1613766 (Refugee)

[2019] AATA 6379

1613766 (Refugee) [2019] AATA 6379 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613766

COUNTRY OF REFERENCE:                  Uganda

MEMBER:Melissa McAdam

DATE:9 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 09 September 2019 at 10:27am

CATCHWORDS

REFUGEE – protection visa – Uganda – prior refusal on refugee criterion – imputed political opinion – complementary protection criterion – lesbianism in Uganda – credibility issues – timing of new claims – vague and evasive personal oral evidence – strong witness evidence – risk of significant harm – serious physical violence – high levels of discrimination – denial of basic services – right to enter and reside in a third country – East African Community Treaty – passport expired – decision under review remitted   

LEGISLATION

Migration Act 1958 (Cth), ss 36, 48A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
MIMAC v SZRHU [2013] FCAFC 91
V856/00A v MIMA (2001) 114 FCR 408
SZGIZ v MIAC [2013] 212 FCR 315

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Uganda applied for the visa on 15 October 2012 and the delegate refused to grant the visa on 28 July 2016.

3. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, 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

5. 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 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Complementary protection criterion

6. 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’).

7. ‘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.

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   2008 Protection visa application

10. The applicant arrived in Australia in July 2008. On 15 August 2008 she lodged an application for a protection visa.  On 12 November 2008 a delegate of the Minister refused to grant her a protection visa and on 19 December 2008 the applicant applied for review of that decision to the Refugee Review Tribunal.

11. The applicant claimed, in this Protection visa application and review application, to fear harm in Uganda because of her and her uncles’ involvement with the FDC political party.

12. On 23 March 2009 the Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa[1].  The Tribunal did not accept the applicant was an actual, or imputed, supporter of the FDC in Uganda.

    [1] RRT Case Number 0808854

    Current Protection visa application

13. On 15 October 2012 the applicant lodged another Protection visa application with the Department.

14. Following the Full Federal Court judgment in SZGIZ v MIAC[2] the applicant was considered not prevented by s.48A of the Act from lodging another Protection visa application, on the basis of the Complementary Protection criterion.

    [2] [2013] 212 FCR 315.

15. The following is a summary of the claims and information provided by the applicant in her 2012 Protection visa application:

    a.She was born in [date] in [a city], Kampala in Uganda.  She submitted her Ugandan passport issued in 2005, with expiry date [in] 2015.

    b.She came to Australia in July 2008 on a Tourist visa.

    c.Her [sister] is living in [Country 1].  Her mother and another sister are living in Uganda. Her father died in 1997 and her brother is deceased.

    d.She is of Bantu ethnicity and Catholic religion.

    e.In Uganda she worked [in an occupation].

    f.She left Uganda for fear of being kidnapped, tortured, abused and killed by the Ugandan police and Military Intelligence.

    g.Her uncle was a very strong member and supporter of the Forum for Democratic Change (FDC).  He strongly campaigned for the FDC in the 2001 and 2006 presidential elections.

    h.The applicant also helped campaign  for the FDC in the 2006 presidential elections.

    i.She and her uncle were arrested and accused of collaborating with the People’s Redemption Army (PRA), a rebel group.  They were detained and tortured. The applicant was raped.

    j.After one week the applicant was released but her uncle remained in custody.  She was later told that her uncle escaped. She has heard nothing of him since.

    k.The government and military continued to harass the applicant and she was re-arrested and accused of aiding her uncle’s escape. She was tortured gain, starved and suffocated.

    l.After two weeks she was able to escape with a guard’s assistance. She was in hiding until she left Uganda.

    m.Her brother was also involved with the FDC.  He was strangled in 2012 when helping their family to escape their village. 

    n.She has no male protection in Uganda.

    o.She submitted the following documents in support of her application:

    i.A 15 page Psychological Assessment report from [a] Psychologist, dated 20 April 2012.

    ii.A letter [a] Counsellor/Advocate, dated 6 September 2012, outlining the applicant’s current circumstances.

16. On 7 July 2014 the applicant provided the following further information in support of her application:

    a.A Statutory Declaration from the applicant stating:

    -     A description of her claimed experiences in Uganda as an FDC supporter.

    -     She was in a relationship with a man, [Mr A], who is an Australian citizen. The relationship came to an end in early 2011. The breakup of the relationship caused her stress and depression.

    -     From then on she became rational about the kind of partner she really wanted and needed and realised she wanted things she could not get from men. She developed a great fear and mistrust towards men and being in intimate relations with them as they reminded her of her past sexual abuse.

    -     She hates men and views them as the source of her troubles.

