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.

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.

Continue reading 1614393 (Refugee)

Details

AGLC: 1614393 (Refugee) [2020] AATA 6027
Case: [2020] AATA 6027
Decision Date: 24 February 2021

CaseChat Overview and Summary

The applicant, a national of Uganda, sought review of a decision by a delegate of the Minister for Immigration to refuse his application for a Protection visa. The applicant claimed he would face harm in Uganda due to his homosexuality, including imprisonment and an inability to subsist. He also asserted that his father had withdrawn financial and emotional support upon learning of his sexual orientation, and that he could not hide his sexuality upon return to Uganda.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Protection visa under the refugee or complementary protection grounds, and the credibility of his claims. This involved assessing whether he was a member of a particular social group (homosexuals in Uganda) and whether he had a well-founded fear of persecution or harm. The Tribunal was required to consider the applicant's evidence, including his migration history, the timing of his application, and the consistency and plausibility of his claims.

The Tribunal affirmed the delegate's decision, finding that the applicant's evidence was vague, ambiguous, and illogical, and that he had not established a credible fear of harm. The Tribunal noted the applicant's significant delay in lodging his Protection visa application, having remained in Australia unlawfully for over two years after his bridging visa expired and after his initial student visa application was refused. Furthermore, the applicant had not presented his case in full before the primary decision-maker, and had not provided a reasonable explanation for not raising certain claims or evidence earlier. The Tribunal concluded that the applicant had not demonstrated that he subjectively held a genuine fear of persecution, and therefore did not need to consider the objective basis of his claims.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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 BACKGROUNDMigration 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].

Evidence

Evidence Before The Court

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 BACKGROUNDMigration 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

Decision

Reasons for decision

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 HuntlyMemberCorrected TranscriptORAL 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.

Ratio Decidendi

Legal Principle Established

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