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

1. 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).

2. 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.

3. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion).

9. 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

10. 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

11. 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

12. 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).

13. 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.

14. Notwithstanding the very real communication difficulties during the hearing that are discussed below, the applicant’s evidence about his employment history, his sexuality and his experiences in Uganda was broadly consistent with his written claims and the delegate’s record of his responses at interview. Documents submitted to the Tribunal indicate the applicant is known to his friends and medical professionals in Australia to be gay. For the reasons set out later in this decision, I have formed a different view of the facts in this matter.

    Communication issues

15. It is important to acknowledge at the outset the very significant communication problems that have impacted the visa application and review. The applicant speaks Luganda and some small amount of English. He completed the visa application and accompanying written statement in 2014 with the assistance of someone he met in an internet café that did not speak Luganda. Parts of that initial 2014 statement are simply incomprehensible. The applicant prepared a more detailed statement of claims to the Department in October 2016 with the assistance of a lawyer, but the statement records that it was finalised without the assistance of an accredited interpreter because the National Accreditation Authority for Translators and Interpreters (NAATI) and the Victorian Interpreting and Translating Service (VITS) had none available.

16. A similar situation occurred at the Tribunal hearing. The Tribunal made attempts to procure an in-person Luganda interpreter for the hearing, however it appears there are no accredited interpreters in Victoria. The hearing commenced with an interpreter appearing from interstate by video link which was beset by audio and other technical difficulties. On many occasions during the hearing the interpreter appeared unable to hear or understand many of the Tribunal’s questions. On numerous occasions the applicant indicated to the Tribunal that either the Tribunal’s question or his answer had been misunderstood by the interpreter. At some points the applicant attempted to answer the Tribunal’s questions in English and after a time the video link was abandoned and the interpreter connected by telephone which appeared to improve at least the audio quality.

17. In other circumstances I would not consider it appropriate to continue with the hearing under such conditions. In light of the ongoing difficulties with communication, I discussed a potential adjournment of the hearing with the applicant and his representative at several points during the hearing. At each juncture the applicant and his representative maintained that the hearing should proceed and I ultimately agreed to do so, being mindful that the Tribunal’s enquiries of multiple interpreting agencies did not suggest that there was any likelihood of obtaining an accredited interpreter in Victoria in the foreseeable future. Further the applicant has waited seven years for his visa application to be finalised.

18. 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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. The Tribunal has been able to locate several references to an organisation called [Employer] in Uganda, which is described as a charity working towards [a goal]. It appears to provide [services] for [specified people] as well as accepting sponsorship and volunteers.[1] The information provided on those websites is insufficient to identify the board or staff members or otherwise definitively match that organisation with the documents provided by the applicant. However I note that the applicant’s claims regarding his work history are consistent with both his qualifications and his invitation to attend the [Event] held in [City 1] in July 2014. I accept the applicant worked as [an Occupation] for [Employer] in Uganda prior to travelling to Australia.

    [1] [Reference deleted]

    Claims for protection

27. The applicant’s claims are set out most comprehensively in a statutory declaration dated 10 October 2016. In essence he claims:

    ·Growing up he was attracted to both boys and girls and he was in a relationship with a girl between 2003 and 2005. When that relationship ended his interest in men grew;

    ·In about May 2008 a man called [Mr A] came to work on the plantation where he worked. They went to a bar after work and drank alcohol, later talking about different matters including their sexuality. They commenced a sexual relationship from 2009;

    ·In 2010 [Mr A] went to study at [a] University and the applicant stayed in his village. They communicated by phone but their relationship waned as [Mr A] was focused on his studies and the applicant did not have enough money to visit and was fearful people would find out about the relationship. At hearing the applicant told me he had not had any contact with [Mr A] since that time;

    ·In early January 2012, the applicant met his partner [Mr B] through his work as they were in communication about [Employer] facilitating the attendance of its members at [an Event] in [Country]. They communicated by phone for about five months before meeting in a motel in [Town] where they disclosed that they were gay. They continued to stay in touch by phone and next saw each other in person in June 2012, when they met at the applicant’s new home in [Location 2] and commenced a sexual relationship. They continued to meet for sex regularly at the applicant’s house until the applicant left Uganda in July 2014, but agreed to keep their relationship strictly private;

