1817601 (Refugee)

[2021] AATA 4554

1817601 (Refugee) [2021] AATA 4554 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1817601

COUNTRY OF REFERENCE:                   Uganda

MEMBER:Peter Vlahos

DATE:25 October 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.

This Statement was made on 25 October 2021 at 11.53AM

CATCHWORDS
REFUGEE – protection visa – Uganda – political opinion – Forum for Democratic Reform student activist – recruiting supporter and members – detention – torture – fear of abduction – political activities in Australia – corruption – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997)191 CLR 559
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Uganda, applied for the visa on 24 April 2018. The delegate refused to grant the visa on the basis that the Application for Protection did not satisfy sub-section 36(2) of the Act.

3. The applicant made an Application to review the delegate’s decision on 18 June 2018

4. A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled for 5 October 2021and was held via teleconference due to state of emergency that had been declared and enforced throughout Victoria due to the Covid-19 Pandemic.

5. The applicant was not assisted by an interpreter at the hearing.

6. The applicant’s spouse [named] was also before the Tribunal to provide evidence in support of her husband protection application.

   CRITERIA FOR A PROTECTION VISA

7. 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, he or she 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.

8. 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 because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

11. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Applicant’s Country of Origins

14. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Uganda and has had his claims assessed against that country in relation to his claims as they concern sections 36(2)(a) and 36(2)(aa) of the Act.

15. On the basis of the abovementioned evidence, the Tribunal further accepts the applicant’s identity as is claimed.

    The Applicant’s Department File

16. The Tribunal has before it the Department File[1]relating to the applicant, [named]. The Tribunal also has had regard to all the material referred to in the delegate’s decision record. The applicant provided a copy of the decision record to the Tribunal which was attached to his review application.

    Background – the Applicant’s migration history

    [1] Department of Home Affairs File [Number]

17. On 17 January 2018 the applicant lodged an application for [temporary] visa. On 18 January 2018 the [temporary] visa was granted. On [a day in] April 2018 the applicant arrived in Australia on a [temporary] visa. On 24 April 2018 the applicant lodged an application for a Protection visa (XA Subclass 866) visa.

    EVIDENCE AT THE HEARING

18. The applicant told the Tribunal that he was born on [date], in Kampala City, Uganda. He is of the ‘Bantu’ ethnicity and a ‘Catholic’ in his religion. Before leaving Uganda, the applicant was a ‘student at University’ and a ‘political party activist’ who was responsible for rally organisation and the recruitment of students to the Party (…). The applicant, the Tribunal noted did not specify in his Application for Protection Form whether he had close family living in Uganda.[2] However, the applicant indicated in the same Form[3] that he contacts ‘his relatives’ in Uganda. The applicant, later in the hearing, told the Tribunal that his father is deceased but has his mother and [specified family members] living in Uganda. The applicant told the Tribunal that he had completed his primary, secondary, and high school education in Uganda and from 2014-2018 the applicant was studying at [a named] University, Uganda for his ‘bachelor’s degree in [subject]’ but this degree has not been completed.[4]

    [2] see, Part C Personal Details for Each Person included in this Application: no details provided about the applicant’s immediate family members.

    [3] Ibid at Q.41that he contacts his “relatives by phone”. 

    [4] Part C Personal Details for Each Person included in this Application.

19. The Tribunal asked the applicant to explain the circumstances which led him to come to Australia. The applicant prefaced his initial comments attempting to explain his circumstances prior to leaving Uganda as that the current President of Uganda “is most afraid of people that mobilise against him.”

20. The applicant went on to refer the Tribunal’s attention to evidence he had tendered for the Tribunal to observe of a ‘video’ concerning the ‘abduction’ ‘by force’ of a ‘political opponent’ in Uganda and indicated to the Tribunal that a similar fate, if not worse awaited him if he had to return to Uganda at the present time.

21. The Tribunal asked the applicant to explain his concerns and why he would be a person of interest to the current regime in power in Uganda. The applicant told the Tribunal that he had joined the political party known as the ‘Forum for Democratic Reform (‘FDC’) in 2015 because he was firm believer that Uganda needed a strong program of ‘democratic reform’ for her to move forwards as a progressive and peaceful country in which ‘all Ugandans’ would enjoy ‘democracy’ and ‘prosperity’.

22. The applicant told the Tribunal that the FDC was an ascending political force in today’s Uganda which was very popular with young Ugandans and those in the community which did support political corruption. The FDC, the applicant described it as powerful political party with ‘strength’. It was described by the applicant, the “second opposition political party” in Uganda. The applicant told the Tribunal that the FDC’s main platform was the curtailment of corruption in Ugandan politics and government and to ensure the “national unity of Uganda.”

23. The applicant said that he joined the FDC (in 2015) while attending to his studies at University. The applicant described himself as having an interest in Ugandan politics and wanted to participate in the politics of his country, at a local level.

24. The said that at university, he was considered by his fellow students as one of the student community’s ‘university leaders’ and because of this position he held, the applicant decided to join the FDC and to become an FDC political activist on campus. The applicants main aims as an FDC member on campus was to organise the student community as a strong political support base for the FDC in his local area.

