1701552 (Refugee)
[2021] AATA 2893
•4 June 2021
1701552 (Refugee) [2021] AATA 2893 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701552
COUNTRY OF REFERENCE: Uganda
MEMBER:Jason Pennell
DATE:4 June 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 4 June 2021 at 7.43pm
CATCHWORDS
REFUGEE – protection visa – Uganda – member of a particular social group – homosexual man – orientation, activities and relationships – role as counsellor for community organisation – accusations of encouraging homosexual activities among youths – associate convicted under homosexuality laws – country information – laws, government policies and societal attitudes – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(3)(c)(vi), 36(2)(a), (2A), (2B), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Morato v MILGEA (1992) 39 FCR 401
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 claims to be a citizen of Uganda. He applied for a Protection visa on 6 August 2014 and the delegate refused to grant the visa on 16 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36 of the Migration Act and subclause 866.221 of Schedule 2 to the Migration Regulations.
The applicant appeared in-person before the Tribunal on 9 April 2021 to give evidence and present arguments. In addition, to the evidence and submissions made by the applicant, the Tribunal also received evidence from [Mr A] (the applicant’s former partner).
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.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a).
RELEVANT LAW
6.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.
Refugee criterion
7.Section 36(2)(a) of the Act 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).
8.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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) and s.5(1)of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
APPLICANT’S CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
The applicant claims he was born on [date] (currently [age] years old) in Kampala [Location 1], Central Uganda, Uganda. He claims to be a citizen of Uganda and does not hold any other citizenship or nationality of any other country. The applicant claims to be of Baganda ethnicity and is a Catholic[1].
[1] Part C - Application for a Protection visa dated 6 August 2014, Department File [Number], paper file folio (ff) 24
The applicant provided the Department of Home Affairs (the Department) with a certified copy of the biodata page of his Republic of Uganda passport [number] valid from [2012] to [2022][2] and his [Organisation 1] card Id [No] valid from [January] 2013 to [January] 2016.[3]
[2] Applicant Uganda Passport, Department File [Number], ff 45
[3] [Organisation 1] card, Department File [Number], ff 46
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. Therefore, based on the applicant’s evidence and the documents provided to the department, the Tribunal accepts his identity as claimed.
Applicants Country of Reference
There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Uganda and as such his protection claims will be assessed against Uganda as the Country of nationality and ‘receiving country’’ respectively.
Migration History
The applicant first arrived in Australia [in] July 2014 when he was [age] years old on a [visitor visa] which ceased [in] August 2014 to attend [Event 1] in [City 1]. The applicant has not departed Australia since arrival.
Prior to arriving in Australia, the applicant claims he travelled to:
(a) [Country 1] [in] February 2014 for a short meeting,
(b) to [Country 2] [in] March 2014 to attend a conference,
(c) to [Country 3] [in] April 2014 to attend a conference; and
(d) to [Country 4] [in] July 2014 in transit to Australia[4].
[4] Form 80 - Personal particulars for assessment including character assessment signed on 29 August 2016, Department File [Number], ff verso 101
The applicant applied for a Protection visa on 6 August 2014 and upon which he was granted a Bridging Visa A (WA 010) with no attached visa conditions[5].
Applicant’s evidence
[5] Department of Home Affairs - Mainframe Movement Records dated 3 February 2021, Tribunal case number 1701552, Doc ID No: 8071515
The applicant evidence was that he was born on [date] in Kampala [Location 1], Central Uganda, Uganda. He claims to be of Baganda ethnicity and is a Catholic. The applicant can speak, read and write Luganda and basic English.
The applicant’s mother and father are deceased. He has [sisters] and [brothers] who all reside in Uganda and has 2 friends ([Mr B] and [Mr C]) who reside in Australia.[6] The applicant is not a married and does not have any children.
[6] Form 80 - Personal particulars for assessment including character assessment signed on 29 August 2016, Department File [Number], ff 96 - 94
The applicant claims he completed his education in Uganda and Australia.[7] From [year] until [year], the applicant attended [Primary School] in [Location 2], Kampala, Uganda. He then attended [Secondary School] in [Location 3], Ugandauntil [year].
[7] Form 80 - Personal particulars for assessment including character assessment signed on 29 August 2016, Department File [Number], ff verso 93
Since his arrival in Australia, in 2015 the applicant completed [courses] at [Institution 1] in [Suburb 1], Victoria, Australia. In Australia the applicant initially worked as [an Occupation 1] but has since been engaged as [an Occupation 2].
In Uganda he applicant[8] play [Sport 1] at [Location 4] Kampala from 1998 to 1999. He then worked at a market stall selling [products] at [Market 1] in Uganda from 1999 to 2001. The stall was owned by a friend [Mr D].
[8] Form 80 - Personal particulars for assessment including character assessment signed on 29 August 2016, Department File [Number], ff 93
From 2001 to 2006 he continued to played [Sport 1] and work casually at the market.
In or about 2003 the applicant commenced working as a volunteer [Occupation 3] assisting youths at [Organisation 2] at [Location 5], Uganda. The applicant claimed that he volunteered as [an Occupation 3] for approximately 2 years until 2005.
