1515415 (Refugee)

1515415 (Refugee) [2017] AATA 3010 (14 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515415
COUNTRY OF REFERENCE:                  Uganda
MEMBER:Jane Marquard
DATE:14 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 December 2017 at 2:48pm
CATCHWORDS
Refugee – Protection visa – Uganda – Social group – Lesbians in Uganda – Suffered social ostracism and exclusion – Fear of forced repatriation – Relocation not available – Right to enter EAC countries – State protection not available
LEGISLATION
Migration Act 1958, ss 5AAA, 5(1), 36(2)(a), (aa), (b) or (c), 36(2A) and (2B), 91R and 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Appellant S396/2002 v MIMA
(2003) 216 CLR 473
(1997) 190 CLR 225

Applicant A v MIEA
Applicant S v MIMA (2004) 217 CLR 387
MIEA v Guo
(1997) 191 CLR 559
(2013) 215 FCR 35

MIMAC v SZRHU
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA
(1985) 6 FCR 155
[2015] FCAFC 77

SZTOX v MIBP
Suntharajah v MIMA [2001] FCA 1391
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant was born in [year] in Uganda.
She first arrived in Australia [in] July 2014 on a [temporary] visa.
She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) [in] July 2014.
A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the applicant the visa [in] November 2015.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Evidence before the Department
A summary of the evidence the applicant provided to the Department in her application, and supporting documents, is set out below:
·She was born in Kampala and is a Catholic. She attended high school and then [a] University, where she studied for [number of] months. She has a spouse, [Ms A], and [siblings], living in Uganda;
·She left Uganda because she was being persecuted because of her sexual orientation as she is a lesbian;
·After President Museveni signed the ‘anti-gay’ bill, the attitude towards her by the community and her landlord was brutal. The landlord asked her to vacate her house, with two hours’ notice. Outside the house was a huge crowd, who pulled her out, beat her and set her property on fire. Her [injuries deleted]. She fled to a remote village fearing for her life; and
·She fears the government and members of the public.
She provided the following documents:
·A police clearance document from Uganda;
·A letter from [name], the [position] of the [organisation] in Uganda [Agency 1], dated [in] May 2014 stating that the applicant was an employee of [Agency 1]. She [held a certain position], and had been invited to participate in an international [conference] in 2014;
·A letter from the applicant dated [in] June 2014 to the Australian [government official], requesting a visa to travel to Australia to attend the [conference];
·Invitation dated [in] May 2014 from the [conference] to attend the conference;
·A copy of an email from [Ms B], undated, stating that the applicant’s name had appeared in newspapers. As she was reading the [newspaper], she came across the applicant’s name stating that ‘[headline]’.’. She told the applicant not to return as her life was not safe. She said that she should look in [a certain website];
·A copy of the article from [newspaper], dated [in] September 2014 titled ‘[headline]’. The article referred to harassment, discrimination and persecution of gays. It also states:
[Article deleted]; and
·Emails between the applicant and [certain Australian agencies].
Evidence before the Tribunal
The applicant appeared before the Tribunal on 5 October 2017 to give evidence and present arguments. Her representative and two support people were present at the hearing. A summary of the evidence provided to the Tribunal at hearing, and in written submissions, is as follows:
·She did not attend the Departmental hearing as she had moved address and did not receive the notification;
·She was born in Kampala. Her family comes from this region. She is a Catholic. She attended high school, and then [a] University for [number of] years in Kampala. She started studying for a [course], and then changed to [another course]. She did not complete a dissertation necessary to complete her course because she had to leave the country. Her [relatives] paid for her university fees, and then they stopped supporting her when they knew her sexual orientation and she paid herself, earning money by [doing a certain work];
·She has a partner, [Ms A], and [siblings], living in Uganda. One of her siblings, [Mr C], is at [a certain] school, and the others live with her [relatives] at home. She is only in touch with [Mr C] at school, not the others or any other relatives. Her parents passed away when she was [at a certain age], in 2004 and 2005. After they passed away, she and her siblings lived with her [relatives], who paid for her high school fees;
·She was able to afford the fees and travel expenses to travel to Australia by selling her belongings, and her girlfriend [Ms A] contributed;
·It was not an easy journey for her to find out that she was a lesbian. During her early teens, around [age], she noticed that she had crushes on her friends. During her teen years she tried to have boyfriends like other girls at school. However she did not feel comfortable around her boyfriend, and did not feel attracted to him. She did not have sexual urges towards men. She was always secretly admiring girls and how beautiful they were. She developed more and more crushes, and felt that she could not be with a man anymore. She loved holding hands with girls and talking to them. There was no awareness of lesbianism at that stage. She had not heard it discussed at school, family or in church. She was confused about her attraction;
·She can recall trying to talk to friends, asking them if they had ever felt as if they were in love with a woman. She can recall that most of her friends were not responsive to this, and from that time on they steered away from her;
·She never talked to her parents about it as they were sick;
·Her family went to church, and they also participated in church activities. It was very, very hard for her because the people in the community said that she had taken the wrong direction;
·She first was attracted to a girl from the age of [age] and had a non-sexual relationship with her during school;
·When she was [older], her [relative] asked her to undergo genital mutilation, which is a practice in her culture, the [certain] Tribe, to prepare for marriage. She told her [relative] that she did not want to marry as she was a lesbian. This was the first time she had told a member of her family, although she had told friends. She thought that her [relative] would accept her, as she was a second mother to her. However her [relative] was disappointed and angry, and called her insulting names, telling her she was a demon. As she was only [age], she continued to live at her [relative]’s home, but telling her [relative] resulted in isolation and seclusion from family members. Her siblings and [other relatives] stopped spending time with her. Her [relatives] called her a disgrace to their Christian family and to the [tribal] culture. Her [relative] tried to set her up with several men to change her. She also took her to psychiatrists and a witchdoctor;