25. The Tribunal asked the applicant to describe what he meant by describing himself as a “leader at University”? The applicant said that as a ‘leader’ on campus the applicant worked as part of the University ‘Guild Cabinet’ which was the main ‘government’ for the affairs of the university’s student population. The applicant described his ‘cabinet responsibilities’ as being responsible for ‘all first years’. The applicant also told the Tribunal that in his ‘second year’ the Guild’s President promoted him to being an ‘cabinet member assisting the President’ of the University Guild. This promotion, as the applicant described it, made him responsible for ‘connecting with people’ and engage with the student population and to ‘communicate’ ‘their concerns’ – collectively to the Guild’s Senate (governing body) and to the Guild’s President. The applicant told the Tribunal that he maintained this position until his ‘third year’ when he ceased because he ‘dropped out of university.’

26. The Tribunal was told by the applicant that during this time – that is, when he was politically active in his University’s Guild and its government, his activities came to be noticed by others who were heavily involved in increasing the student population’s support for the current government and President, Museveni.

27. It was during this time at University, the applicant stated that he used his position in the Guild and the Guild’s government to actively influence the student population and community towards favouring the politics and platform of the FDC. These political moves, the applicant told the Tribunal were not seen favourably by the supporters of Uganda’s President on campus and they began to mobilise their supporters against the applicant. The intimidation and pressures according to the applicant became so intense, that it interrupted his education which he (as he told the Tribunal) he never completed.

28. Accordingly, the applicant’s involvement at his university ended abruptly in or about 2017.

29. After leaving university, the applicant told the Tribunal that “he had no specific job” and lived on a day-by-day basis by ‘working odd jobs’. It was difficult to do this but the applicant told the Tribunal he ‘did not mind’ because it was the way he kept himself while attending to his studies at university.

30. The Tribunal asked the applicant whether the FDC provided him with support – financial or otherwise because of his membership as one of its political operatives? The applicant admitted to the Tribunal that the only time he received money his party-work was during election time, when he was paid 25 to 30,000 Ugandan schillings to carry out polling both duties and to be present as a scrutineer at the vote count in his local area/district.

31. The applicant also told the Tribunal that he was ‘heavily recruiting’ supporter and members to the FDC during 2016/2018.

32. The applicant stated that he was also involved in the FDC organised campaign against President Museveni campaign to amend the Ugandan Constitution to permit him to serve as Uganda’s President ‘…for life…’ The applicant described his involvement on this instance as ‘organising small gatherings’ and ‘telling people that on this issue (in particular) the Ugandan regime had gone too far.’ The applicant also organised the distribution of FDC manifestos and party pollical information for public consumption as well as, distributing FDC tee-shirts to youth for use at local FDC public political rallies. These activities, according to the applicant were coordinated and repeated by him and his group of FDC activists in other campuses. It was important, the applicant told the Tribunal, that the mobilisation of public opinion continued so as to expose the corruption and political lies of the Museveni regime and in particular, to make people understand that the President did not represent the national interest in anything that he stated publicly or did while head of the Ugandan government.

33. The Tribunal was told that on or about [a date in] January 2018 the Ugandan secret police intercepted the applicant and ‘detained him’ at the local police station. The applicant said that after a considerable time of rigorous questioning, he was given the ‘caution’ to ‘stop politics because no one will help him.’

34. The Tribunal was told that the applicant had been ‘man-handled’ by the secret police while in their custody and at times ‘beaten’.

35. The secret police, according to the applicant, ‘warned him’ that if continued to ‘talk to people about the FDC’ he will feel the full pressure of the organisation.

36. The applicant said that he was then released from custody.

37. Following his release from custody, the applicant told FDC officials about his experience at the hands of the secret police and the FDC officials told him not ‘to lose faith’ and to ‘continue with his activities’.

38. The applicant told the Tribunal that he – on or about [a date in] February 2018 – involved himself in the FDC campaign against the Ugandan President’s attempt to pass a Bill to change ‘term limits’ as allowed for under the Ugandan Constitution. The applicant described the situation in Uganda (at that time) as very unstable. He recalled to the Tribunal that even certain members of parliament were intimidated by the regime and even dealt with harshly for their opposition to the Constitution’s proposed amendment.

39. The applicant recalled to the Tribunal that there was repeated violence at public meetings and rallies and generally speaking, the authorities took a very hard line against public protests directed at condemning the regimes attempt to create a ‘life Presidency’  for the current President, Mr Museveni.

40. According to the applicant, FDC officials approached him and observing the level of violence that had broken out in Kampala and its various districts, they suggested to him, that his best option was to consider leaving Uganda (if he wanted) in order not to become a victim of this violence. The applicant admitted to the Tribunal that he did now fear for his own safety especially after he had been detained by the local secret police. The applicant understood that as the unrest continued, the local secret police would eventually catch up with him. He was, according to the applicant known to them and considered one of the FDC’s operatives with students at the local university campuses. The only alternative open to the applicant to take was to exist out of Uganda. His exist, the Tribunal was told was organised by officials in FDC and the applicant explained their success in securing him his exit papers (passport and visa to Australia) due to their efforts in successfully bribing Ugandan immigration officials to issue these exit papers.  

41. The Tribunal was told that the applicant’s family in his absence have been questioned on occasion by persons working in Uganda’s secret police as to his whereabouts and activities and have provide the applicant’s mother with warmings stating that ‘you will lose your son because of his action…’ The applicant also recalled that while he was in hiding (in Uganda) the secret police was of the belief that his family were actively concealing his whereabouts which (according to the applicant) was not true.

42. Once it became difficult for the applicant because of his activities in Uganda, the applicant relocated for short while to close rural district and then with FDC assistance, left Uganda to attend [an international event].

