1818153 (Refugee)

1818153 (Refugee) [2021] AATA 4944 (20 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818153
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Peter Vlahos
DATE:20 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 20 October 2021 at 8.30am
CATCHWORDS
REFUGEE – protection visa – Uganda – particular social group – lesbian – homosexuality – public profile due to previous marriage – long-term sexual repression while living in Uganda – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIMA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIEA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Morato v MILGEA (1992) 39 FCR 401
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Uganda, applied for the visa on 24 April 2018. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 21 June 2018.
A hearing of the applicant’s application for review was scheduled for hearing on 7 October 2021 and it proceeded by teleconference because of the Covid-19 Pandemic state of emergency being in force throughout the State of Victoria.
The applicant provided no witnesses for the Tribunal to hear and to question.
The applicant was represented at the hearing by her registered migration agent and Solicitor, Mr [A]
There was no use of the interpreter, though one had been engaged and provided by the Tribunal at the teleconference hearing because the applicant provided her evidence without any issue in the English language.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
The applicant claims she was born on [date] (currently [age] years old) in Kampala, Uganda. She claims to be a citizen of Uganda and does not hold any other citizenship or nationality. The applicant claims to Bantu ethnicity and is a Catholic.[1]
[1] see, Applicant’s Protection Application form, at p.22 in Department of Home Affairs File [no]
The applicant provided the Department of Home Affairs (the Department) with a certified copy of the biodata page of her Republic of Uganda passport number [deleted] valid until [2026][2] and her Republic of Uganda Identity Card, number [deleted].[3]
[2] Ibid Department File
[3] Ibid Department File
The documents provided by the applicant are consistent with the evidence to the Tribunal in relation to her identity. Therefore, based on the applicant’s evidence and the documents provided to the Department, the Tribunal accepts her identity as claimed.
Applicant’s Country of Reference
There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Uganda and as such her protection claims will be assessed against Uganda as the Country of nationality and “receiving country” respectively.
Department File before the Tribunal
The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the Delegate’s decision record. The applicant provided the Tribunal with a copy of the department’s decision record with her review application.
Applicant’s Migration history
The applicant first arrived in Australia [in] April 2018 on a Temporary [visa]. On 24 April 2018 the applicant applied for a Protection (Class XA 866) visa and was granted the associated Bridging visa.
EVIDENCE AT THE HEARING
Applicant’s claims for Protection as submitted to the Department
The applicant provided the Department with the following written claims:[4]
[4] Ibid, see Department File no. [Delegate’s] decision record.
§On [date] June 2015 the applicant married [Mr] [B], becoming his second wife.
§On [date] 2017 Mr [B] was murdered by unknown gunmen believed to be government security agents.
§On [date] 2017 the applicant went to Mr [B]’s funeral. She was attacked and beaten by Mr [B]’s first wife and some unknown people, but the police ‘saved’ her.
§An investigation into the murder of Mr [B] took place, but any suspects questioned were released without charge.
§On [date] 2017 the applicant was summoned by the police to record a statement about Mr [B]’s murder. She was later released. The police also searched her house and confiscated items, including a laptop and USB.
§On [date] 2017 the applicant was taken by the authorities to an unknown location and detained for three days. She was accused of killing her husband, Mr [B]. She was interrogated and tortured, and released without charge, but told to report weekly to [the] police station.
§In fear, the applicant fled and went to into hiding. She lived with her aunt until she found a way to leave Uganda.
§The applicant fears security agents will arrest and detain her if she returns to Uganda, because the authorities accused her of having knowledge, or involvement, in the murder of Mr [B].
§The applicant also fears Mr [B]’s first wife may hire gunmen to kill her.
§The applicant has been summoned for more investigations but has not attended and fears this will add to her problems with the authorities.
The applicant told the Tribunal that she had family living in Kampala, Uganda which consisted of her mother, brother (older) who was married. She had completed all her education in Uganda and had successfully completed her (as she described it to the Tribunal herself) a [degree].’ While in Uganda, the applicant told the Tribunal that she worked as ‘[an occupation]’ (no further details were provided). The applicant told the Tribunal that she arrived in Australia [in] May 2018 on a temporary [visa].
The Tribunal proceeded to ask the applicant to confirm her claims for Protection as she had submitted to the Department and asked her if there were any further claims she wished to add to her original claims.
The applicant told the Tribunal that she had a clandestine relationship with [Mr B] since 2015 which resulted in her marriage to him on [date] June 2015. The applicant told the Tribunal that all information concerning her marriage (for example, her marriage certificate) had been submitted to the Department with her application for Protection.[5] The applicant was asked whether she had any photographs of herself with her husband. The applicant told the Tribunal that there were photographs but that she had left them ‘back in Kampala’ when she left for Australia.
[5] Department of Home Affairs file no. [Folio] […] Marriage Certificate
The Tribunal asked the applicant – what had happened to her husband. The applicant told the Tribunal that ‘her husband’ had been “assassinated” by political forces within Uganda because he was a “[occupation], who did not support any corruption.” The applicant went on to tell the Tribunal that her late husband, was “actively working” to “stop the corruption” of the current “President of Uganda”. She told the Tribunal that it “was this opposition which led to his execution.” The applicant described this period in her life “as the most traumatic in her life.”
