1512940 (Refugee)

Case [2018] AATA 2788

1512940 (Refugee) [2018] AATA 2788 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512940

COUNTRY OF REFERENCE:                  Uganda

MEMBER:Jane Marquard

DATE:8 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2018 at 9:55am

CATCHWORDS

Refugee – Protection Visa – Uganda – Member of a particular social group – Lesbians in Uganda – Asylum application in Denmark accepted – Fears discrimination and racism in Denmark – Applicant has the right to enter and reside in Denmark – Effective protection measures available in Denmark – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 5AAA, 65, 438

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Appellant S396/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMAC v SZRHU [2013] FCAFC 91
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

V856/00A v MIMA (2001) 114 FCR 408

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

OVERVIEW

  1. The applicant is a citizen of Uganda. She was born in [Town 1], Kampala in [year]. She first arrived in Australia on 4 December 2014 on a [temporary] visa after travelling to Australia from Denmark, where she had been granted asylum. She applied for a protection visa pursuant to s.65 of the Migration Act1958 (the Act) on 18 December 2014.

  2. The application was refused by a delegate of the Department of Immigration and Border Protection (the Department) on 27 August 2015. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

  3. In summary, the applicant claims that she fears persecution in Uganda because she is a lesbian. She also claims that she is unable to return to Denmark, and also fears persecution there.

  4. Same sex relationships are criminalised in Uganda, and there is significant societal violence against gays and lesbians. Denmark is tolerant of same sex relationships and has laws to prevent discrimination on the basis of sexuality and race, although there have been some crimes against gays, lesbians and immigrants.

  5. The Tribunal has concluded on the basis of all the evidence before it, summarised below, that the decision under review should be affirmed as the applicant has the right to enter and reside in Denmark.

    CLAIMS AND EVIDENCE

    Evidence before the Department

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AGLC
1512940 (Refugee) [2018] AATA 2788
Case
[2018] AATA 2788
Decision Date

CaseChat Overview and Summary

The applicant, a lesbian woman from Uganda, sought protection in Australia. She had previously been granted temporary refugee status in Denmark for five years after fleeing Uganda in 2013 following an incident where her girlfriend's house was attacked, resulting in the death of a friend and the arrest of her girlfriend. The applicant claimed to fear persecution in Uganda due to her sexuality and alleged that her family had abandoned her and she had been forced to flee her village. She arrived in Australia in December 2014 and was residing with an Australian citizen who had sponsored her.

The central legal issue before the court was whether Australia had protection obligations towards the applicant. This required determining if the applicant had a well-founded fear of persecution for a Convention reason, and if so, whether she could avail herself of effective protection in Denmark, the country where she had previously been granted asylum. The court also considered the applicant's claims of experiencing racism and isolation in Denmark, and her desire to remain in Australia due to perceived greater acceptance and friendliness.

