1702312 (Refugee)

[2021] AATA 3227

1702312 (Refugee) [2021] AATA 3227 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1702312

COUNTRY OF REFERENCE:                   Uganda

MEMBER:Tamara Hamilton-Noy

DATE:24 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 24 June 2021 at 11:14am

CATCHWORDS

REFUGEE – protection visa – Uganda – particular social group – women – victim of domestic violence – separated woman – physical violence – sexual assault – fear of killing – ongoing threats and assaults on family – credibility issues – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S, 425
Migration Regulations 1994, Schedule 2; r 1.12

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

Background

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants arrived in Australia [in] July 2014 and applied for a protection visa on 15 August 2014.

   Information before the Department

3. The primary review applicant [named] (the applicant) provided a Statutory Declaration, dated 14 August 2014, in support of her protection application.  In the Statutory Declaration, the applicant stated that she was born in [her home town] and is of the Mukiga tribe.  The applicant stated that she was married in [specified year] in a traditional marriage and had twins in [year] and gave birth to a son, [named], in [year] (the applicant child).  After her marriage she was confronted by a woman who stated she was [Mr A’s] wife; when asked about this [Mr A] slapped her and told her to mind her business.

4. In the Statutory Declaration, the applicant stated that she came home late from work in July 2009 and was assaulted by [Mr A] and attended the hospital for labour-like pains.  Her husband refused to let her go to her family’s home for the birth of her twins. The applicant outlined in detail family violence at the hands of her husband in the Statutory Declaration, including: being raped four days after giving birth to the twins so that her sutures gaped; being denied food while breastfeeding; threats to kill her if she left him; and being forced to watch [Mr A] in bed with a maid.  The applicant stated she attended the police but was told her case was too minor and approaching, on police advice, a chairman who told her that family matters should not be voiced in public. The applicant stated that she found out she was pregnant again in July 2011.  In August 2011 her husband kicked her in the stomach; she started bleeding and lost the baby. Her husband stopped providing for her.  She approached the police again but was told to go and resolve the matter with her husband; a police officer who was her husband’s friend told him that she had gone to the police; her husband beat her.  Following this, the family’s maid became pregnant and her husband ‘took her away’.  The applicant became pregnant again. The applicant outlined further violence that followed including her husband making her sleep outside in the cold, killing cows on her family’s land after she returned to her family to protect her unborn child, a beating and threats to kill after she returned home, and taking the twins so that the applicant did not know where they were for two months. 

5. The applicant stated that following the birth of the applicant child, she was again raped by [Mr A] and her sutures were ripped.  After she returned to the hospital for resuturing, [Mr A] beat her and accused her of cheating on him.  Their daughter saw this and was slapped by [Mr A] and became unconscious.  In April 2014, the applicant child became sick with pneumonia and was admitted to hospital.  When the applicant returned home, [Mr A] had sold most of her things in the house.  She then approached [Agency 1] for assistance.  She gave [Mr A] a mediation invitation prepared by [Agency 1]; he then beat her up and injured her eye.  She approached a different police station and an officer from the family protection unit attended the house and took [Mr A] away for questioning.  [Mr A’s] family members then attacked her at home and threatened to kill her and the children if he went to jail. The applicant then negotiated to attend [an international event] in [Australia] on the basis that she would otherwise lose her job and [Mr A] allowed her to go on the basis that she took the applicant child to prove she was not going to act promiscuously.  The applicant later overheard her husband on the phone discussing her death.  She approached the police again but did not have any evidence.  She is worried that if she returns to Uganda, her husband will kill her.  She does not believe the authorities will help her because she tried to go to them several times for protection and they were not willing to assist her.

6. In addition to copies of the applicant and applicant’s child’s passports, contained on the Department documents provided to the Tribunal included: the applicant’s [Local Government] [occupation registration] issued [in] 2010; medical report from [a named] Clinic dated 28 August 2011; letter from ‘[Agency 1]’ dated [in] March 2014 inviting [Mr A] to mediation; emails between the applicant and her sister from 2015; an email headed ‘Medical Report’ to the applicant; media reports about domestic violence in Uganda; a ‘Medical Examination of an injured person’ report by Uganda Police dated [in] March 2014; legal letter addressed to ‘[a court official]’ dated 19 March 2014.

7. The applicant attended an interview with the Department on 16 September 2016.  The Tribunal had access to a recording of the interview and relevant parts of the interview are discussed further below.

