1821018 (Refugee)

1821018 (Refugee) [2022] AATA 4392 (20 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michaela Rhode (MARN: 1796054)
CASE NUMBER:  1821018
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Tamara Hamilton-Noy
DATE:20 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 September 2022 at 11:04am
CATCHWORDS
REFUGEE – Protection Visa – Uganda – sexuality – openly bisexual woman – membership of a particular social group – openly bisexual females in Uganda – history of significant sexual assaults –effective protection measures are not available to the applicant –– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [date] April 2018 and applied for a protection visa on 24 April 2018.
On 25 June 2018 a delegate of the Department found that the applicant is not owed protection.
The applicant made an application for a review of that decision to the Administrative Appeals Tribunal on 19 July 2018.
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 (Cth) (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.
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 under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of nationality
The applicant travelled to Australia on a Ugandan passport and has at all times maintained she is a citizen of Uganda. She was interviewed by the Department delegate with the assistance of a Lugandan interpreter. The Tribunal accepts the applicant is a Ugandan citizen and has assessed her claims against Uganda as her country of nationality.
The applicant’s background
In her written protection application, the applicant stated that she was born in Kampala, Uganda and that both parents are Ugandan citizens. As both her Department interview and in a written statement provided to the Tribunal, she stated that her father is Muslim and her mother is Protestant. She stated in her written protection application that she belongs to the Bantu ethnic group, is of Muslim faith and described her occupation as ‘student’.
The applicant stated in the written protection application that her mother, [and relatives] reside in Uganda. She stated that she left Uganda legally through Entebbe Airport. She stated that she had completed senior secondary school in [year] and had commenced, but withdrawn from, a [degree] from [named] University.
The Tribunal accepts these matters as correct.
Claims for protection
The applicant has consistently claimed to have left Uganda because of her sexuality. In her written claims to the Department, she claimed to have been discriminated against because of her sexuality, and to have been arrested and subject to ongoing investigations because of her sexuality. The applicant claimed that she developed feelings for her best friend at 13 years of age, that fellow students came to know of their relationship and they were reported at school and monitored by the school and that she was expelled from a university [sport] team and discriminated against in the classroom. The applicant claimed that her girlfriend was arrested and interrogated by police and that the applicant was subsequently picked up by police, and was detained and beaten before being released on bond. The applicant stated that her extended family isolated her after discovering her sexuality and that she lived in fear of being re-arrested. The applicant claimed to have fled Uganda because she was published in newspapers and claimed to fear arrest, persecution and being killed because of her sexuality if she returns to Uganda.
The applicant’s representative submits that the applicant identified in Uganda as lesbian and that, since arriving in Australia where she has been safe to explore her sexuality, identifies as bisexual and has predominantly engaged in relations with female identifying individuals. The representative submits that the applicant has been subject to sexual violence including assault and rapes by the authorities in Uganda and while sleeping rough in both Uganda and Australia, including by men in Australia who offered her shelter. The representative submits that the applicant fears harm in Uganda as a bisexual woman, as an openly bisexual woman, as a bisexual woman who has been detained by Ugandan authorities on suspicion that they are lesbian and/or as a bisexual woman with significant mental health concerns who are victim-survivors of gender-based violence. The representative submits that the applicant would face beatings, arrest, detention, sexual assault and death from authorities and would face beatings and being killed by family members for ‘shaming’ the family. Given same-sex relations are criminalised throughout Uganda, the representative submits that effective protection is not available to the applicant and that she could not relocate safely.
A delegate of the Department did not accept the claims of the applicant. The delegate did not accept the applicant had had a relationship with a childhood friend, that she was detained and charged by authorities, that the media reports provided by the applicant were credible documents, that the applicant went into hiding and fled Uganda after the media published articles about her sexuality or that the applicant is lesbian.