The court affirmed the decision under review, finding that the applicant had the right to enter and reside in Denmark. Evidence presented included a Danish travel document authorising her return to Denmark and a Danish residency permit. The court concluded that effective protection measures were available to the applicant in Denmark, thereby negating Australia's protection obligations. The applicant's experiences of racism and difficulties in Denmark were acknowledged, but these did not override the finding that Denmark provided effective protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has concluded on the basis of all the evidence before it, summarised below, that the decision under review should be affirmed as the applicant has the right to enter and reside in Denmark.CLAIMS AND EVIDENCEEvidence before the Department A summary of the evidence provided by the applicant to the Department in her application forms, and supporting documents, is set out below:·She is an ethnic [deleted] and a Christian. She speaks Luganda and English. She finished primary then high school in [Town 1] in [a certain year];·Her father has passed away and her mother is living in [Town 1]. She also has a sister, brother and cousin living there;·From June 2007 until 2013 she worked as [an occupation] and in March 2008 also established her own business selling [goods];·She was forced to marry a man called [Mr A] by her mother, and had a daughter. Four months after the marriage she returned to the village and left her husband. She is unaware of her husband’s whereabouts, but her daughter lives with her mother;·She is a lesbian and had to live that part of her life covertly in Uganda;·She left Uganda because she was engaged with a group of girls recruiting students to ‘sugar mummies’;·Her family abandoned her because she was a lesbian. The leader of her village chased her from the village;·She moved in with her girlfriend named [Ms B] in [Kampala]. They both worked in a [workplace], where they met most of the girls with whom they collaborated;·They received threats from locals near their home, but did not take them seriously. Problems began when a girl [joined] their group as her father was a policeman;·On 26 July 2013 the villagers wanted them dead and came to their house and beat the women who were there. The applicant was at work at the time. One of their girlfriends was beaten to death. [Ms B] was taken by the police and the applicant heard that she was in prison. The applicant fled to [Country 1] and connected to a lady who took her to Denmark [in] July 2013. The applicant had never travelled before and relied on this woman to make arrangements. She stayed in hiding with this woman for three weeks and then travelled with her to Denmark. There, the woman abandoned her;·With the help of a taxi driver she approached the Danish authorities where she sought asylum and was granted temporary refugee status for five years. The Danish travel document permits her to return and reside in Denmark;·In Denmark she experienced racism, language difficulties and torture. She wanted to commit suicide. She had no friends, and as a refugee could not study or work;·She did not have any lesbian relationships in Denmark except for a few months when she was ‘friends’ with a girl;·Her friend [Mr C], an Australian citizen sponsored her to come to Australia. She travelled to Australia, [arriving] on 4 December 2014;·She now resides with [Mr C] as his guest;·She has not explored the gay or lesbian scene in Australia;·She appreciates that the Danish government gave her protection but she has been unhappy there. She does not want to return to Denmark due to the language difficulties and racism. She may commit suicide there;·She spent a year in Denmark from 2013/14 stating that this was a rescue due to the problems she had in her country. She claimed to have a right to enter and reside in Denmark;·She is seeking asylum as her life is in danger and she has been mistreated.