The applicant’s new claims for Protection
The applicant then admitted to the Tribunal in the presence of my registered migration agent and lawyer, Mr [A] that she did not wish to be questioned by the Tribunal on the issue of her late husband’s death and the circumstances which surrounded his death or how that event caused her to leave Uganda in 2018. The applicant made it clear to the Tribunal that what she had told the Department about her relationship with her husband, the late Mr [B] was true but her leaving Uganda was to do with something more personal to her which has been with her for many years.
Mr [A], the applicant’s legal representative made the submission to the Tribunal that what was previously said to and documented by the Department and referred to by Tribunal in its opening comments was correct but was not the ‘actual’ plea for ‘protection’ of his client. According to Mr [A], the applicant had provided the claims (as recorded) by the Department because she ‘had a fear of saying things to authority’ fearing exposure or some harsh punishment if she told people in authority the actual reality of her situation. Mr [A] told the Tribunal that he was not the applicant’s legal adviser when the applicant made the application for Protection to the Department – that was the effort of another – whether he was a legal professional or migration agent, that could not be told to the Tribunal with any certainty and the applicant provided very little comment on this matter.
Mr [A] submitted that the applicant wished the Tribunal to deal with the issue of her seeking protection from Australia for the reason that she was a bisexual woman who had now (while in Australia) determined that she was a woman that preferred to live her life openly as a gay female (a lesbian), seeking relationships with other females and living freely within the wider LGBTI community in Melbourne, Victoria. Moreover, the applicant feared to return to Uganda because ‘homosexuality’ was not accepted or tolerated by the Ugandan authorities or by Ugandan society in general. The applicant believed that if she was forced to return to Uganda she would be persecuted, harmed and even killed if family and ‘other’ within the ‘community’ found out she had been a bisexual and now a committed lesbian. The applicant told the Tribunal that bisexuals, homosexuals, lesbians and transgender people could not expect to be protected by the state because such people were generally considered a ‘dangerous influence on Ugandan society’. As a result of such official thinking about LGBT persons like the applicant, the applicant could face harm even death inflicted upon her by the state in Uganda.
The Tribunal had no reason to dismiss these new claims though issues concerning the credibility of the applicant were foremost in the mind of the Tribunal but the position of the Tribunal in moving forward was to examine, to probe the applicant’s evidence with regards to these new claims and to determine after considering all the information before it, whether these new claims overall, were sufficiently explained to invite the Tribunal to allow the applicant either the protection of s.36(2)(a) or if not, refugee status, the alternative protection provided for by s.36(2)(aa) of the Act.
Applicant’s evidence
The applicant explained to the Tribunal that she always had an interest in finding out her ‘true sexuality’. She told the Tribunal that from a ‘young age’ she enjoyed dressing herself in simple clothes – for example, “shorts”. The applicant wanted to be more attractive to girls than to “boys”, she told the Tribunal.
The Tribunal was told that her attitudes to her appearance and dress was questioned by her mother but she refused to conform as she was required and if she did so, that was for a little time so as not to be punished and then she would revert to her ways which pleased her.
At the same time (in her formative years) as a young girl, the applicant explained to the Tribunal that she was trying to “figure things out for herself.” According to the applicant, in her early years before she came to the age of 15, she was trying to understand why she was so attracted to females than males. This effort to understand herself became that much more difficult for her, when she was constantly questioned by her dominating mother asking her ‘what was going on?’ and ‘why are you dressing in that way?’ The applicant was asked by the Tribunal whether her mother knew or had come to understand that something was going on with her as far as it concerned, he sexuality. The applicant told the Tribunal that her mother did not know about her inner feelings and thought. That was because (according to the applicant) it was difficult to discuss with her mother. The applicant ‘kept it (her sexuality) away’ from her mother.
Recollecting the development of her sexuality and feelings, the applicant told the Tribunal that she began to assert these feelings by the time she turned 15 years-of-age. The applicant told the Tribunal, that while attending Senior School – a all-girls education institution, it was there she felt ‘to a point’ ‘free’ to consider her relationships with others. At senior school she befriended a girl the applicant described (her pronouncement) ‘[Ms C]’. The friendship, the applicant told the Tribunal, lasted for ‘two years’. The applicant told the Tribunal that she was able to ‘express her feelings’ to her friend about how she felt about her, and she did the same. The two girls, the Tribunal was told “hanged out together” and enjoyed socialising together with other girls. This relationship lasted according to the applicant for approximately two years.
That being the applicant’s first female-to-female relationship, at the same time she also had a boyfriend, she described as ‘[Mr D]’ who was a student at another school. The applicant’s relationship also had a duration of approximately two (2) years.