·At school, friends found out about her lesbianism because she told them she was attracted to them. Then they started disassociating. At first she told them because she did not realise the reaction they would have. She was teased and called ‘[name]’ instead of [correct name];
·At the age of [age] she first had a relationship with a [girl]. She had an open relationship even though people in the community did not like it. But she did not care and just continued;
·She met [Ms A] at university. She was with her for [number of] years. She managed to go out with her in public places every now and then. She said that they went to clubs and the beach. She was asked if she experienced any harm from members of the government or the community. She said that they would get people attacking them every now and then. People would come up and confront them and tell them what they were doing was not welcome and tell them to leave the place;
·They had trouble with the police. The police kicked them out of a club once, and they came to realise that they were not welcome there. There were some bars and clubs which were more oriented to gays and lesbians – there was one that they went to often. The police eventually closed that club;
·She eventually moved out of the house when she was [at a certain age] to escape the exclusion. This was while she was at university;
·Since coming out as a lesbian, members of her family have shunned her. The only family member she has regular contact with is her [relative], [Ms B]. She communicates with her siblings occasionally. Her brother, [Mr C], is the youngest in the family and she supports him financially as no-one else does. She pays for his boarding school fees. She is in contact with him through the staff at school;
·Her experience as a lesbian in Uganda has been traumatising and stressful. Homosexuality is illegal for men and women, and she lived in fear and shame of being found out;
·In 2013 she contacted a friend who lived [overseas] to enquire if she could be taken by a foster family to escape the maltreatment. She provided a copy of the email she sent to this friend;
·She experienced bullying and harassment from the community, including people who knew her family and extended family. Most people attend the local church and everyone knows each other’s business. In the area she was nicknamed ‘[name]’ which is a negative name for homosexuals. When she walked down the street passers-by would call abuse and curses at her. She did not openly declare herself as a lesbian to strangers or on social media as she feared being attacked. However she was unable to remain quiet when the anti-homosexuality bill was signed into law in May 2014. She provided a copy of a [social media] post by her [in] February 2014 saying [details deleted];
·She was in a committed relationship with [Ms A]. They were in love, however their relationship faced difficulties as they could not be openly affectionate. She did not attend family functions, because they were not welcome and she had been disowned. Her family were opposed to the relationship. Now she is not certain of the status of the relationship between herself and [Ms A]. She only told [Ms A] that she was leaving for Australia the day before she was due to travel, which caused stress. She provided the Tribunal with [social media] messages between herself and [Ms A], as well as photographs;
·She has a number of homosexual friends and they attended one gay club called ‘[Club1]’, which they called [name] club, as it was owned by her. It was only open about [number of] times a month. There are a few gay clubs in Kampala, however they are prohibited, and if discovered, are closed down. [This] club was closed down;
·She was in contact with a transgender woman called [Ms D]. They met at the [a] Workshop which she attended [in] December 2013 in [a city in Country 1]. It was a workshop on [a certain topic]. She decided to attend this conference as an advocate for LGBTI people. She provided a photograph of her and [Ms D] attending this conference, and her visa. [Ms D] was recently attacked by a mob in Uganda. She provided a copy of a news article about her;
·In April 2014 she and a friend [Ms E], had just walked out of a [store] when they were approached by [number of] people. The group started to abuse her verbally and called her ‘[name]’. [Ms E] is also a lesbian although she hides it. They started to walk home but noticed the group was following. She waved down a boda boda motorcyclist and she and [Ms E] got on the back of the motorcycle. They drove to her house. They saw the group coming and although the group did not try and go into the house, they heard them threaten and abuse neighbours for harbouring a criminal;
·In May 2014 she was living in rented community housing in Kampala. [Mr F], her landlord, knew that she was a lesbian as she had held female-only parties there. On many occasions [Mr F] asked her if she was getting married as it is common in Uganda to ask women about this. On occasion [Mr F] said that she never saw men enter the house. In February 2014 the new anti-gay bill was passed by the government which stated that there was an obligation on Ugandans to report if they knew any homosexuals. [Mr F] told her that she would have to leave as she did not want to lease a house to a lesbian. The applicant told her that her contract was not finished and that she did not want to leave;
·Sometime in May 2014 she saw a large group of people in front of her house. [Mr F] was part of this group. She knew some of the group by their faces. The crowd was calling out words such as ‘you stink’, ‘you’re dirty’, ‘let’s kill her’, and some men threatened to [attack] her. Some members of the group kicked down the door and grabbed her and dragged her out. Others grabbed her clothing and possessions and brought them to the street. Members of the group started to [attack her] and she suffered [injuries]. A man from a boda boda helped her up and she climbed on his motorcycle and he drove her to the village of [name] in [a district]. The reason he helped is that she cried for help and he rescued her. She told him she would pay. It was a three hour journey as there was peak traffic. She did not know it would take that long. She asked to be taken there as she knew her [relative] had a [place] there where she thought that she could take shelter;
·She did not go to the police because they would put her behind bars. She had heard of other lesbians being locked up. They were not friends of hers;
·She had heard of this kind of attack against other lesbians as well;
·She stayed in the [place] for one month. During this time she contacted people she thought could help her. Her [relative] said that she would not help her. She also called her friend [but] she said she could not stay with her as her husband would not permit it. [This friend] put her in touch with [Ms G] who worked at [Agency 1]. [Ms G] said that she would help her leave by applying for a visa to attend a [conference];
