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

1. 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).

2. 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.

3. 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.

4. 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.

5. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. A summary of the relevant law is attached and marked Attachment A.

   Country of nationality

8. 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

9. 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

10. 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

11. 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].

12. 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].

13. 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.

14. 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.

15. The delegate expressed concerns that information from [Employer 1]’s website at the time of the delegate’s assessment in 2016 indicated that [the] director had a different name to the person who signed the applicant’s offer of employment in 2010 and letter in support of her visa application in 2014. However the delegate acknowledged that there could have been a personnel change in the intervening years. I note that at the time of the Tribunal’s decision the [Employer 1]’s website indicates that the current [director] is a different person again.

16. The delegate also noted that letters produced by the applicant from [Employer 1] had different letterheads and different email addresses, while acknowledging there may be valid reasons for that. In fact there are very minor differences between the two letterheads. Both contain the same logo and heading. The difference is a reference on the February 2010 letterhead to the [Employer 1] being founded in [year], while on the May 2014 letterhead it states the [Employer 1] was founded on [a different date]. The email addresses are different only in that the latter gives an address for the [director] ([email deleted]) while the other gives a more general email address ([email deleted]). As at the time of the Tribunal’s decision, the [Employer 1]’s website continues to give the email address [deleted] for the  [director] of the [Employer 1], while the general contact address is [a different one]. I consider the inconsistencies to be minor and may be explained simply by changes in the [Employer 1]’s documentation and personnel over time.

17. I note that the materials before me do not suggest that the applicant’s employment documents were referred to the Department’s Document Examination Unit, nor that any attempt was made to verify them with [Employer 1]. Rather the documents were submitted to the Department in support of the applicant’s visitor visa application along with her invitation to [a] conference in [Australia] and appear to have been accepted by the Department as genuine during the assessment of that visa application.

18. In any case the applicant gave detailed evidence at hearing about her employment history as an HIV prevention officer at [Employer 1] in a manner consistent with that described in the June 2014 letter. She stated that after commencing with the [Employer 1] as a volunteer in 2008, she obtained paid employment in August 2009 as a [Occupation 1] in the [Employer 1]’s HIV/AIDS/counselling department. In 2010 and 2011 she had two positions at the [Employer 1], undertaking [Occupation 1 work] three days per week and community outreach on the other two days per week.

19. The applicant gave evidence that community outreach was conducted in teams of at least six people comprising doctors, counsellors, laboratory technicians and data entry 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. She also spent time in [another] department, [performing tasks]. Independent sources confirm that TB remains a major issue for people living with HIV/AIDS in Uganda, with HIV being the leading risk factor for TB and TB being the leading cause of death among people with HIV.[3]

    [3] AVERT Global Information and education on HIV and AIDS ‘HIV and AIDS in Uganda’ at >

    The applicant described her role as being to counsel people about the importance of testing, so that those who tested positive could be assessed for anti-retroviral therapy and Septrin 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, while other team members gave medical advice and treatment, took laboratory samples and recorded data.

20. At hearing, the applicant gave evidence that she had investigated continuing her work as an HIV prevention officer in Australia but was not able to obtain employment in that area. I accept this to be the case, noting her lack of local qualifications at the time and the significant differences in the prevalence of and populations affected by HIV in Uganda and Australia. Consistently with her claimed work history in Uganda, since arriving in Australia the applicant has undertaken certificate courses in [related areas] and she is currently undertaking a diploma in [a specified area] and working as a [specified] worker.

21. I consider the applicant to be a credible witness about her employment. I note the payslips, bank records, employment contracts and letters confirming employment issued by [Employer 1] to the applicant are consistent with her qualifications in Uganda and I accept her account of her employment history. In particular I give weight to the letter from the [Director], [at] [Employer 1] dated 5 May 2014 which records her employment in the HIV/AIDS/counselling department since 2009, first as coordinator of a support program [and] later in the HIV prevention program in the elimination of mother to child transmission of HIV and the safe male circumcision program.

22. The delegate was also concerned that the applicant had stated in the visa application that she was outed as a lesbian, but then denied being a lesbian at interview. I note the applicant was unrepresented at the time she lodged her visa application. I am satisfied form the totality of the evidence before me that she was referring in her visa application to being suspected of being or perceived to be a lesbian by virtue of her association with the LGBTI community, rather than being a member of that community herself. Consistently with her evidence to the delegate, the applicant confirmed at hearing that she is not herself a member of that community.

23. She entered Australia on [date] July 2014 and has not departed since. The department’s visitor visa file establishes she was granted a visitor visa to attend [a] conference in [Australia] in July 2014.

24. I accept the above matters to be true.

    The applicant’s claims for protection

25. In essence the applicant claims that in the course of her work as an HIV prevention officer, she provided counselling and support to members of the LBTQI community. She claims that as a consequence, she was imputed to be a part of that community and to hold views in support of that community and subjected to serious harm for that reason.

26. For the reasons set out above, I have accepted that the applicant worked at [Employer 1] in the HIV/AIDS/counselling department since 2009, first as coordinator of a support program [and] later in the HIV prevention program in the elimination of mother to child transmission of HIV and the safe male circumcision program.

27. I accept that in the course of her employment, the applicant provided counselling and other support to members of the LGBTI community as part of a multidisciplinary team comprising doctors, counsellors, laboratory technicians and data entry officers. The applicant gave evidence that they were advised by activists including [Mr C][two named individuals] that in order to gain the trust of the LGBTI community, they should dress like them and attend LGBTI venues. It is in that context that the applicant says she was issued a membership card for the LGBTI [organisation].

28. The applicant’s own role in that team was to counsel people about the importance of testing, so that those who tested positive could be assessed for anti-retroviral therapy and Septrin 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, while other team members gave medical advice and treatment, took laboratory samples and recorded data.

29. I accept the applicant’s evidence that the HIV prevention program at [Employer 1] was largely funded by international donors, particularly [a named donor], which required the applicant’s employer to provide services inclusive of the LGBTI community as a condition of funding. I accept this requirement was in conflict with the [Employer 1]’s conservative religious values. [details deleted].’[4]

    [4] About Us – [Employer 1]

30. Other sources confirm that stigma and discrimination towards LGBTI people continues to operate within Uganda’s health care sector. The US Department of State reported in 2020 that:

    Local civil society organizations reported that public and private health-care services turned away LGBTI persons who sought medication and some health‑care providers led community members to beat LGBTI persons who sought health care. Local civil society organizations reported that some LGBTI persons needed to pay bribes to public health-care providers before they received treatment.

    . . .

    Although the law prohibits discrimination against persons with HIV/AIDS, discrimination and stigma were common and inhibited these persons from obtaining treatment and support. Local civil society organizations reported the stigma resulted from limited public knowledge about the methods of HIV transmission as well as “the belief that having HIV is shameful.” Civil society organizations reported that stigma pushed persons with HIV to exclude themselves from social services and employment opportunities, including care programs.[5]

    [5] ‘Country Reports on Human Rights Practices for 2020 – Uganda’, US Department of State, 30 March 2021, Sect.6, pp.32–33, 20210401144713

31. I accept that part of the applicant’s duties included community outreach sessions, when the team attended venues such as community halls and rented spaces to provide HIV prevention information. I accept that at such outreach sessions, the applicant and her team were approached by LGBTI activists and community members who urged them to provide services to members of that community who would not attend the hospital for fear of discrimination or disclosure of the HIV status. I accept that they did so, both out of a commitment to the non-discriminatory provision of services and also out of fear that the project’s international donor funding and jobs would be lost if services were not provided in an inclusive manner.

32. The applicant’s evidence about the events that occurred as a result of that community outreach work is both confusing and contradictory. A number of written statements have been provided to the Tribunal which contradict each other in some respects as well as the applicant’s oral evidence to the Tribunal.

