1621210 (Refugee)

Case [2020] AATA 4525

1621210 (Refugee) [2020] AATA 4525 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621210

COUNTRY OF REFERENCE:                   Uganda

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 August 2020 at 12:10 pm (WA time)

DATE OF WRITTEN RECORD:                26 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 October 2020 at 12:49pm

CATCHWORDS
REFUGEE – protection visa – Uganda – imputed political opinion – employment with an international non-government organisation – credibility concerns – voluntary returns to Uganda – delay in seeking protection – worked for a well-known business figure in Uganda – human trafficking involving child soldiers – past harm suffered – motivation of perpetrators – random acts of thuggery and intimidation – Australian citizen daughter – ‘right to enter and reside’ in a third country – South African Development Community (SADC) – Common Market in Eastern and Southern Africa (COMESA) – non-permanent right of residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 423
Migration Regulations 1994, Schedule 2

CASES
BAJ16 v Minister for Home Affairs [2019] FCCA 1598
Iyer v MIMA [2000] FCA 52
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43

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.

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

  2. At the hearing on 25 August 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

    STATEMENT OF DECISION AND REASONS

  3. Attached to this statement is a corrected transcript of the oral decision and reasons delivered to the applicant in person at the hearing.

    DECISION

  4. The Tribunal affirms the decision under review.

    Dr Colin Huntly
    Member


    -Corrected Transcript -

    ORAL DECISION OF MEMBER HUNTLY   [11.30 AM]

  5. Member:  This is an oral decision with reasons delivered to the applicant in person by means of video conference.  The time is 11.30am, Western Standard Time.

    Introduction

  6. The criteria for a protection visa, as set out in s.36 of the Act and Sch2 to the Migration Regulations 1994 (the Regulations). An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds.

  7. Where relevant, the Tribunal has considered the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trading (DFAT), as is required by Ministerial Direction No.84.

  8. I have had regard to President's Direction ‘COVID-19 Special Measures Practice Direction - Migration…

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AGLC
1621210 (Refugee) [2020] AATA 4525
Case
[2020] AATA 4525
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration to refuse the applicant, a citizen of Uganda, a protection visa. The applicant arrived in Australia in November 2013 and applied for a protection visa in January 2015, after his student visa expired. The delegate refused the visa on 30 November 2016, and the applicant sought review of this decision.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth), specifically whether Australia had protection obligations towards him under the refugee criterion or complementary protection grounds. The Tribunal was also required to consider whether the applicant had failed to avail himself of a right to enter and reside in a third country, as provided for in section 36(3) of the Act.

The Tribunal affirmed the delegate's decision, finding that the applicant did not satisfy the criteria for a protection visa. The Tribunal noted that it is the applicant's responsibility to present their case fully and provide sufficient evidence, and that failure to do so before the primary decision-maker may lead to an adverse credibility inference, unless a reasonable explanation is provided. While the Tribunal found the applicant to be a Ugandan citizen, it was not satisfied that he met the refugee or complementary protection criteria. Furthermore, the Tribunal considered that, had the applicant's claims been credible, he would likely have been excluded from protection in Australia under section 36(3) due to the availability of third country protection. The Tribunal concluded that the applicant did not satisfy any of the criteria in section 36(2) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

With respect to contradictions, inconsistencies and omissions, [27]-[28] states:Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal. The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.New claims and evidence Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant: the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. Second, s.423A of the Act referred to above requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants, therefore, who do not present all claims and evidence to the primary decision-maker must have a reasonable explanation for not doing so.Identity and receiving country The applicant claims to be a citizen of Uganda. He applied for the visa on 29 January 2015. As to identity, according to the applicant's movement record, he arrived in Australia [in] November 2013, travelling as a dependent spouse on a [Student] Visa. This visa expired on 25 January 2015. The applicant thereafter applied for protection in Australia on 29 January 2015. A delegate for the Minister for Immigration refused to grant the applicant a protection visa on 30 November 2016. The applicant applies to this Tribunal for a review of that decision. The applicant provided a copy of his most recent passport (bearing an issue date in 2010) to the Department with his application. There is nothing before me to suggest that this passport is false. Therefore, I find the applicant is a citizen of Uganda, which is the receiving country for the purposes of the refugee and complementary protection assessments.

Decision

Reasons for decision

Attached to this statement is a corrected transcript of the oral decision and reasons delivered to the applicant in person at the hearing.DECISION The Tribunal affirms the decision under review.Dr Colin HuntlyMember-Corrected Transcript -ORAL DECISION OF MEMBER HUNTLY [11.30 AM] Member: This is an oral decision with reasons delivered to the applicant in person by means of video conference. The time is 11.30am, Western Standard Time.Introduction The criteria for a protection visa, as set out in s.36 of the Act and Sch2 to the Migration Regulations 1994 (the Regulations). An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant, the Tribunal has considered the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trading (DFAT), as is required by Ministerial Direction No.84. I have had regard to President's Direction ‘COVID-19 Special Measures Practice Direction - Migration and Refugee Division’, 27 April 2020. I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular, I note:·That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1]·That ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).[2]At [8.1].Credibility Before looking at my findings I note that on questions of credit I need to give benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments. I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection. Consistent with the various decisions commencing with those in the matter of Iyer,[3] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution, there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.[3]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

Ratio Decidendi

Legal Principle Established

Having concluded the applicant does not meet the refugee criterion, I have considered the applicant’s claims by reference to the alternative criterion. I am not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act (the complementary protection criterion). There is no suggestion that the applicant is a member of the same family unit as a person who meets either of these criteria. Accordingly, the applicant does not satisfy any of the criteria in s.36(2) of the Act.Third country alternative considerations While it has not been necessary for me to make a decision on this matter, I have turned my mind to the question of whether or not the applicant would otherwise have been eligible for protection in Australia or excluded from protection in Australia. My reading of the prevailing country information is that the applicant would otherwise have been excluded from obtaining protection in Australia on the basis of accessible and appropriate third country protection for the purposes of s.36(3) of the Act, if his claims had otherwise been credible. I have made that finding after reviewing relevant material which I stated at the hearing I would include in any written reduction I am required to provide. Accordingly, as summarised in the hearing, I include the following consideration for completeness. This material relates firstly to the following extract from the 2014 Full Federal Court decision in SZRTC per Tracey and Griffiths JJ:[8][8]SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 (11 April 2014) at [15]-[19].15. Section 36 of the Act relevantly provided that:“(1)There is a class of visas to be known as protection visas.(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol;...(3)Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.(4)However, subsection (3) does not apply in relation to a country in respect of which:(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:(a) the country will return the non-citizen to another country; and(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.(5A) Also, subsection (3) does not apply in relation to a country if:(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”16. Subsections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). Subsection (5A) was included by the Migration Amendment (Complementary Protection) Act2011 (Cth).17. The Supplementary Explanatory Memorandum for the Bill which became the 1999 Act established that a purpose of the amendments then introduced (of which ss.(3)(5) form part) was to counter forum-shopping by refugees who could find protection in countries other than Australia. Paragraph 5 of the Memorandum said that:“The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.”18. The Minister’s Second Reading Speech contained the following passages:“The Refugees Convention and Protocol have, from inception, been intended to provide asylum to refugees with no other country to turn to.Increasingly, however, it has been observed that asylum seekers are taking advantage of the convention’s arrangements.Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.This practice, widely referred to as ‘forum shopping’, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.”19. Paragraph 99 of the Explanatory Memorandum for the Bill which became the 2011 Act explained that:The purpose of new subsection 36(5A) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if the non-citizen has a well-founded fear that that country will return the non-citizen to a different country and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that different country.