The Tribunal has had careful regard to the material submitted which relates to the applicant’s mental health concerns and her capacity to provide detailed oral evidence of her experiences in Uganda. The material indicates that the applicant has been diagnosed with post-traumatic stress disorder, that she commenced attending at [Organisation 1] in 2018 due to trauma associated with sexual assault experienced in Uganda and that she engaged in counselling with this service in 2018 and again during 2019, 2020 and 2021. The applicant is described as having significant physical responses to recounting details of abuse she has suffered, including fainting and strong disassociation, the severity of which has involved emergency responses during counselling sessions. The applicant’s representative has noted similar responses when taking instructions from her for the preparation of the current matter.
For the reasons set out in detail below, the Tribunal accepts the applicant has a well-founded fear of persecution in Uganda for reasons of her membership of the LGBTI community in Uganda. The Tribunal considers it is appropriate to remit the matter based on the range of material before it under s 425(2)(a).
Refugee claims and findings
The applicant has consistently claimed to have identified as lesbian since her early teen years and has consistently claimed to have been in a same-sex relationship with a childhood friend in Uganda.
There has been a large amount of material submitted to the Tribunal that was not available to the delegate, relating to the applicant’s history of significant sexual assaults and relating to her active participation in the LGBTI community in Australia. The applicant has provided a detailed statement to the Tribunal setting out further details relating to her claims, in addition to other statements and evidence in support of her claims.
The Tribunal accepts from this further information that the applicant disclosed to her [Organisation 1] counsellor that she identifies as lesbian, and that she has told her counsellor that she was shamed and jailed when it was discovered she was in a lesbian relationship and that she had been beaten up and sexually abused in jail. The Tribunal accepts that the applicant was referred to [Organisation 2] in 2018 due to a risk of homelessness and that, while living in a [Organisation 2] facility, she participated in [Group 1] for LGBTI youth and attended pride marches in Melbourne. The Tribunal accepts that, through [Organisation 2], the applicant has worked with other young LGBTI individuals and has supported local LGBTI groups. The Tribunal accepts that the applicant disclosed to her [Organisation 2] worker that she had left Uganda due to her sexuality.
The Tribunal further accepts from the information provided that the applicant attended [Group 1] during 2018, a support group for young LGBTI individuals, and that she participated in [Group 2] from 2019 to 2019, also a support group for youth to connect with peers. The Tribunal accepts that, through [Group 2], the applicant volunteered with an LGBTI pride festival and attended a pride march in 2019.
The Tribunal had regard to photos, text messages and letters of support from individuals relevant to her claims for protection. The Tribunal notes that, while not prepared by individuals independent of the applicant, they provide support for her claim that she has engaged in same-sex relationships in Australia. The Tribunal has also placed some weight on these documents, on the basis that they are consistent with other material before the Tribunal about the range of activities she has been involved in since arriving in Australia.
Taking into account the totality of the material before it, the Tribunal is prepared to accept that the applicant identified as lesbian from her early teen years and that, since arriving in Australia, she has been able to explore her sexuality more openly and that she identifies as a bisexual woman whose experiences have largely involved female identifying individuals.
Having regard to the counselling reports provided by the applicant, the Tribunal is prepared to accept that the applicant has experienced sexual assaults and rapes in Uganda and again since arriving in Australia and living in precarious housing arrangements. While noting the concerns of the delegate about the credibility of the applicant’s claims, the Tribunal has had available to it counselling material confirming the applicant has sought counselling for sexual assaults and rapes both in Uganda and Australia. The Tribunal has listened to a recording of the delegate’s interview and considers it plausible that the applicant’s understated responses to the delegate, including during a period in which she became distressed at the questions being put to her, were consistent with the demeanour of an individual who has suffered trauma and one from a conservative society where an individual’s sexuality is little spoken about.
