1701222 (Refugee) - [2021] AATA 2004

1701222 (Refugee) [2021] AATA 2004 (18 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701222
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Alison Murphy
DATE:18 May 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 18 May 2021 at 1:24pm
CATCHWORDS
REFUGEE – protection visa – Uganda – member of a particular social group – homosexual man – caned and ostracised by family, charged and given court bond, and tortured by police – told that partner beaten to death – for tribunal hearing, no accredited interpreter for applicant’s language available locally – technical difficulties with links to interpreter interstate – applicant’s and representative’s agreement to continue hearing – new claims based on political opinion not explored at hearing and ultimately not considered – country information – laws, discrimination, harassment and physical and sexual attacks – relocation within country not available and limited treaty right to enter and reside in other countries – COVID-19 border closures – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S395 of 2002 v MIMA (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
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZQRM v MIAC [2013] FCCA 772
SZQRM v MIBP [2013] FCA 1297
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, arrived in Australia [in] July 2014 as the holder of a visitor visa and applied for the protection visa on 11 August 2014. The delegate refused to grant the visa on 11 January 2017, not being satisfied the applicant was a person to whom Australia owed protection.
The applicant appeared before the Tribunal on 23 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Luganda and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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),…

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 1701222 (Refugee)

Details

AGLC: 1701222 (Refugee) [2021] AATA 2004
Case: [2021] AATA 2004
Decision Date: 18 May 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Ugandan national. The applicant claimed he feared harm in Uganda due to his status as a homosexual man, alleging he had been caned and ostracised by his family, charged and given a court bond, and tortured by police. He also claimed his partner had been beaten to death. The applicant also sought to raise new claims based on political opinion, which were not fully explored at the hearing. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under the 'refugee' criterion or on 'complementary protection' grounds. This involved assessing the applicant's claims of persecution based on his membership of a particular social group (homosexual men) and considering the available country information regarding laws, discrimination, harassment, and physical and sexual attacks in Uganda. The court also had to consider the impact of communication difficulties during the Tribunal hearing, including the lack of an accredited interpreter for the applicant's language and technical issues with remote interpretation, and whether these issues prevented a fair hearing of all claims.

The court found that the decision under review should be remitted for reconsideration. It noted that the applicant's claims regarding his sexual orientation and subsequent persecution in Uganda were not accepted by the delegate, who found his evidence lacked detail and emotional resonance. However, the court highlighted significant communication issues during the Tribunal hearing, including the absence of a local accredited interpreter and technical difficulties with interstate interpretation. These issues, coupled with the applicant's and his representative's agreement to proceed despite these difficulties, raised concerns about whether all aspects of his claims, particularly the new claims based on political opinion, were adequately explored and considered. The court also noted that the delegate's assessment of the applicant's employment documents, which formed a basis for disbelieving his claims, had not been subjected to independent verification.

The court ordered that the decision under review be remitted to the Administrative Appeals Tribunal for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

The applicant also made new claims and produced further documents at the Tribunal hearing about his fear of harm on the basis of his political opinion. Those claims were not considered by the delegate and are not the subject of either of the applicant’s written statements. The communication issues referred to above were such that I did not explore these claims in any detail with the applicant, rather at the conclusion of the hearing I made directions requiring those claims to be set out in writing and indicated I would convene another hearing to deal with them if necessary. In light of my findings about the applicant’s primary claims, it is unnecessary for me to consider the new political claims.The applicant’s personal background The applicant is a [Age]-year-old male from [Location 1], Uganda. He states in his protection visa application that he is of Bantu ethnicity and Protestant religion. He attended primary and secondary school in [Location 1] before undertaking a certificate in [Subject] at a vocational school in [Town] in 2007. A copy of his [Subject] qualification is contained on the Departmental file. The applicant travelled to Australia as the holder of a visitor visa as an attendee at [an Event] held in [City 1] in July 2014. He arrived in Australia [in] July 2014 and applied for the protection visa on 25 August 2014. In his visa application he states he worked at [Employer] between December 2011 and August 2014 as an assistant director. At hearing he told me he commenced at that organisation as [an Occupation] and was later promoted to the position of assistant director. The applicant submitted a number of documents relating to his employment in support of his visitor visa application, including a certificate of registration and incorporation of [Employer] under the Non-Governmental Organisations Registration Act; a permit for that organisation to operate as an NGO under [a] District Local Government; a letter from that organisation describing him as one of the co-founders and directors of [Employer] and its annual report for 2013. The annual report names the applicant as one of five directors on the board of directors. On the basis of this documentation, the applicant was granted a visa by the Department to enter Australia for the purposes of attending [the Event] held in [City 1] in July 2014. Despite the documentation, the delegate did not accept the applicant worked for an NGO called [Employer]. She noted that the website for the Ugandan Police indicated that document fraud was rife in Uganda; that the annual report of [Employer] appeared very basic in its layout and that an internet search of the ‘[Employer]’ returned no results. The materials before me do not suggest that the applicant’s employment documents were referred to the Department’s Document Examination Unit for examination, nor that there was any attempt to verify them with the Ugandan authorities. Rather the documents were submitted to the Department in support of the applicant’s visitor visa application along with his invitation to [the Event] in [City 1] and appear to have been accepted by the Department as genuine during the assessment of that visa application.

Evidence

Evidence Before The Court

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.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 remitted for reconsideration.Country of nationality The applicant travelled to Australia on an apparently genuine Ugandan passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Uganda and he has been assessed on that basis by the Department. The Tribunal finds he is a Ugandan citizen and has assessed his claims against Uganda as his country of nationality and the receiving country.Credibility The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70). The delegate did not accept the applicant’s claims to be true. Rather the delegate formed the view that the applicant’s employment documents were fraudulent and he did not work for [Employer] as claimed. Having made that finding, the delegate did not accept the applicant entered into a sexual relationship with a male person he met through his employment. The delegate records that at interview, ‘the applicant became visibly agitated when speaking about his sexual experiences with men, to the point where the interview was stopped and he took time out and left the room.’ The delegate acknowledged that the applicant became emotional in the interview, but considered his evidence lacked ‘detail, spontaneity and emotional resonance’ and did not persuade her he was telling the truth. Ultimately the delegate did not accept the applicant’s claims to be gay, nor his account of his experiences in Uganda.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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