·[Ms G] prepared the paperwork for her. The Tribunal asked her why [Ms G] would do this for her, as it would lead to prohibitions on travel for other [Agency 1] members, as they had deceived the Australian Department of Immigration and Border Protection. She said that it was because she had explained to [Ms G] that it was the only way she could leave the country as she was in a very bad situation as she was being persecuted because of her sexuality. [Ms G] obtained the visa application, fake receipts and fake paperwork which they submitted. It was the only way she could leave. She travelled to [Country 2] to have her biometrics taken and her visa was granted; She did not inform the police about the May 2014 attack as she feared being arrested and jailed;
·The last time she had attended [a] Police post to report mistreatment by relatives, the officer asked her for a sexual favour or [amount] Ugandan shillings and her [tablet], before he would take a statement. She said that this was after she had told her [relative] she was a lesbian, as her [relative] had told her that she had to undergo female genital mutilation. Then her [relative] insisted she would use force to do female genital mutilation, and told all the family members about her sexual orientation. Then they tied her up and she was forced to undergo the procedure. She reported it to the police. The police officer wanted to have a sexual affair with her. They also asked her for money. Her [other relatives] were forced to undergo female genital mutilation as well;
·She stayed with [Ms A] for a couple of weeks before leaving Uganda, to complete her university exam. She completed her exam but not her dissertation, as she feared for her safety. Her dissertation involved doing a [project] and she did not want to be that public. [Ms A] was angry that she was leaving;
·Her [relative] [Ms B] sent her the email saying that there was an article about her in an online newspaper. She said that she does not know the author, or where he got his information. She said that he indicated in the article that there were two incidents of violence prior to the incident of May 2014. She said that one of these incidents may be the April 2014 incident but she is not sure what the other one is;
·After arriving in Australia, she went to [City 1] for the warmer weather and did not attend the conference. Her only intention had been to flee the country. The payslips evidencing her employment were fabricated. She was in a desperate situation and did not know what else to do;
·She googled LGBTI people in [City 1] to get support after her arrival. A lady named [name] invited her to attend [certain agency] events. This organisation has accepted her and been supportive. She attended [a special event] in 2014 and in 2015 (photograph provided). She has also been involved with [an organisation] (emails provided);
·She currently lives with a woman named [name]. They have a casual relationship. She moved in with her in October 2014. She provided a copy of a rental property inspection report confirming they were residing together, as well as bank account transactions evidencing transfers to [this woman];
·She had been in contact with a friend called [name] via [social media]. [He] is a transgender man, who identifies as a woman, from Uganda. He was residing in a refugee camp in [Country 2] but was transferred by UNHCR to [a city in country 2], as he was badly beaten in the refugee camp. He was then evicted from his accommodation in [City 2], due to his sexuality, and he now resides in the [Country 3] (copies of these emails were provided); and
·She provided copies of emails with [name], a friend, about a gay parade.
An affidavit of [Ms H] dated [in] December 2016 stated that she was a friend and confidant to the applicant. She said that she is a lesbian but does not live openly due to safety concerns. She claimed that most communities in Uganda believe that homosexuality is a disgrace to the family and clan, and that radical groups of youth influenced by politicians and some religious fundamentalists began attacking anyone suspected of being a homosexual. She witnessed the applicant being attacked by youths and some adults in [a suburb] in April 2014 after they had been to a [certain] store. They were rescued by a motorcyclist known as a ‘boda boda’. However the mob ambushed them a few metres from her home, and chased them up into the house. They then insulted the neighbours, accusing them of harbouring a criminal and not performing their obligations of reporting a suspected homosexual to the authorities. Other tenants alerted the landlord to evict the applicant. She said that the applicant told her she stayed at [a village], [number of] km from Kampala. She has undergone difficulties because of her sexual orientation.

The applicant also provided a copy of an affidavit of [name], also known as [Ms D], dated [in] December 2015. [Ms D] stated that she was transgender, currently transitioning from a male to a female. She had known the applicant since 2012 and could verify that she was a lesbian who had lived openly despite the threats to her life. [Ms D] had met with the applicant at the [Club 1], an LGBTI club, and they had attended a [conference] in [Country 1]. [Ms D] said the applicant had confided in her that in November 2013 she had been insulted by some youths and took sanctuary in a restaurant. [Ms D] said that in May 2014 the applicant confided that she was attacked by youth in [a suburb] and made her escape with the help of a motorcyclist. She had also been discriminated against in the workplace, attacked in the streets of Kampala and disowned by her family. [Ms D] had also been a victim of attacks.
CONSIDERATION OF CLAIMS AND EVIDENCE
In coming to a decision, the Tribunal has taken into account evidence before the Department and Tribunal, as well as independent country information about Uganda.
A summary of the relevant law is set out in Attachment A.
Nationality
As a preliminary matter, the Tribunal is satisfied, on the basis of her passport and personal particulars provided that the applicant is a citizen of Uganda, and that Uganda is the receiving country for the purposes of the complementary protection provisions.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The Tribunal is satisfied that the applicant is a lesbian. She provided persuasive evidence about self-realisation of her sexuality. She said that it was not an easy journey to find out that she was a lesbian, but found that she had crushes on her friends at school, was always secretly admiring girls and ‘how beautiful they were’, and loved holding hands and talking to girls. She tried to overcome this by dating men but found that she had no attraction to them. She also was able to reflect on the confusion she felt as she had not heard discussion at school, family or church about the subject. The applicant has had many relationships with women, including a serious long-term relationship while in Uganda. After arriving in Australia, she immediately contacted LGBTI groups, including [an agency] and has been involved in the LGBTI community since. Given the other evidence about her sexuality, the Tribunal is satisfied that her involvement in the LGBTI community in [City 1] has been otherwise than for the purpose of bolstering her refugee claim. Her evidence about her sexuality has been supported by communications from a number of third parties, including [Ms H] who is a lesbian living in Uganda. All these factors indicate that the applicant is a lesbian.