8. A delegate of the Department found that the applicant had provided a copy of an identity card issued in 2010 which was in good physical condition given it was six years old.  The delegate noted country information stating that document fraud has been serious over the years and the delegate stated that, as a result, they placed little weight on the card provided by the applicant.  The delegate found that the applicant had provided little detail about her employment and that her responses to questions about her employment were ‘deflective and lacking in detail’.  The delegate similarly found the applicant’s responses about her attendance at an [international event] in [Australia] in 2014 to be vague.  The delegate did not accept the applicant had been employed as a [occupation 1].  The delegate found that the applicant had not provided documents to substantiate her marriage or the birth of her children and, given the delegate’s concerns about her credibility and her employment, the delegate had concerns about the applicant’s claims to be married and to have given birth to three children.  The delegate had been unable to find any online evidence of ‘[School 1 variant]’ in Kampala and, while the delegate had located a website for ‘[Agency 1]’, the website had not indicated what the acronym stood for.  The delegate also did not accept the applicant had not inquired about the progress of legal action against her husband in Uganda for two years.  The delegate found it ‘strange’ that the applicant could not provide documentary evidence of her husband and twins, and found that an email sent from a regional hospital appeared to come from a personal [email] account.  The delegate found that the applicant’s application to attend the [international event] in 2014 was not genuine and was not convinced she had been married to a man named [Mr A] or had three children. The delegate did not accept the applicant had been harmed by [Mr A], that she fears harm for a Convention reason upon return to Uganda, or that she fears significant harm upon return for complementary protection purposes. 

   Information provided to the Tribunal

9. The applicants applied to this Tribunal for a review of the Department decision on 10 February 2017.  On the same date the applicant provided to the Tribunal: a statement prepared by the applicant (undated); legal submissions prepared by the applicant’s previous representative dated 8 November 2016 and email correspondence between the applicant and her previous representative; emails relating to the applicant’s registration at the [international event] in [Australia] [in] 2014 and [a contribution] for the [event]; letter of support prepared by [a local authority] dated 20 September 2016; letters to the Department of Immigration prepared by [named colleagues] in September 2016; [occupation 1 qualifications]; birth certificates for the applicant’s three children; [international event] [documents] for both applicants; [occupational training agency] academic transcript dated [in] February 2008; photos of children; Term 2, 2016 school reports from [School 1]; and letter from the Australian [professional registration agency] dated [in] September 2016.

10. On 12 August 2019 the applicant provided to the Tribunal: a letter from her uncle regarding her marriage dated 29 June 2017; and certificates of completion and participation in courses in Uganda.

11. On 19 February 2020, the applicant provided a further statutory declaration to the Tribunal dated 12 February 2020.

12. On 31 March 2020, the applicant provided to the Tribunal a letter from a family violence counsellor at [Health Service 1 variant] dated 21 February 2020.

    Legal submissions in support of the applicant’s claims

13. On 3 May 2021, the Tribunal wrote to the applicant’s representative, inviting written submissions and any further medical evidence relating to the applicant’s claims, with a view to the Tribunal determining whether a hearing in this matter was required.

14. In response, the applicant’s representative submitted that the applicant had not undergone any recent counselling due to her son’s ill health, lack of time and delays due to COVID-19. On 5 June 2021 the applicants’ representative provided legal submissions to the Tribunal, which set out the following, in summary:

    ·The applicant has provided three detailed statements (August 2014; undated statement provided to the Tribunal in support of her application for review; and supplementary statutory declaration dated 12 February 2020) in addition to a range of documents in support of her claims.

    ·The applicant has provided detailed information about her claims, including details of numerous assaults by her husband, rapes, and verbal and emotional abuse, the killing of the family’s livestock and overhearing a conversation where her husband set out his intention to kill her. The applicant has detailed contacts with the police who did not provide her any assistance. 

    ·Since the applicant’s arrival in Australia, her husband has threatened her family and assaulted her sister.  Her sister has unsuccessfully sought help from the police.  Her family are in fear of her husband.

    ·The applicant has not had contact with her husband since arriving in Australia.  Her twins are at a boarding school in Uganda and are under the care of her sister and she believes her husband does not know where they are.  On one occasion they moved school when the applicant believed a friend of her husband may have discovered their location. 

    ·The applicant meets the refugee definition on the basis of her membership of the particular social groups of: female victims of family violence in Uganda; single/separated women in Uganda; and single mothers in Uganda. Her claims are genuine and are supported by evidence.  She fears harm in all areas of Uganda and there is no effective state protection available to her.  The harm she fears includes a threat to her life or liberty, significant physical harassment or ill-treatment, a threat to her capacity to subsist, denial of basic services and/or denial of the capacity to earn a livelihood. 

    ·Alternatively, the applicant is owed complementary protection as she faces a real risk of significant harm if returned to Uganda.

    ·The applicant does not have a right to enter a third country and is unable to relocate within Uganda as she is in fear of her husband finding her and will be at risk throughout Uganda as evidenced by country information.