Decision

Reasons for decision

She provided copies of:·Danish Travel Document (Convention of 28 July 1951) Titre De Voyage, issued [2014] expiring [2019], stating ‘the holder is authorised to return to Denmark during the validity of the document’. It also states ‘should the holder take up residence in a country other than that which issued the present document, he must if he wishes to travel again, apply to the competent authorities of his country of residence for a new document’;·Danish Residency Permit expiring [date] 2018, stating that the card should always be carried while residing in Denmark and the holder of the permit was entitled to work;·Danish Asylum card stating that it was proof that she had sought asylum in Denmark; ·Danish Health Insurance card;·A Medical Certificate dated 28 July 2015 from a doctor at [City 1, Australia] Hospital stating that the applicant had [a certain illness], with an unknown date of onset. She had surgery [in] July 2015. Departmental decision A copy of the decision by the delegate of the Department dated 27 August 2015 was provided to the Tribunal by the applicant. The Department found that the applicant had a right to enter and reside in Denmark and therefore Australia did not have protection obligations to the applicant.Evidence before the Tribunal The applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments by video from [City 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Luganda language. The applicant indicated that she was satisfied with the interpreter. A summary of the evidence provided by the applicant to the Tribunal in hearing and supporting documents is set out below:·She had [a certain illness] in July 2015, and was operated upon. She now goes for check-ups every six months. She is well but has had pain on her right side. She will be going for a scan for this soon;·She was born in [Town 1], in [Uganda]. Her parents were farmers. Her father passed away a long time ago. Her mother and grandmother are still living there. She does not know where her brother is, and her sister has moved to Kampala. She is not sure if her sister is working. She is not in contact with her brother. The last time she spoke to him was before Christmas and he was in Kampala, working for [an] organisation. She has lost contact with her extended family in Uganda, and is really only in contact with her sister and mother;·She attended primary and high school in the [Town 1] region until [a specified year]. She had problems in [Town 1] with her family. The villagers tried to chase her family from the village. They had a meeting and spoke about her and her family. Her mother said she should move, because people were talking about her. She had a girlfriend and people thought it was an abomination;·She was first attracted to girls in primary school. Her first girlfriend was a neighbour and they just fetched water and played together. She denied that she was lesbian to her mother. Asked why the neighbours did not just think they were friends, she said that they were caught red-handed two times. She said that lesbian relationships were not allowed and they thought in the village that she was tempting the young girls;·Asked how her mother felt about it, she said she was stressed. Asked if she confided in her mother, she said that she tried to. Until now she has given her ‘lots of pressure’;·Asked if she had heard anything about lesbians or gay people when she was a child, she said only when she went to Kampala. However she had a relationship with a girl in the village which was a ‘connection’ but not ‘the real thing’;·After one ‘big incident in her village’ in 2007, she left for Kampala without telling her mother. Her mother had tried to find a man for her. So she ran away and left the baby with her mother. She was not married. The father was [Mr A]. She had a relationship with him for a few months, not even a year. He has passed away;·After she left home, she went to Kampala and worked in a [workplace]. She also sold [goods]. She lived in Kampala until her departure for [Country 1] and then Denmark;·Asked what she was doing between 2004 and 2007 she said that she was doing nothing. Asked if she was in the village and she said that she could not recall. She was not working. She gave birth to her child in [a specified year]; ·She had a girlfriend called [Ms B] in the city. She met her at [work]. She was with her from 2007 until 2013. When she met her, she could see that she was a lesbian. She can look at someone and know. She moved in with her not long after meeting her. Her family came from western Uganda, but she did not meet them;·Asked if her friends in Kampala knew they were in a lesbian relationship, she said that many girls came to her place of work to meet other girls. Girls from the university were recruited to come meet other girls at their house;·She was asked if she was aware of any lesbian groups or associations in Uganda. She said that people could not come out or they would go to prison or be harmed. She only knew the girls she associated with. She did not attend gay events, as her friends made their own parties;·Her mother did not visit her. Asked if she told her mother about the relationship she said she did not tell her, but her mother found out. Her mother told her sister that she did not want anything to do with the applicant. When she was in Denmark she got back in touch with her mother. Asked if her mother was accepting of her now, she said that she was. Her sister is also accepting of her sexuality;·In Denmark she had a relationship with a [girl] for two years. In Australia, she has had a relationship in private with a woman for two years, meeting with her every week. She met her in [City 1] in a pub. There are no lesbian pubs in [City 1], they are mixed. She lived in [a town in Australia] when she first came to Australia with friends. She is not living with them anymore, she is now living alone in [City 1];·She is a member of Mardi Gras but did not attend, and is not in any other lesbian clubs or groups. She had tried lesbian websites but did not want to pay. She cannot remember the names of the websites;·She was asked to describe the incident [in] July 2013. She said that most lesbian girls lived in their parents’ homes so they would visit her home to socialise. Neighbours talked about them as girls came and went. One of the girls had a father in the police force. One evening [Ms B] and two girls were at her home, but she was at work. The father of one of the girls came to the house and more than ten people from the neighbouring houses accompanied him, and started beating the door down. They lost one girl, [who] was killed after [items] were thrown at her. Asked who told her that this was happening, she said it was the girls. The police arrested [Ms B], and she was not released, she was kept in prison. The applicant tried using the Red Cross to find her, but has been unable to do so. Asked if she had spoken to [Ms B]’s family, she said that she did not have contacts. She also had no contacts with the girls in Kampala. She left Kampala without going back to the house. A lady in [Country 1] [helped] her out, and her sister gave her money. She went to [Country 1] by bus without a passport;·She does not know if the police investigated the killing of the girl. The incident was reported in the media, with their names listed, but she does not have copies of the reports;·She went to live in Denmark and was granted a residence permit as a refugee. At the time she did not care where she went. She was welcomed in Denmark, and given a place to stay. But there was a lot of racism from the neighbours and she felt isolated. People were making comments about her. She told a friend in Australia about it. He said that she should attend [an event] and he arranged it and she had Christmas with him. She felt better in Australia as she could communicate and people were friendly. So she applied to stay. She had met this man in Uganda and he paid for her. They were friends and not in a romantic relationship;·She understood that she could renew her permit in Denmark, which was granted in [2013] for five years, once five years had passed;·She was given a Danish identity card, health insurance card, accommodation and vouchers for food, and an allowance to attend language school;·A few months prior to the Tribunal hearing, some people followed her child in Uganda ‘because of her’. She told her sister to put her child into boarding school. Asked why people would be interested in her child, she said that it was because of her, but she does not know anything further;·In an undated letter to the Tribunal, the applicant stated that if she left Denmark for more than six months her protection visa would be automatically cancelled.Independent country information

Ratio Decidendi

Legal Principle Established

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