The Tribunal is satisfied that in Uganda she suffered social ostracism and exclusion from her family and members of the community. Her evidence about these matters was detailed and clear, and is supported by independent information about the treatment of lesbians in Uganda.[1]
[1] United States Department of State, Country Reports on Human Rights Practices for 2016, 2016, – accessed 25 September 2017
The Tribunal is also satisfied that she was forcibly genitally mutilated by her family after she told them that she was a lesbian. Her evidence about this was emotional and it was clear that the horror of the incident remains close to the surface. Country sources indicate that despite female genital mutilation being prohibited, it continues to be practised in many parts of the country.[2]
[2] ‘Female circumcision – Uganda still has a long way to go’, The Daily Monitor, 6 February 2015, - accessed 4 December 2017
The Tribunal is also satisfied that she was attacked by a mob in May 2014, following the passing of Museveni’s infamous anti-gay laws which encouraged the reporting of gays and lesbians. Her experiences accord with reports that human rights abuses against LGBTI people peaked after the passing of the Anti-Homosexuality Act.[3] Her evidence is also supported by media reports and the affidavit of [Ms H]. Further, the Tribunal accepts that this incident led to her fleeing her home and arranging an exit from the country. The Tribunal is satisfied on her evidence that she did not arrive in Australia to attend a [conference] but that this was used as a mechanism to allow her to travel to Australia. The Tribunal is persuaded by the fact that she left her long-term partner and had to abandon her dissertation because of her fears of persecution in the country.
[3] UK Home Office, Country Policy and Information Notes, 9 December 2016, - accessed 4 December 2017
Convention reason
The persecution an applicant fears must be for one or more of the reasons enumerated in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention) definition – race, religion, nationality, membership of a particular social group or political opinion.
Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[4]
[4] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ
It is well-established that gays or lesbians can constitute a particular social group, Applicant A v MIEA (1997) 190 CLR 225[5]. Clearly, lesbians in Uganda are identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.
[5] Applicant A v MIEA (1997) 190 CLR 225 and Appellant S396/2002 v MIMA (2003) 216 CLR 473
The Tribunal is satisfied that the applicant is a member of the particular social group of ‘lesbians in Uganda’.
Well-founded fear of persecution
The Tribunal is satisfied that the applicant has a well-founded fear of persecution if she returned to Uganda in the reasonably foreseeable future for reasons of her membership of the particular social group, ‘lesbians in Uganda’ for reasons set out below.
The Tribunal is satisfied that the applicant has been open about her sexuality in the past and will continue to be so. She first told her friends at school, believing that they would be responsive. Similarly she later told her [relative], whom she thought would support her as she was like a second mother. After that she had a number of relationships with women, and attended gay bars, and did not attempt to hide the relationships although in the Ugandan context she had to be careful. The Tribunal is satisfied that if she returned to Uganda she would continue to be open about her relationships and this would lead to serious harm being inflicted upon her. This could involve prosecution by the authorities as well as societal violence without state protection. The United States Department of State reported in 2016 as follows:
The law criminalizes consensual same-sex sexual activity, and penalties for conviction of engaging in “acts against the order of nature” are 15 years’ to life imprisonment. Conviction of the lesser charge of gross indecency carries penalties of up to 14 years’ imprisonment. The government enforced laws against same-sex sexual activity and did not address societal discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.
Societal violence against persons based on gender, sex, and sexual orientation continued. LGBTI persons in particular were at risk of societal violence due to prevailing prejudices, misperceptions of the law, lack of legal protections, and inability to access health services. Some politicians, media figures, and religious leaders expressed opposition to basic protection and rights for LGBTI persons in arguing against same-sex marriage.
Rather than submit cases for trial, police on several occasions arrested suspected LGBTI persons on bogus charges, forcing them to spend at least one night in jail. In most cases police demanded bribes before releasing the individuals. Police increasingly charged transgender persons with “impersonation” and subjected them to verbal abuse and harassment while in detention. The charges generally could not be successfully prosecuted, and detainees were released. Neighbors reportedly attempted to blackmail LGBTI persons by threatening to report them to police. In October 2015 police in Mongu arrested a transgender woman after a taxi driver claimed he had been tricked into having sex with her without knowing she was transgender. Although the transgender woman claimed the driver raped her, she was not provided with legal representation. She was convicted of sodomy-related charges in November 2015 and sentenced to a prison term of 15 years in September. The conviction had yet to be appealed by year’s end.