    ·The applicant is highly vulnerable and has a history of significant trauma.  The Guidelines on the Assessment of Credibility, Vulnerable Persons and Gender outline difficulties faced by such applicants and the way that decision makers should take this into account in assessing credibility. 

    ·The delegate of the Department made adverse credibility findings on a number of points.  The representative submitted these were not the correct or preferable findings given the evidence available to the delegate.  The representative made the following submissions in respect of the delegate’s findings:

    -    Regarding the delegate’s findings that the applicant’s answers were vague and lacking in detail and she was unable to provide documentary evidence, leading to a finding that she was not a [occupation 1] in Uganda:

    The representative submitted that the delegate erred in relying on country information relating to the prevalence of document fraud and gave no consideration to whether the document itself appeared fraudulent, and the only comment made was that the document itself appeared to be in good condition despite being six years old.

    In contrast to the delegate’s findings that the applicant had not otherwise provided evidence of her education or employment as a [occupation 1], the applicant had provided a number of relevant documents to the Department, including a reference letter from a previous employer, [an occupation 1 qualification], a certificate from the [occupation 1 professional association], an academic transcript from the [occupation 1 training agency] and correspondence from the Australian [professional registration authority] prepared in September 2016.

    Also in contrast to the delegate’s findings that the applicant had given her evidence in a vague manner, the representative submitted that the applicant had provided a significant amount of detail during the interview.  She had also provided further details in her statement to the Tribunal.

    -    Regarding the delegate’s findings that the applicant could not provide specific detail about her marriage and the existence of her twins, which led to the Department not accepting she was married to [Mr A] to whom she had three children:

    In contrast to the delegate’s findings that the applicant had not provided any evidence of her children, her marriage or her children’s boarding school in Uganda, the applicant had provided to the Department birth certificates for her three children, end of term reports for her twins for [School 1], a photograph of the twins and letters of support from the applicant’s sister and adoptive mother.

    The applicant had also obtained a letter from her paternal uncle confirming she was married to [Mr A] in a ceremony, a further copy of which was provided to the Tribunal.

    -    Regarding the delegate’s findings that the applicant’s application to travel to the [international event] in 2014 was not genuine:

    The representative submitted that, in contrast to the delegate’s findings that the applicant’s answers were vague and non-committal, the applicant had provided a reasonable amount of detail during the interview which was not reflected in the delegate’s decision. 

    As to the applicant’s inability to recall the names of people she met during the [international event], the representative submitted that this was reasonable given the [event] was in February 2014 and the interview was held in September 2016.

    The applicant had provided evidence to the Department including an invitation and registration confirmation of her attendance at the [international event], email confirmation of attendance at the [event], email confirmation of the [contribution] submitted for the [event] and [event] passes for the applicant and her son.  None of this was considered by the delegate.

    -    As to the delegate’s findings that the applicant was not a credible witness:

    The applicant has provided consistent and credible information and evidence to support her claims such that it is not possible to conclude she is not a credible witness.  In making such wide reaching conclusions, the delegate was required to carefully and thoroughly consider the evidence and to adhere to the Department’s Policy Advice Manual when recording the decision; the recording of the credibility findings of the delegate was inadequate. 

    Errors made by the delegate included that: she failed to consider any mitigating circumstances that could explain why the applicant’s evidence was vague; failed to give the applicant an opportunity respond to what claims she considered were vague enough to lead to an adverse credibility finding; failed to consider the evidence provided by the applicant’s representative on material questions of fact; and failed to provide an explanation why the applicant was not given the benefit of the doubt.  Further, it was unreasonable for the delegate to not place weight on the documents provided by the applicant, and was unreasonable that any documents provided by the applicant would not be accepted as genuine by the delegate. 

    ·The applicant fears harm as a victim of family violence in Uganda.  There is no available evidence to suggest positive changes since the Domestic Violence Act of 2010 was passed.  The representative noted the following relevant country information:

    -    A US Department of State report noted that approximately 48 per cent of married women between 18 and 49 had experienced physical violence from their intimate partners, 36 per cent had experienced sexual violence and 49 per cent had experienced emotional violence; the report noted that many police officers and a majority of the population considered wife beating as a husband’s prerogative.

    -    The UK Home Office’s 2011 report on Uganda noted sources which indicated the prevalence of violence against women, including rape, widespread domestic violence and an inordinately high prevalence of sexual violence against women and girls, and the absence of a comprehensive approach to the prevention and elimination of violence against women, and the difficulties women face in a patriarchal society in accessing justice.  The UK Home Office report also referred to research indicating that up to 77 per cent of women in Uganda believe that their husbands beating them is acceptable behaviour. 