43. Since his arrival in Australia the applicant has been involved in Ugandan political matters, the Tribunal was told. He is a committee member of a local Ugandan Community organisation in Victoria[5]. Also, according to the applicant, while in Melbourne, the applicant has made contact through the Ugandan community with ‘like minded Ugandans’ and has continued his anti-regime activities. The applicant to the Tribunal that he has organised and participated at a number of anti-Ugandan Government protest rallies which have been held in Melbourne. The applicant also has assisted Ugandan ‘dissident groups’ in Melbourne with raising funds to support anti-regime campaigns in Uganda proper. More recently, concerning the Ugandan elections, the applicant, and his Ugandan friends here organised telephone links to influence views, attitudes and votes in Uganda. The applicant admitted that this campaign had not the effect he and his friends desired but it was a properly organised opposition to what is actually happening in Uganda. The applicant wanted to explore all means to bring to peoples’ attention in Australia the struggle for democracy which is going on in his country.

    [5] see ‘letter reference’ from the [Official A], [named], [of Community Organisation 1] see AAT File.

44. The applicant currently is employed in [Occupation 1] and since 2019 has been working on a full-time basis. He is also married to an Australian citizen.

45. The applicant was asked by the Tribunal – why does he fear returning to Uganda? The applicant explained that he sought protection in Australia because his activities against the Museveni regime leave him exposed within Uganda to the possibility of being arbitrarily detained indefinitely, subjected to torture and even extra-judicially executed. The applicant told the Tribunal that he has been ‘very public’ with his views as a Ugandan first, and as member of the FDC in his opposition to the corrupt politics the current Ugandan government has committed itself to and this needed to change.

1. The applicant told the Tribunal that he remains a very active within the Ugandan reform political group in Melbourne. This group was described as ‘small’ and ‘informal’ but nevertheless active in its politics and in its efforts to make Uganda’s fight for democratic government – an internationally aware issue that requires the attention of the Commonwealth and Australia.

2. The applicant was asked to explain - why the delegate considered his FDC membership documents to be false or not genuine? The applicant stated that the FDC is an independent organisation and has its own contact with private printing companies which organise the printing of their party stationery. As far as the applicant could say, the documents he provided were ‘genuine’ and not forgeries.

3. The applicant was also asked to explain – why the delegate did not believe the medical report which noted that the applicant’s injuries were attributed to “being beaten by security personnel…’? The applicant told the Tribunal, that the documents he submitted were those he had in his possession.

4. The applicant was asked to explain – why the residential address he provided as his place of residence was ‘common’ to other ‘applicants’ (as the delegate questioned)? The applicant explained to the Tribunal that the common address on his application was an place all Ugandans coming to Australia were referred to by friends, where they would stay for a few days or a few weeks with other Ugandans until they could find their own place to live.

5. The applicant told the Tribunal that he does not wish to return to Uganda. Uganda was described by the applicant as ‘not a good place’ to live under this current regime. Things, there (according to the applicant) are getting worse.

6. The Tribunal was told that the applicant’s political opinions on Ugandan politics had been made clear and open on social media and that he did not regret doing this because he believes that things in his country must change for the better.

7. While in Australia, the applicant has married (an Australian) moved from Melbourne to the country and has (together with his wife) ‘brought a house’. He told the Tribunal he has a good job and a sense of purpose and security he never had experienced in Uganda. He and his wife are thinking of the future and whether children should be considered.

8. The Tribunal asked the applicant – why he chose to live in country Victoria? The applicant said that everything Ugandans participate that is to do ‘with politics’, or with a campaign to support worthy change in Uganda does get recorded and monitored by persons friendly to the regime in power currently in Uganda. The applicant (and his wife) believed that the applicant’s political activities in Melbourne have been noticed and it was possible that those activities had been relayed with even photographs to government authorities in Kampala. However, the applicant could not provide proof that this happens or happened but he and his wife have chosen to live away for Melbourne for the reason that they are concerned that persons (they could not identify) in the Ugandan community (which is a small community) could have monitored the applicant’s political comments and activities.

   COUNTRY INFORMATION – UGANDA – CURRENT POLITICAL SITUATION – CIVIL SOCIETY – THE RULE OF LAW & HUMAN RIGHTS

9. While Uganda holds regular elections, their credibility has deteriorated over time, and the country has been ruled by the same party and president since 1986. The ruling party, the National Resistance Movement (NRM), retains power through the manipulation of state resources, intimidation by security forces, and politicized prosecutions of opposition leaders. Uganda’s civil society and independent media sectors suffer from legal and extra-legal harassment and state violence.

   Key Developments since 2020

10. According to the latest Freedom House Report 2021 - Uganda[6] between March and May, police arrested and assaulted at least 10 journalists while enforcing COVID-19-related restrictions, taking advantage of the pandemic to further curtail freedom of the press. In April, police arrested Rogers Asiimwe of Freedom Radio, raided his office, and questioned him about his discussion of the coronavirus, its origins, and the Ugandan government’s lockdown measures. In October, a combined military and police force raided the campaign headquarters of the singer and parliamentarian Robert Kyagulanyi—better known as Bobi Wine—ostensibly to recover red berets the campaign had stashed, a part of military uniform. Wine’s campaign uses the berets as a symbol of resistance, which the government claims is illegal. While opposition parties’ rallies were violently dispersed by security forces and participants were arrested throughout the year, the NRM was able to hold campaign events without interference. Following the November 2020 arrest of Bobi Wine at a political rally, security forces violently dispersed protests organized by Wine’s party, killing 54 people. Multiple videos shared on social media during protests show the military and plainclothes gunmen firing high-calibre rifles in populated urban centers. The government failed to hold any of the attackers responsible for killing unarmed civilians.