    -     She has hidden her sexual orientation since her school days.

    -     Between [year] and [year] she had a lesbian relationship at her [school] with a good friend, [named]. They loved and cared for each other. They were careful not to expose their relationship. They parted when high school ended. 

    -     The applicant thought this chapter of her life closed in [year]. But in 2011 it opened again. Gradually her sexual attraction towards women redeveloped.

    -     While in [Detention Centre 1]  the applicant’s interest in females was reactivated again. She met lesbians from Slovakia and Coleman (sic). She became close to a woman who also showed an interest in her but they could not express their feelings openly.  They developed an intimate emotional attachment to each other. Unfortunately the woman left the detention centre which was a big blow to the applicant.

    -     She then met another woman in the detention centre whom she became emotionally connected to. This woman had a boyfriend.

    -     The applicant was released from the detention centre [in] July 2012. She stayed with family friends while waiting for her sister to return from [Country 1] on a partner visa.  The family had a ‘mentally unsound’ son  who would look at the applicant differently and send her explicit messages that he was in love with her. This made the applicant scared. She told her psychologist who told the department so that the applicant could leave the place.

    -     She moved to [City 1] and battled depression. Her movements were restricted until the end of September 2013.

    -     She would go to [Pub 1] in [City 2], [Pub 2] in [suburb], [Nightclub 1] and [Bar 1] [at location], same sex bars and restaurants and watch movies.  Her health would get in the way. She could not stand loud noise due to migraines.

    -     She now belongs to [Church 1], a Christian based LGBTI organisation in [City 1], where she was accepted for who she is.  They have become like a family to her and recognise her lesbian orientation.

    -     She fears harm in Uganda as a lesbian.

    b.A Statutory Declaration from [a pastor], dated 6 July 2014, stating the following:

    -     He is the Pastor of [Church 1].

    -     The applicant is a regular attendee at the church.

    -     He first met the applicant around the beginning of May 2014 when she first attended the church.

    -     He has had pastoral conversations with the applicant in which they have discussed the applicant’s sexuality. He is convinced she identifies as a lesbian.

    -     She has well-founded fears of abuse in Uganda and he believes she should be allowed to stay in Australia

    c.An email dated 29 June 2014 regarding a ‘Dating Digest’.

    d.An email, dated 16 June 2014 confirming subscription to [a magazine].

    e.An email dated 22 June 2014 from a “[website]” site regarding a woman expressing an interest in the recipient.

    f.A handwritten letter, dated 9 January 2012 from a police officer in Uganda stating that ‘[a named person]’ was found shot dead by unknown assailants on 8 January 2012.

    g.A letter from [Ms B], Clinical Psychologist, dated 2 July 2014 stating she met the applicant in [Detention Centre 1] in 2011 and has maintained contact with her since then. They have become friends. The applicant confided to [Ms B] about her past experiences in Uganda. The applicant also recently confided to [Ms B] that she has an aversion to men and that she has a lesbian sexual orientation. Homosexuality is a punishable offence in Uganda. The applicant experiences mental and physical health issues. She has made connections with a Christian LGBTI organisation in [City 1]. The applicant has become more comfortable with her lesbian sexual identity which has triggered more fears for her if returned to Uganda.

    h.A pathology referral for the applicant dated 19 April 2013.

    i.Several medical prescriptions for the applicant.

17. On 10 July 2014 the applicant’s agent provided a 43 page written submission to the Department in support of the visa application.

18. Also on the Department’s file are the following documents:

    -A letter from STARTTS psychologist, [named], dated 1 July 2014, stating:

    oShe is the applicant’s counsellor and worked with her since June 2013. They met regularly, weekly or fortnightly.

    oThe applicant presents with symptoMs Kf PTSD, depression and anxiety.

    oBecause she has been sexually assaulted the applicant is no longer comfortable associating with men and avoids interactions and relationships with them.

    oDuring therapy the applicant disclosed that she had been in same sex romantic relationship with a woman she met in [Detention Centre 1] in 2011.

    oFollowing the end of a heterosexual relationship in 2011 the applicant decided she no longer wanted to pursue romantic relationships with men.