    -    The International Federation for Human Rights in 2014 stated that Ugandan law discriminates against women and does not provide any guarantee to ensure their protection.  A proposed Marriage and Divorce Bill had not made any progress due to a lack of political will and for a range of other reasons. 

    -    The Domestic Violence Act 2010 has been in place for a decade but there is no evidence of changing attitudes or behaviours.  The US Department of State 2020 report on Uganda notes that:

    The law criminalises rape of women, which is punishable by life imprisonment or death.  The law does not address spousal rape.  Rape remained a common problem throughout the country, and the government did not effectively enforce the law.  Local media reported numerous incidents of rape, often involving kidnapping and killings of women, but authorities were often unable to investigate and hold perpetrators accountable.

    Further, Freedom House’s 2020 report ‘Freedom in the World: Uganda’ states that ‘(d)omestic violence is widespread and underreported’.

    -    A 2016 Demographic and Health Survey noted that the proportion of women who had experienced spousal violence had reduced from 60% in 2011 to 56% in 2016; the representative submitted that this was not significant.  The report also noted that customary laws and practices conflicted with efforts to address gender-based violence.

    -    The US Department of State report for 2020 and a ReliefWeb article from 2020 both identify that gender-based violence has increased during 2020, during COVID-19 lockdowns.  ReliefWeb reported that 70 per cent of girls contacted had witnessed incidents of family violence involving physical fights between their parents and reported on the difficulties of access to justice for victims of family violence.

    -    A 2020 study in Uganda reported that:

    Almost one third of rural Ugandan women in the 2011 Demographic and Health Survey (DHS) report that they had been punched with a fist, kicked or dragged, strangled or burnt, or threatened with a knife or other weapons. According to the 2018 Human Development Report, around 50% of Ugandan women aged 15 years and older have experienced violence by an intimate partner. This places Uganda in the top tercile of the worldwide distribution of countries in terms of the prevalence of VAW. Understanding how to prevent VAW in this set of countries is of particular policy relevance. Ugandans tend to hold conservative views about gender roles, and Uganda ranks 126th on the UNDP’s 2017 global ranking of countries on gender equality. Furthermore…permissive attitudes toward VAW are widespread among women in Uganda, even in comparison with other countries in Sub-Saharan Africa.”

    -    The applicant was married to her husband in a traditional ceremony and it may be difficult to formally divorce him as a result, leading to her husband continuing to have proprietary rights over her.  The US Department of State 2020 report states that:

    Traditional divorce law in many areas requires women to meet stricter evidentiary standards than men to prove adultery. In some ethnic groups, men can “inherit” the widows of their deceased brothers. The law does not recognize cohabiting relationships, and women involved in such relationships have no judicial recourse to protect their rights.

    -    A 2020 report on divorce in Uganda further notes the widespread understanding among legal experts that customary marriages can pose legal risks for women and children when it comes to separation and that their rights and entitlements are not secured.

    ·The applicant fears harm as a single or separated woman in Uganda and as a single mother in Uganda.  As a result of her membership of these groups, she is at risk of discrimination, sexual harassment, sexual assault and/or rape by state and non-state actors.  The representative noted the following relevant country information:

    -    The US Department of State 2020 Country Report notes the following:

    Local media often reported that perpetrators of rape included persons in authority, such as religious leaders, local government officials, UPF and UPDF officers, health-care workers, media personalities, teachers, and university staff.  According to local media and local civil society organizations, rape victims often believed they were powerless to report their abusers, in part to avoid stigmatization.  Civil society organizations and local media reported that, even when women reported cases of rape to the police, UPF officers blamed the women for causing the rape by dressing indecently, took bribes from the alleged perpetrators to stop the investigation and to pressure the victims into withdrawing the cases, or simply dismissed the accusations and refused to record them.  According to civil society organizations, UPF personnel lacked the required skills for collection, preservation, and management of forensic evidence in sexual violence cases.  Civil society organizations also reported that some police stations lacked female officers on the staff, which discouraged rape victims from reporting their cases.

    -    The same report notes the following:

    The law criminalizes sexual harassment and provides for penalties of up to 14 years’ imprisonment, but authorities did not effectively enforce the law.  Sexual harassment was a widespread problem in homes, schools, universities, workplaces, public transport, public spaces, and in the music and entertainment industry.  Local media reported numerous incidents of senior executives, public servants in the legislature and judiciary, and music producers who demanded sexual favours from female subordinates in exchange for job retention, promotion, and nomination for official trips.

    ……..