    ·The applicant’s family somehow discovered their relationship. His father fell ill and died in October 2012 and the applicant returned to his family home in [Location 1]. Once the funeral service had finished people returned to the family home, where his father’s brother [Mr C] accused the applicant of being gay and accelerating his father’s death. His family members argued, with his aunt siding with the applicant and arguing that they should talk to him and teach him not to be gay, while other family members argued for him to be caned and chased away from the clan. The family decided he should be caned and expelled and he was caned 20 times by his uncle [Mr C] suffering welts and bruising. Afterwards he immediately returned to [Location 2], being too afraid to stay in the house;

    ·In November 2012 his only full sister, [Ms D], called him and asked him to pay her school fees which he did regularly. He returned to the family home to see her, where he was welcomed by his sister, mother and two step-mothers. His father’s brothers and others who had been angry at him were not there;

    ·His step-mother prepared food for him, which was snatched by the dog. While he waited for another meal to be prepared, the dog started to vomit. Believing there was a plan to kill him, the applicant left the house and returned to [Location 2]. He ceased all contact with his family except his aunt [Ms E] and sister [Ms D];

    ·In early 2013 his partner [Mr B] was travelling from [Location 3] to [Location 2] on a motorbike when he lost his bag which was later handed into the police station. Inside the bag the police found downloaded pornography and photographs of the applicant and [Mr B] and [Mr B] was charged with offences under s.145 of Uganda’s Penal Code. He appeared in court where he named the applicant as the other party. The applicant was also charged and had a court hearing in February 2013 where he pleaded guilty and was given a court bond. Although he was required to report, he was too scared to do so;

    ·On [date] April 2013 he was taken from his home by police and tortured at an unknown location. They accused him of ‘spoiling young children’ and destroying Ugandan traditional norms. They forced him to drink urine and kept him in isolation at other times. He lost consciousness and woke up in a thicket, where he was found and taken to the nearby [Medical centre] where he stayed for a few weeks being treated for his wounds. I note the medical report provided to the Tribunal by the [Medical centre] which indicates he was hospitalised with multiple body injuries after an assault on [date] April 2013 and discharged on [date] April 2013;

    ·Since that time people have known he was gay and called him ‘Basiyazi’. He began moving and only living in places for short periods of time. In December 2013 a colleague told him about the [Event] in [City 1] for 2014. He applied and was approved and also got a scholarship;

    ·[In] May 2014 he was picked up on the road by two police officers and detained and beaten at the station for three days. He was able to call his lawyer. He was told the community did not want him because he was gay. He and other prisoners were beaten by the police. Upon release he was given a bond and told to report every week for evaluation and monitoring. He reported until he left to come to Australia;

    ·He left Uganda [in] July 2014 with the help of a friend to get through security at the airport.

1. At the Tribunal hearing the applicant gave evidence consistent with that in his written claims. He said he had not been able to contact [Mr B] since his arrival in Australia. He has been told by a friend [Mr F] that [Mr B] had been found beaten to death. His sister [Ms D] warned him not to return to Uganda and he has been unable to contact the person who helped him get through the airport in Kampala on the way to Australia.

   Assessment of claims

2. The refugee assessment is a forward-looking test and it is not necessary for a person seeking asylum to prove they have suffered past harm in their country of origin. The applicant claims to fear serious harm in Uganda because of his profile as a gay man. The delegate accepted that members of the LGBTI+ community in Uganda are exposed to discrimination and harm, but did not accept this would happen to the applicant because she did not accept he is a gay man as claimed.

3. However there is significant new information before me which causes me to make a different assessment of this matter:

   ·At hearing the applicant gave evidence that he had discussed his sexuality with his treating psychologist and several friends in Australia whom he named. I adjourned the review to allow the applicant an opportunity to obtain statements from those persons confirming they were aware of his sexuality;

   ·After the hearing he provided the Tribunal with a letter from [Dr G], psychologist. [Dr G] confirms that the applicant was referred to her by his GP for treatment of his psychological concerns. He attended counselling in 2017, during which he disclosed he was gay. The applicant was unable to continue counselling because his visa status limited the number of services he could access and he lacked the funds to continue. The Tribunal has verified with [Dr G]’s office that the applicant is a patient of [Dr G] and that she issued that letter;