Several groups quietly promoted LGBTI rights and provided services to LGBTI individuals, principally in the health sector. The groups held private social gatherings but did not participate in open demonstrations or marches in view of societal stigma against LGBTI persons. According to LGBTI advocacy groups, societal violence occurred, as did discrimination in employment, housing, and access to education and health care. LGBTI groups reported frequent harassment of LGBTI persons and their families, including threats via text message and e-mail, vandalism, stalking, and outright violence. Activists stated several LGBTI persons committed suicide.[6]
[6] United States Department of State, Country Reports on Human Rights Practices for 2016, 2016, – accessed 25 September 2017
The Human Rights Watch World report for 2017 stated as follows:
Same- sex conduct remains criminalised under Uganda’s colonial-era law, which prohibits “carnal knowledge” among people of the same sex. The new NGO law raises concerns about the criminalization of legitimate advocacy on the rights of LGBTI people. In August police unlawfully raided a peaceful pageant that was part of Gay Pride celebrations in Kampala. Police locked the venue’s gates, arrested activists, and beat and humiliated hundreds of people, violating rights to association and assembly. Police continue to carry out forced anal examinations on men and transgender women accused of consensual same-sex conduct. [7]
[7] Human Rights Watch, World Report, 2017, – accessed 25 September 2017
While the applicant reported attending a gay club, she said that it was only open [occasionally] , and was eventually closed. This was confirmed by [Ms D], who had been the owner of the club. It was also confirmed in media sources. Articles referred to the opening of [Club 1] LGBTI bar in August 2010.[8] Articles referring to it as Uganda’s [certain] gay bar stated that it closed in 2011, only [lasted certain months] after opening. Activist [name] said that she was ‘heartbroken’.[9]
[8] [Information deleted]
[9] [Information deleted]
The Tribunal accepts that the applicant has been attacked by members of her community in the past. As a known lesbian, the risk of harm is exacerbated. According to Amnesty International a number of LGBTI events have been raided by police, and the courts have refused to re-consider the Anti-Homosexuality Act:
On 4 August, police broke up an LGBTI beauty pageant in Kampala, part of Uganda Pride. They arrested 16 people – most of them Ugandan LGBTI rights activists – who were released after about an hour. A man was seriously injured after he jumped from a sixth-floor window fearing police abuse.
On 24 September, the police prevented more than 100 people from joining a Pride parade on a beach in Entebbe. They ordered people back onto minibuses and told them to leave the area. The participants tried to go to another beach, but police prevented them from holding the parade there too.
The HRAPF and the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL), a coalition of 50 organizations, filed a petition in the East African Court of Justice, arguing that Uganda’s Anti-Homosexuality Act was contrary to the rule of law and the good governance principles of the East African Community Treaty. On 27 September, the Court refused to consider the petition on the basis that the Anti-Homosexuality Act had been declared null and void by Uganda’s Constitutional Court in August 2014.[10]
[10] Amnesty International, Uganda 2016-17, accessed 4 December 2017,
The UK Home Office summarises various sources and states that LGBT people experience societal harassment, intimidation, blackmail, verbal insults, physical threats, poor employment prospects, loss of accommodation and jobs, physical and sexual attacks and violence including corrective rape and some mob violence.[11]
[11] UK Home Office, Country Policy and Information Notes, 9 December 2016, accessed 4 December 2017,
Considering all of these factors, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘lesbians in Uganda’ were she to return to Uganda in the reasonably foreseeable future.
State protection
The Tribunal is satisfied, based on reporting by numerous reputable organisations, including the UK Home Office, that effective state protection against community violence is not available.[12]
[12] UK Home Office, Country Policy and Information Notes, 9 December 2016, accessed 4 December 2017,
Relocation
The applicant faces persecution by state authorities and agents, as well as the community. She would thus be unable to avoid this harm by relocating to another part of Uganda.
Right to enter and reside
Having found the applicant meets the criteria set out in s.36(2)(a) of the Act, the Tribunal has next considered whether the applicant has taken all possible steps to avail herself of a right to enter and reside in any country apart from Australia: s.36(3).
Subsection 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The right to which s.36(3) refers is not merely a right to enter, but must consist of a right both to enter and reside.[13] The Federal Court has held that a 'right to enter and reside' as envisaged in s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[14]This case also held that the Tribunal should evaluate whether, in combination with those terms, the administrative arrangements for entry satisfy the test of a liberty, permission or privilege lawfully given to enter and reside in the country. Australian courts have held that the right referred to in s.36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[15] The Full Federal Court has also provided guidance on the scope of a right to enter and reside in SZTOX v MIBP [2015] FCAFC 77, confirming the right may lie in an executive act as well as legislation, such as a treaty, executive policy or other executive instrument.
[13] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64]
[14] MIMAC v SZRHU (2013) 215 FCR 35
[15] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
Relevantly to the present case, independent sources indicate that Uganda is one of the partner states of the East African Community (EAC) established by the East African Community Treaty (EAC Treaty). The EAC Treaty came into force on 7 July 2000 following its ratification by the original three partner states of Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty and became full members of the EAC with effect from 1 July 2007. South Sudan acceded to the treaty in April 2016 and became a full member in August 2016. The stated aims of the EAC Treaty are to widen and deepen cooperation among its partner states in the political, economic and social fields for mutual benefit.[16] Article 104 provides that the partner states agree to conclude a protocol concerning free movement.
[16] East African Community website at
The Protocol on the Establishment of the East African Community Common Market (the Common Market Protocol) entered into force on 1 July 2010, following ratification by all the five partner states: Burundi, Kenya, Rwanda, Tanzania and Uganda. It provides for ‘Four Freedoms’, namely the free movement of goods; labour; services; and capital, which are intended to significantly boost trade and investments and make the region more productive and prosperous. The Common Market Protocol states in Article 7(1) that the partner states guarantee free movement of persons who are citizens of the other partner states.
