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

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).
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.
The applicant was represented in relation to the review by her registered migration agent.
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 (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
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
If a person is found not to meet the refugee criterion in s.36(2)(a),…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: 1613766 (Refugee) [2019] AATA 6379
Case: [2019] AATA 6379
Decision Date: 9 September 2019

CaseChat Overview and Summary

The applicant, who arrived in Australia in July 2008, sought review of a decision affirming the refusal of her protection visa application. Her initial application and subsequent review were based on claims of fearing harm in Uganda due to her and her uncles' involvement with the FDC political party, which the Tribunal did not accept. The applicant subsequently lodged a new protection visa application in October 2012, which was considered not barred by s.48A of the Act due to the complementary protection criterion. This new application included claims of fearing kidnapping, torture, abuse, and death by Ugandan authorities, stemming from her and her family's political activities and her own experiences of rape and torture. She also claimed to be a lesbian and feared harm on that basis.

The legal issues before the court were whether the applicant was owed protection obligations under the complementary protection criterion, specifically concerning the risk of significant harm due to her imputed political opinion and her sexual orientation. The court was required to assess the applicant's credibility, particularly in light of her prior refusal and the delegate's findings regarding her claims of being a lesbian. This involved considering the timing of her claims, the nature of her oral evidence, and the supporting documentary and witness evidence presented.

The court considered Ministerial Direction No. 56, which mandates consideration of relevant guidelines and country information. The delegate had not accepted the applicant's claims of a raised political profile or her lesbianism, citing inconsistencies such as the late introduction of the lesbian claim, her expressed happiness with her faith despite her sexuality, and a prior request for a partner visa based on a relationship with an Australian male. However, the Tribunal received significant new evidence, including letters from a psychologist and a pastor, a letter from a community advocate, photographs, university identification, and enrolment offers. Crucially, the Tribunal also received numerous witness statements from members of a church community, attesting to her identity as a lesbian and her positive character. The applicant also provided detailed oral evidence regarding her coming out to her family in Uganda and her experiences in a same-sex relationship and at school, which the Tribunal found to be credible and consistent with the supporting evidence. The court found that the applicant's evidence, particularly her oral testimony and the extensive witness statements, established a well-founded fear of significant harm, including serious physical violence and denial of basic services, due to high levels of discrimination against lesbians in Uganda.

The decision under review was remitted to the Tribunal for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCE2008 Protection visa application 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. 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. 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 0808854Current Protection visa application On 15 October 2012 the applicant lodged another Protection visa application with the Department. 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. 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.

Decision

Reasons for decision

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 The delegate did not accept that the applicant had a raised political profile from any political activities in Uganda. 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. The delegate was not satisfied the applicant was owed protection obligations.Information to the Tribunal Pre-Hearing Information 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]. 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 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]. 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.

Ratio Decidendi

Legal Principle Established

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