   ·The applicant also provided the Tribunal with three written statements from friends who know the applicant to be gay:

   ·[Mr H] states that he has known the applicant since a few months after his arrival in Australia in 2014 when they shared a house for a time. [Mr H] states the applicant confided in him that he was gay but did not want him to discuss it with anyone else. [Mr H] has attached a copy of his Victorian driver’s licence to his statement;

   ·[Mr I] has provided a statement to the effect that he has known the applicant for 2–3 years and together they have participated in LGBTI+ activities in Australia. He states that he and the applicant belong to the same category of gay men. [Mr I] has attached a copy of his Victorian driver’s licence to his statement;

   ·A further statement has been provided from [Mr J], who states he has known the applicant through the Ugandan community for four years. [Mr J] states the applicant has disclosed to him that he is gay;

   ·The applicant has produced photographs of himself attending LGBTI rallies in Australia.

4. In light of the applicant’s consistent evidence and the evidence referred to above, I accept the applicant is a gay man as claimed. Country information indicates that Uganda is a conservative country where sex and sexuality are not openly discussed. Homophobic views are widespread and there is a general lack of acceptance of LGBTI+ persons, with some people believing being LGBTI+ is a western concept. The LGBTI+ community are subjected to violent attacks and societal discrimination and harassment involving intimidation, blackmail and physical and sexual attacks.[2]

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

5. I consider the applicant’s account of his family’s reaction to discovering his sexuality is consistent with the available country information. I accept his uncle beat him and sought to expel him from the family in 2012. Having heard his evidence, I further accept the applicant has a genuine belief that his step-mother tried to poison him several months later, whether or not that belief is correct.

6. I note the poor quality copy of the ‘release on bond’ document dated [May] 2014 which purports to be issued by the Ugandan police as well as the statutory declaration purporting to be from the applicant’s lawyer [Mr K] dated [May] 2014. The delegate’s decision records the applicant did not provide original copies of these documents. While the delegate accepted the statutory declaration to be genuine, she did not accept it to be independent verification of the applicant’s sexuality or his experiences in Uganda rather the delegate considered it merely recounted the applicant’s stated reasons for fearing harm in Uganda. For the reasons set out above, I have accepted the applicant is gay as claimed and I have not relied on these documents in making that finding.

   Refugee assessment

7. The delegate’s decision cites country information indicating that LGBTI+ people in Uganda face overt hostility from the government and much of society and that Uganda’s Penal Code punishes ‘carnal knowledge against the order of nature’ with a penalty of up to life in prison. In December 2013, Uganda’s parliament passed the Anti-Homosexuality Act, the original draft of which included the death sentence for homosexual acts in some circumstances (eventually changed to life imprisonment).[3]

   [3] Delegate’s decision dated 11 January 2017 at page 8

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

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

9. That report states:

   2.4.7 Same-sex sexual acts are illegal under the Penal Code and punishable with up to life imprisonment. In practice, although LGBTI persons have been arrested they are rarely successfully prosecuted under the Penal Code. There are no laws that specifically legislate on gender identity and expression. The constitution bans discrimination on a number of grounds but does not extend to sexual orientation or gender identity and expression, nor does it apply to same-sex marriage, which is prohibited (see Legal rights and State attitudes and treatment).

   2.4.8 Some politicians and members of the government, including President Museveni, have publicly denounced sexual minorities (see Public statements by government officials).

   2.4.9 Other laws, while not overtly anti-LGBTI, are sometimes used to arrest and harass LGBTI persons or restrict the activities of LGBTI advocacy and support groups. Gay pride events, although having taken place in the past, have been disrupted by the state or banned outright, the last having taken place in 2015 (see Legal rights, Public statements by government officials and LGBTI groups, civil society and human rights NGOs).

   2.4.10 There have been human rights violations against LGBTI persons including acts by the police and other state agencies. LGBTI persons who have been arrested and/or detained reported being subjected to ill-treatment, including humiliation, physical and sexual assault and being subjected to forced anal examinations (see Arrests, detention and ill treatment).

   2.4.11 LGBTI persons suffer discrimination in accessing services such as healthcare, including access to HIV / AIDS treatment and services, and a LGBTI advocacy group had a health event closed by police on government orders. There have been reports of healthcare workers calling state actors to arrest LGBTI persons when they attended clinics for assistance (see Public statements by government officials and Access to services).

10. The UK Home Office report assesses that while LGBTI persons may face ill-treatment and discrimination from the state, they are not generally targeted and subjected to ill-treatment that, by its nature and repetition, amounts to persecution or serious harm from the authorities.[5] However LGBTI persons have been subjected to violent attacks and societal discrimination and harassment involving intimidation, blackmail and some have also experienced physical and sexual attacks, including ‘corrective rape’ and mob violence.[6] It notes that the situation has worsened in recent years, as the passage of the Anti-Homosexuality Act 2014 (AHA) into law in 2014 increased, often negative, public discourse about LGBTI rights and led to an upturn of incidents of violence and discrimination against LGBTI persons. While the AHA is no longer law, same-sex sexual acts remain unlawful and anti-LGBTI rhetoric and discrimination persist.[7]

    [5] Ibid at 2.4.12

    [6] Ibid at 2.4.15

    [7] Ibid at 2.4.18

11. Overall the UK Home Office report concludes that a person who is open about their sexual orientation and/or gender identity and expression may face harassment and discrimination from the state and is likely to experience societal discrimination, including harassment and violence. The accumulation of such treatment by state and non-state actors is likely to be sufficiently serious by its nature and repetition to amount to persecution or serious harm.[8]

    [8] Ibid at 2.4.19

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

13. Following the hearing, the applicant produced further news articles indicating that in early May 2021 the Ugandan government passed the Sexual Offenses Bill 2019 containing a clause criminalising same sex relationships. It was reported that many believed the bill to be similar to the AHA, annulled by Uganda’s Supreme Court on technicalities. The new bill is reported to be awaiting the signature of President Musaveni[9].

    [9] Uncertain future for LGBT+ rights in Uganda as controversial bill is passed | Africa | DW | 05.05.2021; Parliament silently passes law against homosexuality (independent.co.ug)

14. It is well established that persons of non-normative sexuality in a given country can constitute a particular social group.[10] In view of the country information cited above, I accept the applicant faces a real chance of serious harm if returned to Uganda for the essential and significant reason of his membership of the particular social group of gay men in Uganda.

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

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

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

    Right to enter and reside in a third country

17. Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.

18. Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[11]

    [11] Sections 36(4)–(5A)

19. The Full Federal Court has held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[12] The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[13]

    [12] MIMAC v SZRHU [2013] FCAFC 91

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

20. This is relevant to the current review because independent sources indicate that Uganda is one of the partner states of the East African Community (EAC) established by the East African Community Treaty (EAC Treaty). That treaty came into force on 7 July 2000 following its ratification by the original three partner states of Kenya, Tanzania and Uganda. Rwanda and Burundi acceded to the EAC Treaty and became full members of the EAC with effect from 1 July 2007. South Sudan acceded to the treaty in April 2016 and became a full member in August 2016. The stated aims of the EAC Treaty are to widen and deepen cooperation among its partner states in the political, economic and social fields for mutual benefit.[14]

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

21. The delegate did not make reference to the applicant’s rights under the EAC. She found the applicant did not have a current right to enter and reside in any country other than Uganda, but did not set out her reasons for this finding.

22. The Protocol on the Establishment of the East African Community Common Market (the Common Market Protocol) entered into force on 1 July 2010, following ratification by all the five partner states: Burundi, Kenya, Rwanda, Tanzania and Uganda. It provides for ‘Four Freedoms’, namely the free movement of goods; labour; services; and capital, which are intended to significantly boost trade and investments and make the region more productive and prosperous. The Common Market Protocol states in Article 7(1) that the partner states guarantee free movement of persons who are citizens of the other partner states.

23. However relatively few references to the movement of people are mentioned in the treaty that established the EAC. Article 104 of the treaty requires states to ‘adopt measures’ to achieve the free movement of persons and labour and requires party states to operate border checkpoints between EAC countries. It does not mandate free movement of persons or labour or the removal of borders or checks at borders.

24. While it would appear that persons travelling within the EAC from another EAC country should be able to do so without a visa for varying periods up to six months, in practical terms it is unclear whether the relevant member states enforce the laws or have the capacity to do so. The International Organization for Migration quotes border crossers who report unexplained fees and opaque processes.[15]

    [15] 'Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania', International Organization for Migration, 2018, p. 60-61, 20190628120022

25. Further, closures of borders between EAC countries due to diplomatic disputes are also relatively common.[16] In 2020, it was reported that trade tensions and resulting border closures threaten the sustainability of the union:

    While the EAC is already a customs union and a common market – supposedly in the process of forming a monetary union, and even a future political federation – the region is beset by all manner of trade wars. Trade conflicts in the region include border closures and denial of national airspace to commercial flights from partner states. Put differently, the EAC is prone to undermining its integration agenda to the extent that its entire project often appears to be on the verge of collapse.[17]

    [16] Temporal opening of Uganda-Rwanda border ends', Daily Monitor, 23 June 2019, 20190628153524; 'Rwanda-Burundi tension hampers regional trade', The East African, 12 January 2019, 20190628154232; 'How the Rwanda-Uganda border crossing came to a halt', BBC, 9 March 2019, 20190628152252;

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

26. COVID-19 has also taken a significant toll on free movement between EAC member states:

    As of July 28, 2020, nearly every country in the ESA region was still under some form of border closure. Most had closed their airports, usually with exceptions for cargo and humanitarian flights. Land crossings remain closed to all except essential traffic in many countries. The status of border closures is fluid; several sources provide updates on current closure status.[18]

    [18] ‘Key considerations: COVID-19 RCCE strategies for cross-border movement in Eastern and Southern Africa’, Social Science in Humanitarian Action Platform, 2020, >

    Other sources noted that each member state adopted its own national strategy to combat the pandemic, including by tightening controls on their borders:

    Due to the fear of the spread of COVID-19, partner states tightened controls of their borders. For example, with regard to the free movement of services, Tanzania and Kenya banned each other’s airlines from operating in their territory although the issue seems to have now been resolved. Nevertheless, the problem surrounding the implementation of the Common Market, is for example highlighted by the issues of the free movement of labor and goods . . . However, it has been observed that ‘some partner states have put in place stringent measures and fees that make it difficult for the free movement of both skilled and unskilled labor.

27. Given the sources cited above, it would appear the applicant has a presently existing and lawfully given permission to enter other EAC member states as a visitor. However it also appears that the member states have imposed a number of laws contrary to the exercise of the right to enter other EAC countries, including border closures for reasons relating to trade and diplomatic disputes and COVID-19.

28. In any case the right to which s.36(3) refers is not just the right to enter, but also a right to reside. While a temporary right to reside will suffice to satisfy the legislative criteria, the Federal Circuit Court of Australia has held that a right to reside should confer privileges ordinarily associated with residency. One of the rights considered relevant in this assessment was the right to work; the court in that case also considered it relevant that the country extending the temporary right to enter and reside (in that case the UK) referred to it as the ‘right of residence’.[19]

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

29. In the current case it appears the applicant’s right to enter other EAC countries does not extend to a general right to reside other than for the purposes of employment. There does not appear to be any automatic right to work or residency within EAC countries for citizens of EAC member countries.

30. The EAC website states that EAC citizens will be guaranteed the right to reside in any partner state for the purposes of employment. The annex issued by the EAC on the rights of residence states that workers (or self-employed persons) must apply for residence within 30 days of arrival and an application for the residence permit must be supported by a valid travel document and a copy of the work permit of the worker.[20] Commentators describe the process of obtaining a work permit ‘lengthy and often frustrating’ noting that each state has different policies and procedures in place and national laws are not aligned with the Common Market Protocol.[21] There is no suggestion in this case that the applicant has any offer of employment or work permit in any EAC partner state that might entitle him to a residence permit in that state.

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

    [21] ‘EAC States Need To Harmonization Of Their Citizens' Work Permits’, The Star, 21 June 2014, type="1">

31. In light of the above information, I am not satisfied the applicant has a current right to enter and reside in other EAC countries. Therefore he is not excluded from Australia’s protection obligations by the operation of s.36(3). I note this to be consistent with the delegate’s findings and conclusions.

    CONCLUSION

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

    DECISION

33. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Alison Murphy
    Member