1614393 (Refugee) - [2020] AATA 6027

1614393 (Refugee) [2020] AATA 6027 (5 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614393
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         5 March 2020 at 12:22 pm (WA time)
DATE OF WRITTEN RECORD:                24 February 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.

Statement made on 24 February 2021 at 9:49am
CATCHWORDS
REFUGEE – protection visa – Uganda – member of a particular social group – homosexual – one important relationship with a man in Australia followed by relationships with men and women – credibility – delay in applying for protection – applied after student visa refused, bridging visa expired and period as unlawful non-citizen – vague, ambiguous and illogical evidence – no public or social profile as gay – no evidence of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
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 dependants.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 August 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 5 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.
DECISION
The Tribunal affirms the decision under review.
Dr Colin Huntly
Member

Corrected Transcript
ORAL DECISION OF MEMBER HUNTLY [11.50 am]
BACKGROUND
The criteria for a Protection visa are set out in s.36 of the Act in Sch.2 to the Regulations. To be successful, an applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.
Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs (DFAT), as required by Ministerial Direction No.84.
CREDIBILITY
Before looking at my findings, I note that on questions of credit I need to give the benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments.
I also note that a decision maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.
Consistent with the various decisions commencing with those in the matter of Iyer,[1] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.
[1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].
In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.
I also note that the same source, at [13] provides that:
In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.
Further, at [17]–[19] of the Guidelines it cautions that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal. A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.
With respect to contradictions, inconsistencies and omissions, [27]–[28] states:
Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal. The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
New claims and evidence
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim.
This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.
PROCEDURAL BACKGROUND
Migration history
According to the applicant’s movement record he arrived in Australia [in] February 2009, arriving on a TU-573 Student visa. On 20 February 2013 the applicant submitted a TU-572 (Further Stay) Student visa application. This was refused on 18 April 2013.
On 15 May 2013 the applicant submitted an application for review to the then Migration Review Tribunal. By decision, dated 4 July 2013, that Tribunal found that it had no jurisdiction due to the application for review being lodged outside of statutory time frames.
On 12 August 2013 the applicant’s Bridging visa, allowing him to remain in Australia lawfully expired.
The applicant thereafter remained unlawful in Australia until 22 September 2015 when he lodged a valid permanent XA-866 Protection visa application.
A delegate of the Minister for Immigration refused to grant the applicant a Protection visa on 12 August 2016.
The applicant applied to this Tribunal for a review of that decision.
Tribunal proceedings
The applicant appeared at hearings before the Tribunal on two occasions. Firstly, on 10 February 2020 and then on 5 March 2020, to give evidence and present arguments.
The applicant was not represented in this application by a registered migration agent. Both hearings were conducted in the English language.
IDENTITY
The applicant claims to be a citizen of Uganda and provided a copy of his now-expired passport to the Department with his application. I have had the benefit of reviewing both that passport and the applicant’s current passport, which was issued to him in 2018. I find that the applicant is a citizen of Uganda, based on this evidence. I further find that Uganda is his receiving country for the purposes of the refugee and complementary protection assessment.
For reasons that will become apparent, it has been unnecessary in the present case to determine whether or not the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
APPLICANT CLAIMS
At the first hearing with the Tribunal on 10 February 2020, I explained to you what documents I had in my possession. I asked you if there was any information in those documents that needed to be changed. You responded in the negative. I then asked you if you wanted to add anything to your claims for protection. You responded in the negative. I asked if you were happy for me to proceed on the basis of that information and you responded in the affirmative.
Before the delegate
Also at the first hearing, I read to you the summary of your claims for protection contained in the delegate’s record of decision.[2] These are follows:
·He is a gay Ugandan national and will be harmed by the Ugandan community and authorities due to his sexual orientation, face lifetime imprisonment and will be unable to subsist.