33. In particular I discussed with the applicant her statement in the document headed ‘[applicant]’s Asylum Application Story – Final Draft’ that her employment at [Employer 1] was terminated in August 2013. At hearing, the applicant denied this was the case and her representative sought to explain the inconsistency by stating that she had uploaded the wrong version of the applicant’s final statement to the Tribunal’s portal and had been unable to remove it. No explanation was given as to how such a document came to be created in the first place. I consider that parts of the applicant’s evidence were also inconsistent with the documents she had submitted and the evidence of her witnesses. While I have accepted some parts of the applicant’s claims, I consider she has embellished other parts.

34. I accept that as part of the HIV prevention community outreach conducted by [Employer 1], the applicant and her team discussed issues such as the risk of HIV infection from unprotected sexual activity using diagrams and video material. I accept that this caused tensions between the HIV prevention staff and their employer, the [Employer 1]. I accept that on some occasions these community outreach sessions were disrupted by police and the participants harassed. I also accept that the applicant and other members of the HIV prevention team faced harassment from pastors and members of the Church, who accused them of promoting homosexuality in conflict with Ugandan laws and the beliefs of the Church. I accept there may have been a number of such incidents of harassment between 2009 and 2014.

1. In making that assessment I note that Uganda is generally a conservative country where sex and sexuality are not openly discussed. Homophobic views are widespread and there is a general lack of acceptance of LGBTI persons, with some people believing being LGBTI is a Western concept. LGBTI persons have been subjected to violent attacks and societal discrimination and harassment involving intimidation, blackmail and some have also experienced physical and sexual attacks, including ‘corrective rape’ and mob violence.[6]

   [6] UK Home Office Country Policy and Information Note Uganda: Sexual orientation and gender identity and expression April 2019 at 2.4.14–2.4.15

2. I note however that the applicant’s evidence in her statutory declaration made on 21 October 2016 appears inconsistent with the evidence produced to the Tribunal. In her protection visa application she stated she had two brothers, [name deleted] and [Mr A]. In the 2016 statement the applicant stated that she could not obtain assistance from her family as her brothers hated her for the work she did and that on one occasion they beat her up and tried to strangle her.

3. However at hearing, the applicant gave evidence that her brother [Mr A] was also a health care worker in HIV prevention at the same [Employer 1] and Mr [A] gave evidence that he left Uganda in 2012 because of persecution he suffered for the same reasons as that claimed by the applicant. He is now resident in [COUNTRY 1] where he has been recognised as a [refugee]. For these reasons I am not satisfied the applicant faced harm from her family as claimed.

4. In her 2016 statutory declaration, the applicant claims that by 2013, many human rights activists were facing issues in Uganda. She claimed that she and her colleagues met with [Mr B], a [Occupation 2] who worked for a company [who] had advocated for the gay community in Uganda. Mr [B] informed them that the Ugandan authorities believed that the implementation of programs explicitly for LGBTI people would be perceived as giving those people an unfair advantage and offered to provide them with advice and assistance.

5. The applicant’s claims that the LGBTI community in Uganda faces discrimination and harm in Uganda is supported by the country information. The UK Home Office reported in 2019 that some politicians and members of the government had publicly denounced sexual minorities, noting that:

   2.4.7 Same-sex sexual acts are illegal under the Penal Code and punishable with up to life imprisonment. In practice, although LGBTI persons have been arrested they are rarely successfully prosecuted under the Penal Code. There are no laws that specifically legislate on gender identity and Page 8 of 44 expression. The constitution bans discrimination on a number of grounds but does not extend to sexual orientation or gender identity and expression, nor does it apply to same-sex marriage, which is prohibited (see Legal rights and State attitudes and treatment).

   2.4.8 Some politicians and members of the government, including President Museveni, have publicly denounced sexual minorities (see Public statements by government officials).

   2.4.9 Other laws, while not overtly anti-LGBTI, are sometimes used to arrest and harass LGBTI persons or restrict the activities of LGBTI advocacy and support groups. Gay pride events, although having taken place in the past, have been disrupted by the state or banned outright, the last having taken place in 2015 (see Legal rights, Public statements by government officials and LGBTI groups, civil society and human rights NGOs).

   2.4.10 There have been human rights violations against LGBTI persons including acts by the police and other state agencies. LGBTI persons who have been arrested and/or detained reported being subjected to ill-treatment, including humiliation, physical and sexual assault and being subjected to forced anal examinations (see Arrests, detention and ill treatment).

   2.4.11 LGBTI persons suffer discrimination in accessing services such as healthcare, including access to HIV / AIDS treatment and services, and a LGBTI advocacy group had a health event closed by police on government orders. There have been reports of healthcare workers calling state actors to arrest LGBTI persons when they attended clinics for assistance (see Public statements by government officials and Access to services).

6. The applicant claims that in 2013 she tried to cross the border to [a country] [together] with another activist named [Mr C] but was unwilling to provide her passport because she was afraid her departure would be recorded by the Ugandan authorities. [Mr C] is reported to be a prominent LGBTI activist in Uganda affiliated with [an organisation], who has been arrested and faced charges for his activism.[7] She claims [Mr C] tried to obtain a visa for her to travel to [Country 3]] or [Country 2] but that did not work out, so she returned to Kampala and limited her fieldwork by stopping providing assistance to the LGBTI community. She changed her appearance by wearing wigs and started to use another name at work but was in constant fear of being harmed. A work colleague told her about the [conference] taking place in Australia and so she applied for and was granted a visa to come to Australia.

   [7] [Source information deleted]

7. She claims that in June 2014, while working at [a workplace], she was arrested by plain clothes officers who detained her in the local police station where she was charged with aiding and abetting and conspiracy and promotion of homosexuality and held for two days before being transferred to the Central Police Station. She claims to have been interrogated and subjected to torture while detained, including beatings and water torture which rendered her unconscious for two hours. She claims she was interrogated about where she obtained funding to support LGBTI people, and after seven days of torture and mistreatment she was transferred to [a] Prison. She claims that [Mr B] paid her bail and signed an undertaking and she was meant to reappear in court on [date] July 2014 by which time she had already left for Australia.

8. At the second hearing, the Tribunal heard oral evidence from [Mr B], who is now resident in [Country 2]. He has provided the Tribunal with a copy of his [Country 2]Residence card as well as a written statement, and the information he has provided about himself to the Tribunal is consistent with that contained in independent sources. Mr [B] gave evidence that he was a [Occupation 2] with a company [in] Uganda. He said he left Uganda in 2017 after he was arrested and detained for assisting the LGBTI community and he is now a permanent resident in [Country 2].

9. A number of published media articles refer to Mr [B]’s company [and] his advocacy for the LGBTI community in Uganda. It is reported that he fled Uganda in 2017 following the arrest of his employee on charges of aiding and abetting homosexuality contrary to the Anti-Homosexuality Act 2014.[8] While it is difficult to be certain that a witness giving evidence by telephone is the person they purport to be, I accept that the person giving evidence to the Tribunal was the same [Mr B] referred to in the media reports.

   [8] [Source information deleted]

10. Mr [B] gave evidence to the Tribunal that he met the applicant in about 2013 or 2014 when she was an LGBTI activist who was referred to him for help after being charged with aiding and abetting homosexuality. When asked how he helped her, he said he referred her to friends who could help her and arranged for a different lawyer. He said he provided her with some kind of legal advice during the days she was being arrested and released but that he hadn’t had contact with her since that time (except recently in context of this hearing) and he didn’t know the outcome of the charges against her. In general his evidence to the Tribunal as to the circumstances in which the applicant was known to him was broadly consistent with that of the applicant.

11. However I consider that the applicant has overstated her relationship to Mr [B], noting that he contradicted some parts of her evidence. For example, she gave evidence that he acted as her lawyer and paid her bail and that she stayed with him for two weeks before leaving the country. Mr [B] denied paying her bail, saying he only paid small amounts of money to the police by way of bribes as he did for many people in her situation. He told the Tribunal that he was a [Occupation 2] and not a lawyer and that he did not practise law in Uganda. He stated that he had only provided the applicant with assistance at the police station [and] not as her lawyer in court. He said that the only other assistance he provided her was to refer her on to people who could help her and he did so for many people in her position. He appeared baffled at the applicant’s evidence that she had stayed with him for two weeks in Uganda, denying that occurred and telling the Tribunal that it was not his place to do that, rather where she needed help he had referred her to people who could help. When the applicant suggested to him during his evidence that he had taken her to hospital, he said he had arranged her transport to hospital in the way be believed anyone in his country would have done. The considered and temperate manner in which Mr [B] gave his evidence to the Tribunal causes me to give it significant weight.

12. After his evidence the applicant sought to explain some of these inconsistencies between their oral evidence by saying that Mr [B] had forgotten some of the details over the years, that his wife would not allow them to stay in the same house so he arranged other accommodation for her and that she thought his eventual departure from Uganda in 2017 related in some part to the assistance he had provided to her in 2014. I note that Mr [B] did not suggest that to be the case in his written or oral evidence, rather he reiterated on several occasions that the assistance he provided to the applicant was of the kind he had provided to many people in Uganda and his evidence tended to minimise their relationship. I note the court decision granting bail submitted to the Department by the applicant names two persons other than Mr [B] as providing surety for the applicant’s bail. The applicant suggested that those persons had later replaced Mr [B] as the persons providing her surety however for the following reasons I do not accept that to be the case.

13. As discussed with the applicant at hearing, I have significant concerns about the genuineness of the submitted court documents. The charges against the applicant purport to be brought under Uganda’s Anti-Homosexuality Act 1950, but that Act in fact came into operation in 2014 replacing relevant provisions of Uganda’s Penal Code 1950. The court documents refer to s 145 and s 146 of the Anti-Homosexuality Act, but these are the relevant sections of the old Penal Code and do not relate to the new Act. The applicant is referred to in the court documents as an adult male and is described using male pronouns. As discussed with the applicant at hearing, one inference that might be drawn is that court documents issued to someone else under the old legislation were simply altered to insert the applicant’s details and the name of the new legislation. The applicant denied this had occurred, telling the Tribunal that it was merely a mistake made by her lawyer and reproduced by the court which she had tried to get corrected.

14. There are other inconsistencies that concern me in the court documents. The affidavit purportedly sworn by the applicant describes her as an ‘adult male’ and states among other things that she has a permanent place of abode in [Village 1], Kampala. This is not consistent with the address history set out in the protection visa application or the applicant’s evidence noting that in her written statements she says she was renting a property in [Village 1]. Similar inconsistencies appear in the notice of motion and decision granting bail.

15. It is submitted that the errors in the documents were made by the applicant’s lawyer and simply flowed onto the other court documents. After the second hearing, the applicant provided correspondence purporting to be from her former lawyer in Uganda seeking to correct those errors, however those documents do little to assuage my concerns.

16. The correspondence suggests that the errors were made by a secretary who had since left the firm but it contains no letterhead, phone number or email address. The correspondence suggests that ‘the secretary missed the Fe in front of male in trying to mean Female but we declare that our client was female at the time and still believe she is Female.’ It also states that the applicant was prosecuted under the 1950 Anti-Homosexuality Act, which is used to prosecute both men and women. This merely repeats the error of the original document, which is that the 1950 legislation was the Penal Code while the 2014 legislation was the Anti‑Homosexuality Act. I do not accept the various explanations offered for the errors in the court documents, rather I consider the court documents are not genuine. It follows that I do not accept that the charges or court dates that appear on those documents relate to the applicant.

17. However in light of Mr [B]’s evidence, I accept that the applicant met Mr [B] at the police station in Kampala after being detained on suspicion of aiding and abetting homosexuality, even if she wasn’t charged. I accept that Mr [B] assisted her in his role [and] referred her on to others for further assistance and that she was detained at the police station for some days before being released. I have also accepted that the applicant experienced a number of such incidents of harassment between 2009 and 2104 for reasons of the assistance she provided to the LGBTI community around safe sex and HIV prevention.

18. In assessing the applicant’s risk of harm on return to Uganda, I note Mr [B]’s evidence that he didn’t consider she could safely return to Uganda because if a person was known to have supported homosexuals in Uganda, it was believed they are bewitched. He gave evidence that the way she left the country and her history of supporting homosexuals meant that she couldn’t be safe, rather the mob justice that ruled in Uganda would result in her being attacked and harmed.

19. As noted above, the country information indicates that some politicians and members of the government had publicly denounced sexual minorities, laws are sometimes used to arrest and harass LGBTI persons or restrict the activities of LGBTI advocacy and support groups, and gay pride events have been disrupted by the state or banned outright.

20. The UK Home Office concluded in 2019 that a person who is open about their sexual orientation and/or gender identity and expression may face harassment and discrimination from the state and is likely to experience societal discrimination, including harassment and violence. It assessed that the accumulation of such treatment by state and non-state actors is likely to be sufficiently serious by its nature and repetition to amount to persecution or serious harm.[9]

    [9] Ibid at 2.4.19

21. As noted above, the applicant does not say that she herself is a member of LGBTI community, rather she claims that she will face harm because she is perceived to be LGBTI and/or because of her support for that community. Country information indicates that the passing of anti-homosexuality laws left many health care workers with the belief that it was illegal to provide health services to LGBTI persons.[10] One LGBTI organisation further noted that provisions making it a crime to fail to report known or suspected homosexuality under the AHA made the activities of sexual health service providers significantly more difficult.[11]

    [10] ‘“Even if they spit at you, don’t be surprised”: Health Care Discrimination for Uganda’s Sexual and Gender Minorities’, Sexual Minorities Uganda (SMUG), 27 June 2018, p.22, CIS7B839418868

    [11] ‘Out in Uganda: The Lived Experience of SOGIESC Ugandans’, ReportOut, 2020, p.16, 20210505142254

22. I note that HIV prevention strategies in Uganda are not restricted to the LGBT community, rather Uganda reported 1.5 million people living with HIV in 2019 with women disproportionately affected.[12] It has the 10^th highest rate of HIV in the world, affecting 6.2% of the overall population and 7.6% of women.[13] A great many health workers work in HIV/AIDS prevention in Uganda, funded largely by international aid organisations.

    [12] “They paid a guy to kill me: health workers fight homophobia in Uganda’ The Guardian 21 October 2019 at 'They paid a guy to kill me': health workers fight homophobia in Uganda | Global health | The Guardian

    [13] They paid a guy to kill me: health workers fight homophobia in Uganda’ The Guardian 21 October 2019 at 'They paid a guy to kill me': health workers fight homophobia in Uganda | Global health | The Guardian

23. As discussed with the applicant at hearing, country information before the Tribunal does not tend to indicate that all health workers providing sexual health services to members of the LGBT community are targeted for harm by the Ugandan authorities or their communities on that basis. Rather the available country information indicates that it is the LGBT community that experiences stigma and discrimination from Uganda’s health care sector, primarily through denial of services or the identification of persons seeking services[14].

    [14] “Even if they spit at you, don’t be surprised”: Health Care Discrimination for Uganda’s Sexual and Gender Minorities', Sexual Minorities Uganda (SMUG), 27 June 2018

24. However I accept that some health workers in Uganda may be at risk of serious harm because of their personal profile. In making that assessment I note the 2019 news article about a health worker holding outreach clinics in Mbale specifically targeted at the gay and transgender populations and sex workers. The article describes that health worker as a lesbian and outspoken woman in a male-dominated community who works with Ugandan LGBT rights organisations such as Sexual Minorities Uganda on HIV/Aids awareness events. The article reports the health worker herself was once thrown into the path of a truck by a man hired by a group of village elders whom she describes as ‘homophobes’ before being saved by a sex worker who recognised her as someone who had given him free condoms[15].

    [15] They paid a guy to kill me: health workers fight homophobia in Uganda’ The Guardian 21 October 2019 at 'They paid a guy to kill me': health workers fight homophobia in Uganda | Global health | The Guardian

25. While I have not accepted that the court documents the applicant has presented to the Department are genuine or that the charges set out in those court documents relate to the applicant, I have accepted the applicant was detained for approximately 10 days by police on suspicion of aiding and abetting homosexuality prior to her departure from Uganda. The country information indicates that the LGBTI community and their advocates continue to be targeted for such harm. I have also accepted the applicant faced harassment from pastors and members of the Church community between 2009 and 2104, who accused her of promoting homosexuality in conflict with Ugandan laws and the beliefs of the Church. For these reasons I accept that she has in the past been subjected to serious harm for reasons of her imputed political opinion in support of the LGBTI community.

26. I accept that if the applicant returns to Uganda, she will return to working in the health care profession in Kampala where she may again come to the adverse attention of the Ugandan authorities. The fact she has suffered serious harm in the past is an indicator that she may face similar harm in the future. For these reasons I accept she faces a real chance of serious harm if returned to Uganda for the essential and significant reason of her imputed political opinion in support of the LGBTI community.

1. Given that the perpetrator of that harm is the Ugandan state and the authorities in that country continue to mistreat and discriminate against LGBTI persons and their advocates, I find that state protection is not available to the applicant and she cannot safely relocate to another part of the country.

2. Considering all of the matters above, I am satisfied the applicant has a well-founded fear of persecution for reasons of political opinion should she return to Uganda, now or in the reasonably foreseeable future.

   Right to enter and reside in a third country

3. Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.

4. Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[16]

   [16] Sections 36(4)–(5A)

5. The Full Federal Court has held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[17] The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[18]

   [17] MIMAC v SZRHU [2013] FCAFC 91

   [18] V856/00A v MIMA (2001) 114 FCR 408

6. This is relevant to the current review because independent sources indicate that Uganda is one of the partner states of the East African Community (EAC) established by the East African Community Treaty (EAC Treaty). That treaty came into force on 7 July 2000 following its ratification by the original three partner states of Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty and became full members of the EAC with effect from 1 July 2007. South Sudan acceded to the treaty in April 2016 and became a full member in August 2016. The stated aims of the EAC Treaty are to widen and deepen cooperation among its partner states in the political, economic and social fields for mutual benefit.[19]

   [19] East African Community website at East African Community (eac.int)

7. The Protocol on the Establishment of the East African Community Common Market (the Common Market Protocol) entered into force on 1 July 2010, following ratification by all the five partner states: Burundi, Kenya, Rwanda, Tanzania and Uganda. It provides for ‘Four Freedoms’, namely the free movement of goods, labour, services and capital, which are intended to significantly boost trade and investments and make the region more productive and prosperous. The Common Market Protocol states in Article 7(1) that the partner states guarantee free movement of persons who are citizens of the other partner states.

8. However relatively few references to the movement of people are mentioned in the treaty that established the EAC. Article 104 of the treaty requires states to ‘adopt measures’ to achieve the free movement of persons and labour and requires party states to operate border checkpoints between EAC countries. It does not mandate free movement of persons or labour or the removal of borders or checks at borders.

9. While it would appear that persons travelling within the EAC from another EAC country should be able to do so without a visa for varying periods up to six months, in practical terms it is unclear whether the relevant member states enforce the laws or have the capacity to do so. The International Organization for Migration quotes border crossers who report unexplained fees and opaque processes.[20]

   [20] ‘Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania’, International Organization for Migration, 2018, p.60–61, 20190628120022

10. Further, closures of borders between EAC countries due to diplomatic disputes are also relatively common.[21] In 2020, it was reported that trade tensions and resulting border closures threaten the sustainability of the union:

    While the EAC is already a customs union and a common market – supposedly in the process of forming a monetary union, and even a future political federation – the region is beset by all manner of trade wars. Trade conflicts in the region include border closures and denial of national airspace to commercial flights from partner states. Put differently, the EAC is prone to undermining its integration agenda to the extent that its entire project often appears to be on the verge of collapse.[22]

    [21] ‘Temporal opening of Uganda–Rwanda border ends’, Daily Monitor, 23 June 2019, 20190628153524; ‘Rwanda–Burundi tension hampers regional trade’, The East African, 12 January 2019, 20190628154232; ‘How the Rwanda-Uganda border crossing came to a halt’, BBC, 9 March 2019, 20190628152252

    [22] ‘East African Community integration: One step forward, two steps back”, The Africa Report, 26 August 2020, >

    COVID-19 has also taken a significant toll on free movement between EAC member states:

    As of July 28, 2020, nearly every country in the ESA region was still under some form of border closure. Most had closed their airports, usually with exceptions for cargo and humanitarian flights. Land crossings remain closed to all except essential traffic in many countries. The status of border closures is fluid; several sources provide updates on current closure status.[23]

    [23] ‘Key considerations: COVID-19 RCCE strategies for cross-border movement in Eastern and Southern Africa’, Social Science in Humanitarian Action Platform, 2020, >

    Other sources noted that each member state adopted its own national strategy to combat the pandemic, including by tightening controls on their borders:

    Due to the fear of the spread of COVID-19, partner states tightened controls of their borders. For example, with regard to the free movement of services, Tanzania and Kenya banned each other’s airlines from operating in their territory although the issue seems to have now been resolved. Nevertheless, the problem surrounding the implementation of the Common Market, is for example highlighted by the issues of the free movement of labor and goods . . . However, it has been observed that ‘some partner states have put in place stringent measures and fees that make it difficult for the free movement of both skilled and unskilled labor.

11. Given the sources cited above, it would appear the applicant has a presently existing and lawfully given permission to enter other EAC member states as a visitor. However it also appears that the member states have imposed a number of laws contrary to the exercise of her right to enter other EAC countries, including border closures for reasons relating to trade and diplomatic disputes and the continuing COVID-19 pandemic.

12. In any case the right to which s 36(3) refers is not just the right to enter, but also a right to reside. While a temporary right to reside will suffice to satisfy the legislative criteria, the Federal Circuit Court of Australia has held that a right to reside should confer privileges ordinarily associated with residency. One of the rights considered relevant in this assessment was the right to work; the court in that case also considered it relevant that the country extending the temporary right to enter and reside (in that case the UK) referred to it as the ‘right of residence’.[24]

    [24] SZQRM v MIAC [2013] FCCA 772 at [114]–[117] upheld in SZQRM v MIBP [2013] FCA 1297

13. In the current case it appears the applicant’s right to enter other EAC countries, to the extent that it remains operative in light of the continuing COVID-19 pandemic, does not extend to a general right to reside other than for the purposes of employment. There does not appear to be any automatic right to work or residency within EAC countries for citizens of EAC member countries.

14. The EAC website states that EAC citizens will be guaranteed the right to reside in any partner state for the purposes of employment. The annex issued by the EAC on the rights of residence states that workers (or self-employed persons) must apply for residence within 30 days of arrival and an application for the residence permit must be supported by a valid travel document and a copy of the work permit of the worker.[25] Commentators describe the process of obtaining a work permit ‘lengthy and often frustrating’ noting that each state has different policies and procedures in place and national laws are not aligned with the Common Market Protocol.[26] There is no suggestion in this case that the applicant has any offer of employment or work permit in any EAC partner country that might entitle her to a residence permit in that partner country.

    [25] East African Community n.d., East African Community Common Market Protocol, p.5

    [26] ‘EAC States Need To Harmonization Of Their Citizens’ Work Permits’, The Star, 21 June 2014, >

    In light of the above information, I am not satisfied the applicant has a current right to enter and reside in other EAC countries. Therefore she is not excluded from Australia’s protection obligations by the operation of s 36(3). I note this to be consistent with the delegate’s findings and conclusions on this issue.

    DECISION

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Alison Murphy
    Member

    
    

    ATTACHMENT A – THE RELEVANT LAW

16. 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.

17. 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).

18. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

19. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

20. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.