    Departmental Interview, 16 July 2014

19. The following is a summary of the claims and information provided by the applicant in her Departmental Interview:

    a.She is on [various medications].

    b.Her mother lives in Uganda with the applicant’s sister. Her other sister lives in [Country 1].

    c.Her mother was attacked and harassed at her home. She put a complaint in to the local council which is like the local police. They can’t say anything in reports about government involvement in attacks, without endangering themselves.

    d.She did not speak about a ‘fiancé’ in her earlier written statement. She was not engaged in Uganda. Ugandan society is against same sex relationships.

    e.She had no relationships until 2011. She met [Mr A] in 2010. They met in [City 1] and [City 3]. She intended to lodge a prospective spouse visa application with him.  This was because of the pressures of the community she lived with at the time.  She thought she would give it a try.  It ended in disaster. She decided to do what everyone does. She lived with a conservative Catholic community at the time. She decided to go with the flow and give it a try.  It did not work out because of differences in culture and family pressure. His family wanted someone from their world and interfered. She lived near him in [City 3] at the time. They lived together as a couple for a few months in 2011.  He was from [Country 2].  They discussed their problems and at the end of the day he would not go against his family and she said fine that’s it.  It was reminding her of all the bad stuff. She tried that path and it does not work.  It was only his family’s interference that was the problem. The relationship break up was traumatic.  She didn’t seek counselling.  When her brother died she was given a counsellor. She was confused. She had given so much to him and she wanted him to listen to himself and not others. He did not choose her and it was heartbreaking.

    f.The delegate put to the applicant that she may have formed attachments to other girls at school because she was lonely and wanted comfort. The applicant disagreed and said she felt herself to be a lesbian at the time, she was not lonely. Her sister was also at the school.  The applicant was happy and comfortable with who she was. She was happy as a lesbian.

    g.In [Detention Centre 1] in 2011 she decided to be who she is and met other women who were lesbians there. She felt empowered and it was like being back in school.  She was glad to be who she was.

    h.She was initially the only English speaker in [Detention Centre 1].  When some other English speakers came the applicant was very happy to learn they were of the same mindset as her. They spoke it loud during chats together and would say who they were. Sometimes there were prograMs Kn television about same sex relationships that they would watch together. None of the applicant’s relationships in [Detention Centre 1] progressed. It was a small open area.

    i.Two of her friends are out of detention but one is still there.  One of the two who were released got a permanent protection visa because of political claims, not lesbian claims.  The other person went home.  They all still keep in contact. The applicant has visited the detention centre but she gets a sick feeling when she goes there.

    j.The applicant lived with a family in [City 3] who had a mentally disturbed son who would come to the house sometimes.  He would look at the applicant and give her explicit calls. She told her psychologist. She was worried. She had to be moved out of there.

    k.She would go to [Pub 1], near [location]. She would see her friend from [Detention Centre 1].  She could not go dancing because she has a problem with noise. At home she switches off everything.

    l.She left the Catholic church because they don’t agree with who she is.  She is now with a church who accepts her.

    m.The delegate put to her that there is a Catholic priest in [City 2], she personally knows, who would not throw her out of his church. The applicant did not respond.

    n.The applicant knows that the Catholic church is conservative.  Her priest in Uganda was extremely conservative.  She has not discussed sexuality with anyone in the church.  The delegate put to her that it is not true that all Catholic churches would throw the applicant out for being a lesbian.

    o.The applicant found out about [Church 1] over the Internet. The applicant asked why the applicant attends [Suburb 1] branch, not [Suburb 2] one which is closer to where the applicant lives. The applicant responded that the first one she found was in [Suburb 1].

    p.The applicant does not know who ‘[Ms C]’ is. The delegate showed the applicant a photograph of [Ms C] from the applicant’s social media site.  The applicant said she used the social media site to find a life partner and settle down. She was just trying to look for a friend, a long-term partner. They do not chat so much. She  is trying to look around.  The other woman is also someone the applicant was trying to find as a friend, on internet dating sites.

    q.The applicant has not had  any relationships since she left the detention centre. She is trying to look for someone special. She believes she will find someone.

    r.There is capital punishment for people in same-sex relationships in Uganda.  It is now life imprisonment.

    s.In Uganda she would be supposed to get married and continue the family lineage. It is unacceptable to decide not to marry.  Her family and clan members would force the applicant to marry.  There is strong clan membership in Uganda. There are rules.

    t.She was [age] or [age] years old when she left Uganda. She had not been forced to marry but they were using language to push the applicant to marry.  It was very uncomfortable for the applicant.  She does not know if she will be forced to marry if she returns. She will become like an outcast in the clan and the community.

    u.Her sister in [Country 1] is waiting for a spouse visa. They talk together from time to time.

    v.The delegate put to the applicant that in June the delegate received an anonymous written communication telling her the applicant was going to put in claims she was a lesbian, before the claims were made.

    w.The delegate put to the applicant that her political claiMs Kave been examined by the Department, the Refugee Review Tribunal, the Courts and the Minister, and found not to be true. Therefore her reason for the re-emergence of her sexual orientation is not credible.