·He was aware of his sexual orientation prior to meeting his partner, [Mr A], in March 2009. On meeting [Mr A] at a nightclub he engineered the applicant into having feelings and was in a sexual relationship with him for six months, after which [Mr A] returned to [Country]. He has not in any relationship since due to being in fear of his friends or family finding out about his sexual orientation.
·The reason why he was unaware of his sexual orientation was due to dating and relationships being taboo in Uganda. The same applied to his siblings, his friends and anyone in Uganda.
·In early 2011 the applicant’s father removed all financial and emotional support to the applicant on finding out that his son is gay. The applicant was informed of this through his father’s assistant who stated that a Ugandan student who returned to Uganda informed the community that the applicant is gay. As a result of this the applicant ceased studying and moved in with his [brother]. His father is still financially supporting the applicant’s two brothers and sister who all reside in Australia.
·His father is the only person in the family who knows the applicant is gay.
·He has hid his sexuality due to not wishing to hurt his friends and family and he is struggling with his orientation and if others were aware and did not report him they would be charged by the Ugandan authorities.
·He will not and cannot hide his sexuality on return to Uganda which would result in him being targeted by the Ugandan community and authorities as well as preventing him for subsisting.
[2] At [4] and [6].
At the Protection visa interview on 8 August 2016 the applicant made the following relevant additions and amendments to his written claims:
·A friend identified the applicant’s sexual orientation in August or September 2015 and informed him that he cannot return to Uganda and that he could apply for a protection visa. His friend is the only person in Australia who knows that the applicant is gay.
·He does not recall his other sexual relationships and has no contact details of any persons he has been with. His only interaction in the LGBT community was visiting gay venues however this ceased in 2013.
Before the Tribunal
At the first hearing, you agreed that the foregoing summary was a fair and accurate one. I discussed the difficulties presented by your application in frank terms with you at the first hearing, and indicated that we would need to explore these challenges in some depth at the next hearing.
In particular, I referred to the fact that the delegate questioned the credibility of your explanations surrounding the circumstances around the lapse of your original Student visa. The delegate also rejected your core claims because your LGBTI claims did not appear to the delegate to be credible. The delegate found that your delay in seeking protection was not reasonable in all the circumstances and this undermined the credibility of your claims for protection when they were made by you.
Following the first hearing I received no written submissions or further evidence from you and you have not elected to call any witnesses.
At the start of the second hearing I once again read your summary of claims and you agreed again, they were fair and accurate. At this point I asked you about your family situation in Uganda. You indicated that your birth mother and your father were no longer in a relationship and had not been together for about 10 years. You have not heard from your mother since they separated. In the meantime, your father has re-partnered and has married a second wife – your stepmother – with whom you have a good relationship.
From your family of origin, you have your eldest sister who is deceased; and, [a] brother who lives in Australia and is a student (having recently graduated from a [degree] at [University 1]). He is married and has [two children]. You have [another] brother who is also in Australia. You believe that while he arrived in Australia lawfully as a student, he is currently unlawful somewhere in Australia.
You have another sister living, who is a student [and] who lives in Sydney. Brother number three lives in Uganda with your father and your stepmother. Your stepmother visits yourself and your siblings each year, and you see her at least once a year (sometimes twice), when she visits. Most recently, she visited for your brother’s graduation [in] February 2020. She stayed for seven days and you spent four of those seven days with her.
There is only one person in Perth whom you know is from your hometown other than your brother and you are in frequent contact with that person. Your relationship with your [brother] is a good one. You have always been close. He arrived in Australia before you and initially you lived with him when you first arrived in Australia and then you experienced difficulties in your student days and you moved in with him again and you still reside with him.
You came to Australia to study [hoping] to study at [University 2]. Initially you were diverted to an entry [pathway]. You were unable to complete this course of study because of difficulties in paying fees in around 2011 or 2012. You transferred to [another] College and from there to [a third] College. You completed a Diploma [course] since arriving in Australia in 2009. Due to a combination of factors you did not continue with your studies to completion at [the third] College.
When your visa expired on 12 August 2013 you did not consider speaking to a lawyer; a travel agent or a migration agent; the Department; or anyone in authority including police or at the airport. Neither did you try and find assistance online. I asked you why you did not try to find assistance at that time, and you were unable to provide a reasonable explanation in response to my question.
I pointed out to you that your response in the circumstances reflected poorly on your credibility and your character in that you would remain in Australia unlawfully beyond 2013 and take no steps to regularise your migration status. You did not respond.
I asked you what changed in 2015. You indicated that a friend of your brother spoke to you about your lifestyle and what it would mean if you returned to Uganda, that your family would be put at risk with the authorities if they did not report you on return. He suggested you apply for protection. It is at this point that you decided to apply for protection.
We discussed your gender identity issues. You indicated to me that you did not know you were gay until you came to Australia. I asked you what you meant by being gay and you said that you ‘have feelings for people’. We discussed this for some time, and I tried to understand what it was that you meant when you said you ‘have feelings for people’.
You indicated that you had one significant relationship with another man in the nature of an exclusive dating relationship and that you did not cohabit, but you did have a sexual relationship for approximately six months. You stated that this relationship soured towards the time in which your former partner returned to [Country]. I asked you if you had relationships with both men and women since that time and you said ‘Yes’.
I asked you how anyone would know that you were gay. You said no one in Australia knows. I asked you to explain your story, your journey in terms of your sexuality. You indicated that you had attended a co-ed school where coupling was frowned on, both male to male and male to female and therefore you avoided relationships and that, for two years while you were in Uganda you avoided relationships while you were working with your father.
You stated that when you came to Australia it was difficult because you were not an extroverted person. You tried to socialise. Eventually you found yourself at a nightclub which stayed open late [and], while you were at that nightclub, you were befriended by a person known to you as ‘[Mr A]’, a [Country] national. This was the beginning of an important relationship. It was your first intimate sexual relationship with another person and you felt free to be yourself in his company.
I asked you what has happened since then and you indicated that you have had casual relationships with men and women since then. You do not discuss your sexuality with other people and no one would really know who you are.
I asked you how anyone would think you were gay. In response to this question and like my further questions you said that you were ‘still looking’. I asked you what sort of harassment you have experienced on account of being gay or being imputed to be gay. You indicated that, for about six months when you were in [City] an Aboriginal male harassed you because of your hairstyle.
I asked you what harm you feared if you were to return to Uganda. You indicated that you would have to live in hiding on return and you would not want anyone to know you. I asked you if that was because of anything in particular. You indicated that it was fear of pressure from your family or friends. I pointed out to you that I needed to assess your risk of serious or significant harm in Uganda, now and in the reasonably foreseeable future for the essential and significant reason of your claimed membership to a particular social group, LGBTI males living in Uganda.
I pointed you to the most current relevant country information which is the United Kingdom Home Office Country Policy Information Note, Uganda, Sexual orientation and gender identity expression. In particular, we discussed the legislative framework in Uganda and also the risk factors that would have to be expressed by someone in order to qualify as a refugee under a reasonable assessment in the United Kingdom. We talked about how that might relate to the relevant statutory Australian assessment.

I pointed out to you that your evidence was extremely vague and equivocal and ambiguous as to how you experienced your own sexuality; how you wished to express it; and, that the thrust of what you had put to me in evidence was that you had decided for your own reasons to live a discreet life and not to discuss your sexuality with anyone else. Because of the vague, ambiguous and equivocal nature of your evidence amounting to a personal preference for living a discreet life, I cannot place much weight on your evidence relating to your sexuality and gender identity.
You have had notice of concerns about the credibility of your claims in this regard for approximately three years. I put you on notice about this at the last hearing. You have not provided any substantiating evidence or potential witnesses. In fact, your repeated evidence to me is that no one would really know that you are gay. It is unclear to me how a person could face persecution if no one knows or reasonably suspects that they have a particular sexuality and gender identity. As to whether or not people would come to suspect that you have that sexuality or gender identity in the future, my assessment has to be now and in the reasonably foreseeable future.
Based on the evidence you have provided, it is quite clear that you would work very hard for your own reasons, to be discreet now and in the reasonably foreseeable future both in Australia and in Uganda. Therefore, I see no reason why anyone either in Australia or Uganda would impute LGBTI identity to you. In particular, I note that you have indicated that your brother would not identify you as being gay. This is someone you have lived with day to day for years.
I have carefully considered your claims made both in your application and at the hearing. I have expressed to you the doubts that I have about the evidence that you have provided to me and I note that my concerns relate to the core aspects of your claims for protection. With respect to the core aspect of your claims relating to your sexuality or gender identity I find that your evidence has been vague, equivocal, ambiguous and illogical in a number of material respects. You have also provided me with no independent corroborating evidence of the sort one might have expected that would be able to be presented in terms of witness testimony or about threats of any kind or commentary on electronic media or even examples when given an opportunity to provide them from your own life experience.
In passing, I also find that a person genuinely fearing persecution in a country would seek protection from that persecution at the earliest available opportunity. In your own case, this was many years before you in fact applied for protection. The time when your Student and Bridging visas expired in 2013 was the first reasonable opportunity one would have expected a person in your circumstances to apply for protection, or at least take some steps to regularise your migration status. The fact that you did not do this suggests to me that your reasons for being in Australia were not credible and reflect poorly on your character and the credibility of your subsequent claims.
I have found above that much of your evidence and testimony to be ambiguous, equivocal, lacking in relevant detail and corroboration, and that your conduct in remaining unlawfully in Australia for an extended period reflects poorly on your character and credibility. I do not accept these claims to be made out. I have also considered the ‘What if I am wrong?’ test.
Applying the ‘What if I am wrong?’ test, I have to consider whether or not a person identifying as gay but choosing for his own purposes to live an entirely discreet life and avoid the scrutiny of others would be subject to any form of harassment or intimidation or threat for that essential and significant reason in Uganda, now or in the reasonably foreseeable future. On the basis of your evidence I find that even if I were to apply this test, the requirements for a Protection visa would not be made out, either under the refugee criterion at s.5J(1)(a) and s.36(2)(a) of the Act or the complementary protection criteria at s.36(2)(aa) of the Act.
Despite having put my concerns to you directly about these matters at two hearings, you have been unable to address my concerns adequately. For these reasons I find that you do not subjectively hold a genuinely well-founded fear of persecution in Uganda now or in the reasonably foreseeable future for the essential and significant reason that you are a member of a particular social group being the LGBTI community; or have an LGBTI identity or a perceived LGBTI identity in Uganda now or in the reasonable foreseeable future or for any other reason.
Accordingly, I do not accept on the evidence that if you return to Uganda you would face any chance of being seriously harmed for any of these essential and significant reasons or for any other reason now or in the reasonably foreseeable future for the purposes of s.36(2)(a) of the Act.
The real risk test imposes the same standard as the real chance test. Noting the findings I have already made in my earlier reasons, I am not satisfied that there are substantial grounds to believe that as a necessary and foreseeable consequence of you being removed from Australia to Uganda that there is a real risk you would suffer significant harm from any person, for any reason now or in the reasonably foreseeable future for the purposes of s.36(2)(aa) of the Act.
CONCLUSION
Taking your claims at their highest individually and then cumulatively they remain vague, equivocal, ambiguous and illogical and are not established. Accordingly, I am not satisfied that you are a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that you do not meet the refugee criteria I have considered the alternative criteria. I am not satisfied that you are a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that you are a member of the same family unit as a person who meets any of these criteria. Accordingly, you do not satisfy the criteria in s.36(2) of the Act.
As to third country protection, given my findings above, those assessments do not arise for determination in this application.
DECISION
The Tribunal affirms the decision under review.
END OF ORAL DECISION [12.22 pm]