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:

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
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 29 July 2014 and the delegate refused to grant the visa on 25 November 2016.
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…

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 1620818 (Refugee)

Details

AGLC: 1620818 (Refugee) [2021] AATA 1388
Case: [2021] AATA 1388
Decision Date: 27 April 2021

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a citizen of Uganda, a protection visa. The applicant had applied for the visa in July 2014, and the delegate refused the application in November 2016. The applicant claimed to fear harm if returned to Uganda due to her sexuality, alleging past experiences of beatings, sexual assault, and family estrangement. She asserted that she faced a well-founded fear of persecution as a member of the particular social group 'lesbians in Uganda', and due to an imputed political opinion as a supporter of gay and lesbian rights against government policies. The applicant also claimed membership in the particular social groups 'young women (without male protection)' and 'single mothers', and argued that a combination of these factors placed her at high risk of persecution.

The primary legal issue before the Tribunal was whether the applicant qualified for protection under the 'refugee' criterion or complementary protection grounds as defined by the Migration Act 1958. This involved assessing the credibility of her claims regarding fear of harm in Uganda based on her sexuality and other asserted group memberships, and considering whether such fear was well-founded and engaged Australia's protection obligations. The Tribunal was required to determine if the applicant's circumstances met the threshold for protection under the Act, taking into account country information and the specific evidence presented.

The Tribunal, in its decision of 27 April 2021, concluded that the decision under review should be remitted to the Department for reconsideration. This remittal was accompanied by a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958. The original decision document, which had stated the decision should be affirmed, was amended to reflect this remittal and the specific direction regarding section 36(2)(a).

Orders

Orders of the court

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Background

Background to the litigation

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

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

Decision

Reasons for decision

At paragraph 4 on page 2, the word ‘affirmed’ should be deleted, and substituted with the words ‘remitted to the Department for reconsideration’.Alison MurphyMemberDECISION RECORDDIVISION:Migration & Refugee DivisionCASE NUMBER: 1620818COUNTRY OF REFERENCE: UgandaMEMBER:Alison MurphyDATE:27 April 2021PLACE OF DECISION: MelbourneDECISION: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 11:43amCATCHWORDSREFUGEE – 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 remittedLEGISLATIONMigration Act 1958 (Cth), ss 36(2)(a), (3), 65, 425(2)(c)Migration Regulations 1994 (Cth), Schedule 2CASESApplicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473MIEA v Guo (1997) 191 CLR 559MIMA v Respondents S152/2003 (2004) 222 CLR 1MIMAC v SZRHU [2013] FCAFC 91V856/00A v MIMA (2001) 114 FCR 408Any 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 REASONSAPPLICATION 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 29 July 2014 and the delegate refused to grant the visa on 25 November 2016. 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.The applicant’s personal background

Ratio Decidendi

Legal Principle Established

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