The Tribunal asked the applicant to explain – how did she feel having a relationship with two people at the same time and why did she do this? The applicant admitted to the Tribunal that she maintained a relationship for a time with both a female and male. The applicant went on to tell the Tribunal, that at that time in her early teenage years she was “stubborn” and wanted to live and “experience” life as she wanted but at the same time she “feared” being in Uganda and knowing how “society” felt in general terms about ‘homosexuality’. The applicant told the Tribunal that she “lived her life” with fear of how society viewed homosexuality. In Uganda, the applicant told the Tribunal that ‘homosexuality’ was considered with no tolerance or understanding either by the community or the authorities. The applicant always acted with fear and having two relationships at the same time enabled her to ‘hide her true feelings’ and not being ‘found out’ and ‘expelled’ from school and to face ‘punishment’ by her parents.
The applicant admitted that “…I thought about it as a cover up…I had friends from both sexes to avoid any suspicion…” for wanting to pursue a relationship with another female with which she felt comfortable.
The applicant admitted to the Tribunal that her boyfriend, ‘[Mr D]’ was ‘a cover’ to conceal her real intentions to “explore relationships with other girls.”
The applicant told the Tribunal that her style of concealing her true intentions concerning her relationships worked well for her. It provided her with ‘good connections’ and from those connections she could date ‘like good friends.’ The applicant told the Tribunal because her male and female partners were in different schools, she was able to socialise with each at different times. While at boarding school she continued her relationship with her female friend, and she would see her “boyfriend” on the ‘holidays’. The applicant told the Tribunal that this style of life did not trouble her. On the one hand, it concealed her true sexuality from public view or from her family finding out and punishing her and at the same time she enjoyed the friendships she had made with males and females.
The applicant’s relationship with her boyfriend, [Mr D] ended, the Tribunal was told, because the two of them “grew apart”. Sometimes it was difficult to meet with because of distances and within the two-year relationship, he “changed schools” and contact was lost.

After this relationship, the applicant told the Tribunal that she met her girlfriend which she identified as ‘[Ms E]’. The applicant told the Tribunal that this relationship continued until when the applicant entered University – approximately three years in duration. This relationship, was described as one where the two women “…got along together…” The Tribunal asked the applicant – what did the two females do with their time together? The applicant told the Tribunal they would (when not attending classes at University) “go out to lunches” with friends, do a little “clubbing…” and also “visit the local shops…to do a bit of shopping…” The two enjoyed each other’s company. However, at the same time the applicant told the Tribunal that she was dating a male – she described as ‘[Mr F]’ who was at a local coeducational school.
The applicant told the Tribunal that her girlfriend ‘[Ms E]’ understood the applicant’s need to conceal her sexuality by continuing to date males and “she went with the flow…” However, her boyfriend ‘[Mr F]’ according to the applicant “did not know of the relationship I had with [Ms E]…”
The applicant told the Tribunal that she persisted with her male relationships because she wished to continue to “conceal” her true sexuality. The applicant had realised with her continuing female relationships that her real sexuality preferred females to males but being in Uganda that was difficult to openly display or to share with too many people within the community. The ‘community’ according to the applicant refused to accept – in general relationships which were not heterosexual.
The applicant relationship with her male friends – her boyfriends – as she described them were a cover (according to the applicant) covering her actual sexuality which was total preference in the end to wish to enjoy the company of women than males.
The Tribunal asked the applicant – whether she had any photographs of the persons she described as her relationships - both male and female? The applicant told the Tribunal that she did not have such photographs because of two reasons – First, she feared ‘other’ working out that she was bisexual or in the end a lesbian and telling others about this and exposing the applicant to reprimands either by family or the authorities. After all, any type of homosexual activity was and is considered (in Uganda) according to the applicant as a deviation from the normal and invites severe punishment.
After 2014, the applicant told the Tribunal she met her late husband and married him in 2015 and became his second wife. She had no relationships female or male in the two years she was married to her late husband.
The applicant was asked by the Tribunal to explain this sudden ceasing of her ‘double life’ but she “did not want to talk about what [I] told the Department about that…”
The Tribunal asked the applicant – to explain, how being married to such a high-profile individual could she leave Uganda without any notice from the authorities at Kampala International Airport? The applicant told the Tribunal that there is no proper streamline system of entry or departure at Kampala International Airport. The applicant told the Tribunal that one could ‘bribe officials’ and ‘get away with anything…’ As for her relationship and marriage to her late husband, the applicant told the Tribunal that ‘…not anyone could tell about the relationship’. More to the point, according to the applicant, ‘that relationship was a secret relationship’ and a very ‘limited number of people knew about his [applicant’s late husband’s] close friends…’ The liaison with her late husband because of his high-profile [position], according to the applicant was always held at a ‘very low level’- no actual public knowledge. The applicant, in the end ‘took her chances’ and left Uganda.
The applicant told the Tribunal that she paid ‘a bribe’ at Kampala International Airport and was able to leave Uganda without any issues.
The applicant told the Tribunal that at the time she was leaving Uganda “there was a lot going on…” The current regime has no respect for human rights or for the proper function of the rule of law. According to the applicant, Uganda is a country plagued by civil unrest, persecution resulting in “random arrests” and unexplained disappearances of individuals that offer different ways of lifestyle and opinion.