Given the findings about her sexuality above, the Tribunal is prepared to accept the applicant had a relationship with a childhood friend, [Ms A], in Uganda. The Tribunal is also prepared to accept that [Ms A] was detained by police once their relationship became known within the community where they were living. The Tribunal considers it plausible that the applicant was also arrested and detained because of her sexuality, and notes that this aspect of the applicant’s claims is consistent with independent country information indicating that LGBTI individuals have reported being humiliated, harassed, sexually assaulted, threated with rape and subject to forced anal examination and inappropriate body searches during arrest and detention.[1] The Tribunal is prepared to accept that the applicant was sexually assaulted by authorities during this detention and that, given the trauma she faced in detention, she had no further contact with her childhood friend after being detained. The Tribunal also considers it plausible that the applicant faced stigma and discrimination within the community when her sexuality was discovered.
[1] UK Home Office, Country Policy and Information Note, ‘Uganda: Sexual orientation and gender identity and expression’, February 2022 at 2.4.12.
The Tribunal has significant doubts that, after her detention, the applicant was of any ongoing interest to the authorities in Uganda. Firstly, the applicant remained in Uganda for some period of time after the claimed detention and assault and was then able to obtain a passport and travel through the airport, on a passport with her own details, without incident. Further, the Tribunal notes that the media reports provided by the applicant to the Department are not accessible through an online search, which causes further doubt about the contents of the reports or that the applicant was being monitored or investigated by authorities prior to her departure from Uganda. For these reasons, while the Tribunal is prepared to accept the applicant was detained in Uganda and questioned about her sexuality, the Tribunal has not accepted the applicant’s claims to be of ongoing interest, or subject to an ongoing investigation, by the Ugandan authorities prior to her departure from Uganda. The Tribunal places no weight on the media reports provided by the applicant to the Department as evidencing any ongoing interest from the authorities in Uganda about the applicant’s sexuality.
The Tribunal finds that, since arriving in Australia, the applicant has been living relatively openly as a bisexual woman, within the perceived constraints of the Ugandan community living in Australia. The Tribunal is prepared to accept that the applicant has pursued a number of same sex relationships in Australia. The Tribunal accepts that the applicant has been actively involved in LGBTI support groups and public activities such as pride marches. Having regard to the consistency of the applicant’s claims, the range of services she has disclosed her sexuality to and the activities she has been involved in in Australia, the Tribunal is prepared to accept that the applicant’s activities in Australia have not been for the purpose of strengthening her claims for protection.
The Tribunal notes that there is no DFAT report on Uganda. A 2019 UK Home Office report on Uganda notes the following:[2]
2.4.1 Same-sex sexual acts and same-sex marriages are illegal for both men and women. Same-sex sexual acts are covered in the Penal Code Act under ‘unnatural offences’ and ‘indecent practices’ and are punishable with up to life imprisonment (see Existing legislation).
2.4.2 There are no laws that specifically criminalise on the basis of gender identity and/or expression. However, transgender and gender diverse people have been indirectly criminalised under the offences of ‘personation’ (false representation), public indecency and the criminalisation of consensual same-sex sexual acts (see Existing legislation).
2.4.3 Since 2014, there has been a repeated pattern of attempts by parliamentarians to tighten the laws affecting LGBTI people, including calls to introduce the death penalty for same-sex sexual acts. These proposed changes to the law have been opposed by both LGBTI stakeholders and the international community and have not come into effect (see Attempts to introduce new legislation).
2.4.4 State officials, including President Museveni, have publicly denounced sexual minorities and have made statements linking the LGBTI community to incidents of political unrest and with attempts to undermine the government. Homophobic rhetoric has also been employed during election periods, most recently in January 2021, to exploit homophobic sentiment within the electorate. Pride events have been prevented from taking place since 2016 (see Government officials and Pride events).
2.4.5 Government-mandated broadcasting standards prevent the promotion of LGBTI issues and lifestyles and warn against the glamorisation or justification of homosexuality, lesbianism, bisexualism, transsexualism and transvestism (see Broadcasting).