    The law provides women the same legal status and rights as men, but the government did not enforce the law effectively.  Local NGOs reported numerous cases of discrimination against women, including in divorce, employment, education, and owning or managing businesses and property…Under customary laws in many areas, widowed women cannot own or inherit property or retain custody of their children.  Local NGOs reported that the government occasionally paid significantly less compensation to women than men in exchange for land it repossessed, while in some cases, it forcefully evicted women without compensation.

    ….

    Women’s salaries lagged those of men, and women faced discrimination in employment and hiring, and broad economic discrimination.

    -    Freedom House has noted that, while the law prohibits discrimination based on gender and other criteria, it does not cover the informal sector in which most women work; that women are subject to discrimination in employment and in other areas; and that local customs and societal practices put women at disadvantage regarding land tenure and inheritance. 

    Relevant law

1. 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

2. 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).

3. 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.

4. 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.

5. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. 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’).

13. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

14. 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.

    Mandatory considerations

15. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

16. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a dependent child.

    Consideration of claims and evidence

17. The issue in this case is whether the applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. For the following reasons the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.

    Country of nationality

18. The applicants travelled to Australia on Ugandan passports and have consistently claimed to be citizens of Uganda.  The Tribunal accepts the applicants are Ugandan citizens and have assessed their claims against Uganda as their country of nationality.  The applicant’s passport, contained on the Department file, expired [in] 2019 and the Tribunal accepts that the applicant does not currently have a right to enter and reside in any third country.

    Credibility concerns raised by the Department

19. The Tribunal notes that the Department raised concerns about the credibility of the applicant.  The details of these, and the Tribunal’s assessment of these findings, are as follows.

20. The delegate of the Department noted during the Department interview that the Department had been provided an anonymous allegation that the applicant had obtained a business visa in Australia by fraud and that she had no intention to attend the [international event] in [Australia]; the delegate appears to have made adverse credibility findings in part based on these allegations.  The applicant’s response during the interview was that the allegation was not true and that she had attended the [international event].  The Department file provided to the Tribunal indicated that there was no s.438 certificated information on file and no summary or copy of the allegation was provided to the Tribunal.  The applicant has provided to the Tribunal, and submits that she had previously provided to the Department through her former representative, emails confirming her attendance at the [international event] in 2014, identification cards for both applicants for attendance at the [event] and an email relating to the applicant’s submission of [a contribution] for the [event] relating to [an element of the program], which was the same detail she had provided to the delegate of the Department interview.  While the applicant did not give information to the Department at interview about the sessions she attended, she was asked only one question about the session she had enjoyed during the interview.  The Tribunal was satisfied from the documents provided by the applicant and, having regard to the recorded copy of the Department interview that the Tribunal has listened to, that the applicant attended the [international event] in [Australia] in [2014] and that she unsuccessfully sought to [make a contribution] at the [event].  The Tribunal places no weight on the allegations raised in the Department interview, which were not provided to the Tribunal as part of the Department’s evidence in this matter.

21. The Tribunal further notes that the delegate was concerned about the lack of documentary evidence provided by the applicant to substantiate her claims for protection.  The Tribunal was provided by the applicant a large amount of documentary material which her representative submits was given to the Department before it made its decision.  None of these documents were contained on the Department’s file provided to the Tribunal and it was unclear to the Tribunal whether this information was received by the Department or available to the delegate at the time of her decision. 

22. However, having regard to this information, the Tribunal is satisfied that the applicant has provided copies of birth certificates for her three children, evidence of her twins’ attendance at [School 1] in Uganda and a letter from her uncle supporting her claims to have been married to [Mr A] in an informal ceremony in [year].  Having regard to the details given by the applicant to the Department during her interview about her marriage and to this Tribunal, the Tribunal is prepared to accept that the applicant was married to [Mr A] in a traditional ceremony in [year], that she gave birth to twins in [year] and that she is the biological mother of the applicant child, who was born in Uganda in [year].

23. Also having regard to the information provided by the applicant, the Tribunal considered her claims to have trained and worked as a [occupation 1] in Uganda.  The applicant provided to the Tribunal copies of [an occupation 1 qualification] from 2008, evidence of assessment by an exams board from November 2007 and an academic transcript from 2008.  A letter from [the Australian professional registration agency] to the applicant indicates that she sought to have her qualification recognised in Australia; the letter does not raise any concerns about the genuineness of her qualifications; rather, her application was rejected on the basis that the [occupation 1 qualification] was deemed not to meet four of the requirements set out in the Australian Qualifications Framework.  The Tribunal had regard to the information provided by the applicant at interview and noted that, when asked about her [occupation 1] practice in Uganda, was able to outline for the interviewer details about a typical day and the structure of her organisation, [professional] procedures she was involved in in her role and the different [sections] under her organisation. Her use of [professional] terms added, in the Tribunal’s view, to the credibility of her claims to have worked in [this] field.  The Tribunal is prepared to accept from the evidence before it that the applicant qualified as [an occupation 1] in Uganda and that she worked in the positions she claims to have worked in in Uganda.  Because of the Tribunal’s findings, above, about the applicant’s attendance at the [international event] in [Australia], the Tribunal is prepared to accept that the applicant travelled to [Australia] to attend the [international event] because of her role as a [occupation 1] in Uganda.