The applicant told the Tribunal she wanted to leave Uganda in order to be free to be herself without fear of hate, persecution, or the threat of harm. Uganda did not allow a young gay female the ability – the right – to live life as she wants and feels comfortable in doing. The situation in Australia, in particular Melbourne, is very real difference and contrast – according to the applicant.
The “gay life” in Melbourne, the applicant told the Tribunal was ‘free’ and ‘without fear’. The applicant described this ‘freedom’ as her being able to have her friends (same sex) and to “hang-out” without fear. Gay life in Melbourne the applicant described as completely free of societal ‘does and don’ts’ which restricted her while in Uganda.
The applicant told the Tribunal that she regularly “hangs out” with her “friends” at “[a named] Bar” situated in [suburb]. The applicant also lent her presence and support with her friends at the Gay Pride March held in St Kilda in February 2019 and has sought counselling and assistance when she has required it from [an] Organisation which is situated in [suburb].
The applicant also told the Tribunal that she had a relationship with another female while in Melbourne which she had met through that female’s sister.[6] The relations commenced in December 2020. The two females developed a friendship and from that friendship – a relationship developed. However, that relationship ended in April 2021. Thereafter, the applicant’s life became very limited socially because of the impact of the covid-19 Pandemic and lockdowns that followed. The applicant follows the ‘gay social scene’ on social media but it is difficult to establish relationships only on social media without ‘actually meeting’ people face to face and to exchange views and opinions.
[6] see photographs and the Applicant’s explanation of her same-sex relationship while in Melbourne in AAT File.
While in Melbourne, the applicant has secured a stable employment with [Company 1] as a ‘[occupation]’ and she finds her employment both rewarding and satisfying. She has been with [Company 1] for the last two years. The applicant enjoys the stability that she has found in Australia and considers her life hear as peaceful and free of victimisation and free to live openly as a member of the LGBT community. This was never possible for her Uganda.
The Tribunal asked the applicant – what is the fear that she has if she was (in the future) to return to Uganda? The applicant told the Tribunal that if she returned to Uganda her ‘freedom to express herself’ – that is, her sexuality will be totally taken away from her and she will be compelled to live her life concealing her ‘true feelings’ so that she is not discovered and ostracised by the extreme elements in the community, her family members and the authorities. The applicant told the Tribunal that ‘homosexuality’ in Uganda is against the law and not tolerated.
The Tribunal was told that Uganda ‘there is no understanding of bisexual women’. The applicant wished to be free to “explore for me…” and she wanted to be able to “…me for me…”. She feared that if she was discovered “dating a woman” in Uganda, she would be “beaten to death…” and immediately “arrested…” The ‘community in Uganda’ do not understand the LGBT people, the applicant said and the (Ugandan) ‘State’ does “nothing to protect anyone who is LGBT…” The only salvation for the applicant was to leave Uganda for any reason and to come to Australia to ‘live her life as she wanted without any fears or concerns for her wellbeing…’
The applicant’s migration agent and solicitor, Mr [A] drew the attention of the Tribunal to the country information. Mr [A] told the Tribunal thar law and order in Uganda is a very different matter to what experiences in a country like Australia. Mr [A] explained that the applicant had lived for a number of years in a state of fear because of her sexuality. According to Mr [A], the applicant had grown up in a culture thar ‘feared authority’, was ‘suspicious of authority’ and ‘never trusted authority’ and this was the reason that the applicant was hesitant to tell the Australian authorities her real concerns which was her desire to live and express her sexuality as lesbian or bisexual female. Mr [A] did not dispute the applicant’s previous claims but was of the opinion that the Tribunal had been provided with enough information to determine that the applicant had a genuine fear that if she was to return to Uganda eventually her sexuality will be betrayed and that she would suffer serious harm or even be subjected to incarceration, torture and even death. The applicant, according to Mr [A], had integrated well within the community here, in Melbourne, and if it were not for the pandemic and the lockdowns, the applicant would have continued with gay/bisexual lifestyle and social interaction within Victoria’s vibrant LGBT community in Melbourne and in in [a named area].
In summary, the applicant evidence to the Tribunal claims that she fears that if she is forced to return to Uganda she would suffer persecution in the form of physical assault, arrest, and detention, imprisonment, torture or possible death at the hands of the Ugandan authorities, and the wider community due to her sexuality.
Documents
In addition to what had already been submitted to the Department concerning her protection claim, the applicant provided the following additional documents to the Tribunal. They are as follows:
§Copy of her primary notification of decision letter from the Department of Home Affairs dated 21 June 2018
§Letter of support by [Mr G] [undated] but signed by the writer [undated]
§Letter of support by Mr [H] [undated] but signed by the writer [undated]
§Letter dated 23 September 2021 from the applicant’s employer, [a named person], [Company 1]describing the applicant’s employment duties as an employee of [Company 1]
§Letter dated 22 September 2021from the applicant’s employer confirming that the applicant has been an employee of [Company 1] since [April] 2018. Her employment being for a maximum of 40 hours per week
§Letter dated 27 September 2021 from the applicant’s Psychologist, [name deleted] BA[Hon], MA[Psy] Reg: Psy [registration number] providing a ‘review’ of the applicant’s ‘anxiety’ and ‘depression’ condition.
§American Bar Association Centre of Human Rights Report on the case, Uganda v the 67, November 2020.
COUNTRY INFORMATION
In accordance with the Ministerial Direction No.84 under s.499 of the Act, the Tribunal has taken into account of the ‘Refugees Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and Country Information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no country information report prepared by DFAT for Protection status determination purposes. As a result, the Tribunal has referenced the following supplementary country information which includes the following:

(a) Australian Smartravller advice Uganda[7] advising that it is illegal in Uganda to perform same-sex acts
(b) United Kingdom (UK) Home Office Country Policy and Information Note – Uganda: Sexual and gender identity and expression dated April 2019_ Version 0.4[8]
(c) United States (US) Department of State Human Rights Report – Uganda 2019 Human Rights Report[9]
(d) United States (US) Department of State Human Rights Report – Uganda 2020 Human Rights Report[10]
[7] Uganda Travel Advice & Safety_ Smartravller
[8]
[9]
[10]

CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in the Tribunal’s findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: see s. 5AAA Migration Act 1958. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant: see, MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility: see, Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p. 482. Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt: see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para [196]. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to general known facts.
Accepted Facts
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, Uganda.
(b). the applicant is of Bantu ethnicity and a Catholic. [11]
(c). the applicant’s family members reside in Uganda.
(d). the applicant is not currently married and does not have any children.
(e). the applicant completed her entire education in Uganda. [12]
(f). the applicant is currently employed by [Company 1] in customer quality. [13]
Applicant’s refugee claim
Comments concerning the applicant’s claims made to Department
[11] Part C – Application for a Protection visa dated 24 April 2018, Department File [No.]
[12] Ibid
[13] see AAT File for Employment details
This matter came before the Tribunal as an application for review of the Department’s refusal of the applicant’ Protection application. In the applicant’s original claims for protection, the applicant claimed that she was the ‘secret’ ‘second wife’ of the assassinated [Mr B] (in Uganda). The applicant told the Tribunal that her deceased husband had been murdered by political opponents (related to the current regime) who opposed his ‘campaign against’ ‘corruption’ in the public service and in government. The applicant also told the Tribunal that her ‘marriage’ was known to her family and to a ‘few others’ but not generally known in Ugandan society. The delegate for the reasons provided in the decision record rejected the applicant’s claims of being persecuted while in Uganda because of her relationship and marriage to the assassinated [Mr B] – as not being credible.
In summary, the delegate’s reasons were based on oral explanations provided by the applicant at her departmental interview and on the conclusion arrived at by the delegate that the documents submitted by the applicant (her marriage certificate) was not a proper (authentic) document because of the prevalence of document fraud in Uganda. The delegate did not submit the document in question, or any other documents provided to him for any proper forensic examination. The conclusion arrived at was dependant on current country information on this aspect concerning Uganda provided for by the Department of Foreign Affairs & Trade.[14]
[14] Refer to the Delegate’s record of decision
At the hearing, the applicant told the Tribunal that she had a new set of claims to make to the Tribunal and for the Tribunal to consider. Her ‘actual claims’. These ‘new’ claims concerned her plight for seeking protection in Australia. In other words, the applicant’s ‘actual feelings’ as a person away from Uganda seeking another country’s legal protection. The applicant did not refute what had been initially recorded in the delegate’s decision. The applicant explained to the Tribunal that she was married, as she claimed, to [Mr B] and as far as her marriage was concerned – it ‘did happen’ but ‘few knew about it’.
The applicant also told the Tribunal that while in Uganda she was fearful, that ‘after the assassination’ of her husband , she would face a similar fate because it would be assumed by his assailants that ‘she knew too much’ but that was never the case in her circumstances. Her real concerns were that since her early youth – while at primary school, she was in a constant state of examining her personality and associated with this her ‘sexuality’. The applicant was of the view, that she, for a number of years (while living in Uganda) was trying to determine (in her own mind) what was her real sexual persona. Determining this was not easy for the applicant, the Tribunal was told. Only when she arrived in Australia from 2018 onwards, she felt able and willing after seeing how the situation was here generally speaking while living and socialising with Melbourne’s LGBT community, that she decided to open up and tell ‘her real story’ about her feelings and sexuality.
The Tribunal indeed finds itself in a credibility quandary having been confronted with an applicant’s original claims and at the hearing, with the applicant’s (as she has submitted) actual claims which introduce (for consideration by the Tribunal) claims of sexual suppression over many years while living in Uganda and the claim of ‘liberation’ so to speak, now that the applicant was in a open and free society (in Melbourne). As the Tribunal foreshadowed in its comments earlier, the Tribunal is aware of adopting for itself in these proceedings a ‘reasonable approach’ in the manner it considers matters in this instance and when it makes credibility findings.