    Post-Interview Submission

1. On 20 March 2015 the applicant submitted the following information to the Department:

   a.   Several Photographs of the applicant’s activities during the 2015 ‘Mardi Gras’.

   b.   A medical referral for the applicant.

   c.   A medical appointment confirmation for the applicant.

   d.   Two medical prescriptions for the applicant.

2. On 29 June 2016 the applicant submitted the following information to the Department:

   a.   A medical referral for the applicant.

   b.   A medical appointment confirmation for the applicant.

   c.   Two medical prescriptions for the applicant.

   Delegate’s Decision

3. The delegate did not accept that the applicant had a raised political profile from any political activities in Uganda.

4. The delegate also did not accept that the applicant is a lesbian. The delegate referred to the lack of inclusion of her claim to be a lesbian in the applicant’s earlier Protection visa application; the applicant’s description of herself as happy to be a lesbian despite her deep religious faith; the applicant did not name the two lesbians she knew in [Detention Centre 1]; in April 2011 she asked for a visa condition waiver in order to apply for a partner visa as a partner of an Australian male resident or citizen, whom she stated to have strong feelings for; and there is no mention of her claimed sexuality in her earlier psychological reports.

5. The delegate was not satisfied the applicant was owed protection obligations.

   Information to the Tribunal

   Pre-Hearing Information

6. On 16 January 2019 the applicant submitted the following document copies to the Tribunal:

   -A letter from psychologist, [Ms D], dated 9 January 2019.  The contents of the letter are very similar to the contents of the previous letter written by [Ms B] (referred to above), and appears to be by the same clinical psychologist, who now has a different surname.

   -A letter from [Reverend E] of [Church 1], dated 30 December 2018. He states that he is the Senior Pastor of the Church and has known the applicant since June 2018; she is a lesbian and a faithful member of the church; she works as a dedicated [Occupation 1] in Australia; and she should be granted permanent residency in Australia.

   -A letter from [Ms F], dated 16 December 2018.  [Ms F] states she has known the applicant since she started attending [Church 1] in 2014. The majority of the church are from the LGBTIQ community. The applicant identifies strongly as a lesbian. She went on the Women’s Retreat in Town 1 in 2014. She has attended every retreat since then.  She works in [Occupation 1].  She is a gift to Australia.

   -Several photographs of the applicant involved in activities with other people.

   -The applicant’s [University 1] ID Card.

   -An offer of enrolment to the applicant from [University 1].

7. On 15 August 2019 the applicant provided several witness statements from other members of the [Church 1], in support of her claim to be a lesbian and also attesting to her positive character attributes. The statements were from:

   - [Ms F];

   - [Ms G];

   - [Mr H];

   - [Mr I];

   - [Ms J];

   - [Ms K];

   - [Reverend L];

   - [Ms M];

   - [Mr N]; and

   - [Mr O].

   Tribunal Hearing

8. The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms D], [Reverend E], [Ms F], [Mr H], and [Ms K].

9. The following is a summary of the information provided by the applicant at the hearing:

   a.Her mother and sister are living in Uganda.

   b.She managed to tell her mother and sister in Uganda that she is a lesbian about a year and half ago.  She came out to them about why she is not getting married.   Her mother was very disappointed by the news.

   c.Her mother had always wondered why the applicant did not bring any men home or was not in any relationships in Uganda. The applicant had tried to brush it off at the time.

   d.She and her mother talk about the applicant’s sexual orientation. The applicant tries to tell her mother that she now belongs to a church community of people who believe in same sex orientation. Initially her mother was very concerned the applicant would be  out of the church. The applicant told her she has found a church and they still have God.  Her mother still struggles because she knows there will be no children and other norms.

   e.Her mother is worried about what people will say and how she will explain these kind of things. She is worried about her reputation.  She says she is disappointed in the applicant but the applicant’s safety comes first.

   f.The applicant’s sister in Uganda also did not react well to the applicant’s coming out, but she was more understanding that the applicant’s mother. She said that if this is who the applicant is and if it makes her happy she cannot stop it.  She knew the applicant was not interested in the opposite sex when she was young.

   g.The applicant has also come out to her sister in [Country 1] who had no problem with it.  This is possibly because she and the applicant are very close and had come to Australia together.

   h.The applicant does not know where her ex-partner, [Mr A], now is.  After the applicant went into detention she had no more contact with him.