    Political Rights in Uganda

    [6] Freedom House Report -Uganda 2021;

11. The president is directly elected to serve five-year terms. In the 2016 election, incumbent Yoweri Museveni won with 60.6 percent of the vote, according to official results. Kizza Besigye of the opposition Forum for Democratic Change (FDC) placed second, with 35.6 percent. The integrity of the election was undermined by problems including the misuse of state resources and flawed administration by the Electoral Commission (EC).

12. A 2017 constitutional amendment removed the presidential age limit of 75, allowing the president to seek re-election in 2021. Opposition parties and other critics challenged the validity of the change, citing procedural problems and intimidation, but the Supreme Court upheld the amendment in April 2019.

13. The 2016 elections for the unicameral Parliament were held concurrently with the presidential vote. A total of 426 members were chosen, including 289 elected in single-member districts, 112 elected to reserved seats for women, and 25 chosen to represent special interest groups (the military, youth, people with disabilities, and trade unions). Members serve terms of five years. The ruling NRM won an absolute majority with 293 seats. Independents won 66 seats, the opposition FDC took 36, and smaller parties divided the remainder. As with the presidential election, the integrity of the balloting was undermined by problems including the misuse of state resources and flawed administration by the EC. Ahead of the 2021 elections, in November 2020 the government introduced a ban on campaign rallies, citing the COVID-19 pandemic. Subsequently, stringent restrictions prohibiting public campaigning events were introduced, though they were not uniformly applied. Ruling-party politicians were allowed to hold rallies and campaign freely while opposition rallies were violently dispersed by police and military.

14. Independent observers, civil society, and opposition leaders have long critiqued and called for substantive reforms to Ugandan electoral laws. On election day in 2016, the EC experienced significant technical and logistical problems. It extended the voting time for polling stations that opened late, with voting in some areas continuing for an extra day even as counting was well under way. This exacerbated existing mistrust of the EC and raised suspicions of malfeasance.

15. Following the flawed 2016 elections, the Supreme Court called on the attorney general to implement electoral reforms to address these issues within two years and update the court on the progress of the changes. The deadline passed in March 2018 with no meaningful reforms advanced. Between February and March 2020, the parliament passed five electoral reform bills that they had been ordered to draft in 2019. President Museveni assented to four of the laws in July 2020.

16. Between July 2018 and February 2019, the EC suspended the Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU), a prominent nongovernmental organization (NGO), from election observation and voter education, claiming the group is partisan and undermines the integrity of elections. However, after representatives from the CCEDU met with the EC in October of that year, both sides indicated that they had reached an agreement to allow the group to resume its work.

    Political Pluralism and Participation

17. The formation of political parties is protected by law, and multiple parties exist and compete in practice. However, the activities of opposition groups are hindered by restrictive party registration requirements and candidate eligibility rules, a lack of access to state media coverage, and violence or harassment by state authorities and paramilitary groups.

18. Police used tear gas and live ammunition to break up FDC rallies in the towns of Lira and Kasese in April 2019 and used similar tactics throughout 2019. When FDC leaders tried to organize the party’s national conference in November, heavily armed police and military officers cordoned off the venue and forcibly dispersed party supporters. Besigye and a number of other FDC members were arrested and temporarily detained.

19. In June 2020, the Ugandan government prohibited all political gatherings, ostensibly to curtail the spread of COVID-19. Candidates were forced to campaign using radio, TV, leaflets, and social media; media the ruling party has substantial influence over. The government’s enforcement of the ban disproportionately targeted opposition party activities, particularly of Bobi Wine’s People Power group. In October, a combined military and police force raided Wine’s campaign headquarters, claiming the raid was intended to recover red berets, a part of military uniform, that Wine’s campaign use as a symbol of resistance; the government claims they are illegal. While opposition parties’ rallies were violently dispersed by security forces and participants were arrested throughout the year, the NRM was able to hold campaign events without interference.

20. Following the November 2020 arrest of Bobi Wine at a political rally, security forces violently dispersed protests organized by Wine’s party, killing 54 people. Multiple videos shared on social media during protests show the military and plainclothes gunmen firing high-caliber rifles in populated urban centers. The government failed to hold any of the attackers responsible for killing unarmed civilians.

    Is there a realistic opportunity for the opposition to increase its support or gain power through elections?

21. The ruling party dominates all levels of government. There are several dozen opposition lawmakers in Parliament, as well as numerous independents, though some of the latter support the NRM. Presidential and parliamentary election campaigns are characterized by violence, intimidation, and harassment toward opposition parties.

22. Leaders of opposition parties and political movements are sometimes arrested on trumped-up criminal charges. There were multiple arrests of FDC leaders during 2019, and Bobi Wine was arrested in November 2020 and harassed throughout the year. At the end of 2020, Wine and more than 30 others were still awaiting trial on treason charges arising from a 2018 incident in the Arua district; police alleged that Wine and his supporters obstructed President Museveni’s motorcade and threw stones at the vehicles. Charges of annoying, alarming, or ridiculing the president were added to the case in August 2019.

    Are the people’s political choices free from domination by forces that are external to the political sphere, or by political forces that employ extra political means?

23. The military is closely aligned with Museveni and the NRM and holds 10 seats in Parliament. The government and ruling party also reportedly use public resources and patronage networks to build political support among religious leaders and other influential figures.