Indeed, it is important in this instance that the Tribunal tread carefully and adopt as its compass or guide, the cautionary note provided by Foster J in Guo.[15] That is, that the Tribunal must take care so that a very strict approach to the evidence tendered does not lead to a result which unjustly excludes from the Tribunal’s consideration the totality of some of the evidence, when a portion could be reasonably accepted. Indeed, if the applicant’s account (about her sexuality and its repression of while in Uganda as she claims) appears credible, the Tribunal (as the decision-maker in this instance) should unless there are good reasons to the contrary, give that evidence (and the applicant) the benefit of the doubt.[16] However, that benefit of the doubt should, be accorded only when all the evidence has been provided and probed and when the Tribunal is satisfied as to the applicant’s general credibility. The Tribunal, after its consideration of the available country information it has accessed and considered concerning the LGBT community’s situation in Uganda (currently) and after considering all the evidence written and oral provided by the applicant in particular, and the oral submissions of Mr [A], the applicant’s lawyer/migration agent, determines to give the applicant the ‘benefit of the doubt’ as with regards to her claims of long-term sexual repression while living in Uganda.
The applicant’s refugee claim
Relevant grounds
[15] (1996) 64 FCR 151, see comments of Foster J: “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could be reasonably been accepted…” [at 194]
[16] see, UN High Commissioner Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992) (at paragraph [161])

The applicant claims to have a well-founded fear of persecution within the scope provided for in Article 1A (2) of the Refugees Convention as a member of a particular social group (‘PSG’) as a result of being a bisexual/lesbian.
It has been held that the phrase ‘particular social group’ should be given a broad interpretation. Nevertheless, the category was not intended to provide a general safety net or a ‘catch all’ to cover any form of persecution.[17] In Morato v MILGEA Lockhart J said:[18]
The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national, or political reasons…
[17] App (1997) 190 CLR 225 at 241, 260
[18] Morato v MILGEA (1992) 39 FCR 401 at 416
The meaning of the expression ‘for reasons of…membership of a particular social group’ was considered by the High Court in Applicant S. In Applicant S[19] Gleeson CJ, Gummow and Kirby JJ stated:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group…
[19] Applicant S v MIMA (2004) 217 CLR 387 at [36]
Justice McHugh in Applicant S summarised the issue in broadly similar terms:
To qualify as a particular social group, it is enough that objectively there is an indefinite group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.[20]
[20] Applicant S v MIMA (2004) 217 CLR 387 at [69]
A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.[21]
[21] Applicant A v MIMA (1997) 190 CLR 225 at 241, 264-266, 285
Therefore, whether a supposed group is a ‘particular social group’ will depend upon all the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
In this case, the applicant claims that she is a lesbian. The Tribunal accepts that being ‘lesbian’ is a characteristic shared by all members of the group and that it distinguishes the group from society at large. As such, the Tribunal accepts that as a lesbian the applicant is a member of a PSG.
Applicant’s well-founded fear
In Chan v MIEA[22] the High Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[23]
[22] (1989) 169 CLR 379 at 396
[23] (1989) 169 CLR 379 at 396; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal does not accept that the applicant has a subjective fear of being persecuted if she returned to Uganda.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
In MIEA v Guo, the Court stated that:[24]
‘Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[24] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicant claims that, in the event she returned to Uganda, there is a real chance she will suffer serious harm because of her membership of PSG. For the reasons expressed below, the Tribunal accepts that the applicant has an objective fear of being seriously harmed by reason of her homosexuality (a lesbian).
Applicant’s Claim as a Refugee
Applicant’s claim as a lesbian
The applicant claims that she will be seriously harmed if she returns to Uganda by reason that she is a lesbian. The applicant that at about 15 years of age she realised that she was a lesbian. She claims at that time she was confused and frightened of her feelings and thoughts towards other females. It made her afraid that she pursued her interests in other females while also maintaining the façade of being heterosexual by at the same time having and pursuing relationships with males. As the years advanced, the applicant pursued a number of relationships with other females but at the same time maintained relationships with males. In particular, while attending senior school in Uganda (secondary school) – an all-girls education institution, the applicant befriended and maintained a relationship with a girl called (‘[Ms C]’). This relationship, the Tribunal was told lasted two years. The two indulged in their relationship and feelings with each other in that time but in a manner that their relationship was not discovered by others. Though they socialised in a close circle of friends. In the same period, the applicant developed and maintained a ‘relationship’ with a male student called ‘[Mr D]’. That relationship lasting for as long as the applicant’s relationship with [Ms C] persisted. A further two relationships followed after the one with [Ms C] while the applicant was at another education institution – both with a female and male being involved. On this occasion the applicant had a close loving relationship with a girl called ‘[Ms E]’ and at the same time she befriended a male – her ‘boyfriend’ a boy called ‘[Mr F]’. It was the applicant’s evidence that her persona was that of a lesbian but society being as it was in Uganda – strictly conservative and highly persecutory of any person favouring a different set of morals and style of living, the applicant always displayed a careful public profile of herself while maintaining her sexual persona. The applicant feared being discovered and subjected to public ridicule and the strong possibility of cruel punishment by the state authorities. It was the applicant’s evidence that her real sexual personality was always possible of being discovered by someone who would inform this to the authorities.
The applicant at the hearing told the Tribunal that at first, she considered whether she was a bisexual or a lesbian but as the years progressed and she developed from a girl to an adult woman she became certain that her life as a lesbian was real. At the hearing, the applicant submitted statements by [Mr G] and Mr [H].[25] Both witnesses, have known the applicant since 2018 and have maintained a close friendship with her since. Both attest to her participation in the LGBTI community scene in Melbourne and both provided a testimonial as to how the understood the applicant’s struggle to maintain her personal security and sexual feelings while in Uganda. Also, the applicant provided evidence and photographic material to the Tribunal of her recent relationship with another female before the onset of the covid-19 Pandemic emergency.[26] That relationship has since 2020 ceased. Therefore, based on the applicant’s own evidence and the evidence of her witnesses, the Tribunal accepts that she is a lesbian as she claims.
[25] see AAT File – Witness Statements
[26] Ibid – AAT File – photographs of applicant and her partner.
The country information reports that homosexuality was accepted and commonplace in pre-colonial Ugandan society.[27] The British Empire introduced laws punishing homosexuality when Uganda became a British colony. These laws were kept after independence.[28]
[27] The Guardian, “The idea that African homosexuality was a colonial import is a myth”. Evaristo, Bernardine dated 8 March 2014:
[28] Ibid
As a result, homosexual activity is illegal in Uganda. Penal Code Act 1950, pursuant to section 145 “carnal knowledge against the order of nature” and “undermining the natural culture”. The country’s Minister for Ethics and Integrity, Simon Lokodo claimed the NGOs were encouraging homosexuality and that they were receiving support from abroad for Uganda’s homosexuals and ‘recruiting’ young children into homosexuality.[29]
[29] The Guardian, “Uganda bans 38 organisations accused of ‘promoting homosexuality’” by David Smith dated 20 June 2012,
On 17 December 2013, the Uganda Anti-Homosexuality Act, 2014 was passed. It imposed a punishment of life in prison for ‘aggravated homosexuality’.[30] As a result the country information[31] reports that Uganda became known as the most antigay country in the world. The original draft of the 2014 Anti-Homosexuality Act proposed the death penalty for “aggravated homosexuality”, sodomisers and anyone caught harbouring them could be locked up for life. Nevertheless, the act imposed a maximum penalty for acts of homosexuality of (14) years imprisonment.
[30] Al Jazeera. “Uganda MPs pass controversial anti-gay law’” dated 21 December 2013:
[31] Pulitzer Center. “Will LGBT Ugandans Ever Be Free? Inside the Fight for a Queer Country” dated 19 November 2017
The law brought Uganda into the international spotlight, and caused international outage, with many governments refusing to provide aid to Uganda anymore.[32] The country information reports[33] that vigilante torture, beatings, and executions are tolerated by the authorities. Its reported[34] that because of the legalisation in Kampala, the nation’s capital with a population of approximately 1.5 million people, gay, lesbian, and transgender Ugandans were beaten and stripped in the streets, chased by angry mobs, or jailed. Its reported[35] that the Human Rights advocate Kelly Mukwano was rushed to hospital after an attack, leaving him with multiple injuries. In addition, Frank Mugisha, Executive Director of Sexual Minorities Uganda (SMUG), and one of the most prominent advocates for LGBT rights in Uganda stated that his organisation had over 100 cases of people being arrested with no person being convicted by the law. He claimed that the law was being used for blackmail and extortion.[36]
[32] Ibid
[33] Pink News Reports: Uganda gay rights activist ‘in intensive care’ after brutal attack by Nick Duffy, 29 November 2014:
[34] Ibid
[35] Ibid
[36] Pink News ‘Uganda’s leading gay activist: We live in fear of violence, blackmail and extortion’ by Naith Payton, 4 December 2014:
In August 2014, the Uganda Constitutional Court annulled the law. However, LGBT people continue to face major discrimination in Uganda by both religious and political officials. The LGBT community has been commonly violently and brutally attacked, often by state officials. Same-sex couples are not eligible for the same legal protections as opposite-sex couples and same-sex marriage has been constitutionally banned since 2005.
Finally, in May 2021, Uganda passed further laws criminalising same-sex relationships despite being illegal and unconstitutional.[37] The Sexual Offences Bill 2019, was passed by the Ugandan parliament in May 2021, two years after it was formally introduced. The bill, which was initially described ‘as a way to crack down on sexual violence,’ has the effect of criminalising LGBTQ sex.[38] Its reported[39] that Uganda has plans to resurrect the anti-gay bill which will impose the death penalty onto homosexuals, stating that the ‘legislation will curb the rise of unnatural sex in the country.’ The legislation has angered activists.[40] The director at Sexual Minorities Uganda Frank Mugisha, stated that ‘it was unfortunate that the parliament of Uganda is obsessed with legislating around people’s private lives. He claimed that it will only increase the vulnerability of LGBT persons.
[37] The Guardian, “Uganda passes bill criminalising same-sex relationships and sex work”, 5 May 2021: New York Daily News “Uganda’s parliament passes legislation to further criminalise consensual same-sex relations”. Assuncao, Muri dated 5 May 2021.
[38] Ibid
[39] Gay Christian Africa, Understanding Faith and Homosexuality, Uganda to Criminalise Homosexuality, By Alerard:
[40] The Guardian “Uganda passes bill criminalising same-sex relationships and sex work”. 5 May 2020;
The United Kingdom (UK) Home Office Country Policy and Information Note – Uganda: Sexual orientation and gender identity and expression dated April 2019 (the ‘UK Home Office Report’)[41]states that:
‘While the Anti-Homosexuality Act (AHA) is no longer law, same-sex acts remain unlawful and anti-LGBTI rhetoric and discrimination persist. A person who is open about their sexual orientation and/or gender identity and expression may face harassment and discrimination from the state and is likely to experience societal discrimination, including harassment and violence. The accumulation of such treatment by state and non-state actors is likely to be sufficiently serious by its nature and repetition to amount to persecution or serious harm. Each case, however will need to be considered on its individual facts, with the onus the person to demonstrate that they face risk.’
[41]
In addition, the UK Home Office notes that, in relation to any state protection the applicant may receive ‘the police do not usually investigate cases of violence against the LGBT community, instead arresting or detaining the victims.’ Although it is reported that there have been reports of the police having assisted LGBT persons from mob violence. Nevertheless, in circumstances where homosexuality is criminalised in Uganda the Tribunal finds that the applicant would not be provided any state protection in the event that she was detained or charged of being in breach of s. 145 of the Penal Code.

General Law Application

It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination.[42] As Brennan CJ noted in Applicant A:
…the feared persecution must be discriminatory. …[It] must be “for reasons of” one of [the prescribed] categories. This qualification…excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[43]
[42] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIEA (2000) 201 CLR 293 at paragraph [19]
[43] Applicant A v MIEA (1997) 190 CLR 225 at 233
In this case, section 145 of the Penal Code in Uganda targets homosexuals as a particular group in society. In Chen Shi Hai[44] the High Court held that laws or policies that ‘impact adversely upon a particular class or group’ could not properly be described as laws of general application and ‘[t]o say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily.’[45]
[44] Chen Shi Hai v MIEA (2000) 201 CLR 293
[45] Chen Shi Hai v MIEA (2000) 201 CLR 293 at [19] to [21]
Therefore, where a law is discriminatory in its terms or has a discriminatory intent, as in this case, the making of the law and its enforcement constitutes the relevant discriminatory conduct and is evidence of the relevant Convention-related motivation. This contrasts to the circumstances where the law may be general in terms, but enforced in a selective or discriminatory manner (e.g. large public gatherings without approval are illegal, but only opposition political groups are prosecuted) the law itself may not be persecutory, but the way it is enabled would constitute the discriminatory conduct and is evidence of the authorities having the relevant Convention-related motivation. In any event the Tribunal finds that section 145 of the Penal Code Act 1950 in Uganda has a discriminatory intent against homosexuals as a group within society.
The applicant claims that if she returns to Uganda, she will find it difficult to live her life as lesbian in the same manner as she has done so while in Melbourne. She has lived her sexuality openly and free and will not be able to do the same in Uganda. Indeed, as that will be the case, before long her way of life will be brought to the attention of the Ugandan authorities by people she knows within her community and would face arrest and detention. As a result, the applicant claims that she is at risk of being detained and arrested upon her return to Uganda.
The applicant claims that because she is a lesbian it is the essential and significant reason that she will suffer serious harm upon her return to Uganda. In addition, the applicant believes that because of her past life (being married to the deceased [Mr B]) she has a profile and will eventually be charged with an offence under section 145(a) of the Ugandan Penal Code Act.[46] Based on the available country information the Tribunal accepts that there is a real chance that the applicant will be harmed if she returned to Uganda as a lesbian. That it accepts that the essential and significant reason that the applicant will be harmed as claimed is as a result of her membership of a PSG as a lesbian.
[46] Section 145(a) of the Ugandan Penal Code Act 1950 provides that ‘any person who has carnal knowledge of any person against the order of nature commits an offence and is liable to imprisonment for life.’

While the Country Information makes it clear that there has been societal violence, encouraged by the authorities, based on sexual orientation or gender identity in Uganda. The authorities have made it clear that homosexuality is not acceptable in Ugandan society. The criminalisation of homosexuality, the banning of homosexual material and the stand against gay marriage indicates a strong position against homosexuality per se by the authorities. Therefore, notwithstanding the fact that the authorities have had difficult in enforcing provisions about consensual same-sex conduct between adults, the fact is that homosexuality remains illegal in Uganda. Therefore, in the circumstances where homosexuality is illegal, the Tribunal finds that the applicant has a well-founded fear of persecution if she returns to Uganda by reason of her sexual orientation. That is, there is a real chance she will be seriously harmed in the event she is returned to Uganda by reason of her being a homosexuality.
Conclusion
As a result, the Tribunal finds thar because of being removed from Australia to Uganda, there is a real chance that the applicant will suffer serious harm by reason of her being a lesbian. The Tribunal is therefore satisfied the applicant does satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa and the applicant is a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
Peter Vlahos
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4944

20 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies