses does not lead the Tribunal to change its view that the applicant is not a credible witness.
108. For all the reasons above the Tribunal does not accept the applicant has been credible as to identifying as bisexual, homosexual or gay either in Ghana or Australia. It does not accept the applicant has ever had any same sex relationships including on-night stands or encounters with men in Ghana or Australia. It therefore follows it does not accept he ever had any same sex relationships including one-night stands in Australia with Issa, Frank, Marvin or Filimon or anyone else or ever attended the Royal or Louisiana or a LGBT pub or hotel in the hope of having a same-sex one-night stand. It follows it does not accept he had same sex relationships including one-night stands with [Partner A], [Partner B], or James or random men in uncompleted buildings or anyone else in Ghana.
109. It follows it does not accept his marriage ended in 2015 due to his sexuality and as his former wife found text messages with his male partner at the time. It does not accept he was ever identified including through rumour as being bisexual, homosexual or gay or non-heterosexual by the community, his family, his ex-wife’s family, the authorities and police or anyone else in Ghana. It follows it does not accept he was assaulted by his former wife, her family or his family, threatened, harmed in any way or beaten, shamed, talked about or suffered any harm, hid or kept a low profile due to any same-sex relationship or one-night stand or sexual encounter he had in Ghana or as he is or was perceived as or rumoured to be bisexual, homosexual, gay or a non-heterosexual man. It follows it does not accept he was ever of adverse attention to the community, his ex-wife, her family or his family, or anyone else in Ghana at the time of his departure for Australia in 2018 for the reasons he claims.
110. As the Tribunal has found the applicant has not been a credible witness as to these claims, that he did not have any same sex relationships including one-night stands or sexual encounters either in Ghana or Australia, and has found he is not truthful as to his claim to be bisexual, homosexual or gay; it follows the Tribunal does not accept that the applicant was ever, is currently or will identify and participate in same sex relationships or have male partners as he is bisexual, homosexual, gay, a member of the LGBTQ+ group of persons or non-heterosexual man return. It follows it does not accept he will ever be perceived as a bisexual, homosexual, gay, a member of the LGBTQ+ group of persons or non-heterosexual on return to Ghana. It does not accept he will pursue same-sex relationship relationships including one-night stands or encounters on return to Ghana or a fear of harm would prevent him from doing so or expressing his claimed sexuality.
Does the applicant have a well-founded fear of persecution in relation to Ghana and meet the refugee protection provisions of the Act, and does he meet the protection obligations under the complementary protection provisions of the Act?
111. Based on its findings as to the applicant’s credibility and findings of fact it follows that the Tribunal does not accept that his former spouse, the police, authorities, community, society, his family or his former wife’s family or anyone else had any interest in the applicant prior to or at the time he left Ghana on 20 March 2018 for the reasons he claims. Based on the above findings as it does not accept he is bisexual, homosexual, gay and has ever engaged in same sex relationships including one-night stands, it does not accept were he to return that he will be involved in any same sex relationships including one-night stands and will identify as bisexual, homosexual, gay or non-heterosexual. It follows that the Tribunal is not satisfied that the applicant will not participate in any same sex relationships or one-night stands on return or identify as a bisexual or homosexual and will suffer persecution by being prevented from doing so. It follows that it does not accept were he to return that he would be unable to express his sexuality, be threatened, harmed, assaulted, prosecuted, arrested, killed, detained, shamed, humiliated, abused, talked about as a gay or bisexual man, be unable to earn a livelihood or suffer any harm for the reasons he claims.
112. It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Ghana in the reasonably foreseeable future as he is or is imputed to be bisexual, homosexual, gay, a member of the LGBTQ+ group of persons or a person who engages in same sex relationships including one-night stands, has done so in the past and would do so on return.
113. Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Ghana as he is or is imputed to be bisexual, homosexual, gay, a member of the LGBTQ+ group of persons or a person who engages in same sex relationships including one-night stands, has done so in the past and would do so on return.
Conclusion regarding the refugee criterion
114. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Ghana in the reasonably foreseeable future. On the basis of the above, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Conclusion regarding complementary protection

The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of the applicant being subjected to significant harm in Ghana in the reasonably foreseeable future. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm as defined in s 36(2A), on the basis of his claims considered individually or cumulatively.

116. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
117. 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 any of the criteria in s 36(2).
DECISION

120. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 18 April 2025 and 2 June 2025
Representative for the Applicant: Mr Darted Samuel Wellington

APPENDIX – CRITERIA FOR 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 (Cath) (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.
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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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