The applicant’s evidence was that from 2006 to 2009 he was unemployed and looking for work. In or about 2011 he commenced work as a volunteer at [Organisation 1] assisting youths seeking employment at [Location 6], Uganda. The applicant volunteered at [Organisation 1] until he arrived in Australia in 2014.
The applicant’s evidence was that he was born and raised in [Location 4]. The applicant noted that the delegate had made an issue of the fact that the applicant had splelt [Location 4] with a single and with a double consonant. That is ‘[Location 4, alternative spelling].’ His evidence in the Luganda language means that there is emphasis on the sound the letter makes. There are many people in Uganda who are not very educated and only have limited understanding of the rules of grammar in the Lugandan language. As a result, both spellings of [Location 4] are correct. The interpreter during the course of the hearing confirmed that this was the case.
His evidence is that he is a homosexual. He claims that he became aware of his sexual orientation when he was approximately 15 years of age. He claims at that time he was confused and frightened of his emotions towards other boys. It made him scared a result of which he became a reclusive. He claims that to try and supress his feelings he would have relations with girls from time to time.
In 1996 at the age [age] the applicant was playing [Sport 1] for [Team 1]. At about this time he met [Mr D] at a team training session. [Mr D] was a [manager] of [Sport 1] in Uganda. The applicant was keen to meet him as he wanted to play in the ‘big league. As a result, the applicant approached [Mr D] who subsequently introduced to the applicant to his personal assistant, [Mr E].
The applicant’s evidence was that [Mr D] made him feel at home. Initially, he invited the applicant to parties. The applicant was not initially aware that [Mr D] was homosexual. However, the applicant’s evidence was that in or about 1999, when the applicant was approximately [age] years old, [Mr D] and the applicant had a short relationship. He introduced the applicant to his group of friends and the applicant began to go to the clubs to meet friends.
The applicant claimed that [Mr D] was active in promoting homosexuality through his [Sport 1] player network. He would ingratiate himself on the players for the purposes of sleeping with them. As a result, he would hold parties at various locations of which the applicant claims he attended only two parties. The applicant’s evidence was that meeting between homosexual males in Uganda had to be clandestine. There were exclusive clubs such as [Venue 1] and [Venue 2]. Generally, however, [Mr D] would arrange meetings at [Sport 1] training venues or in private homes. The applicant’s evidence was that he feared the police would infiltrate the meetings and arrest those in attendance. The applicant’s evidence was that he attended several meetings at [Mr D’s] home and at [Venue 1].
While in or about 2002-2003 the applicant did have a relationship with a girl, the relationship did not last because he was homosexual.
In or about December 2006 the applicant became involved with [Mr F] who was a platonic friend of [Mr D]. The applicant claims that this was his first stable friendship. The applicant claims that at the time he was lucky to have a friend such as [Mr F] who was very settled. He made the applicant settle down and helped him revamp his CV for the purposes of getting the position of [Position 1] with [Organisation 1]. [Mr F] left the country in 2009. The applicant explained to the Tribunal that in Uganda the word 'partner' is used to refer to someone who is a close friend or close business colleague. The applicant explained that while he had described [Mr F] as his ‘partner’ in his first statement to the department, he was never a partner in the romantic sense of the word. They were never in a relationship but merely friends.
The applicant’s evidence was that from 2010 to 2014 he had been in relationship with a person he called [Mr G], although they did not live together. They meet through [Organisation 1]. The applicant’s evidence was that he was still in a relationship with [Mr G] when he arrived in [Australia]. However, he has subsequently lost contact with him.
In or about [year] [Mr D] was arrested. [He] was convicted by [Court 1] with carnal knowledge of a person against the order of nature contrary to section 145(a) of the Penal Code Act.[9] He was sentenced to [number] years imprisonment and ordered to compensate the victim in UGX. [amount].[10] [Court 2] on appeal quash the conviction and set aside the sentence and orders of the lower court.[11]
[9] Section 145(a) of the Ugandan Penal Code Act provides that ‘any person who has carnal knowledge of any person against the order of nature commits an offence and is liable to imprisonment for life.’
[10] [Details deleted]
[11] ibid
The applicant attended [Event 1] in [City 1] Australia as a representative of [Organisation 1]. He claims that on or about 24 July 2014 while he was attending [Event 1], he received a call from the [Organisation 1] [Position 2] and the [Position 3] of [Organisation 1] advising him that he had been accused of encouraging youth to go into homosexual activities, which the applicant denied. The following day, on 25 July 2014 the applicant received a call from his brother to say that a particular boy, [Mr H], had come forward accusing the applicant of being a homosexual and sleeping with one of the boys. The applicant denies having slept with one of the boys. He was advised that if he returned to Uganda, he was at risk of being arrested. His brother advised him that the police had broken into and searched his house. The applicant’s evidence was that he was informed that the police found evidence of homosexual meetings and photos of the applicant taken with [Mr D] and [Mr G] together with tapes and magazines relating to gay lifestyle. He was advised by his college to seek protection in Australia.
The applicant claims that he fears that if he is forced to return to Uganda he would suffer persecution in the form of physical assault, arrest and detention, imprisonment, torture or possible death at the hands of the Ugandan authorities, and the wider community due to his sexuality.
Claims for protection
The applicant first submitted claims for protection when he lodged his protection visa application to the Department on 6 August 2014.[12] He provided an undated statement to the Department detailing the circumstances surrounding his claims for protection. Its stated:[13]
[12] Part C - Application for a Protection visa dated 6 August 2014, Department File [Number], ff verso 21
[13] Applicant undated statement, Department File [Number], ff 25 - 27
“PERSONAL NARRATIVE OF [APPLICANT NAME]
My name is [applicant name]. I am a citizen of Uganda I was born on [date] and raised in [Location 4]. The following is the summary of the circumstances surrounding my claim.
I am gay by sexual orientation. I became aware of my sexual orientation very early in my life, at the age of 15 but at that time I thought something was wrong with me. I wanted to talk with my mother but the emotions that I felt towards boys made me afraid. It scared me stiff to the point that I became a recluse. I was not going out with friends anymore and my mother became concerned. She was all the time asking me question, but I could not open my mouth to tell her that I was having erections when I see a boy that I like. I ventured once to talk with my biology teacher at school, but I did not tell him about my erection or feelings. I asked a general question and he told me that most of the emotions I have at this early age would eventually pass. I came to be at peace after hearing that whatever I feel right now was not permanent.
I did everything to suppress my feeling to the point that I began to have girl friends to correct my thoughts. I had sexual relationship with a girl at the age of 17 because of the craziness going on in my mind. I indulged in having sex with girls whenever I felt like having sex with boys. I thought this would correct my emotions but the more I was with a girl for sexual reasons the more my mind told me I was in denial.
It was at the age 18 that I first met [Mr D] at a [Sport 1] training session. He was with a group of boys and they were enjoying themselves laughing and making jokes. I went to their group because [Mr D] whom I had heard about being one of the [Sport 1] players promoters, yet I was so very much interested for being promoted in playing [Sport 1] and I was playing for the [Team 2] village team. I did not know hm personally at that time but as I approached him ([Mr D]), I introduced myself and then he also introduced me to his boys at the time. He introduced me to [Mr E] as his personal assistant that I should tell him more about myself then [Mr E] knows what to do next, after a few hours of conversation with [Mr E], then [Mr E] called [Mr D] and he ordered him to take me to the sports club in [Location 7] thats where he ([Mr D]) will find us after finishing with other business with other players after the training session, we spent a few hours drinking a few beers at the sports club but throughout the night [Mr D] became my company. We chatted and he made me feel at home. He then gave me his number to call him whenever I wish. He invited me to two parties after that but I never knew at the time that he was gay. We did not talk about those kinds of things until in 1999 when during a party he told me that he observed that I liked him. I told him that I did and then he took me to a corner and asked me questions. I could tell that he was older than me but not by much and with the assurance from his eyes I found someone who I could trust. I told him all that I had bottled up over the years and he told me that he felt the same when he discovered himself as well. He said he likes me and so he invited me to his house. I was [age] years at this time, and I could not understand my feelings after sex with [Mr D]. I wanted to avoid everyone after that, but [Mr D] continued to relate with me like it was nothing. Eventually I felt okay about myself and gave myself to him. It became our secret until he told me that he has a partner who had traveled on business. He however introduced me to his group of friends and on my own I began to go to the clubs to meet friends.
I was lucky very started some small job with helps [Mr D].
I was lucky immediately got a job with the help of [Mr D]. My father died in 2000 by a heart attack after knowing that I was a Gay by sexual orientation and iam sleeping with boys. My mother did not like the company of the boys I was keeping so she attempted to fix me up with a girl to marry. I did not know why but in October 2005 she called me and insisted that I must marry. She refused to take no for an answer except I was not in her house. I moved out of the house and I was living by my own. Having a place of my own gave me the life I wanted which included going to parties and enjoying my sexual life with my partners. In December 2006 I became involved with [Mr F] who was also a platonic friend of [Mr D]. This relationship was my first stable relationship and at this time I can say we are still together. By this time [Mr D] had become a name among the [Sport 1] managers in Uganda but he was also promoting homosexual within the players as a result of getting a chance to be promoted. However, whenever information was communicated to us concerning a meeting and any [Sport 1] training session, my friends and I attended the meetings if we could. I personally attended only two meetings. I was very scared of being caught by cops on each of the occasions that I attended meetings. I feared so much that cops could infiltrate the meetings. The meetings were usually held in private homes of members and some bars whose owners are gays (but this is not known to anyone except the LGBT communities). I attended one in the house of [Mr D] and in [Venue 1].
I wanted to be an activist for sexual minorities, but I did not feel qualified enough. Being an activist exposes you on one hand and protects you from the government on the other. It protects in the sense that the human rights organizations would be on the government if anything happens to you. [Mr D] was arrested in [year].