24. The applicant has provided a substantial level of detail in her written statements about the protracted and significant family violence she claims to have experienced at the hands of her husband in Uganda.  The details she gave at the Department interview were consistent with dates and details provided in her written claims.   The claims of the applicant are also consistent with country information about the prevalence of family violence in Uganda.  In 2016, the Organisation for Economic Cooperation and Development reported that 43% per cent of women in the region had experienced gender-based violence.[1]  Within Uganda, 47% of women reported experiencing emotional abuse within their lifetime.[2] Other cited figures are similar, with a 2018 Human Development Report stating that around 50% of Ugandan women aged 15 and older having experienced violence by an intimate partner, putting Uganda in the top tercile of countries in terms of the prevalence of violence against women.[3]  Freedom House in 2020 estimated that family violence is both widespread and underreported,[4] while the OECD report indicated that less than half of Ugandan women who had experienced intimate partner violence in the previous year had reported the incident or sought help.[5]

    [1] Sub-Saharan Africa ‘SIGI Regional Report', Organisation for Economic Co-operation and Development (OECD), 2016, p8 at  

    [2] Sub-Saharan Africa ‘SIGI Regional Report', Organisation for Economic Co-operation and Development (OECD), 2016, p45 at  

    [3] ‘Countering violence against women by encouraging disclosure: A mass media experiment in rural Uganda’, DP Green, AM Wilke & J Cooper, Comparative Political Studies, Vol 53, Issue 14, 2020.

    [4] Freedom in the World 2020 – Uganda’, Freedom House, 2020, at

    [5] Sub-Saharan Africa ‘SIGI Regional Report', Organisation for Economic Co-operation and Development (OECD), 2016, p47 at >

    The Tribunal accepts that the applicant attended counselling at [Health Service 1] after being referred from [Agency 2], a specialist service aimed towards individuals who have [had similar experiences].  The Tribunal accepts from the letter prepared by the family violence counsellor at [Health Service 1] that the applicant was referred from [Agency 2] in 2015 and attended 21 sessions over a two year period, that during the sessions she disclosed family violence experienced from [Mr A] and that counsellors identified ‘ongoing physical, emotional and psychological abusive behaviours’ which were identified as family violence.  The Tribunal accepts that the applicant disclosed to counsellors during the sessions that ongoing threats had been made by [Mr A] to her family members.  While not evidence in and of itself of the events claimed, the disclosure of such events over a protracted period of attendance at counselling adds for the Tribunal some confirmation in the Tribunal’s mind of the veracity of her claims.

25. The Tribunal has had careful regard to the submissions and documents provided to the Tribunal, the documents that the applicant claims were provided to the Department at the time of the delegate’s decision which led to erroneous findings that the applicant did not have documentary evidence to establish any of her claims, and to the answers she gave at the Department interview.  The Tribunal finds that the applicant has provided consistent details about her protection claims and that she has substantiated these claims by a range of documentary evidence, including evidence generated within Australia which includes [international event] correspondence and her application for her [occupation 1] accreditation to be recognised within [Australia].  The Tribunal accepts the substance of the applicant’s claims: namely, that she is the biological mother of the applicant child, that she left Uganda after experiencing significant family violence at the hands of her husband, that her own family was unwilling or unable to intervene in the family violence, that she has twins in boarding school in Uganda who her sister is assisting to care for, and that she has trained in [occupation 1] studies in Uganda and travelled to Australia to attend the 2014 [international event] because her employment in Uganda was related to the [event]. 

26. Because the Tribunal has accepted these matters, and because of the Tribunal’s findings below, the Tribunal has proceeded to make a decision in this matter without inviting the applicant to a hearing under s.425.

    Refugee criterion

27. Because the Tribunal has accepted the substance of the claims made by the applicant about her background, her qualifications and reasons for travelling to Australia and her family composition, the Tribunal also accepts the applicant fears returning to Uganda because of a history of family violence from [Mr A].  The Tribunal is prepared to accept that the applicant was married in a traditional ceremony, that she is not formally divorced from [Mr A] but that she is separated from him due to longstanding family violence.  The Tribunal finds that, if she returns to Uganda now or in the reasonably foreseeable future, the applicant would return as a separated woman, but one who is not formally divorced from her husband. 