   i.The applicant realised she was a lesbian at high school in about [year].  She became close to a friend who introduced her to a lesbian relationship. They kept the relationship quiet because it was considered unacceptable.  The applicant was [age] years old at the time.  Her friend explained to the applicant what a same sex relationship is. The applicant thought ‘wow’, it was safe because she could not get pregnant.

   j.The applicant never thought her lesbianism or same sex relationships are wrong.  She knew it was unacceptable to others. In school they were warned against same sex relationships. It was a girls’ school. There were other lesbians at the school and girls had got in trouble for this.

   k.At school the applicant also learned that same sex relationships were not acceptable in the Christian church.  When she discovered this she asked why are they against people who love each other. She struggled with some of those questions. She felt sad  and wondered why the church did not approve of or respect other feelings. She continued to attend church. She would just attend mass then leave.

   l.Jesus never preached about homosexuality being a sin. He just preached love.

   m.The applicant is a lesbian. For a long time it was so hard to come out. It is a struggle. She is a lesbian and feels comfortable about this.

   n.She has been attracted to women in her years in Australia.  She cannot talk about this much because it is personal. There are no particular women she is attracted to. She is attracted to women of a similar character to herself. Women with kindness and integrity who help others.

   o.She is interested in lesbian culture, such as lesbian art, movies and literature. She cannot recall any that she has seen or read.

   p.She has been attending [Church 1] since early 2014. It has been her church since then. She was going every Sunday but her work roster changed to make this difficult. So she would attend evening services when she could. It has become easier and about two months ago she resumed attending church every Sunday.

   q.She was in a relationship with her former partner, [Mr A], because of the strong pressure from her church.  She was also a little unbalanced in her state of mind.  She struggled with the relationship and was happy it ended.

10. The following is a summary of the information provided by psychologist [Ms D], at the hearing:

    a.She met the applicant through her clinical background about eight years ago in 2011 and they have become close friends in that time. The applicant opened up to [Ms D] slowly.   She understands how very difficult it is for someone from a Ugandan and Christian background to come out. 

    b.[Ms D] considers the applicant to be deeply honest and trustworthy. As far as [Ms D] knows the applicant has had no relations with men.

    c.The applicant told [Ms D] she had experiences which led her to being aversive to men.  The applicant has recognised she has more connection and affinity to women.  But they haven’t talked in a lot of detail about it.  She and the applicant are often with heterosexual Christian friends who are not openly supportive of same sex relationships.

    d.[Ms D] considers the applicant tentative and fearful about her sexuality.  The applicant does not want to get into a relationship until she is stable and able to commit to another person.

    e.As far as [Ms D] is aware the applicant has made no attempts to find an intimate relationship.  The applicant spends a lot of time working very hard.  They usually catch up over text messages and meet irregularly.  The applicant spends a lot of time with the Christian church, groups, and her landlady.

11. The following is a summary of the information provided by [Reverend E], at the hearing:

    a.He and the applicant met 12 months ago when he commenced his role as senior pastor of [Church 1].  At church they have met and the applicant has confided in him. The applicant attends the church as best as she is able.

    b.The applicant has not discussed her sexuality with [Reverend E] but he believes the applicant is a lesbian.

    c.If it eventuates that the applicant is not a lesbian and has been misleading them this will be very concerning. He will need to meet with the congregation and discuss with them how they feel and what they should do and need emotionally.

12. The following is a summary of the information provided by [Ms F], at the hearing:

    a.The church does not have formal roles but she is like an elder in the church.

    b.The applicant does not always come to church, but does when she can.

    c.She considers the applicant to be an absolute delight, a person of integrity with a strong faith in God.  She is an inspiration to others.

    d.[Ms F] organises the women’s retreats and getaways.  She has observed that the applicant’s interactions are mainly with women.

    e.[Ms F] believes the applicant is a lesbian because of the way the applicant speaks and her warmth and intimacy with other women.  The applicant is open about her emotions.  For example, when the women in the church were discussing their first girlfriend the applicant was very keen to hear the stories. The applicant talked about her first girlfriend.  She spoke of a girl at school and how lovely it was, how good it felt with her, and how she would have been happy if it could have lasted. She has not spoken much of her private life.

    f.During the last women’s getaway [at location] [Ms F] and the applicant discussed the attractiveness of women they encountered.  The applicant gave her thoughts about whether or not a woman would be a suitable partner for [Ms F].  They did this in good humour.  Conversations such as this indicate to [Ms F] that the applicant genuinely is a lesbian. When the applicant attends the women’s groups [Ms F] feels deeply that she is in a group of lesbians which includes the applicant.

    g.The applicant is keen for [Ms F] to restart the women’s get-togethers.

    h.[Ms F] believes that the applicant would be attracted to a spiritual person, someone who makes her feel safe.