    Do various segments of the population (including ethnic, racial, religious, gender, LGBT+, and other relevant groups) have full political rights and electoral opportunities?

24. Although Uganda has a large number of diverse ethnic groups, they lack equal representation and opportunities. Small ethnic groups like Alur, Ik, Bagungu, Bakozo, Kakwa, Batwa, and Karamojong are disproportionately affected by violent conflicts, and have less access to education and inadequate healthcare.

25. The dominant position and coercive tactics of the NRM impede free political participation and advocacy of interests by Uganda’s various ethnic groups, including those affiliated with subnational kingdoms and smaller Indigenous groups. An assessment of women’s participation in the 2016 elections by the Women’s Democracy Group, a coalition of Ugandan civil society organizations, noted a widespread perception that because a certain number of legislative seats are reserved for women, “they should not contest for direct positions so as to reduce on the competition for male contestants.” Due to severe legal and societal discrimination, the interests of LGBT+ people are not represented in politics.

    Functioning of the Government in Uganda

    Are safeguards against official corruption strong and effective?

26. Corruption is a serious problem. There are laws and institutions designed to combat official malfeasance, including the Anti-Corruption Act of 2009 and the Inspectorate of Government, and instances of alleged graft have led to investigations and intense media attention. However, the system has not been effective at addressing corruption in a sustained manner, and top government officials are rarely prosecuted in practice.

    Does the government operate with openness and transparency?

27. Many government departments deny requests for information under the country’s Access to Information Act. Other laws related to national security and confidentiality also impede open access to information in practice. The Access to Information Act is not uniformly applied. Government agencies seem to release information that only favours the regime. For example, in September 2020, the Electoral Commission made public the academic documents of Bobi Wine while refusing to release those of President Museveni, despite numerous petitions. Wine described the Commission’s decision as intended to raise questions about his eligibility to run for president.

28. Public procurement decisions are generally opaque.

    Civil Liberties in Uganda

    Are there free and independent media?

29. The media sector features many independent outlets, but their journalists face arrest, harassment, intimidation, and assault in reprisal for their work. Authorities routinely raid and shut down radio stations and other outlets and will take away accreditation from journalists in retribution for their reporting.

30. Throughout 2020, journalists covering the campaign events of Bobi Wine were harassed, assaulted, and detained, on various charges. The Committee to Protect Journalists, a press freedom watchdog, reported that at least seven journalists were harassed and attacked by police and members of the public between November and December while covering campaigns for the 2021 presidential elections. Further, authorities issued new guidelines for foreign journalists, requiring them to reapply for accreditation within a week of the guidelines being announced. At least one foreign news crew was deported.

31. Between March and May, police arrested and assaulted at least 10 journalists while enforcing COVID-19-related restrictions. In April, police arrested Rogers Asiimwe of Freedom Radio, raided his office, and questioned him about his discussion of the coronavirus, its origins, and the lockdown measures instituted by the Ugandan government.

    Is there academic freedom, and is the educational system free from extensive political indoctrination?

32. Academic freedom has been undermined by alleged surveillance of university lectures by security officials, and by the need for professors to obtain permission to hold public meetings at universities. In December 2018, 45 staff members at Makerere University in Kampala were dismissed for indiscipline, but critics argued that the dismissals were meant to silence critics of the government within the university. The 2019 imprisonment of prominent Makerere University academic, Stella Nyanzi, under the Computer Misuse Act for cyber harassing President Museveni was annulled in February 2020, after a judge ruled that she had not been given a fair trial.

33. Authorities have responded harshly to campus protests by student groups.

    Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?

34. Private speech is relatively unrestrained, and Ugandans openly criticize the government on social media. However, individuals are at risk of criminal penalties for such speech, and the government reportedly monitors social media platforms. Media reports in August 2019 indicated that Ugandan intelligence officials, with assistance from a Chinese telecommunications firm, had hacked into the accounts and devices of opposition figures to track their communications and movements; the same techniques could presumably be used against ordinary citizens.

35. In 2018, the government implemented a controversial social media tax, requiring users on platforms like Facebook, Twitter, and WhatsApp to pay a daily fee of $0.05, which is prohibitively expensive for many. Critics assailed the tax as an attack on freedom of expression and an attempt to limit the exchange of criticism of the government and mobilization of the opposition online. According to the UCC, the tax led to a decline in the number of social media users in the months following its introduction.

36. In August 2019, the UCC issued an order requiring all social media bloggers, YouTubers, and online influencers to be registered. In September 2020, the UCC announced that all online content creators must register by October 5. The registration process includes a $27 fee, and applicants have to provide their passport, national identification information, and contact information. Critics claim the regulations curtail freedom of speech for Ugandans who use social media to criticize the government.

    Associational & Organisational Rights in Uganda

    Is there freedom of assembly?

37. In March 2020, the Constitutional Court annulled the Public Order Management Act (POMA), the 2013 public order law that required groups to register with local police in writing three days before any gathering, public or private, to discuss political issues. The government relied on the law to prevent opposition rallies, as it gave police the authority to deny approval for such meetings if they are not deemed to be in the “public interest,” and to use force to disperse assemblies judged unlawful.

38. In 2020, the number of unlawful, unjustified, and disproportionate use of force against protesters dramatically increased. The military and police killed 54 people during protests in Kampala and other towns on November 18 and 19, which was condemned local and international human rights activists, donors, and civil society organizations as blatant human rights violations.

39. The annulment of POMA did not stop police from repeatedly using tear gas, live ammunition, and arrests to disrupt opposition events in 2020. During the COVID-19 pandemic, security forces used public health measures to violently disperse rallies and meetings associated with Wine’s campaign.

    Is there freedom for nongovernmental organizations, particularly those that are engaged in human rights– and governance-related work?

40. Civil society in Uganda is active, and several NGOs address politically sensitive issues. However, their operations are vulnerable to various legal restrictions, burdensome registration requirements, and occasional threats. NGOs that work on human rights issues have reported break-ins at their offices and burglaries in recent years, and the police have failed to adequately investigate the incidents.

1. In August and September 2019, the government required NGOs to submit information to the National Bureau for NGOs on their staffing, finances, and activities. In November 2019, the interior minister ordered some 12,000 NGOs to shut down for failing to renew their registration, though the bureau said the groups would still have an opportunity to reregister. Only about 2,000 groups had successfully navigated the process.

   The Rule of Law in Uganda

   Is there an independent judiciary?

2. Executive influence weakens judicial independence, as does systemic corruption. In August 2019, the chief justice established an internal task force to investigate widespread allegations of judicial corruption, but the FDC called for an independent probe by outside lawyers and experts.

   Does due process prevail in civil and criminal matters?

3. Police routinely engage in arbitrary arrests and detentions, despite legal safeguards against such practices. Other impediments to due process include prolonged pretrial detention, inadequate access to counsel for defendants, and corruption. A number of reform initiatives in recent years, including the introduction of plea bargaining in 2015, have reportedly had some success in reducing large case backlogs.

   Is there protection from the illegitimate use of physical force and freedom from war and insurgencies?

4. Rape, extrajudicial violence, and torture and abuse of suspects and detainees by security forces are persistent problems, and prosecutions of the perpetrators are rare. The alleged torture of Bobi Wine and other opposition politicians in August 2018 led to protests against police brutality. The government said it would investigate Wine’s allegations of torture, but no charges had been filed as of 2020.

5. On December 27, 2020, Bobi Wine’s bodyguard, Francis Senteza Kalibala, was run over and killed by a military vehicle. Wine said the killing was “deliberate,” which the military denied. On December 30, boxer Isaac “Zebra” Ssenyange was shot dead by security officers at his home. After reports emerged that Ssenyange supported the ruling party, President Museveni described his death as a mistake and apologized to his family.

6. Prison conditions are poor, as the prison system is operating at about three times its intended capacity, with pretrial detainees constituting nearly half of the inmate population.

   Do laws, policies, and practices guarantee equal treatment of various segments of the population?

7. Ugandan laws prohibit discrimination based on ethnic origin, religion, age, race, disability, colour, and sex. However, the LGBT+ community continues to face overt hostility from the government and much of society. Same-sex relations are criminalized under a colonial-era law. Men and transgender women accused of consensual sex are sometimes forced to undergo an anal exam that Human Rights Watch (HRW) says could amount to torture. In October 2019, LGBT+ activist Brian Wasswa was fatally attacked at his home in Jinja. In October and November 2019, police carried out two groups of mass arrests of LGBT+ people in Kampala.

8. The law prohibits employment discrimination based on gender and other criteria, but it does not cover the informal sector, in which most women work, and women are subject to de facto discrimination in employment and other matters.

9. There were about 1.4 million refugees living in Uganda at the end of 2020, and the United Nations has praised the government for its progressive asylum policies. However, it struggles to fund basic services for some refugee populations.

   Personal Autonomy and Individual Rights

   Do individuals enjoy freedom of movement, including the ability to change their place of residence, employment, or education?

10. Freedom of movement in Uganda is largely unrestricted, including for refugees, most of whom live outside of camps and have been able to move more freely in recent years. However, bribery is common in many facets of life, such as interacting with traffic police, gaining admittance to some institutions of higher education, and obtaining government jobs.

11. During the COVID-19 pandemic, the Ugandan government implemented strict measures and movement restrictions to prevent the spread of the virus, which were at times violently enforced by security forces.

    FINDINGS AND REASONS FOR DECISION

    Preliminaries comments

12. Before the Tribunal explains its reasons in deciding the applicant’s claims it must point out that the mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded’. Similarly, that an applicant claims to face a 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 to hear. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant: (see, MIEA v Guo (1997)191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at [169]-[170]).

13. The applicant claims that he fears returning to Uganda because he has been an active member of and leader of the youth mobilisation committee for the political party, Foreign for Democratic Change (‘FDC’) since 2015. He also maintains that he had been detained and tortured on two occasions, on 18 February 2016 and [a date in] January 2018 but he managed to leave Uganda by the FDC organisation obtaining for him his Australian visa [to attend an international event].

    The delegate’s decision – main issues

14. The delegate’s decision overall doubted the applicant’s credibility.[7]

    [7] Decision Record, Department of Home Affairs File [Number] at p.2

100.   That doubt was based on a number of aspects of the applicant’s evidence the delegate identified, both written and oral. The delegate from the outset of his consideration of the applicant’s claim raised serious credibility concerns which centred on the supportive documentation the applicant had submitted to the delegate to support his claim that he was an FDC member and activist as he claimed. This evidence concerned the applicant’s membership documents which on perusal of the same, the delegate concluded that the “documents are no official quality and could have been created on any desktop printer…”[8]

[8] see, Decision Record in Department of Home Affairs File [Number] at p. 3

101.   These documents were held as being inappropriate by the delegate not after having them subjected to some stringent forensic examination to determine as to their actual origins – which could have been undertaken by the Department if the delegate so determined but in this instance, their inappropriateness was concluded by the delegate referring to available country information from Canada reporting the prevalence of document fraud in Uganda which included ‘identity cards’ and ‘passports’.[9] It is also noted by the Tribunal, that the Department determined after a proof process having been undertaken that the applicant’s Passport ([Number]) and his [University] Student Identity Card were proper. Surely a similar due diligence could have been carried out for the applicant’s FDC membership documentation and any other documents provided. This option, in the Tribunal’s opinion, was open to the Department to take it did so on the applicant’s identity documents the same should have been done on others went to proving his political claim. For some reason that was not the case. 

[9] “Prevalence of Fraudulent documents including identity cards and passports (2014-December 2015)” Canadian Immigration and Refugee Board (IRB), 13 January 2016 CX6A26AE6154.

102.   The delegate also disputed the validity of the medical report provided by the applicant proving that he had been subjected to some violence by agents of the Ugandan state while in detention. In particular, the delegate concluded that the no medical practitioner would make those comments as made in this instance identifying the cause of the injuries having been created by possibly state agents using violent force. The delegate comes to his conclusions on this evidence based on his assessment of the Ugandan political scene and concluding that no medical practitioner would so write a medical report. Having read the available country information on the current political situation in Uganda at the present, and since 2014 in particular, it is possible to come to the conclusion that a medical practitioner would not write such a conclusion in his medical assessment of a person he is treating when it involves political issues, but one cannot speak in absolutes. The applicant was clear in his evidence that he was provided with assistance by his organisation because of his work he did for them. It is possible, but the Tribunal is not certain on this, that such a report may have been procured by other means which are indeed prevalent and available to anyone in today’s Uganda. The applicant provided no clear explanation on this document’s origins except to tell the Tribunal that it recorded his injuries which he stated he had suffered being who he was – an FDC member and a political activist in the field and that the FDC provided him with assistance when he required it.

103.   The delegate noted that at the Protection visa interview the applicant had knowledge of the FDC and was able to answer general questions about the FDC and the reasons why he became a member. However, the delegate did not accept that the applicant was a ‘high profile’ as was claimed.[10]

[10] see Decision record at p.4

104.   The delegate also noted in his decision that at the interview the applicant was asked about his travel to Australia and Melbourne and if he knew anyone in Australia before he left Uganda. The applicant, the delegate noted said, that he met some Ugandans on the plane and one of the girls he has since seen in his initial residence. The delegate noted that the applicant claimed that he did not know anyone in Australia before he left Uganda but when he arrived, he started looking for where the Ugandans lived and asked a random person who was African. The applicant, the delegate noted stated that this person advised him that he biggest Ugandan community was in Melbourne and gave him money and instructions on how to travel there. Upon arrival in Melbourne, the head of [a named community group] linked him up with a community member, [Mr B] who helped him with accommodation. Nevertheless, the delegate concluded, that it was questionable that a random African person happened to meet upon arrival gave him monetary assistance and provided him with this information. Therefore, the delegate found it more than likely that the applicant had contacts in Melbourne and his travel and intention to lodge protection was premeditated before he left Uganda.

105.   The applicant concluded that having weighed the information before him, he came to the following conclusion:[11]

[11] see Decision Record [Number] at p.6

§The documents submitted the applicant are not genuine and therefore do not substantiate that the applicant is a FDC member and was the presiding officer for a polling station on 18 February 2016

§The applicant has a general knowledge of Ugandan politics and the FDC and could be a FDC member but has not been detained or has any high political profile of interest as claimed.

§The applicant’s travel to Melbourne was orchestrated and he did know people in Australia before his departure to Uganda including on his flight.

§The applicant has not been a credible witness and been purposely reticent to strengthen his claims.

106.   Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:

A.the applicant was born on [date] in Kampala City, Kampala, Uganda and is [age] years of age.

B.the applicant is of Bantu ethnicity and is a Catholic.

C.the applicant’s father is deceased, but his mother is alive, and he has [specified family members] living in Uganda.

D.the applicant is married to an Australian citizen, [named].   

E.the applicant attended in [specified years] [School 1]; [in specified years] [School 2]; [in specified years] [School 3] and [in specified years] [a named] University.[12]

[12] see Form 866 Part C in the Department of Home Affairs File [Number]

F.the applicant is currently employed at [a named employer] as [an Occupation 1] since 23^rd May 2021.[13]

[13] see AAT File documents provided with Applicant’s submissions

The Applicant’s refugee claim

The Relevant grounds

107.   The applicant claims to fear harm because of his political involvement, opinion and beliefs as a member of the Forum for Democratic Change (‘FDC’). The applicant makes no other claim to fear harm due to his race, nationality, religion, or membership of a particular social group.

108.   It should be noted that fear of being persecuted is well-founded if there is a ‘real chance’ that the applicant may be persecuted: see, Chan v MIEA (1989) 169 CLR 379 per Mason CJ, Toohey J at 406-7, Dawson J at 396-8 and McHugh J at 428-9. A ‘real chance’ may be below a 50 per cent chance. However, a real chance is not as remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well-founded. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is mere speculation. A decision-maker is also not required to make the applicant’s case for him or her. Nor is a decision-maker required to accept uncritically any or all the claims and assertions made by an applicant.

109.   The Tribunal in assessing this criterion, has considered all the available country information on the current political situation in Uganda. The Tribunal also noted that

110.   Overall, the applicant’s main claim is that when in Uganda between 2015/2018 he was a supporter, member and front-line activist for the political organisation, known by the acronyms ‘FDC’ (the Forum for Democratic Change). In his evidence before the Tribunal, the applicant presented as an individual who understood, and comprehended this political organisation’s major political platform and beliefs. He also provided sufficient evidence in documentary form (though questioned by the delegate in his decision) of being a member of the FDC. Though, the Tribunal is aware and accepts the caution of the delegate in not accepting the applicant’s FDC membership card as legitimate and basing his conclusions on the country information that an industry flourishes in fraudulent documents in Uganda, the delegate did not subject this document (and others) to any forensic examination to prove their actual character. Having not done so, the Tribunal accepts that the applicant was as he claimed, a card-carrying member of the FDC as is indicated the membership document he submitted.

111.   Having accepted the applicant’s FDC membership, the Tribunal must consider whether the applicant was an activist of the FDC in the time he claimed to have been. It was submitted by the applicant that he was heavily involved in recruitment activities while at University for the FDC. The Tribunal was told that it was his task as an FDC operative to further the FDC’s platform and that platform’s acceptance by the student population of the University the applicant was currently enrolled. Though the applicant provided very little in documentary evidence to prove such an involvement to the Tribunal, he did otherwise provide a clear description of what he did as an activist for the FDC at his university. These activities according to the applicant, were to engage with individual students or with groups of students provide them with FDC written materials and FDC paraphernalia and to engage with them - either in group discussions or exposing the university’s student population to FDC political figures speaking to them. This aspect of the applicant’s political work was in particular use just before and during local or national elections. For example, the applicant told the Tribunal that on 18 February 2016, the day of the presidential and parliamentary elections in Uganda, he was arrested by state security at [a named] polling station in Kampala city where he was in charge of monitoring opposition leader Dr Kizza Besigye’s ballot papers and overseeing the polling station. He explained that this was common practice in Uganda[14], that is the government security agents brought in pre-ticked ballot papers in favour of the President Museveni into polling stations.[15] The applicant went on to tell the Tribunal that as a result of his detention, he was ‘beaten’ and warned but was after two days or three-day detention he was released. That being so, the applicant once released resumed his FDC activities as before recruiting students to the FDC and distributing FDC materials on various university campuses.

[14] Tabachnik, Sam ‘Bills, Bribery and Brutality: How Rampant corruption in the Electoral system has helped prevent democracy in Uganda.’ (ISP) Collection, 1204:

[15] Reuters, ‘Uganda’s Museveni wins sixth term, rival alleges fraud’: ‘AD415:Double Standard? Ugandans see vote buying as wrong and punishable, vote selling too’ AFRO Barometer (2021)

The applicant told the Tribunal that [in] January 2018 he was again arrested by Ugandan government agents and detained at [a named] police precinct. Again, we were told that he was subjected to questioning, intimidation, threats, and beatings and then released [later in] January 2018, on a condition and caution that he do not involve himself in any political activity within the student population on the various campus. The applicant had no explanation as to what happened to the other two which had been arrested ([named]) had been taken away to an unknown destination (another police precinct) and he had not heard of them since the of his release. The Tribunal cognisant of the country information referenced (herein, see footnotes (14) and (15)) which describes the political situation in Uganda under the Museveni regime as corrupt and lacking any real adherence to proper operation of the rule of law and the judicial system operating without interference by the dominant political executive[16], it is proper to consider that people who differ in political opinion and beliefs do fall victims to foul play instigated by the official state and by the ‘deep state’.[17]

[16] Abdi Latiff Dahir, ‘Uganda’s leader of 35 years is re-elected amid accusations of vote-rigging’;

[17] Uganda: Freedom in the World 2021 Country Report | Freedom House

112.   Questioning the applicant on his movements after these two incidents, it was made clear to the Tribunal that he engaged with the local leadership of the FDC to try to assist him to leave Uganda for other destinations. The Tribunal noted that the delegate did not consider this explanation of his leaving Uganda as credible. The delegate did not believe that an opposition organisation would or could consider dealing with the officials of the regime (at some levels) to organise the removal of an individual to another country. The delegate was also of the opinion, that the applicant was not a ‘person of interest’ of ‘significant’ interest that is, to the Ugandan authorities to attach to him the attention the applicant claimed. With reference to the available information on what occurs in Uganda currently, and the level of corruption prevalent in that country and the diminution of the effectiveness of the rule of law at all levels of the state, it is more probable than not, that anything could be done for the requested sum of money and therefore, if the delegate considered as possible fraud for official documents originating from Uganda, it is possible also in the Tribunal’s opinion, that the same could be said of other parts of the state operating at various levels (on their own initiative and interests) by the same means and providing what should not be provided in normal circumstances. The Tribunal after its examination of the applicant’s evidence considers him (with the evidence of his political activities in this country since his arrival as he described in his evidence and from the evidence he submitted)[18] maybe not being a significant person of interest but nevertheless, a FDC operative capable of operating and one who had operated in the field at election time and had come into contact with authorities because of his work at various campuses.[19] It possible, therefore to come to the conclusion, that the applicant’s activities had the potential to cause some of his local political opponents to feel concern for various reasons – be it personal or political, and allowing a troublesome operative an exodus from the country was a possible solution to a problem. A solution not to be dismissed if one takes account of the available country information.

Accordingly, the Tribunal finds that the certificate is valid but the information to which the certificate applies is not relevant to the applicant’s review because the information is not (all) relevant to the visa issues under consideration by the Tribunal.

Peter Vlahos, Member

25 October 2021.