28. The Tribunal has noted, above, commentary suggesting that Uganda is in the top third of countries with high rates of violence against women.  Uganda’s gender-based policy hub ‘Uganda None In Three’ reports that an estimated 51% of women in Uganda will experience violence in their lifetime, a statistic that is well above the average in Africa and worldwide, making Uganda one of the most dangerous places in the world for women.  The same source notes that 56% of women in Uganda aged 15 to 49 reported having experienced physical violence, while 22% had experienced sexual violence at least once from 15 years of age onwards.[6]  Similar figures are reported in a 2016 National Demographic and Health survey, which reported that half of women have experience violence in their lifetime and almost a quarter experience sexual violence, with few ever reporting violence to police.[7]  Annually, 13% of women aged 15 to 49 report experiencing sexual violence, which translates to more than one million women exposed to sexual violence every year in Uganda.[8]

    [6] Uganda None in Three, Uganda gender-based violence policy hub at

    [7] 2016 National Demographic and Health Survey, reported in Action Aid, ‘Harriet is taking a stand against gender-based violence’ 10 December 2020 at

    [8] Africa Renewal, ‘Uganda: Violence against women unabated despite laws and policies’, Stephen Ssenkaaba at

1. The range of harms faced by women in Uganda is outlined in the US Department of State’s 2020 Reports on Human Rights Practices for Uganda:[9]

   Rape remained a common problem throughout the country, and the government did not effectively enforce the law. Local media reported numerous incidents of rape, often involving kidnapping and killings of women, but authorities were often unable to investigate and hold perpetrators accountable. Local media often reported that perpetrators of rape included persons in authority, such as religious leaders, local government officials, UPF and UPDF officers, health-care workers, media personalities, teachers, and university staff. According to local media and local civil society organizations, rape victims often believed they were powerless to report their abusers, in part to avoid stigmatization. Civil society organizations and local media reported that, even when women reported cases of rape to the police, UPF officers blamed the women for causing the rape by dressing indecently, took bribes from the alleged perpetrators to stop the investigation and to pressure the victims into withdrawing the cases, or simply dismissed the accusations and refused to record them. According to civil society organizations, UPF personnel lacked the required skills for collection, preservation, and management of forensic evidence in sexual violence cases. Civil society organizations also reported that some police stations lacked female officers on the staff, which discouraged rape victims from reporting their cases. For example, on January 1, several women posted that radio presenter and employee of the state-owned Vision Group Charles Denzel Mwiyeretsi had raped or attempted to rape them. Vision Group’s chief executive said on January 2 that Mwiyeretsi would face a company disciplinary committee, but the company had not revealed details of its investigations by year’s end.

   Women’s rights activists reported the government used the law to silence women and stop them from identifying their abusers online. On February 20, the UPF arrested university student Sheena Bageine, accusing her of cyberharassment and offensive communication after she posted the names of numerous men she alleged were rapists. The UPF released Bageine on February 21 without formally charging her.

   Gender-based violence was common and became increasingly prevalent after March, when the government enforced a lockdown to combat the COVID-19 pandemic. Civil society organizations reported the lockdown saw an increase in violent resolution of domestic disputes, which adversely affected women. On August 1, a 46-year-old teacher, Simon Shimanya, struck his wife with a pickax at their home in Kasangati, Kampala and killed her. On August 13, the UPF arrested Shimanya 200 miles from Kampala. On August 25, a court found Shimanya guilty of manslaughter and later sentenced him to 17 years in prison.

   ….

   Sexual Harassment: The law criminalizes sexual harassment and provides for penalties of up to 14 years’ imprisonment, but authorities did not effectively enforce the law. Sexual harassment was a widespread problem in homes, schools, universities, workplaces, public transport, public spaces, and in the music and entertainment industry. Local media reported numerous incidents of senior executives, public servants in the legislature and judiciary, and music producers who demanded sexual favors from female subordinates in exchange for job retention, promotion, and nomination for official trips. In March numerous emerging women musicians reported on television that music producer and songwriter Andrew Ojambo, also known as Daddy Andre, had attempted to or had forced them into sexual relationships with him at a studio in his bedroom as a precondition for recording or promoting their songs. Ojambo denied the allegations.

   …..

   Discrimination: The law provides women the same legal status and rights as men, but the government did not enforce the law effectively. Local NGOs reported numerous cases of discrimination against women, including in divorce, employment, education, and owning or managing businesses and property. Many customary laws discriminate against women in adoption, marriage, divorce, and inheritance. Under customary laws in many areas, widowed women cannot own or inherit property or retain custody of their children. Local NGOs reported that the government occasionally paid significantly less compensation to women than men in exchange for land it repossessed, while in some cases, it forcefully evicted women without compensation. Traditional divorce law in many areas requires women to meet stricter evidentiary standards than men to prove adultery. In some ethnic groups, men can “inherit” the widows of their deceased brothers. The law does not recognize cohabiting relationships, and women involved in such relationships have no judicial recourse to protect their rights.

   [9] US Department of State, 2020 Reports on Human Rights Practices: Uganda, at

2. The 2016 OECD report on Sub-Saharan Africa scores Uganda as ‘high’ with respect to discriminatory family code, restricted physical integrity, son bias and restricted resources and assets.[10]  Traditional and widespread discrimination against women affects their rights with respect to adoption, marriage, divorce, inheritance, custody of children and land ownership.[11]

   [10] Sub-Saharan Africa ‘SIGI Regional Report', Organisation for Economic Co-operation and Development (OECD), 2016, p75 at UK Home Office, Uganda Country of Origin Information Report, 20 April 2011 at

3. The Tribunal accepts that, if she returns to Uganda now or in the reasonably foreseeable future, the applicant fears harm from [Mr A], from whom she is not divorced.  The Tribunal accepts that the applicant was subject to a range of violence from [Mr A] during her marriage and that she fears further physical, sexual, verbal and emotional violence if [Mr A] locates her upon return.

4. In addition, the Tribunal finds that the applicant more generally faces gender-based violence and is particularly vulnerable to such violence as a separated woman without the support of a husband.  The Tribunal finds that the range of harm feared by the applicant includes physical harm, sexual harm including rape and sexual harassment, and discrimination in areas of employment, property ownership and child custody.  The Tribunal finds that the harm feared by the applicant amounts to serious harm within the meaning of s.91R(2).  Having regard to the range of harm feared and the high levels of violence against women in Uganda, the Tribunal is satisfied that the persecution involves systematic and discriminatory conduct as required by s.91R(1)(c). 

5. Separated women are an identifiable group in Uganda on the basis that they are identifiable by a characteristic or attribute common to all members of the group, the characteristic or attribute common to all members of the group is not the shared fear of persecution and the characteristic distinguishes the group from society at large.  The Tribunal finds that separated women are a particular social group in Uganda.

6. The Tribunal finds that there is a real risk the applicant faces serious harm if she returns to Uganda, now or in the reasonably foreseeable future, and that the real chance of persecution is for reasons of the applicant’s membership of the particular social group of separated women in Uganda.  Given the prevalence of violence against women across Uganda, the Tribunal finds that the applicant could not relocate to avoid the harm feared.

7. As to whether there is state protection available to the applicant from the harm feared, the Tribunal notes that Ugandan law criminalises rape, which is punishable by imprisonment or death, but does not address spousal rape.  The law also criminalises domestic violence which is punishable by up to two years’ imprisonment upon conviction.  The government in 2019 was reported to not have effectively enforced the law on rape, which remained a common problem, with the authorities often unable to investigate and hold perpetrators accountable.  Perpetrators of rape were reported to include persons in authority including religious leaders, local government officials, UPF and UPDF officers, teachers and university staff.  UPF officers were noted to blame female victims for rape, take bribes from alleged perpetrators, pressure victims into withdrawing cases or simply dismiss the accusations and refuse to record them.  UPF officers were reported to lack the requisite skills for collection, preservation and management of forensic evidence in sexual violence cases.[12]  In addition, public comments made by government ministers suggest a significant lack of motivation to address the issue of gender-based violence against women in Uganda.  For example, in 2018 a Ugandan MP was reported by media as having stated that ‘as a man, you need to discipline your wife.  You need to touch her a bit, you tackle her, beat her somehow to really streamline her’.[13] 

   [12] US Department of State, Uganda 2019 Human Rights Report at

   [13] BBC, ‘Outrage as Ugandan MP says ‘Beat your wife’, 12 March 2018 at

8. Issues identified with the judiciary include case backlogs due to an inefficient judiciary that lacks adequate funding and staff, inadequate police investigations, the government’s lack of respect for the constitutional and legal requirements for an independent judiciary, judicial corruption and understaffing, inefficiency and executive-branch interference with judicial rulings.[14]

   [14] US Department of State, Uganda 2019 Human Rights Report at >

   Given the prevalence of gender-based violence, the lack of enforcement of laws aimed at addressing violence against women, the role of government officials and police officers as perpetrators of violence against women and the lack of an independent and functional judiciary for victims of violence, the Tribunal finds that there is not adequate state protection available to the applicant from the harm feared and that her fear of persecution is well-founded.

9. 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).

   The applicant child’s claims for protection

10. The Tribunal is not satisfied that the applicant child is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant child is a member of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

11. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Tamara Hamilton-Noy
    Member