Various EAC Common Market regulations seek to regulate the movement of persons through the EAC. The East African Community Common Market (Free Movement of Persons) Regulations (the Free Movement Regulations) set out five categories of persons eligible to enter and remain temporarily in a partner state, those categories being: visitors; persons seeking to enter for the purposes of medical treatment; persons in transit through the partner state; persons admitted as students in training establishments of the member state; and persons entering a partner state for any other lawful purpose, other than as a worker or self-employed person (such persons being dealt with separately in a different annexure to the regulations).[17]
[17] East African Community Common Market (Free Movement of Persons) Regulations, Annex I r.4, East African Community Common Market Protocal (Simplified) at 7,

In the particular circumstances of this case, the Tribunal accepts that the applicant may enter any of the EAC partner states as a visitor.
Regulation 5 provides that a citizen of a partner state who seeks to enter or exit the territory of another partner state will be issued with a pass to enter the territory of the host partner state for a period of up to six months (assuming production of specified identity documents which includes a national passport of the partner states). Subsection 36(3) makes it clear that the right can be temporary or permanent.
A number of progressive steps are noted on the EAC website to implement the Common Market Protocol, for example, the agreement to use identifications for Kenyan, Rwandan, Burundi and Ugandan nationals for travel between the four partner states.[18] However, overall, implementation of the Common Market Protocol has been reported to be happening at a slow pace. An article in June 2014 by Andrew Luzze, Executive Director of East African Business Council stated that the procedures for nationals of EAC states to acquire work permits are ‘lengthy and often frustrating’; each state has different policies and procedures in place and national laws are not aligned with the Common Market Protocol.[19] The Daily Monitor, a Ugandan news site, similarly reported on the difficulties of application requirements and that in Kenya national legislation was used to deter cross border movement.[20]
[18] Annex on the Free Movement of Persons, East Africa Community Website, accessed 5 August 2014, ‘EAC States Need To Harmonization Of Their Citizens' Work Permits’, The Star, 21 June 2014, ‘AC work permit disparities hurt integration’, The Daily Monitor, 9 October 2012, >
Organised by the EAC Secretariat and IOM, a Workshop on Migration and Regional Integration in the EAC took place in December 2011. Ms Mary Makoffu, Director, EAC Social Sectors reflected on the complexity of migration in the EAC, which involves large mobile populations of refugees, internally displaced, and labour and irregular migrants. Additionally, despite the importance of migration to the Common Market Protocol, legal, administrative, financial and social challenges hindered implementation across states.[21]
[21] EAC Secretariat, Workshop Report: Workshop on Migration and Regional Integration in the East African Community, December 2011, >
Articles on the EAC website recognise these challenges. A status review of the EAC Common Market Protocol reports that up to December 2012, although performance did vary, implementation lagged behind schedule in every state. A key observation was the lack of harmonisation of laws.[22]
[22] ‘EAC Common Market: Overview’, East African Community website, 8 August 2014, ‘Partner States Review Implementation of EAC Common Market Protocol’, East African Community website, 15 February 2013, >
The Tribunal has considered the country information regarding the applicant’s right to enter and reside temporarily or permanently in one of the EAC countries. The Tribunal finds that, despite the existence of the Free Movement Regulations and Common Market Protocol, limited and conflicting information was located on the rights of Ugandan nationals to enter and reside in countries belonging to the EAC.
There does not appear to be any automatic right to work or residency within EAC countries for citizens of EAC member countries.[23]
[23] Searches were conducted of regional and international news media, major human rights reports, major foreign government reports, strategic security and intelligence groups, think tanks, and DIBP resources, in addition to general internet searches.
The EAC website states ‘[n]ationals of East African Community Partner States do not require visas to travel to the other EAC member states.’[24] It confirms that East Africans may use national passports or the East African Passport to travel within the region. The East African Passport ‘has a six months [sic] multiple entry validity.’[25] The website also states that local immigration authorities may issue ‘Certificates of Identity’ or ‘Inter-State Passes’ in emergency situations for those who cannot readily be issued with a passport; the certificates/passes may be used to travel across EAC.[26]
[24] East African Community, ‘Travelling in East Africa: Documents you need’, 10 January 2013, CXC28129414722, accessed 22 September 2015
[25] East African Community, ‘Travelling in East Africa: Documents you need’, 10 January 2013, CXC28129414722, accessed 22 September 2015,
[26] East African Community, ‘Travelling in East Africa: Documents you need’, 10 January 2013, CXC28129414722, accessed 22 September 2015,
The website notes that EAC’s ‘Protocol for the Establishment of the East African Community Common Market provides for the use of a machine readable national identity card for travel within the East African region, but only for citizens of those partner states which have accepted among themselves the use of such.’[27] No information is provided on which partner states have done so.[28]
[27] East African Community, ‘Travelling in East Africa: Documents you need’, 10 January 2013, CXC28129414722, accessed 22 September 2015,
[28] East African Community, ‘Travelling in East Africa: Documents you need’, 10 January 2013, CXC28129414722, accessed 22 September 2015,
Kenyan newspaper Daily Nation reported in February 2014 that then President Kenyatta had exited Kenya and entered Uganda using his national identity card, in order to demonstrate that citizens of EAC countries do not need a passport or visa to travel within the bloc. The article notes that EAC citizens may also use their national passports or an East African Passport (which is only for travel within the community).[29]
[29] ‘You don’t need passport to travel all over East Africa’, Daily Nation (Kenya), 19 February 2014, CX1B9ECAB11449, accessed 22 September 2015,
A 2010 article published by Rwandan newspaper New Times also indicates that there are inconsistent entry documentation requirements among EAC countries, reporting a statement by the EAC Secretary General that ‘some Immigration Officers have been refusing to accept the East African Passport as a valid travel document’. The Secretary General responded by stating that ‘neither the East African Community Secretariat nor the EAC Secretary General has authority on matters related to issuance of passports’. The article reports that according to an EAC communique:
the fact that the passport is called the East African Passport in no way invokes the involvement of the EAC in matters related to passports…[i]t is only the National Immigration Departments of the EAC Partner States that have authority over passport matters. It is the same authorities that have powers to also suspend the issue of the same.[30]
[30] ‘East African passport valid – EAC’, New Times (Rwanda), 18 April 2010, CX744258516969, accessed 22 September 2015,
Despite the conflicting information regarding the practical operation and implementation of the Free Movement Regulations, the Tribunal finds that the applicant has not taken all possible steps to avail herself of her right to enter and reside in the EAC partner states temporarily for a period of six months. The Full Federal Court has found that such a right constitutes a right to enter and reside temporarily for the purposes of s.36(3).[31]
Will the applicant be refouled to Uganda?