I was lucky to have a partner like [Mr F] who was very settled and did not want to jump here and there. He made me to settle down and with his help I managed to get a very nice job fitting my profession with [Organisation 1] and where I have been working as a [Position 1]. This Organisation encourages youths to be engaged in their communities through [service projects]. We also get the youths in [activities]. I am among the youth leaders who counsel youths on issues they are going through. Some have problems with their parents and so have problems with their peers. I have listened to youth with various problems and have had the opportunity to sometimes speak to parents as an intervention. I was not doing this by myself, but I was well known among the youths as someone who could identify with their problems because of my age and character. The other counsellors were much older than me.
In the course of my interaction with youths I have met boys where were stringing with their sexual identities and were looking for help. I have had a small number of boys come to me with heavy heart to tell me that they believe they are gays. Instead of trying to convince them that they were not, I have encouraged them to discuss themselves. At no time have I informed any one of them of my own sexual orientation, but I have tried to help them by not judging them. My non-judgmental position made some of the students involved to open up to me and I have helped them to come to peace with who they are.
I confessed that my position had exposed me to youths going through the confusion stage but I have in no way tried to use my position to recruit youths into homosexual activities. I was not open myself so I could never recruit anyone. But on 24th, July 2014 as I was in attending [Event 1] in [City 1] I was reached on phone from [Position 2 and Position 3] for [Organisation 1], that a report had been made against me that I was encouraging youths to go into homosexual activities. I denied this but this was only on phone so they could not believe me ,on July 25th 2014: I got a call again from a colleague saying that the situation had escalated as the parents of a particular boy [Mr H] had come with police stating that I had given their son information about gay meetings and that the son had informed them that I am gay. I never gave the boy information about gay meetings. I told him that I could help him if he comes open to me because all he was doing was talking to me in riddles. He said he dream about having same sex, but he never told me he was in a relationship. Dream and realities were different things so I told him that if he is ready to come out open to anyone, I would listen to him. I thought I understood him.
The colleague informed me that the [Position 2] was talking to police about me and that I should be wise to come back to Uganda as fear of being arrested at the airport, so I spent a few nights in a hotel within [City 1] ([Name] hotel) but I received another call from the colleague again and he said its better I find a better way of saving my life because police had gone to my house and broke into and searched and got evidence of gay meetings, photos taken with [Mr D], [Mr G] and more video sex tapes and the neighbours were supporting police and insist that they had got disgusted with the frequent male visits to my house saying that they had suspected me of being gay and now their children are safe as they shout where is this devilish animal to kill. The [colleague] who is himself gay called me to tell me to flee the hotel room and go for Australian Immigration and claim refugee protection because the situation is really bad home and police is on alert about my return back home . .
I shall provide details at my hearing.
My first time to meet [Mr D] in 1996 when I was [age] years in [Team 2]”.
The applicant also provided a Statutory Declaration dated 29 August 2016 to the Department explaining the discrepancies between his written claims and interview claims. In particular he detailed the reason for the different spelling of [Location 4].[14] By his statutory declaration the applicant confirmed huis claim that if he was returned to Uganda he feared that he would suffer persecution in the form of physical assault, arrest and detention, imprisonment, torture or possible death at the hands of the Ugandan authorities, and the wider community due to his sexuality.
[14] Applicant’s statement dated 29 August 2016, Department File [Number], ff 104
The delegate summarised the applicant’s written protection claims, and departmental interviews in the departments Protection (Class XA) Visa Decision Record dated 16 January 2017.
Documents
In addition, the applicant submitted the following material to the Department in support of his protection visa application:
(a)Letter from [Organisation 1] dated [February] 2014 advising they have selected the applicant to represent them as a [delegate] at [Event 1] in [City 1][15]
[15] Letter from [Organisation 1], Department File [Number], ff 44
(b)Employment Contract from [Organisation 1] to applicant for role of [Position 1][16]
[16] Employment contract, Department File [Number], ff 42 - 43
(c)Copy of applicant’s [visitor visa] notification letter and visa grant notice dated 3 June 2014[17]
[17] Visitor visa grant notice, Department File [Number], ff 37 - 41
(d)Copy of applicant’s incoming passenger card Doc ID [Number] dated [July] 2014[18]
[18] Incoming passenger card, Department File [Number], ff 86
(e)Undated newspaper article titled ‘Homosexuals threatened with death’[19]
[19] News article, Department File [Number], ff 48
(f)Undated article about [Mr D] accused of performing sexual acts[20]
[20] Article, Department File [Number], ff 57
(g)Undated document titled ‘Gay person burned alive better court evidence’[21]
[21] Article, Department File [Number], ff 56
(h)Undated applicant statement about gay person burned alive[22]
[22] Applicant undated statement, Department File [Number], ff 55
(i)Article titled ‘Gay person burned alive by anti gay mob in Uganda’ dated 23 December 2013[23]
[23] News article, Department File [Number], ff 54
(j)News article titled ‘Gay person burned alive by anti gay mob in Uganda’ dated 23 December 2013[24]
[24] News article, Department File [Number], ff 54
(k)Letter from [Location 4] Village Council to applicant dated 28 July 2014 about prohibiting homosexuality in the community[25]
[25] Letter, Department File [Number], ff 52
(l)[News source] online news [article] dated [date][26] specifically naming the [applicant]
[26] News article, Department File [Number], ff 108 - 109
(m)[News] clippings titled [deleted] dated [2014][27]
[27] News article, Department File [Number], ff 53
(n)Article titled ‘Ugandan Teachers go on a sit-down strike’ dated 13 July 2016[28]
[28] Article, Department File [Number], ff 88
(o)Screenshot of internet page ‘This page cannot be displayed’ for 1]-ug.org dated 13 July 2016[29]
(p)Screenshot of internet page ‘This page cannot be displayed’ for 1]-ug.org/ dated 9 January 2017[30]
(q)Trip advisor review search of [Venue 1] in Kampala on 16 January 2017[31]
(r)[Bank 1] Account Statement to applicant dated 9 February 2015[32]
(s)Letter from [Mr I] to applicant dated 16 February 2015 requesting applicant leave his house due to non-payment of rent[33]
(t)Letter from [Organisation 3] to [Organisation 4] dated 16 February 2015 advising applicant is not eligible for further accommodation funding[34]
(u)Undated letter from [Organisation 5] confirming applicant sought assistance with permanent accommodation[35]
(v)Letter from [Bank 2] to applicant and list of transactions confirming his bank account details[36]
(w)Copy of applicant’s [Bank 1 Credit] Card Number ending in [number] and valid until April 2016[37]
(x)Various photographs[38]
[29] Internet site, Department File [Number], ff 87
[30] Internet site, Department File [Number], ff 107
[31] Trip advisor review, Department File [Number], ff 110 - 112
[32] [Bank 1] account statement, Department File [Number], ff 73
[33] Letter from [Mr I], Department File [Number], ff 72
[34] Letter from [Organisation 3], Department File [Number], ff 75
[35] Letter from [Organisation 5], Department File [Number], ff 71
[36] [Bank 2] letter, Department File [Number], ff 74
[37] [Bank Credit] Card, Department File [Number], ff 70
[38] Photos, Department File [Number], ff 49 - 51
In addition, the applicant submitted the following material to the Tribunal in support of this application for review:
(a)copy of primary notification letter dated 16 January 2017[39]
(b)representative’s legal submissions by [Ms J] of [Law Firm 1] dated 6 April 2021[40] detailing the circumstances surrounding the applicant’s well-founded fear of persecution with respect to Uganda
(c)applicant’s statement dated 5 April 2021[41] explaining the language and communication issues he experienced with the Department and clarifying his previous evidence
(d)statement of [Mr A] (applicant’s partner) dated 1 April 2021[42] detailing the circumstances surrounding his 3.5-year homosexual relationship with the applicant
(e)letter from [Organisation 6] dated 9 March 2021 confirming applicant has been an active member for approximately 2 years[43]
(f)letter from [Organisation 7] dated 31 March 2021 confirming applicant is an active member of their program[44]
(g)various photographs of applicant with [Mr A] and at [Organisation 7] events[45]
[39] Department notification letter, Tribunal case number 1701552, Doc ID No: 3247413
[40] Legal submissions, Tribunal case number 1701552, Doc ID No: 8281758
[41] Applicant statement dated 5 April 2021, Tribunal case number 1701552, Doc ID No: 8281758
[42] Statement of [Mr A] dated 1 April 2021, Tribunal case number 1701552, Doc ID No: 8281758
[43] Letter from [Organisation 6] dated 9 March 2021, Tribunal case number 1701552, Doc ID No: 8281841
[44] Letter from [Organisation 7] dated 31 March 2021, Tribunal case number 1701552, Doc ID No: 8281841
[45] Photos, Tribunal case number 1701552, Doc ID No: 8281841
The applicant’s representative declined to provide the Tribunal with a copy of the primary decision record from the Department dated 16 January 2017 based on the Tribunal’s request being legally unnecessary and inappropriate[46]
[46] Email from [Law Firm 1] dated 19 February 2021, Tribunal case number 1701552, Doc ID No: 8129402
COUNTRY INFORMATION
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 (the Department), 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. There is no Country Information Report on Uganda prepared by DFAT for protection status determination purposes. As a result, the Tribunal has referred to the following supplementary Country Information including the following:
a)Australian Smartraveller advice Uganda[47] accessed on 1 April 2021 advising it is illegal in Uganda to perform same-sex sexual acts
b)United Kingdom (UK) Home Office Country Policy and Information Note - Uganda: Sexual orientation and gender identity and expression dated April 2019[48] noting:
c)United States (US) Department of State Human Rights Report - Uganda 2019 Human Rights Report[49] noting:
d)United States (US) Department of State Human Rights Report - Uganda 2020 Human Rights Report[50]
[47] Uganda Travel Advice & Safety | Smartraveller
[48]
[50]
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a 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. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[51]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[52]
[51] s.5AAA Migration Act 1958.
[52] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[53] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[53] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[54] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
Accepted facts
[54] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
Based on the oral evidence provided at the hearings the Tribunal accepts and finds that:
(a) the applicant was born on [date] in Kampala [Location 1], Central Uganda, Uganda.
(b)the applicant is of Baganda ethnicity and a Catholic.[55]
[55] Part C - Application for a Protection visa dated 6 August 2014, Department File [Number], paper file folio (ff) 24
(c) the applicant’s mother and father are deceased.
(d)the applicant has [sisters] and [brothers] who all reside in Uganda.
(e) the applicant is not a married and does not have any children.
(f)the applicant attended [Primary School] in [Location 2], Kampala, Uganda from [year] to [year]. He then attended [Secondary School] in [Location 3], Ugandauntil from [year] to [year].
(g)the applicant has completed [courses] at [Institution 1] in [Suburb 1], Victoria, Australia.
(h) the applicant[56] played [Sport 1] at [Location 4] Kampala from 1998 to 1999.
(i)the applicant worked in a market stall in [Market 1] in Uganda from 1999 to 2006. The stall was owned by a friend [Mr D].
(j)the applicant commenced working as a volunteer [Occupation 3] assisting youths at [Organisation 1] at [Location 5], Uganda from 2003 to 2005.
(k)the applicant work as a volunteer at [Organisation 1] from 2011.
(k)the applicant, in Australia, initially worked as [an Occupation 1] but works as [an Occupation 2].
Applicant’s Refugee Claim
Relevant grounds
[56] Form 80 - Personal particulars for assessment including character assessment signed on 29 August 2016, Department File [Number], ff 93
The applicant claims to have a well-founded fear of persecution within the scope of Art 1A(2) of the Convention as a member of a particular social group (PSG) as a result of him being a homosexual.
It has been held that the phrase ‘particular social group’ should be given a broad interpretation. Nevertheless, the category was not intended to provide a general safety net or ‘catch all’ to cover any form of persecution.[57] In Morato v MILGEA Lockhart J said:[58]
The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons. ...
[57] App(1997) 190 CLR 225 at 241, 260.
[58] Morato v MILGEA (1992) 39 FCR 401 at 416.
The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant S. In Applicant S[59] Gleeson CJ, Gummow and Kirby JJ stated:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
[59] Applicant S v MIMA (2004) 217 CLR 387 at [36].
Justice McHugh in Applicant S summarised the issue in broadly similar terms:
To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.[60]
[60] Applicant S v MIMA (2004) 217 CLR 387 at [69].
A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.[61]
[61] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264–266, 285.
Therefore, whether a supposed group is a ‘particular social group’ will depend upon all the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
In the case, the applicant claims that he is homosexual. The Tribunal accepts that homosexuality is a characteristic shared by all members of the group and that it distinguishes the group from society at large. As such, the Tribunal accepts that as a homosexual the applicant is a member of a PSG.
Applicant’s well-founded fear
In Chan v MIEA[62] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[63]
[62] (1989) 169 CLR 379 at 396.
[63] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal does not accept that the applicant has a subjective fear of being persecuted if he is returned to Uganda.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[64]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[64] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:[65]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[65] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicant claims that, in the event he is returned to Uganda, there is a real chance he will suffer serious harm because of his membership of a PSG. For the reasons expressed below, the Tribunal accepts that the applicant has an objective fear of being seriously harmed by reason of his homosexuality.
Applicant’s Claim as a Refugee
Applicant’s claims as a Homosexual.
The applicant claims that he will be seriously harmed if he returns to Uganda by reason that he is a homosexual. The applicant claims that at about the age of 15 years of age he realised that he was homosexual. He claims at that time he was confused and frighted of his emotions towards other males. It made him scared a result of which he became a reclusive. He claims that to try and supress his feeling. As a result, from time to time he had relations with girls.
In or about 1996 while playing [Sport 1] for [Team 1] he met [Mr D] at a team training session. [Mr D] was a [manager] of [Sport 1] in Uganda. From the applicants evidence it appeared that [Mr D] would foster relationships with players for different teams, with the promise of promoting [them], for the purposes of involving them in his ‘meeting’ conducted for the purposes of introducing them to other men for the purposes of engaging in homosexual relations. The applicant’s evidence was that he attended several of the meetings arranged and conducted by [Mr D]. His evidence was that he had a short relationship with [Mr D]. His evidence was that he had formed a plutonic relationship with [Mr F] but subsequently formed a relationship with a person known as [Mr G]. [Mr A] gave evidence to the effect that he was the former partner of the applicant and confirmed that the applicant is homosexual. Therefore, based on the applicant’s own evidence and the evidence of [Mr A], the Tribunal accepts that he is homosexual as claimed.
The country information reports that homosexuality was accepted and commonplace in pre-colonial Ugandan society.[66] The British Empire introduced laws punishing homosexuality when Uganda became a British colony. These laws were kept after independence.[67]
[66] The Guardian, "The idea that African homosexuality was a colonial import is a myth". Evaristo, Bernardine dated 8 March 2014. ibid
As a result, homosexual activity is illegal in Uganda. Penal Code Act 1950, pursuant to section 145 "carnal knowledge against the order of nature" between two males carries a potential penalty of life imprisonment. In addition, section 146 of the Code provides that ‘any person who attempts to commit any of the offences specified in section 145 commits a felony and is liable to imprisonment for seven years.
In June 2012, the Ugandan Government banned 38 non-governmental organizations (NGO) it accused of "promoting homosexuality" and "undermining the national culture". The country's Minister of Ethics and Integrity, Simon Lokodo claimed the NGOs were encouraging homosexuality and that they were receiving support from abroad for Uganda's homosexuals and 'recruiting' young children into homosexuality.[68]
[68] The Guardian. "Uganda bans 38 organisations accused of 'promoting homosexuality'". By David Smith dated 20 June 2012. >
On 17 December 2013, the Uganda Anti-Homosexuality Act, 2014 was passed. It imposed a punishment of life in prison for ‘aggravated homosexuality’.[69] As a result the country information[70] reports that Uganda became known as the most antigay country in the world. The original draft of the 2014 Anti-Homosexuality Act proposed the death penalty for “aggravated homosexuality,” sodomizers and anyone caught harbouring them could be locked up for life. Nevertheless, the act imposed a maximum penalty for acts of homosexuality of fourteen (14) years imprisonment.
[69] Al Jazeera. ‘Uganda MPs pass controversial anti-gay law’ dated 21 December 2013. Pulitzer Center. "Will LGBT Ugandans Ever Be Free? Inside the Fight for a Queer Country" dated 19 November 2017https://pulitzercenter.org/stories/will-lgbt-ugandans-ever-be-free-inside-fight-queer-country
The law brought Uganda into the international spotlight, and caused international outrage, with many governments refusing to provide aid to Uganda anymore.[71] The country information reports[72] that vigilante torture, beatings, and executions are tolerated by the authorities. Its reported[73] that because of the legalisation in Kampala, the nation’s capital with a population of approximately 1.5 million people, gay, lesbian, and transgender Ugandans, were beaten and stripped in the streets, chased by angry mobs or jailed. Its reported[74] that a Human rights advocate Kelly Mukwano was rushed to hospital after an attack, leaving him with multiple injuries. In addition, Frank Mugisha, Executive Director of Sexual Minorities Uganda (SMUG), and one of the most prominent advocates for LGBT rights in Uganda stated that his organisation had over 100 cases of people being arrested with no person being convicted by the law. He claimed that the law was being used for blackmail and extortion.[75]
[71] Pulitzer Center, "Will LGBT Ugandans Ever Be Free? Inside the Fight for a Queer Country". 19 November 2017 by Jacob Kushner and Jake Naughton; Pink News Reports: Ugandan gay rights activist ‘in intensive care’ after brutal attack’ by Nick Duffy 29Nov2014
[73] ibid
[74] ibid
[75] Pink News ‘Uganda’s leading gay activist: We live in fear of violence, blackmail and extortion’ by Naith Payton, 4 December 2014
In August 2014, the Uganda Constitutional Court annulled the law. However, LGBT people continue to face major discrimination in Uganda by both religious and political officials. The LGBT community has been commonly violently and brutally attacked, often by state officials. Same-sex couples are not eligible for the same legal protections as opposite-sex couples and same-sex marriage has been constitutionally banned since 2005.
Finally, in May 2021, Uganda passed further laws criminalising same sex relations, despite already being illegal and unconstitutional.[76] The Sexual Offenses Bill 2019, was passed by the Ugandan parliament in May 2021, two years after it was formally introduced. The bill, which was initially described ‘as a way to crack down on sexual violence,’ has the effect of criminalizing LGBTQ sex.[77] Its reported[78] that Uganda has plans to resurrect the anti-gay bill which will impose the death penalty onto homosexuals, stating that the ‘legislation will curb the rise of unnatural sex in the country.’ The legislation has angered activists.[79] The director at Sexual Minorities Uganda Frank Mugisha, stated that ‘it was unfortunate that the parliament of Uganda is obsessed with legislating around people’s private lives. He claimed that it will only increase the vulnerability of LGBT persons.’
[76] The Guardian, "Uganda passes bill criminalising same-sex relationships and sex work". 5 May 2021. New York Daily News "Uganda's parliament passes legislation to further criminalize consensual same-sex relations". Assunção, Muri dated 5 May 2021. ibid
[78] Gay Christian Africa, Understanding Faith and Homosexuality, Uganda to Criminalise Homosexuality, By Alerard. The Guardian "Uganda passes bill criminalising same-sex relationships and sex work". 5 May 2020 ps://>
The United Kingdom (UK) Home Office Country Policy and Information Note - Uganda: Sexual orientation and gender identity and expression dated April 2019 (the UK Home Office Report)[80] states that:
‘While the Anti-Homosexuality Act (AHA) is no longer law, same-sex acts remain unlawful and anti-LGBTI rhetoric and discrimination persist. 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. Each case, however, will need to be considered on its individual facts, with the onus the person to demonstrate that they face risk’
[80]
In addition, the UK Home Office Report notes that, in relation to any state protection the applicant may receive ‘the police do not usually investigate cases of violence against the LGBTI community, instead arresting or detaining the victims.’ Although it is reported that there have been some reports of the police having assisted LGTBI persons form mob violence. Nevertheless, in circumstances where homosexuality is criminalised in Uganda the Tribunal finds that the applicant would not be afforded any state protection in the event that he was detained or charged of being in breach of s.145 of the Penal Code.
General Law of Application
It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[81] As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[82]
[81] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi HaiV MIMA (2000) 201 CLR 293 @ [19]
[82] Applicant A v MIEA (1997) 190 CLR 225 at 233.
In this case, section 145 of the Penal Code in Uganda targets homosexuals as a particular group within society. In Chen Shi Hai[83] the High Court held that laws or policies that ‘impact adversely upon a particular class or group’ could not properly be described as laws of general application and ‘[t]o say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily.’[84]
[83] Chen Shi Hai V MIMA (2000) 201 CLR 293
[84] Chen Shi Hai V MIMA (2000) 201 CLR 293 [19]-[21]
Therefore, where a law is discriminatory in its terms or has a discriminatory intent, as in this case, the making of the law and its enforcement constitutes the relevant discriminatory conduct and is evidence of the relevant Convention-related motivation. This contrasts to the circumstances where the law maybe general in its terms, but enforced in a selective or discriminatory manner (e.g. large public gatherings without approval are illegal, but only opposition political groups are prosecuted) the law itself may not be persecutory, but the way it is enforced would constitute the discriminatory conduct and is evidence of the authorities having the relevant Convention-related motivation. In any event the Tribunal finds that the section 145 of the Penal Code Act 1950 in Uganda has a discriminatory intent against homosexuals as a group within society.
The applicant claims that in or about [year] [Mr D] was arrested and that in [year] was convicted by [Court 1] with carnal knowledge of a person against the order of nature contrary to section 145(a) of the Penal Code Act.[85] and sentenced to [number] years imprisonment and ordered to compensate the victim in UGX. [amount].[86] [Court 2] on appeal quash the conviction and set aside the sentence and orders of the lower court.[87] The applicant claims that as an associate [Mr D] he was of interest to the authorities and as a result his house was searched in which photos and other material relation to the applicants and [Mr D]’s sexuality were discovered. As a result, he claims that he is at risk of being detained and arrested upon his return to Uganda.
[85] Section 145(a) of the Ugandan Penal Code Act provides that ‘any person who has carnal knowledge of any person against the order of nature commits an offence and is liable to imprisonment for life.’
[86] [details deleted]
[87] ibid
Based on the applicant’s evidence and the evidence of [Mr A], the Tribunal accepts that the applicant is homosexual. In addition, having searched and obtained a copy of the order of [Court 2] dated [year] in relation to [Mr D]’s appeal it accepts that he was detained and charged as claimed by the applicant.
The applicant claims that because he is homosexual it is the essential and significant reason that he will suffer serious harm upon his return to Uganda. In addition, the applicant claims that because of his association with [Mr D] is at greater risk of being detained and charged with an offence under section 145(a) of the Ugandan Penal Code Act.[88] Based on the available country information the Tribunal accepts that there is a real chance that the applicant will be harmed if he is returned to Uganda as a homosexual. That it accepts that the essential and significant reason that the applicant will be harmed as claimed is as a result of his members hip of a PSG as a homosexual.
[88] Section 145(a) of the Ugandan Penal Code Act provides that ‘any person who has carnal knowledge of any person against the order of nature commits an offence and is liable to imprisonment for life.’
In addition, the applicant claims that his association with [Mr D] heightens his profile and as such adds to the real chance that he would be seriously harmed if he is returned to Uganda. In circumstances where the Tribunal has found that [Mr D] was charged and convicted of the crime of homosexuality in Uganda (albeit that he was acquitted) the Tribunal accepts that the applicant’s association with him increases the chance that he would be serious harmed if he is returned to Uganda.
While the Country Information makes it clear that there has been societal violence, encouraged by the authorities, based on sexual orientation or gender identity in Uganda. The authorities have made it clear that homosexuality is not acceptable in Ugandan society. The criminalisation of homosexuality, the banning of homosexual material and the stand against gay marriage indicates a strong position against homosexuality by the authorities. Therefore, notwithstanding the fact that the authorities have had difficulty in enforcing provisions about consensual same-sex sexual conduct between adults, the fact is that homosexuality remains illegal in Uganda. Pursuant to S395/2002 the applicant is not required, nor expected, to act discreetly to avoid persecutory harm. The applicant’s evidence is that in all his dealing he has been open about his sexuality. Therefore in circumstances where homosexuality is illegal and that his associate has been charged and convicted of the crime, the Tribunal finds that pursuant to s.5J(3)(c)(vi) of the Act the applicant does have a well-founded fear of persecution if he returns to Uganda by reason of his sexual orientation. That is, there is a real chance he will be seriously harmed in the event he is returned to Uganda by reason of him being a homosexual.
CONCLUSION
As a result, the Tribunal finds that because of being removed from Australia to Uganda, there is a real chance that the applicant will suffer serious harm by reason of him being homosexual. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and as the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Jason Pennell
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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