1619224 (Refugee) - [2021] AATA 3876

1619224 (Refugee) [2021] AATA 3876 (28 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619224
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Alison Murphy
DATE:28 July 2021
PLACE OF DECISION:  [Australia]
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 July 2021 at 9:45am

CATCHWORDS
REFUGEE – Protection Visa – Uganda – imputed to be a part of LBTQI community – imputed political opinion in support of the LGBTI community – health worker in Uganda – relocation not reasonable –state protection not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
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 21 August 2014 and the delegate refused to grant the visa on 3 November 2016.
The applicant first appeared before the Tribunal on 28 April 2021 to give evidence and present arguments. An interpreter in the Luganda and English languages was present at the first Tribunal hearing by videolink, although the applicant chose to give her evidence in English.
The applicant asked the Tribunal to take telephone evidence from two witnesses, being her brother [Mr A] in [COUNTRY 1], and [Mr B]in [Country 2]. Due to difficulties contacting the witnesses during the first hearing, the Tribunal adjourned the review for 14 days to allow the applicant an opportunity to provide written statements from the witnesses before the scheduling of a further hearing to hear from those witnesses. The Tribunal subsequently received written statements and copies of their identity documents from both witnesses and the hearing was resumed on 18 May 2021 to hear their oral evidence with the assistance of a Luganda interpreter. At the conclusion of the second hearing, the Tribunal adjourned for further written submissions.
The applicant was represented in relation to the review by her registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
A summary of the relevant law…

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 1619224 (Refugee)

Details

AGLC: 1619224 (Refugee) [2021] AATA 3876
Case: [2021] AATA 3876
Decision Date: 28 July 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a woman from Uganda, claimed to fear persecution due to her imputed political opinion in support of the LGBTI community and her work as a health worker in HIV/AIDS prevention. The applicant also argued that relocation within Uganda was not reasonable and that state protection was unavailable. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant under the 'refugee' criterion or complementary protection grounds.

The Tribunal considered the applicant's claims regarding her background and employment in Uganda, particularly her work in HIV/AIDS prevention. The delegate had previously raised concerns about the authenticity of documents submitted by the applicant, including employment letters. While the Tribunal acknowledged the importance of a reasonable approach to credibility findings, it noted that an applicant must satisfy all statutory elements and that allegations are not to be accepted uncritically. The Tribunal found that while it had formed a different view on the credibility of some of the applicant's evidence compared to the delegate, it remained concerned about other parts of her evidence and the genuineness of court documents submitted. Consequently, the Tribunal concluded that some of the applicant's evidence could not be accepted.

The Tribunal affirmed the decision under review. The applicant was found to be a Ugandan citizen and her claims were assessed against Uganda as her country of nationality and the receiving country. The Tribunal's findings regarding the credibility of certain aspects of the applicant's evidence led to the conclusion that the statutory elements for protection obligations were not met.

Orders

Orders of the court

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Background

Background to the litigation

The delegate did not accept the applicant’s claims to be true and found the applicant had produced fraudulent documents to the Department. While the Tribunal has formed a different view about the credibility of parts of the applicant’s evidence, it remains concerned about other parts of her evidence as well as the genuineness of court documents produced to the Department in support of some of her claims. Ultimately this has caused the Tribunal to consider that some parts of the applicant’s evidence should not be accepted. The Tribunal’s particular findings are discussed below.The applicant’s personal background The applicant is a [age]-year-old woman from [Village 1] in Kampala province, Uganda. Her parents are deceased and she has five siblings. At the time of the hearing, she claimed to be in contact with only one of her siblings, [Mr A], who is currently in [COUNTRY 1] where he has sought and been granted asylum. Mr [A] gave evidence at the second Tribunal hearing by telephone and later provided documents evidencing his recognition as a refugee in [COUNTRY 1]. In her visa application the applicant states that she completed her schooling in 2002 before attending [a] University where she completed a [degree] [in] 2007. At hearing, she gave evidence that she worked in [workplaces] that did not require that qualification, but that due to difficulties finding employment that utilised her qualifications she decided to return to her studies. She commenced work as a volunteer at [Employer 1] in 2008 where she was given an opportunity to undertake further studies, completing [two qualifications]. In August 2009 the applicant commenced paid employment at [Employer 1] as a [Occupation 1]. In 2010 and 2011 she had two positions at the [workplace], undertaking [Occupation 1 work] three days per week and community outreach on the other two days per week. Community outreach was conducted in teams of at least six people comprising doctors, counsellors, laboratory technicians and [Occupation 1] officers. The teams would travel to outreach centres and promote HIV testing of pregnant women and safe male circumcision as a preventative measure against the spread of HIV. The applicant’s role was to counsel people about the importance of testing, so that those who tested positive could be assessed for treatment and educated about the practice of safe sex to prevent further transmission. She and her team also counselled men about male circumcision as a preventative measure against the transmission of the virus. The applicant states that from 2009 she worked as a [specified] worker in HIV/AIDS prevention at [Employer 1]. The delegate did not accept this to be true, despite the large amount of documentary evidence produced by the applicant as to her employment. In forming this view the delegate referred to her concerns about the authenticity of the documents produced by the applicant and in particular two letters relating to the applicant’s employment. The first letter is an offer of employment dated 1 February 2010 and is signed by the human resource manager, the [director] and the program manager. The second letter is a letter addressed to the Australian High Commission dated 5 May 2014 and signed by the [director]. That letter purports to confirm the applicant’s employment history with the [Employer 1] for the purposes of her visa application.

Evidence

Evidence Before The Court

The applicant was represented in relation to the review by her registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons the Tribunal has concluded that the decision under review should be affirmed. A summary of the relevant law is attached and marked Attachment A.Country of nationality The applicant travelled to Australia on an apparently genuine Ugandan passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Uganda and she has been assessed on that basis by the Department. The Tribunal finds she is a Ugandan citizen and has assessed her claims against Uganda as her country of nationality and the receiving country.Credibility The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well‑founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2][1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70 The delegate did not accept the applicant’s claims to be true and found the applicant had produced fraudulent documents to the Department. While the Tribunal has formed a different view about the credibility of parts of the applicant’s evidence, it remains concerned about other parts of her evidence as well as the genuineness of court documents produced to the Department in support of some of her claims. Ultimately this has caused the Tribunal to consider that some parts of the applicant’s evidence should not be accepted. The Tribunal’s particular findings are discussed below.The applicant’s personal background The applicant is a [age]-year-old woman from [Village 1] in Kampala province, Uganda. Her parents are deceased and she has five siblings. At the time of the hearing, she claimed to be in contact with only one of her siblings, [Mr A], who is currently in [COUNTRY 1] where he has sought and been granted asylum. Mr [A] gave evidence at the second Tribunal hearing by telephone and later provided documents evidencing his recognition as a refugee in [COUNTRY 1]. In her visa application the applicant states that she completed her schooling in 2002 before attending [a] University where she completed a [degree] [in] 2007. At hearing, she gave evidence that she worked in [workplaces] that did not require that qualification, but that due to difficulties finding employment that utilised her qualifications she decided to return to her studies. She commenced work as a volunteer at [Employer 1] in 2008 where she was given an opportunity to undertake further studies, completing [two qualifications].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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