1613766 (Refugee)

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.