13. The following is a summary of the information provided by [Ms K], at the hearing:

    a.[Ms K] met the applicant at [Church 1].

    b.They have similar troubled pasts and have bonded over their experiences.  The applicant has shown warmth to [Ms K].

    c.[Ms K] has no doubts that the applicant is a lesbian. They have been on retreats together.

14. The following is a summary of the information provided by [Mr H], at the hearing:

    a.[Mr H] was the Chair of [Church 1] Board.  He knows the applicant through the church.

    b.Whenever women came to the church he would observe the applicant become relaxed.  She felt safe at the church.  He saw her interact with other women and her face would beam. He unconsciously assumed she is a lesbian. Nothing led him to believe she was being untruthful about anything.  He saw nothing that made him think she may not be a lesbian.

    Country Information

    Lesbianism in Uganda

15. A July 2015 report by the Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation states:

    Uganda’s media contributes to the high homophobia and transphobia in society through exposing of sexual minorities in Uganda’s newspapers, radios, televisions and online media perpetuating repellent stereotypes, which are always typically sensational, and which at times appears to be utterly devoid of facts. The publication of names and photographs of people suspected to be LGBT perpetrates other forms of violations of their rights. The Consortium research team verified 22 incidents where LGBT persons were outed in the media. Of importance to note, many LGBT persons were beaten up, harassed or evicted after their photographs were published in the media.[3]

    [3] Uganda: UGA CI160725165006238 – The Sunrise – Media – Fraudulent articles in newspapers – LGBTI, Country of Origin Information Services Section (COISS), 29 September 2016.

16. A 2012 journal article states:

    A 2010 survey of 1,000 people by the Pew Research Group found that 79 per cent of Ugandans believed that homosexuality was morally wrong, while a survey conducted by the research company Synovate found that 95 per cent of Ugandans find homosexuality ‘repugnant and absolutely unacceptable to their culture’.[4]

    [4] Dicklitch, S et al 2012, ‘Building a Barometer of Gay Rights (BGR): A Case Study of Uganda and the Persecution of Homosexuals’, Human Rights Quarterly, Vol. 34, Johns Hopkins University Press, pp.448-471, pp.462-463.

17. A 2013 Amnesty International report states:

    Leaders and representatives of disparate faiths and denominations have, at times, united in their condemnation of same-sex sexuality. In Uganda, for example, the Interfaith Coalition Against Homosexuality, which is comprised of Catholic, Protestant, Muslim and Baha’i groups, called for the arrest, deportation and even murder of LGBTI persons.

    Mirroring political leaders, some Anglican leaders in Uganda and Kenya have used homophobic rhetoric to distract attention from problems within the church, and hold LGBTI persons responsible for perceived social decay. Some pastors in Uganda preach that 100 per cent of HIV infections are caused by LGBTI people, and that LGBTI people are actively involved in ‘recruiting’ children to become LGBTI. They also frequently equate homosexuality with paedophilia…[5]

    [5] Amnesty International 2013, African activists fight homophobia, 26 June < for similar incidents see also Amnesty International 2013, Making love a crime: Criminalization of same-sex conduct in Sub-Saharan Africa, June, p.34 <

18. A 2013 report by the Organization for Refuge, Asylum & Migration (ORAM) and the Refugee Law Project (RLP) claims that in addition to physical harassment, LGBTI in Uganda are denied access to a range of services and rights:

    …[ LGBTI] suffer pervasive discrimination in education and employment. They are often expelled from their homes, schools and jobs merely for being [LGBTI] or for having an outward gender expression that does not conform to accepted gender norms. Many are thus unable to acquire sustainable employment and are left homeless or forced into sex work. [LGBTI] persons in Uganda are also denied access to medical care, and often suffer medical problems for which non-[LGBTI] persons are able to access treatment.…

    … [LGBTI] are denied access to police protection and often suffer harassment, arbitrary arrest, incarceration without conviction, and torture at the hands of enforcement authorities.[6] 

    [6] ORAM and RLP, (2013), ‘Blind Alleys - the Unseen Struggles of Lesbian Gay Bisexual Transgender and Intersex Urban Refugees in Mexico, Uganda, and South Africa”, >

    The UK Home Office ‘Country Policy and Information Note, Uganda: Sexual orientation and gender identity and expression’, published in 2019, states:

    2.4.7 Same-sex sexual acts are illegal under the Penal Code and punishable with up to life imprisonment. In practice, although LGBTI persons have been arrested they are rarely successfully prosecuted under the Penal Code. There are no laws that specifically legislate on gender identity and expression. The constitution bans discrimination on a number of grounds but does not extend to sexual orientation or gender identity and expression, nor does it apply to same-sex marriage, which is prohibited.