2.4.6 While legislation exists which criminalises same-sex sexual acts, and arrests have been made under this law, the number of people charged with ‘unnatural offences’ is small and the number of convictions smaller still. In 2020, 45 people were charged with ‘unnatural offences’ and 5 were convicted. For the 4-year period 2017 to 2020, 194 people were charged and 25 convicted. The Ugandan Police’s data category ‘unnatural offences’ includes sodomy, lesbianism and bestiality (and doesn’t distinguish between these acts). Similarly, the legal definition of ‘unnatural offences’ includes some sexual acts between men and women. As a result, not all recorded charges and convictions for ‘unnatural offences’ may relate to LGBTI persons (see Existing legislation and Arrest and prosecution).
2.4.7 The vast majority of people charged with ‘unnatural offences’ are men, constituting 97% of those charged over the period 2017 to 2020, compared to 3% female. Over the same period, all convictions for ‘unnatural offences’ were reported as male. Imprisonment was the most common punishment – accounting for 21 out of 27 sentences imposed (78%) – although the length of the sentences handed down is unknown (see Arrest and prosecution).
2.4.8 Arrests of LGBTI persons are also carried out under other laws, which are not specifically linked to ‘unnatural offences’. Examples include arrests carried out under other provisions of the Penal Code such as ‘common nuisance’ or arrests made under COVID-19 regulations. Data on the levels of legal assistance provided to LGBTI persons shows that the number of ‘carnal knowledge’ cases assisted in the 4-year period 2017 to 2020, is in the range of 9 and 22 (figures from 2019 and 2018, respectively). The same dataset indicates a range of between 59 and 192 general criminal cases involving legally-assisted LGBTI arrests, with a spike in cases occurring during 2020, due to the policing of COVID-19 regulations, which has disproportionately affected sexual and gender minorities (see Arrest and prosecution).
[2] UK Home Office, Country Policy and Information Note, ‘Uganda: Sexual orientation and gender identity and expression’, February 2022.

On a community level, some LGBTI individuals face ill-treatment by family members, neighbours or local community members. Sexual and gender minorities face exclusion, discrimination, verbal and online harassment, physical and sexual violence and blackmail, and may also face job loss or eviction.[3]
[3] UK Home Office, Country Policy and Information Note, ‘Uganda: Sexual orientation and gender identity and expression’, February 2022 at 2.4.19.
The UK Home Office report states that an individual who is open about their sexual orientation and/or gender identity and expression may face arrest, harassment and discrimination from the state and is likely to experience societal ill-treatment including discrimination, harassment and violence and that the accumulation of such treatment is likely to be sufficiently serious, by its nature and repetition, to amount to persecution or serious harm.[4]
[4] UK Home Office, Country Policy and Information Note, ‘Uganda: Sexual orientation and gender identity and expression’, February 2022 at 2.4.27.
The US Department of State’s 2021 Country Report on Human Rights Practices for Uganda noted the following relevant matters from 2021:[5]
LGBTQI+ persons faced discrimination, legal restrictions, harassment, violence, and intimidation. Authorities incited, perpetrated, and tolerated violence against LGBTQI+ individuals and blocked some meetings organized by LGBTQI+ persons and activists. On May 31, police officers raided the Happy Family Youth Uganda LGBTQI+ shelter in Wakiso District outside Kampala and arrested 44 individuals – 36 men and 8 women – celebrating what was alleged to be a gay engagement ceremony. Amateur video footage recorded at the scene showed a plainclothes police officer verbally abusing and mocking the detainees. Police announced that it would charge the individuals with “a negligent act likely to spread an infectious disease” for disobeying COVID-19 restrictions. On June 1, however, a police doctor subjected some of the detainees to forced anal examinations. On June 7, a court released the detainees on bail, and the court dismissed the case in November.
Consensual same-sex sexual conduct is criminalized according to a colonial-era law that criminalizes “carnal knowledge of any person against the order of nature” and provides for a penalty of up to life imprisonment. Attempts to “commit unnatural offences,” as laid out in the law, are punishable with seven years’ imprisonment. The government occasionally enforced the law.
Local media and LGBTQI+ organizations reported that some hospitals and religious institutions offered and subjected LGBTQI+ persons to conversion therapy. Local media also reported that intersex children were at a high risk of infanticide.
Although the law does not restrict freedoms of expression or peaceful assembly for those speaking out in support of the human rights of LGBTQI+ persons, the government severely restricted such rights.
The law does not prohibit discrimination against LGBTQI+ persons in housing, employment, nationality laws, or access to government services.
Local civil society organizations reported that public and private health-care services turned away LGBTQI+ persons who sought medication and some health-care providers led community members to beat LGBTQI+ persons who sought health care. Local civil society organizations reported that some LGBTQI+ persons needed to pay bribes to public health-care providers before they received treatment.
[5] US Department of State, 2021 Country Reports on Human Rights Practices: Uganda, 12 April 2022 at
The Tribunal accepts that, if the applicant returns to Uganda now or in the reasonably foreseeable future as an openly bisexual female, she faces arrest, harassment and discrimination from the state and harassment, discrimination and violence from her local community. The Tribunal is satisfied that the harm feared by the applicant is serious harm within the meaning of s 5J(5) and that the range of harm feared by the applicant is systematic and discriminatory. The Tribunal finds that the reason the applicant fears harm is as a member of the particular social group of openly bisexual females in Uganda.
Given the role of the state in the persecution of members of the LGBTI community in Uganda, the Tribunal is satisfied that the applicant could not access effective state protection from the harm feared and that the harm feared relates to all areas of Uganda.
The Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘openly bisexual women in Uganda’ if she returns to Uganda now or in the reasonably foreseeable future.
Right to enter and reside in a third country
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
The Tribunal notes that Uganda is one of seven countries forming the East African Community (EAC), alongside the Congo, Burundi, Kenya, Rwanda, South Sudan and Tanzania.[6] Pillars of regional integration of the seven countries includes the common market, stated to include free movement of people.[7] The Treaty for the Establishment of the East African Community, which entered into force on 7 July 2022, provides at Article 104 for the partner states to agree to adopt measures to achieve the free movement of persons and to agree to conclude a Protocol on the free movement of persons, labour, services and right of establishment and residence at a time to be determined by the Council.
[6] East African Community website at
[7] East African Community website, ‘Pillars of EAC Regional Integration’ at
As of 2018, implementation of the right of free movement of people was ongoing with respect to several EAC states.[8] While an EAC citizen has a right to take up employment in another EAC country, this right does not extend to an unqualified right to travel and remain in another EAC country.[9] Individuals should be able to cross borders with a national identity card and entry is granted for durations of three months.[10] However, the International Organisation for Migration has noted unexplained fees and opaque processes for individuals crossing borders within the EAC[11]. And, further, reports indicate that closures due to diplomatic disputes are also common[12].
[8] International Organisation for Migration, ‘Comparative study on the free movement of workers in select East African Community countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania’, 2018.
[9] 'Free Movement of Workers in the EAC', Chapter 11 of East African Community Law: Institutional, Substantive and Comparative EU Aspects, Caroline Kago and Wanyama Masinde, pp. 345 – 353.
[10] 'Free Movement of Workers in the EAC', Chapter 11 of East African Community Law: Institutional, Substantive and Comparative EU Aspects, Caroline Kago and Wanyama Masinde, pp. 345 – 353.
[11] 'Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania', International Organization for Migration, 2018, p. 60-61.
[12]Temporal opening of Uganda-Rwanda border ends', Daily Monitor, 23 June 2019, 20190628153524; 'Rwanda-Burundi tension hampers regional trade', The East African, 12 January 2019; 'How the Rwanda-Uganda border crossing came to a halt', BBC, 9 March 2019.
Given these matters, while the Tribunal accepts the applicant has a right to enter another EAC country for the purposes of taking up employment, the Tribunal does not find the applicant has a right to reside in any other EAC country other than for the purpose of employment. There is no evidence before the Tribunal that the applicant has employment in another EAC country and the Tribunal therefore finds that the applicant does not have a right to enter and reside in another EAC country. She is therefore not excluded from Australia’s protection obligations through the operation of s 36(3).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2022] AATA 4392

20 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies