1620818 (Refugee)

[2021] AATA 1388

1620818 (Refugee) [2021] AATA 1388 (27 April 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620818

COUNTRY OF REFERENCE:                   Uganda

MEMBER:Alison Murphy

DATE OF DECISION:  27 April 2021

DATE CORRIGENDUM

SIGNED:14 May 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. At paragraph 4 on page 2, the word ‘affirmed’ should be deleted, and substituted with the words ‘remitted to the Department for reconsideration’.

   Alison Murphy
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1620818

   COUNTRY OF REFERENCE:                   Uganda

   MEMBER:Alison Murphy

   DATE:27 April 2021

   PLACE OF DECISION:  Melbourne

   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 27 April 2021 at 11:43am

   CATCHWORDS
   REFUGEE – protection visa – Uganda – member of a particular social group – lesbian – imputed political opinion – supporter of gay and lesbian rights against government policies – beatings, sexual assault and family estrangement – physical and mental health and treatment – two significant lesbian relationships in home country – lifestyle and participation in organisations in Australia – profile in home country – country information – state and non-state actors – treaty right to enter other East African countries limited in practice – COVID-19 border closures – decision under review remitted

   LEGISLATION
   Migration Act 1958 (Cth), ss 36(2)(a), (3), 65, 425(2)(c)
   Migration Regulations 1994 (Cth), Schedule 2

   CASES
   Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
   MIEA v Guo (1997) 191 CLR 559
   MIMA v Respondents S152/2003 (2004) 222 CLR 1
   MIMAC v SZRHU [2013] FCAFC 91
   V856/00A v MIMA (2001) 114 FCR 408

   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.

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. 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).

3. The applicant, who claims to be a citizen of Uganda, applied for the visa on 29 July 2014 and the delegate refused to grant the visa on 25 November 2016.

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

   CONSIDERATION OF Claims and evidence

5. 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.

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

   Country of nationality

7. 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.

   The applicant’s personal background

8. The applicant is a [Age]-year-old woman from Kampala, Uganda. Her parents separated and later re-partnered and the applicant has a number of siblings and step-siblings. During the applicant’s childhood her mother was studying [Subject] and the applicant lived primarily with her grandparents and other relatives.

9. The applicant completed primary, secondary and high school as a boarder, living with various family members during the holidays and spending a period of time living in [a] Displaced Person’s Camp during a period of conflict in the north of Uganda in about [year range]. She completed her Ugandan Certificate of Education in [Year] and her Ugandan Advanced Certificate of Education (UACE) at the end of [Year].

10. After finishing her education, she did volunteer work at a [workplace] organised by her mother who continued to support her financially. In August 2011 she began studying a [Course] at [an Institution] in Kampala and volunteered at her mother’s [workplace section] at [Workplace], which [detail deleted].

11. In February 2014, the applicant and her mother applied for registration at [an event] in [City 1]. At that time her mother was the [employee responsible] for [a] program for [Workplace]. Her mother arranged her invitation and provided a letter of financial support with the applicant’s visa application.

12. The applicant and her mother arrived in Australia [in] July 2014 and the applicant made the application for the protection visa on 29 July 2014.

13. On [Date] the applicant gave birth to a [child] in Australia and [s/he] is currently on a bridging visa.

14. I note the supporting documentation submitted in support of the applicant’s visitor and protection visa applications and I accept each of the above matters to be true.

    The applicant’s claims for protection

15. The applicant has consistently claimed to fear harm if returned to Uganda on the basis of her sexuality. In particular she claims that she has in the past been subjected to serious harm in Uganda for that reason having experienced beatings, sexual assault and family estrangement.

16. It is submitted that the applicant faces a well-founded fear of persecution in Uganda for reasons of her membership of the particular social group ‘lesbians in Uganda’, her implied political opinion as a supporter of the gay community in opposition to Ugandan government policy and her membership of the particular social groups ‘young women (without male protection’), ‘single mothers’ and ‘lesbians’. It is submitted she faces a high risk of persecution due to a combination of these factors.

17. The central factual issue in this review is whether the applicant is a member of the LGBTIQ+ community as claimed. Related to this issue is the assessment of whether the applicant has in the past been subjected to serious harm in Uganda for reasons of her sexuality, and whether there is a real chance she will again face serious or significant harm for that reason if she is returned to Uganda, now or in the reasonably foreseeable future.

18. The delegate did not accept any of the applicant’s claims to be true. In particular the delegate did not accept that the applicant is lesbian, nor that she has had lesbian relationships in Uganda or Australia. As a result the delegate did not accept the applicant had been harmed or assaulted in Uganda in the manner she claims, nor that she would face harm on return for reasons of her sexuality. In making her findings, the delegate had regard to a number of perceived inconsistencies in the applicant’s evidence as well as her own assessment of the plausibility of the applicant’s claims.

19. There has been a very significant body of evidence submitted to the Tribunal that was not available to the delegate. In particular there is a large amount of evidence that the applicant has been living openly as a lesbian woman in [City 1] for several years and is an active participant in a large number of LGBTIQ+ organisations. A number of persons who have worked with or known the applicant in this capacity have provided statements corroborating the applicant’s claims. The applicant herself has participated in a number of [events] about her experience as a member of the   LGBTIQ+ community seeking asylum. Medical evidence from both Uganda and Australia provided to the Department and the Tribunal is consistent with her claims to have suffered very serious past harm in Uganda.

20. Having reviewed the material submitted to the Tribunal, I am satisfied the applicant has a well-founded fear of persecution in Uganda as a member of the particular social group of ‘lesbians in Uganda’ in that country. For the reasons that follow I have determined that is appropriate to decide the review in the applicant’s favour on the basis of the material before the Tribunal pursuant to s.425(2)(c) of the Act. My detailed findings and reasons are set out below.

    Findings of fact

21. The applicant states that she has been aware of her sexuality since she was a child. She claims to have had two significant lesbian relationships in Uganda, as a result of which she was subjected to serious harm for reasons of her sexuality. As noted above, the delegate did not accept any of those matters to be true.

22. [The applicant] has provided the Department and the Tribunal with detailed statements about events in Uganda and her more recent circumstances in Australia. There is also a significant amount of evidence before the Tribunal as to the applicant’s profile as a lesbian woman active in the LGBTIQ+ community in [City 1] over the past several years. That material indicates [the applicant] is an active member of the LGBTIQ+ community in [City 1] and has participated in a number of arts and other community projects:

    o   She has had her story told in a [project] that explores the personal stories and histories of [the] queer community;

    o   She appeared on [a] panel for [Organisation 1] in 2017, where she spoke about her own experiences;

    o   She has been presenting on [a media show];

    o   She participates in [a] program, running monthly [events] for LGBTIQ+ migrants and refugees and is the co-coordinator of [a project];

    o   She is active with [Organisation 2], a non-profit organisation that supports LGBTIQ+ persons seeking asylum and refugees in Australia. The chair of that organisation reports that the applicant has been active in that organisation’s events and was selected as one of two coordinators engaged to run [the mental health project], because she is a lesbian woman who shares the experience of LGBTIQ+ forced displacement;

    o   A large number of members of the LGBTIQ+ community have provided statements of support for [the applicant], outlining their relationships with her and her role and volunteer activities as a prominent member of that community.

23. Medical evidence before the Department and the Tribunal indicates that the applicant has been receiving counselling in relation to her sexuality since 2014:

    o   Her counsellor from [a City 1] Sexual Health Centre states that she has supported [the applicant] to discuss and seek support groups and contacts in relation to her sexuality since 2014;

    o   Since 2017 [the applicant] has been receiving counselling from a gender and sexuality counsellor of [Organisation 3], who has provided evidence that they have worked on themes including sexuality and trauma relating to past sexual assault. That counsellor states that he has supported the applicant to become confident in her identity as a queer woman and to engage with the LGBTIQ+ community;

    o   [An employee of Organisation 4] has provided evidence that the applicant was referred to that service in early 2017 and has since developed strong personal and professional connections within that organisation. She is described as a prominent member of the LGBTIQ+ community.

24. Having regard to the evidence referred to above, I find the applicant lives openly as a lesbian in Australia and that she has a significant profile in the LGBTIQ+ community in [City 1], which includes presenting [programs] for the LGBTIQ+ community, participating in films and documentaries about that community and volunteering at and participating in a wide range of LGBTIQ+ events.

25. [The applicant] has recently given birth to a [child] in circumstances she has explained in her most recent statutory declaration and are not necessary to set out here. It is suffice to say that those circumstances do not change my assessment of the above matters.

    Claims of past harm

26. The refugee assessment is a forward-looking test and it is not necessary for a person seeking asylum to prove they have suffered past harm in their country of origin. However in most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past. Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:

    In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[1]

    [1]     MIEA v Guo (1997) 191 CLR 559 at 575.

27. The applicant claims to have suffered serious harm in Uganda in the past because of her same-sex relationships. The delegate did not accept that to be true, because she did not accept the applicant had experienced same-sex relationships in Uganda. In particular she did not accept the applicant’s account of her relationship with her former partner [Ms A]. However [Organisation 5], a LGBTIQ+ organisation registered in Kampala, Uganda, has provided a letter in support of [the applicant], known to them through her former partner [Ms A]. I have also had the benefit of email correspondence between [the applicant] and [Ms A] and I accept their relationship was both genuine and serious.

28. Country information indicates 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[2]. Given my findings above and the country information cited below, I accept [the applicant]’s account of her earlier relationship with a school friend, [Ms B], and the reaction of her school and family when that relationship was discovered in 2009. In particular I accept she was beaten publicly in front of the school before being expelled and became estranged from her father, who threatened to marry her off. I accept her account of how she came to live with her mother, before returning to a different high school in 2010 and completing her Ugandan Advanced Certificate of Education (UACE) at the end of that year.

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

29. I also accept the applicant was sexually assaulted in Uganda shortly before her arrival in Australia. I note that there is a significant amount of medical evidence from both Uganda and Australia as to the injuries the applicant suffered and the treatment she received. While the delegate expressed some concerns about the veracity of the medical evidence from Uganda, I note that any concerns in that regard are significantly outweighed by the medical evidence available from Australia. In particular I note [named organisation] supported the applicant between 2014 and 2016 by referring her to sexual assault recovery and support services and a sexual health clinic for ongoing treatment and support. She also received counselling from [a City 1] Sexual Health Centre in relation to her sexual assault in Uganda from 2014 and [Organisation 3] since 2017. As well as long-term counselling and medication for depression, [the applicant] received medical treatment for physical injuries from the assault.

30. While the medical evidence cannot speak to the motivations of the persons who assaulted [the applicant], it does support her claims that it occurred on the evening of a widely reported public rally in support of the Anti-Homosexuality Bill 2014 that took place in Kampala [in] March 2014. She has described in detail the violent nature of the assault she was subjected to on that night and I have no reason to doubt her evidence. The medical records from [a] Hospital describe her injuries and treatment in the immediate aftermath and the Australian medical evidence indicates that she required ongoing physical and mental health treatment for a long time afterwards.

31. I also accept that [the applicant] has a profile in Uganda as lesbian woman who has fled that country. As noted above, [Organisation 5] a LGBT organisation registered in Kampala, Uganda, has written a letter of support for [the applicant] stating that she is known to them through her former partner, [Ms A], and she fled to Australia for her own safety and protection.

32. The applicant has also provided a copy of an original paper news article published in [a] newspaper in [2018]. That article discusses Uganda’s criminal laws banning homosexuality and the government’s attempts to pass further draconian legislation making homosexual activity punishable by life in prison. [Details deleted][3].

    [3] [Source deleted]  

33. [The applicant] states she gave a telephone interview to the newspaper before the article was published on the basis that she was contacted by an acquaintance at the newspaper who was also gay who told her they wanted to help gay people in Uganda by telling them about the lives of gay people overseas. She was told she could remain anonymous, but her identity was nonetheless disclosed and her privacy violated. There was no reference to her interview in the published article and it was published with an old photograph of her in Uganda, incorrectly described as being taken in Australia. [Details deleted]. I accept that article was published and that it creates significant risks for [the applicant].

    Refugee Assessment

34. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal must take into account country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT has not prepared such a report for Uganda, however in April 2019 the UK Home Office published a similar resource[4].

    [4] UK Home Office Country Policy and Information Note Uganda: Sexual orientation and gender identity and expression April 2019

35. That report notes:

    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 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).

1. The UK Home Office report assesses that while LGBTI persons may face ill-treatment and discrimination from the state, they are not generally targeted and subjected to ill-treatment that, by its nature and repetition, amounts to persecution or serious harm from the authorities[5].

   [5] Ibid at 2.4.12

2. However it reports that 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]. It notes that the situation has worsened in recent years, as the passage of the Anti-Homosexuality Act 2014 (AHA) into law in 2014 increased, often negative, public discourse about LGBTI rights and led to an upturn of incidents of violence and discrimination against LGBTI persons. While the AHA is no longer law, same-sex sexual acts remain unlawful and anti-LGBTI rhetoric and discrimination persist[7].

   [6] Ibid at 2.4.15

   [7] Ibid at 2.4.18

3. Overall the UK Home Office report concludes 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. 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[8].

   [8] Ibid at 2.4.19

4. The information in the UK Home Office report is consistent with the information contained in the delegate’s decision and the material to which I have been referred by the applicant’s representative.

5. It is well established that persons of non-normative sexuality in a given country can constitute a particular social group.[9] In view of the country information cited above and [the applicant]’s own experiences in Uganda, I accept she faces a real chance of serious harm if returned to Uganda for the essential and significant reason of her membership of the particular social group ‘lesbians in Uganda’.

   [9] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

6. Given that the country information cited above indicates that the Uganda authorities continue to mistreat and discriminate against LGBTIQ+ persons, I find that Uganda fails to provide the level of protection which its citizens are entitled to expect according to international standards as required by Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29]. As the country information does not indicate that any part of Uganda is safe for people of the LGBTIQ+ community, relocation within Uganda is not available to the applicant.

7. Considering all of the matters above, I am satisfied the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘lesbians in Uganda’ should she return to Uganda, now or in the reasonably foreseeable future.

   Right to enter and reside in a third country

8. 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.

9. 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.[10]

   [10] Sections 36(4)–(5A).

10. 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[11]. The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[12]

    [11] MIMAC v SZRHU [2013] FCAFC 91

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

11. 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[13].

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

12. 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.

13. 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.

14. 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[14].

    [14] '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

15. Further, closures of borders between EAC countries due to diplomatic disputes are also relatively common[15]. 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[16].

    [15]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;

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

16. 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[17].

    [17] ‘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.

17. 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 COVID19 pandemic.

18. 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’[18].

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

19. 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.

20. 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[19]. 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.[20] 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.

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

    [20] ‘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.

    CONCLUSION

21. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

22. 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

23. 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.

24. 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).

25. 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.

26. 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’).

27. 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.