[31] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 per Tracey & Griffiths JJ at [31]; Flick J at [43]
Australia is taken not to have protection obligations to the applicant pursuant to s.36(3) unless the Tribunal determines that one or more of the qualifications contained in ss.36(4), 36(5) or 36(5A) are met. Subsection 36(5A) provides that s.36(3) does not apply if the non-citizen has a well-founded fear that the country will return the non-citizen to another country.
The Full Federal Court has set out the consideration that a decision-maker must undertake in circumstances where an applicant has been found to have a temporary right to enter and reside in a third country pursuant to s.36(3):
a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision maker would be required to determine whether or not sub-sections 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.[32]
[32] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 per Tracey & Griffiths JJ at [32]
As to whether the EAC partner states would be able and willing to extend protection to the applicant if there was a basis for apprehending persecution of the applicant in her country of origin, the Tribunal notes that Burundi, Tanzania and Rwanda are signatories to the Convention, however their ability to extend protection to the applicant may be impacted by large existing populations of refugees and displaced persons, limited resourcing, as well the fragile security situation in East Africa. The Tribunal notes that EAC states have their own legacy refugee populations.
Secondly, the Tribunal notes that despite the member states of the EAC being signatories to the Convention, country information highlights that there has been both historic and ongoing human rights violations and breaches of non-refoulement obligations.
The University of Oxford Refugee Studies Centre in a report from December 2010 provides the following information on the freedom of movement within the EAC:
Neither the EAC nor the SADC [The Southern African Development Community] protocols remove the rights of states to expel or deport regional citizens on national security or public order grounds. Thus, the right to freedom of movement within a regional economic community is unlikely to constitute a substitute for refugee protection, not least the protection from refoulement that would protect EAC or SADC citizens who are also refugees. Furthermore, these regional free movement protocols do not take account of the fracturing of relations between a refugee and his or her home state, which could, for example, frustrate the refugee’s ability to obtain or renew passports or national identity documentation permitting them to travel throughout the region or to reside in one or more of the participating states. Convention Travel documents would still be needed in such situations.
In 2010, 11 Kenyan and Ugandan nationals who had been involved in the Walk to Work protests, were abducted in Kenya and taken to Uganda where they were detained under terrorism charges. There was no proper legal process associated with this handover.[33]
[33] >
Human Rights Watch (HRW) 2015 World Report suggests that all EAC member states have certain levels of human rights abuse and some countries have domestic bills which violate international human rights law. HRW reported in 2011 that Eastern African countries had restricted the rights of asylum seekers within the EAC:
In April 2011, four Kenyan activists were denied entry into Uganda, where they were to meet with a judicial official concerning Kimathi’s case; one of them, Samwel Mohochi, has filed a suit before the East African Court of Justice, charging Uganda with violating the guarantees of free movement and non-discrimination found within the treaty establishing the East African Community.
In May, Kenya expelled human rights activist Clara Gutteridge, a researcher with the Open Society Justice Initiative. Kenyan Immigration Minister Otieno Kajwang told Parliament that Gutteridge, a British citizen, was “involved in subversive activities which were a threat to national security,” and “involv[ed] with known terrorist operatives and al-Shabaab.” Kajwang further said Gutteridge was “found in possession of materials related to al-Shabaab,” and falsely claimed she was traveling on two passports. Gutteridge’s alleged “subversive activities” seemed to consist of her investigations of abuses committed by eastern African governments in the context of counterterrorism operations. The documents found on Gutteridge consisted of legal briefs related to the arbitrary detention and rendition of several terror suspects.[34]
[34] >
In October 2013 the government of Uganda expelled a high-profile Rwandan refugee, Joel Mutabazi, and handed him over to Rwandan security forces. HRW reported that the ‘forcible return raises grave concerns’.[35]
[35] >
The Tribunal notes that there are close links between the security forces of some EAC states which have resulted in breaches of non-refoulement obligations. For example, HRW has noted that:
Diplomatic relations between Uganda and Rwanda have fluctuated over the years, but many senior Rwandan officials, particularly those who grew up in Uganda and served in the Ugandan security forces or intelligence services, retain close links in the country. Rwandan agents can therefore operate in Uganda with considerable ease. In the past four years alone, numerous Rwandan refugees and asylum-seekers in Uganda have reported to Human Rights Watch a range of incidents, including personal threats by people they know or believe to be Rwandan, attacks on their homes, beatings, attempted abductions, and, in the most serious cases, killings or attempted killings. Some have also reported being threatened and intimidated by Rwandan diplomatic representatives in Uganda.
Refugees or asylum-seekers who are known to be political opponents, critics, or outspoken journalists, are particularly at risk. For example, following the 2010 presidential elections in Rwanda, several members of Rwandan opposition parties and journalists who had fled Rwanda for their safety were personally threatened in Uganda. Most of them have since moved to other countries.[36]
[36] >
This information is consistent with commentary in an article in the East African, which states that:
it has emerged that security chiefs have been trading high profile criminals in blatant disregard of extradition laws… Uganda’s Inspector General of Police, Maj-Gen Kale Kayihura, says extradition laws are not the only instruments that security agencies can use to transfer criminals..it is not something that is done above board but a practice that has been in existence since 1967 when the first East African community was established. There is no protocol, but in police circles, it is assumed that the neighbouring countries will always co-operate when pursuing criminals, the Kenyan side said…[37]
[37] East Africa, 11 October 2010, quoted in >
The International Refugee Rights Initiative (IRRI) has documented the difficulties experienced by Burundian refugees seeking protection in the Great Lakes region in 2012. The IRRI documented former Burundian refugees living in Tanzania’s Mtabila refugee camp who were forcibly returned to Burundi at the end of 2012. The IRRI states that the pattern of refugees being displaced from camps and having to seek refugee status in another country is endemic and ongoing in the region. The IRRI reports:
Overall, the stories told by these asylum seekers underscores the realities of living in a region that has consistently been unable to find comprehensive solutions to the plight of refugees. They reveal a Tanzanian government fatigued with hosting refugees for decades, a Burundian government that has failed to establish and implement equitable structures for distribution and reclaiming of land and create an inclusive polity in which opposition is tolerated; and a Ugandan government reportedly concerned about granting refugee status to asylum seekers whose status has been examined multiple times. The wider context of this story is unfolding is one win which repatriation and return – including forced return in the context of cessation – is being strongly emphasises across the region for protracted refugee situation to the detriment of those whom return is not possible. [38]
[38] >
The Tribunal accepts that the applicant’s fear of forced repatriation is real and supported by information from the IRRI, HRW and Amnesty International who have also documented the historic pattern of forcible repatriation of refugees in the EAC in breach of the principles of non-refoulement.[39]
[39] Great Lakes Region Open letter to governments hosting refugees from Burundi, Rwanda and the Democratic Republic of Congo; a call for the safety and dignity of refugees
As to what other rights the applicant may be able to exercise to remain in another EAC country upon the expiry of their six month pass, the EAC’s Right of Residence Regulations set out that an EAC citizen may only apply to reside in a partner state (as opposed to visit or enter or transit through) on the basis of a work permit, residence permit or dependant’s pass issued by the host partner state and that only a worker or a self-employed person or their dependant shall be issued a residence permit or a dependant pass, the duration of which shall be equivalent to the duration of the work permit.
Article 10 sets up the free movement of workers within the EAC and Annex II of the Common Market Protocol provides the frame work for its implementation. The Tribunal notes that regulation 5(2) requires a worker to present a travel document and a contract of employment at the point of entry. The evidence before the Tribunal does not suggest the applicant has employment in any EAC country.
Information was also located which suggested that the existence of a work permit cannot be considered simply a formality because regulations 7(1) and (2) provide for the denial of work permits and there is lack of clarity regarding the appeal procedures. Information available to the Tribunal suggests that ‘Annex II [of the Common Market Protocol] contradicts the guaranteeing of freedom of movement and non-discrimination in the employment of workers as contained in Article 10. More importantly, the contradictions between Article 10 and Annex II puts in question the establishment of truly common labour market in the EAC region’.[40]
[40] Basnett, Y (2013) ‘Labour Mobility in East Africa: An Analysis of the East African Community’s Common Market and the Free Movement of Workers’, Development Policy Review, 31(2): 131-148

Further, regulation 7 of the Free Movement Regulations provides that a person issued a visitor pass under those regulations shall not undertake any employment in the territory of the host partner state except where the person is a student on internship or industrial training. The same regulation provides that a person’s pass may be cancelled where the holder of the pass engages in an activity other than the activity specified in the pass.[41]
[41] ‘The East African Community Common Market (Right of Residence) Regulations: Annex IV’ 2009, EAC Secretariat, November regulations 5–9, >
Therefore, the Tribunal accepts that the applicant is not at present eligible to be granted a work permit under the Common Market Protocol regulations in any of the EAC partner states and that she will not be permitted to apply for work during the period of her visitor visa. On this basis, the Tribunal accepts that the applicant will not be eligible to be granted a residence permit to remain in an EAC partner state during the period or following the expiry of her six-month visitor pass.
The Tribunal has also had regard to the Free Movement Regulations which provide that a citizen whose pass is due to expire may apply for an extension of the pass which may be renewed where the immigration officer is satisfied that the applicant has provided a justification for a longer period of stay. In the absence of any right to work or study, it is not clear what justification the applicant may provide for an extension of her pass and the Tribunal accepts there to be a real chance that the six-month visitor pass would not be extended.
In such circumstances the Tribunal finds that there is a real chance that the applicant will be unable to remain in an EAC partner state following the expiry of the temporary pass.
In regard to all of the above factors, the extradition provisions, the informal practice of repatriation and the work visa situation, the Tribunal accepts as well-founded her fear that she will be returned to Uganda where she will be persecuted for reasons of her membership of the particular social group, ‘lesbians in Uganda’.
The Tribunal finds that the applicant meets the criteria set out in s.36(5) as a consequence of which s.36(3) does not apply to exclude her from Australia’s protection obligations.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
Jane Marquard
Member

ATTACHMENT A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant 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.
Refugee criterion
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 under the Convention.
Australia is a party to the Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Migration Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

[2017] AATA 3010

14 December 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction