1621210 (Refugee) - [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

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).
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
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 Huntly
Member

-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].
In this respect, I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.
I also note that the same source, at [13] provides that:
In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.
Further, at [17]-[19] of the Guidelines it cautions that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal. A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.
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.
In light of the findings made below, it has not been necessary for me to make findings pursuant to s.36(3) of the Act relating to third country protection.
Proceedings
In the first instance, I note that the delegate refused to grant the visa on the basis that the applicant's claims for protection were not credible. This was due to what the delegate found to be unsatisfactory evidence provided by the applicant in connection with threats, intimidation and harassment he claims to have experienced in connection with his work for NGOs, government anti-corruption agencies and as a [worker] for a well-known business figure in that country. For this reason, the delegate found that it was unnecessary to consider the possibility of the applicant's exclusion due to available, accessible third country protection as provided at s.36(3) of the Act.
As explained and further elaborated by the delegate, pursuant to ss.36(3) and (5) of the Act, it was theoretically open for the delegate to find that the applicant had not taken all possible steps to avail himself of a right to enter and reside in, temporarily or permanently any country apart from Australia in circumstances where it was reasonable for him to do so.
That finding was open to the delegate due to Uganda's membership of both the South African Development Community (SADC) and the Common Market in Eastern and Southern Africa (COMESA). In particular, it was open to the delegate to find the applicant was effectively barred from applying for the protection visa that is the subject of this review application because of an apparent complying right to enter and reside in Kenya, which is a member of the COMESA trading block.
The applicant appeared before the Tribunal by video conference on four occasions to give evidence and present arguments: firstly, on 10 February 2020, second on 10 March 2020, third on 15 April 2020, and finally on 25 August 2020.
The applicant was represented in this application by a registered migration agent. The applicant initially requested the services of an interpreter in the Ateso language, however, he subsequently elected to proceed on the basis of the English language, in consultation with the Tribunal and his agent.
Country information
In addition to the country information surveyed in the delegate's record of decision, which was provided to the Tribunal by the applicant when he applied for protection, I have also had regard to the United States Department of State Report on Human Rights in Uganda 2018. This is in addition to the country information provided in the two submissions of the applicant's migration agent, the first of which was dated 17 July 2016 (submitted by the applicant's former migration agent), and a submission dated 23 April 2020 (from the applicant’s current migration agent).
Claims
At the first hearing with the applicant I went through the summary of his claims contained in the delegate's record of decision,[4] in the form of a series of dot points. The applicant confirmed that this summary was a fair and accurate summary of his claim for protection contained in his original application for protection.
[4] At [5] pp.(2)-(3).
I note that the applicant claims that he acted as a [worker] for [a named international] non‑government organisation prior to 2011 and that he worked for another non-profit agency called [Agency 1], and that following this he [worked] for a well-known business figure in Uganda known as [Mr A], and that in the course of this employment he also became acquainted with [a named military leader].
He claims to have spent extended periods of time in [Country 1], returning multiple times to Uganda between 2010 and 2011 in service to [Mr A] as [an Occupation 1].
The applicant claims that, in the process of acting for [Mr A], he became involved with some persons operating unlawfully between the [Country 2] and Uganda. In the course of this association, the applicant was invited to participate in human trafficking involving child soldiers, which he resisted. According to the applicant, he has experienced physical harassment, intimidation and threat from these people over time.
During the hearings I asked the applicant when he first held a well‑founded fear of persecution, for the purposes of the Act, in Uganda. He claims to have first experienced this in 2010 when he became aware of threats being made against him by persons unknown during his work at the anti‑corruption agency. He claims to have been beaten by soldiers in 2011 when he was working for [Agency 1] because they believed that he was supporting the opposition political parties due to his son having been involved in distributing t-shirts with political connotations given that these opposition-associated t-shirts had been seized by soldiers..
The applicant claims to have been charged with treason at this time before being released, and later, the charges were dismissed. The applicant claims to have been represented in these proceedings by a lawyer named [Lawyer B].[5]
[5]Identified in submissions to the Tribunal by the applicant in an Affidavit, sworn on 29 January 2020.
The applicant further claims that subsequently, in July 2013 (while acting as a [worker] for [Mr A] on a trip to the town of [Town 1] in [Country 2]), he was beaten by soldiers in what he described as a camp staffed by military (including child soldiers). While there, he reacted negatively to the sight of an execution area and was beaten and stabbed by soldiers who were present. After returning to Uganda at this time, he experienced further harassment, intimidation and threats including demands that he assist in the recruitment of child soldiers for enforced service in [Country 2].
In June or July of 2015, the applicant claims to have received a single further threatening telephone call from an individual identifying himself ‘[as a military leader]’. The applicant stated that this was connected to his previous experience of intimidation, harassment and threat in Uganda.
On the basis of the evidence before me, I accept that the applicant may have worked with a contractor for [a named international agency] and other NGOs including [Agency 1]. I also accept that he may well have acted as [an Occupation 1] on occasion and been responsible for [equipment] owned or operated for the benefit of one ‘[Mr A]’, who the applicant claims is the same [Mr A] who founded the NGO ‘[Agency 1]’.
Findings
After questioning the applicant at multiple hearings, I am prepared to give him the benefit of any doubt about his claims of being the target of occasional harassment, intimidation and threat while living in both Uganda and [Country 1]. I accept that he has been assaulted on occasion in either or both countries and that he carries the scars from various wounds as a result of this. However, for the purposes of both the refugee and complementary protection assessments, I am required to have regard to the motivation or intention of the perpetrators of harm in satisfying myself that the feared harm is ‘non-random’.[6] While the applicant's evidence and personal history prior to arriving in Australia, taken cumulatively, supports a finding that that he experienced instances of harassment, intimidation and threat including physical violence, there is nothing in the applicant's evidence to suggest that he has been exposed to anything other than random acts of thuggery and intimidation in either Uganda, [Country 1] or [Country 2].
[6]Eg: Ram v MIEA (1995) 57 FCR 565 at 568 per Burchett J; Applicant A v MIEA (1997) 190 CLR 225 at 233 per Brennan CJ and at 258 per McHugh J; MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99] per McHugh J; VSAI v MIMIA [2004] FCA (Crennan J, 8 December 2004) at [53]; and SZTEQ v MIBP (2015) 229 FCR 497 at [72] ‘It is clear then, that “systematic” is used in [the refugee assessment] in the same way that “discriminatory” is used, to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental.’ Per the Court.
In making this finding, I note in particular that the applicant voluntarily returned to Uganda multiple times in 2010 and 2011 (while he claims to have been [an Occupation 1] engaged by NGOs) and that he remained in Uganda more than 10 months after the departure of one of his wives (who is also [an Occupation 2]); I note also that this wife of the applicant entered and resided in Australia on a [student] visa and subsequently returned to Uganda voluntarily [in] January 2015. The applicant’s multiple returns to Uganda from [Country 1] and the voluntary return of the applicant’s wife to Uganda in 2015 are inconsistent with a well-founded fear of persecution in that country on the part of either person, as was noted in the case of Iyer, mentioned above.
In terms of the applicant's claims that his family members have faced harm from agents of harm in Uganda for the essential and significant reason of the applicant’s work for NGOs or for any other reason, his evidence to the Tribunal has been vague and inconsistent in important respects. I note, by way of illustration, that he failed to refer to the death of his sister in 2016 when signing a sworn statutory declaration in 2016, a matter which should have been front of mind to him as it had only just occurred. Despite this, he has subsequently sought to link her unfortunate passing to his claims for protection. His suggestion that he omitted reference to such a significant and relevant matter from a relatively contemporaneous sworn statutory declaration, and that he had signed a document that he did not adequately understand at the relevant time, lacks credibility.

I note the applicant's claims to have been pursued by agents of the Ugandan Government since residing in Australia. His evidence at the hearing was that agents of harm working for the Ugandan authorities in this country had disturbed him at his place of residence causing him to relocate within Australia. I note that he was advised by his migration agent to report this matter to local authorities. There is no record of there being any such report to local authorities and indeed the applicant has confirmed that he took no steps to report such matters to them. This conduct is inconsistent with a genuine subjective well‑founded fear of harm for the purposes of the Act.
In the course of the hearing I put to the applicant my concerns about the apparent lack of credibility of key aspects of the applicant's evidence. The applicant suggested that he lingered in Uganda for the sake of his children while one of his wives departed for Australia. This does not correspond with the applicant's willingness to leave and re‑enter Uganda to [Country 1] over an extended period during 2010-2011. I also note that the applicant’s wife who had been studying in Australia voluntarily returned to Uganda in early 2015, either in full knowledge of the applicant's claims for protection or that she ought reasonably to have known about them (given the applicant’s stated concern for the wellbeing of his Ugandan family), and that presumably she willingly and voluntarily returned to Uganda in that knowledge. As indicated above, such conduct is not consistent with a well-founded fear of harm to herself or her children to the extent that the applicant has claimed that threats were made against them by the same agents of harm because of their familial association with the applicant.
I further note the inconsistencies discussed with the applicant relating to the affidavit submitted by his Ugandan lawyer, [Lawyer B], in the course of these proceedings. I refer in particular to the assertion by the lawyer in the affidavit, which is dated 29 January 2020, that the applicant had fled the country and that hostility had been directed against himself and ‘his family and other political activist politicians’. This statement indicates that the person making the statement has no personal knowledge of the applicant's actual ‘political’ or related activities, such as they were. Nowhere in any of the applicant’s evidence in the course of his application for protection or subsequent application for review does he claim to be an actual or perceived ‘political activist politician’.
I also note that, as discussed with the applicant at the hearing, the deponent of the 29 January 2020 affidavit makes a less than accurate or satisfactory recitation of relevant facts when compared to the evidence of the applicant. There is a notable lack of equivalence as to the charges made against the applicant, and whether or not the charges were dismissed, or indeed anything relevant to the legal disposition of the court proceedings. [7] These inconsistencies between the evidence of the accused person and their putative legal representative in the matter in Uganda, suggest that the affidavit is not a reliable sworn statement and should not be afforded any weight from an evidentiary perspective.
[7]At [6].
I note [the] medical report submitted by the applicant (dated 9 July 2018). In this report (relating to a diagnostic testicular ultrasound) reference is made to a diagnostic artefact ‘suggestive of a previous orchitis’ having been experienced by the applicant. I accept that this is some evidence corroborative of the applicant's claim’s above to have experienced physical violence in Uganda at some unknown time in the past.
The applicant's family continue to reside in Uganda and are contactable by him, according to the applicant’s evidence at the hearings. In this respect, it is notable that the applicant has not called any witnesses or provided any statements from any of these persons, despite the fact that he has gone to the trouble of obtaining a statement from an individual he claims was his former lawyer in Uganda. The applicant has lost certain members of his extended blood family. There is no evidence of the sort one would normally expect in a matter with the procedural history of the applicant’s application for protection corroborative of the applicant’s claims that his children in Uganda have been harassed. I accept that some of the applicant’s family, including his children, may have been abducted in Uganda. Unfortunately, as the delegate's submission makes clear, the abduction of children in Uganda and neighbouring countries is not uncommon.
I put to the applicant that his delay in seeking protection in Australia at the first reasonable opportunity was not necessarily consistent with his claims to fear harm in Uganda from any person for any reason prior to his departure. The applicant suggested that he delayed seeking protection in Australia for the sake of his children in Uganda. This suggestion lacks credibility. The applicant’s wife returned to Uganda voluntarily, and the applicant has not provided any evidence from this accessible and relevant fact witness in support of his application. The absence of such an obvious source of corroborating evidence raises an inference that such evidence would not add to the applicant’s claims for protection.
The applicant has referred to the fact that he is in a relationship of sorts with an Australian citizen who has two children from a previous relationship. The applicant describes this individual as a girlfriend, and states that they have had a female child. This child, therefore, presumptively is an Australian citizen, ordinarily resident with her mother. While the applicant does not ordinarily reside with his Australian citizen girlfriend, I accept the applicant's evidence that he occasionally provides assistance and care for his girlfriend's children, including his own daughter. I note that the applicant’s Australian citizen girlfriend has an extended family in Australia.
In summary, the applicant's Australian citizen girlfriend is currently a student. They do not claim family benefits as a couple; they live in separate residences. He provides occasional care of the child. They have separate bank accounts. They have been in a relationship for approximately 14 or 15 months. While I accept the applicant’s evidence that this is an exclusive relationship, on the basis of the evidence provided, it would be inappropriate to find that they form a family unit for the purposes of the Act. There is nothing to suggest that this is a genuine de facto relationship beyond the fact that they have shared responsibilities with respect to their daughter and that they have a degree of mutual affection.
Summary
On the basis of the foregoing evidence, I find that the applicant’s claims for protection lacks credibility in material respects relating to the applicant’s core claims for protection. This is because, as stated above, the applicant’s evidence is vague, illogical and otherwise inconsistent. Accordingly, the applicant’s evidence does not support his assertion that he has a well-founded fear of persecution in Uganda for any of the reasons identified in ss.5H and 5J(1)(a) of the Act (refugee criterion). Accordingly, I find that the applicant does not have a well-founded fear of harm in Uganda from any person or for any reasonable time in the future for the purposes of s.36(2)(a) of the Act.
The applicant claims to have experienced significant harassment, intimidation and threats in Uganda from at least 2010, at which time he had an international Ugandan passport. Indeed, using this travel document, the applicant made repeated voluntary returns to Uganda from [Country 1] throughout 2010 and 2011. The applicant delayed his departure from Uganda for 10 months following the departure of his wife on whose student visa he eventually travelled to this country. During those 10 months, the applicant undertook at least one trip to [Country 2] with his NGO employer. Following his arrival in Australia, the applicant did not take any steps to clarify his immigration status for over a year, and then only after his sponsoring spouse had departed, voluntarily returning to Uganda. It was only then that the applicant sought protection in any country for any reason outside of Uganda.
This failure by the applicant to take reasonable, prompt action or steps to seek protection at the first reasonable opportunity undermines the credibility and genuineness of the applicant’s claims. This is because it is reasonable to expect that someone with a genuine, well-founded fear of harm in a country would seek to clarify their migration status or seek protection at the first reasonable opportunity.
Taking all of the applicants’ evidence together, and after considering his personal circumstances, I find that the applicant’s delay in seeking protection and repeated returns to Uganda between 2010 and 2011 was unreasonable and inconsistent with his claim of holding a well-founded fear of harm in Uganda from that time.
Having carefully considered the applicant’s claims made in both in his application for protection and during the course of this review, I find his evidence to be: unreasonably vague in important respects; unsupported with the kind of corroborating evidence that would have ordinarily been expected; inconsistent in material respects; and lacking in appropriate detail.
Taking the applicant’s claims at their highest, on the basis of the concerns I have raised above, I do not accept the applicant has been or will face any continuing threat of harm from any person for any reason in Uganda now or in the reasonably foreseeable future.
The real risk test requires the same standard as the real chance test. Given the findings I have already made, I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Uganda, he would suffer significant harm from any person for any reason.
Australian citizen daughter
With respect to the status of the applicant’s Australian citizen daughter, noting that this is not a decision on return, I acknowledge that there is a potential that, as a consequence of this decision, the applicant might be separated from her if the applicant is subsequently returned to Uganda.
Such a separation presumably would cause dislocation and inconvenience to the applicant, his Australian citizen daughter and the applicant’s Australian citizen girlfriend. However, I note that the applicant also has [number] children in living in Uganda, many of whom are dependent on their mothers and resident in a country where they might be re-united with the applicant on his return. There is also no reason to believe that the applicant’s Australian citizen daughter would be prevented from visiting or living with the applicant at some time in the future, either in Uganda or a third country, or perhaps even at some future time in this country.
COVID-19
It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing heavily on decisions for visa applicants in Australia. However, once again, I note that this decision is not a decision on return. As indicated above, I am, however, mindful that this decision has a potential to give rise to such a decision in the reasonably foreseeable future. I find that whatever measures may be applicable to the population of Uganda generally in response to the present COVID-19 crisis, do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of the refugee or complementary protection provisions.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations in s.36(2)(a) of the Act (refugee criterion), noting the significant credibility issues which have been put to the applicant at the hearings.
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.
Their Honours also summarise the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[9]
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the “gateway” open.
[9]At [25].
It is apparent from the judgement in SZRTC v MIBP that the actual question before the Court concerned whether or not the applicants in question possessed a ‘right to enter and reside’. It is further evident that the question before the Court in this instance arose in the context of international agreements between nation states and not the status of a visa which had been applied for and granted. The following passage demonstrates the particular issue before the Court:[10]
By s 36(3) Australia is deemed 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” any third country. The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, (2013) 215 FCR 35) to “reside .... temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
Third country protection viewed in regional context
[10]At [27].

In light of the following observations, I refer specifically to the following passage of their Honours’ judgement in SZRTC relating to the specific situation where an applicant for protection does have a ‘right to enter and reside’ in a third country which may be something less than a permanent right of residence:
A finding that it was likely that the circumstances in the appellants’ home country which gave rise to protection obligations would persist or be likely to persist for more than six months would not, in our opinion, compel the conclusion that the appellants did not have a right to reside temporarily in the third country. On the contrary, we consider that the appellants’ right to enter other EAC [East African Community Treaty] countries and stay there for up to six months, constituted such a right.
It would be open to a decision-maker, consistently with the provisions of s.36(3), to take the view that the appellants’ right to enter and reside in another EAC country for up to six months constituted a right of temporary residence. If the decision-maker so decided a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision-maker would be required to determine whether or not subsections 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.
In our view the Tribunal, in each case, applied the wrong test when it held that the temporary period of residence, contemplated by s 36(3), must be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances confronting the applicant in his or her country of origin. This was a material error.
On the face of it, the available country information suggests that the applicant may, in fact, have had a right to enter and reside in a third country for the purposes of s.36(3) of the Act prior to his arrival in Australia. However, careful regard must be had to his particular circumstances, together with the potential effect of ss.36(4), (5) and (5A)[11] of the Act in light of available country information, before I can be satisfied that s.36(3) of the Act does have the effect of excluding the applicant from applying for protection in Australia. Such care in applying the relevant legislative provisions is recommended to decision-makers in cases including BAJ16 v Minister for Home Affairs [2019] FCCA 1598 (albeit in that case considering the interplay of the statutory provisions with the previous, Convention-based legislative scheme).[12]
[11]As per Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 and SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43.
[12]Per Kelly J. See in particular [84]-[90] and [135]-[155].
In this respect, it is worth referring to the findings of the Tribunal (differently constituted, and considering regional rights to enter and reside for a displaced citizen of Kenya), about the various agreements providing economic co-operation and freedom of movement in the southern region of the African continent, including that contained within the delegate’s record of decision such as COMESA and SADC, as follows:[13]
74 Secondly, the Tribunal notes that despite the member States of the EAC [East African Community Treaty] being signatories to the Refugee’s Convention, country information highlights that there has been both historic and ongoing human rights violations and breaches of non-refoulement obligations.
75 The University of Oxford Refugee Studies Centre in a report from December 2010 provides the follows information on the freedom of movement within the EAC:
Neither the EAC nor the SADC [The Southern African Development Community] protocols remove the rights of states to expel or deport regional citizens on national security or public order grounds. Thus, the right to freedom of movement within a regional economic community is unlikely to constitute a substitute for refugee protection, not least the protection from refoulement that would protect EAC or SADC citizens who are also refugees. Furthermore, these regional free movement protocols do not take account of the fracturing of relations between a refugee and his or her home state, which could, for example, frustrate the refugee’s ability to obtain or renew passports or national identity documentation permitting them to travel throughout the region or to reside in one or more of the participating states. Convention Travel documents would still be needed in such situations.
[13]AAT, MRD 1504524, 25 July 2017 (NB: the report referred to, although not cited in that place is ‘Refugee Status Determination and Rights in Southern and East Africa.’ International workshop report, 16–17 November 2010, Kampala, Uganda (December 2010) ( accessed 1 May 2020).
It follows, based on all of the foregoing, and given also the applicant’s own prior extended entries and residence in [Country 1] prior to his arrival in Australia, that the applicant would otherwise have been excluded from obtaining protection in Australia by virtue of s.36(3) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
END OF ORAL DECISION [12.10 PM]