    2.4.8 Some politicians and members of the government, including President Museveni, have publicly denounced sexual minorities.

    2.4.9 Other laws, while not overtly anti-LGBTI, are sometimes used to arrest and harass LGBTI persons or restrict the activities of LGBTI advocacy and support groups. Gay pride events, although having taken place in the past, have been disrupted by the state or banned outright, the last having taken place in 2015.

    2.4.10 There have been human rights violations against LGBTI persons including acts by the police and other state agencies. LGBTI persons who have been arrested and/or detained reported being subjected to ill-treatment, including humiliation, physical and sexual assault and being subjected to forced anal examinations.

    2.4.11 LGBTI persons suffer discrimination in accessing services such as healthcare, including access to HIV / AIDS treatment and services, and a LGBTI advocacy group had a health event closed by police on government orders. There have been reports of healthcare workers calling state actors to arrest LGBTI persons when they attended clinics for assistance.

    2.4.14 Uganda is generally a conservative country where sex and sexuality are not openly discussed. Homophobic views are widespread and there is a general lack of acceptance of LGBTI persons, with some people believing being LGBTI is a western concept. A 2016 report noted that 57% of Ugandans surveyed felt that being an LGBTI person should be a crime with 31% disagreeing.

    2.4.15 LGBTI persons have been subjected to violent attacks and societal discrimination and harassment involving intimidation, blackmail, loss of property and eviction, denial of educational opportunities, loss of employment, difficulties in accessing health care, and community discrimination. Some LGBTI persons have been rejected by their families. Some have also experienced physical and sexual attacks, including ‘corrective rape’ and mob violence although documented incidents of mob violence are rare. A 2018 report noted that despite the widespread nature of violent attacks and threats they were less frequent than in the past.

    2.4.16 Approximately 30-50 LGBTI NGOs reportedly operate in Uganda, the strongest being Sexual Minorities Uganda (SMUG) the umbrella organisation co-ordinating 18 LGBTI groups. LGBTI NGOs provide various forMs Kf assistance and support to LGBTI persons. Civil society organisations and their members have also been subject to harassment and threats by societal actors …

    2.4.18 However, since JM the situation for LGBTI persons has changed. The passage of the Anti-Homosexuality Act (AHA) into law in 2014 increased, often negative, public discourse about LGBTI rights and led to an upturn of incidents of violence and discrimination against LGBTI persons. While the AHA is no longer law, same-sex sexual acts remain unlawful and anti-LGBTI rhetoric and discrimination persist.

    2.5.1 The police do not usually investigate cases of violence against the LGBTI community, instead arresting or detaining the victims. However, a number of civil society sources acknowledge increasing co-operation between the police leadership, including training, and the LGBTI community. Civil society has also documented a few incidents where the police have assisted LGBTI persons, for example protecting individuals from mob violence (though sometimes by arresting and taking them into protective custody) (see Police support to LGBTI persons).[7]

    [7] ‘Uganda. Sexual orientation and gender identity and expression. Country Policy and Information Note’, UK Home Office, 01 April 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

2. The applicant submitted her Ugandan passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Uganda. The Tribunal assesses the applicant’s claims against Uganda as her country of nationality and receiving country.

3. The applicant claims she is at risk of significant harm in Uganda because of her political activities and because she is a lesbian.

   Lesbianism

   Credibility

4. The applicant claims she is a lesbian. She presented evidence that she realised this at high school where she had an intimate relationship with another girl.  She also stated that since that time she suppressed her lesbianism until she rediscovered it after several years and a failed heterosexual relationship in Australia. then after her release form [Detention Centre 1] she  she started attending [Church 1] in early 2014. [Church 1] is a Christian church that welcomes LGBTIQ people.

5. The applicant presented little personal oral evidence that she genuinely identifies as a lesbian.  Her responses at hearing to questions about her realisation of her homosexuality and her life as a lesbian in Australia were both evasive and vague.  She was significantly less vague speaking about her relationship with an Australia citizen man.  However this information was also marked by an unexplained inconsistency in her description of her feelings for her former partner, at times stating she had strong feelings for him and wanted the relationship to work, while other times stating she was relieved the relationship ended.

6. Apart from her involvement with [Church 1] the applicant demonstrated very little interest in lesbian culture or exploring life and opportunities for lesbians in Australia.  The Tribunal is also concerned by the timing of the applicant’s declaration that she is lesbian, given it came only after her other attempts to obtain a permanent visa in Australia had each failed.

7. However numerous witnesses, including the applicant’s psychologist and other [Church 1] members, each gave concordant oral and written evidence of their unwavering belief that the applicant is a lesbian. The witnesses were able to explain to the Tribunal the often deep level of interaction they had with the applicant and the bases for their belief she is a lesbian. 

8. The Tribunal notes that several of the witnesses from [Church 1] have known the applicant for five years and have had very close and sustained involvement with her. The Tribunal acknowledges that their longstanding engagement with the applicant likely places them in a better position to appraise the applicant’s sexuality than the limited time and resources available to the Tribunal.  While it may be that the applicant has been betraying their trust for her own advantage, the length of time she has sustained her commitment to the church and her friends there makes this doubtful.  Given the highly individual nature and potential fluidity of both sexuality and coming out, the Tribunal accepts that the applicant’s lesbianism may exist, albeit in a somewhat subdued state.

9. While the Tribunal has remaining concerns about the credibility of the applicant’s claim to be a lesbian, in view of the strong evidence from her witnesses, the Tribunal cannot be confident that the applicant is not a lesbian. The Tribunal therefore accepts this aspect of her claims.   

   Risk of Significant Harm

10. The available country information clearly indicates that lesbians are at risk of serious physical violence, ostracism and isolation, employment discrimination and denial of basic services in Uganda. 

11. The Tribunal therefore accepts that if the applicant returns to Uganda and lives openly as a lesbian, there is a real risk she will be subjected to serious physical violence and high levels of discrimination which may deprive her of core human rights and deny her access to basic services.

12. The Tribunal considers that this harm amounts to cruel or inhuman treatment or punishment and that it is significant harm.

13. The Tribunal is therefore satisfied that there is a real risk the applicant will suffer significant harm if returned to Uganda.

14. Given that the agent of harm in Uganda includes both state and non-state agents the Tribunal finds there is no available effective protection for the applicant in Uganda. The Tribunal finds that the risk of significant harm to the applicant exists throughout Uganda.  The Tribunal is satisfied that the risk is faced by the applicant, personally, as a lesbian in Uganda.

    Right to enter and reside in a third country

15. Under s.36(3) of the Act, Australia is taken not to have protection obligations in respect of 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.

16. However, subsection (3) does not apply in relation to a country in respect of which:

    ·the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    ·the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

17. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) of the Act are satisfied.

18. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[8]

    [8] V856/00A v MIMA (2001) 114 FCR 408.

19. Relevant to this matter, country information indicates 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.[9] Article 104 provides that the partner states agree to conclude a protocol concerning free movement.

    [9] East African Community website at

20. 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.

21. 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).[10]

    [10] East African Community Common Market (Free Movement of Persons) Regulations, Annex I r.4, East African Community Common Market Protocal (Simplified) at 7,

22. 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).

23. 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.[11] 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.[12] 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.[13]

    [11] Annex on the Free Movement of Persons, East Africa Community Website, ‘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, >

    According to information from the EAC, possession of a valid passport with at least six months validity is required for an EAC citizen to enter another member state.[14]  Three of the member states Uganda, Kenya and Rwanda, also currently allow citizens of each country to enter on the basis of holding a national ID Card (or voter card in the case of Ugandans who do not yet have national ID cards).[15] However to take advantage of this permission the citizen has to be in their country of nationality at the time of travel.

    [14] See the East African Community website, ‘Travelling in East Africa’ webpage, 

    [15] See e.g. The New Times, 2014, “EAC Citizens thrilled to use IDs at border”, 2 January, and New Vision, 2017, “The Experience of Cross Border Travel using National ID”, 11 January,

24. The Tribunal notes that the applicant’s Ugandan passport has expired and that she therefore does not currently possess a Ugandan passport that would allow her to enter other EAC countries.  Given her fear of the Ugandan state she should not be required to avail herself of its protection to obtain a new passport. She is therefore unable to comply with the requirements for entry to an EAS member state, and cannot be said to have a right to enter and reside in an EAS member state.

25. The Tribunal therefore finds that the applicant is not excluded from Australia’s protection obligations by s.36(3) of the Act.

    CONCLUDING PARAGRAPH

26. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    DECISION

27. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

    Melissa McAdam
    Member