1827752 (Refugee)

1827752 (Refugee) [2022] AATA 4563 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rebecca Webb (MARN: 1277121)
CASE NUMBER:  1827752
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Tamara Hamilton-Noy
DATE:17 November 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 17 November 2022 at 1:05pm
CATCHWORDS
REFUGEE – protection visa – Uganda – member of particular social groups – divorced woman and supporter and perceived member of LGBTI community – emotional, physical and sexual violence during marriage – fear of harm from ex-husband, authorities and community – mental health and returned failed asylum seeker – credibility – claim of arranged marriage contradicted by media interview – authenticity of supporting statements – clear, plausible and credible evidence of work, community involvement and marriage – ex-husband’s refusal to recognise Australian divorce – ex-husband still in contact with children and applicant’s mother – country information – gender-based violence – limited treaty right to enter neighbouring countries – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (3), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

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 [in] April 2018 and applied for a protection visa on 7 May 2018.
On 11 September 2018 a delegate of the Department refused to grant the applicant a protection visa.
Claims and Evidence
Evidence before the Department
In her written protection application, the applicant stated that she was born in Kampala, Uganda, that both of her parents are Ugandan citizens and that she is of Bantu ethnicity and is of Catholic faith. The applicant described her occupation as [an Occupation]. She stated she was married on [Date, Year 2] at [a] Church in Uganda.
The applicant provided the Department a statutory declaration in support of her protection application. She stated that she had been forced into a traditional marriage with her husband who had offered to pay her tuition fees at university. She stated she had graduated with a Bachelor in [Subject] in [Year 1]. Her husband was cruel and violent and the cruelty commenced at virtually the time the marriage occurred. She had been kicked in the stomach when pregnant with her third child, had given birth prematurely and had suffered physical abuse. She had sought assistance of church elders and her parents without success. In February 2013 her husband came home drunk and started quarrelling with their eldest child and, when the applicant intervened, he put a knife on the applicant’s neck. The applicant stated she was able to escape as there was an electricity blackout. Her husband had also pushed her off a motorbike into an oncoming vehicle, leaving her with a deep scar on her [Body part]. Her friend had written her husband letters that her husband ignored. The applicant stated that, toward the end of 2017, she had reported her husband’s violence to the police. Her husband had been summoned and denied being violent and he then beat her at her grandmother’s house. The applicant stated that her husband was addicted to alcohol.
The applicant also claimed in the statutory declaration that she associates with the LGBTI community in Uganda, which her husband is against. She stated that she undertook her secondary education in a single girls’ boarding school and her friends started to engage in lesbianism. She worked with [Organisation] for two years, helping coordinate their [Organisational task]s as she was working with [Employer]. Her husband then threatened to report her to the police as part of the LGBTI community. She took the opportunity to come to [an Event] and told her husband she was going to a conference within Uganda.
In support of the protection application, the applicant provided the Department a letter from [Organisation] dated 20 April 2018. On 24 May 2018 she provided a statement of claims which set out the same information as that summarised above.
The applicant attended interviews with the Department on 24 May 2018 and 28 June 2018 and the Tribunal has had access to recordings of these interviews.
On 25 June 2018, the applicant’s representative provided to the Department a further statement of claims prepared by the applicant and updated claims form; medical information; letters from various organisations; documents relating to the applicant’s attendance at the [Event]; academic records; letter to the applicant’s husband; and [Social media] screenshots. On 13 July 2018, the applicant’s representative provided to the Department legal submissions; letters from organisations in Uganda; and medical documentation. Relevant parts of these documents are also discussed further below.
A delegate of the Department had concerns about the veracity of the documents provided by the applicant to the Department and did not accept she had worked as [an Occupation] or that she attended the [Event] as an official [Employer] representative. The delegate did not accept the contents of the letters prepared by [Organisation] and did not accept the applicant was involved with [Organisation] Uganda or was involved in promoting LGBTI rights. The delegate noted that they had put an online article to the applicant at the first interview, which had referred to the applicant and her husband meeting in an office, in contrast to her claims that her marriage had been arranged by her parents. The delegate noted that the applicant had acknowledged the article related to the applicant and her husband and that the applicant had stated she had been worried what her husband would do to her and that she had believed her husband would be contacted by the Department. The delegate found that the applicant had provided false information and that this caused doubt about her credibility about other aspects of her claimed circumstances. The delegate had concerns about a letter the applicant had provided from a Paralegal Society as information in the letter was unable to be located online. The delegate also had concerns about a medical document provided by the applicant, on the basis that the medication described in the letter is generally used for managing angina, high blood pressure and premature labour. The delegate did not accept these documents and did not accept the applicant’s claims to have been subject to family violence from her husband. The delegate did not accept that the applicant is a refugee on the basis they did not accept she was subject to severe family violence or spoke out on behalf of the LBGTI community and did not accept the applicant was owed complementary protection for the same reasons.
Evidence before the Tribunal
On 19 September 2022, the Tribunal wrote to the applicant stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 24 October 2022.
On 17 October 2022, the applicant’s representative provided to the Tribunal written submissions, a statutory declaration prepared by the applicant dated 13 October 2022, divorce order, letter from [Employer], customary marriage document, photos, marriage certificate, health unit certificate and certificates relating to the Paralegal Society and [Event] identification card for another individual. On 20 October 2022, the applicant’s representative provided a letter from her counsellor. Parts of these documents are discussed further below.
The Tribunal hearing was conducted on 24 October 2022. The applicant’s representative attended the hearing with her. The Tribunal had organised a Ugandan interpreter for the hearing which the applicant stated she did not require. The interpreter was present for the first part of the hearing before being dismissed by the Tribunal on the basis that the applicant was able to understand and communicate with the Tribunal Member in English. The Tribunal was satisfied that the applicant had adequate opportunity to give evidence and present arguments throughout the hearing.
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.
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.
Assessment, reasons and findings
The issue in this case is whether the applicant meets any of the alternative criterion in s 36(2)(a), (aa), (b) or (c), that is, whether she is a ‘refugee’ or meets the complementary protection criterion, or is a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
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 with the assistance of a Lugandan interpreter. The Department has accepted, and the Tribunal similarly accepts, that the applicant is a Ugandan citizen and has assessed her claims against Uganda as her country of nationality.
The applicant’s background
The applicant gave evidence at hearing that her mother, [siblings] and extended family members all reside in Kampala and that other extended family reside in a village three hours’ drive outside of Kampala. The applicant gave evidence that her father left when she was [Age] years of age and that she has no contact with him, and he has no contact with her mother. The applicant stated that both parents were born in Uganda and that both sets of grandparents were also born in Uganda. She told the Tribunal that her father worked in farming and casual labouring and her mother undertook similar work. The applicant stated that her [children] are currently living with her mother and that her former husband sees the children and organises this through her mother. The Tribunal accepts the applicant’s evidence about her background and family circumstances as correct.
Protection claims
The applicant’s representative submits that the applicant fears harm from her husband, Ugandan authorities and the broader Ugandan community which includes threats to her life death, physical harassment and ill treatment, economic hardship and discrimination. The applicant’s representative submits that the applicant fears harm in Uganda for a range of reasons including as a woman who has transgressed social norms, a supporter and perceived member of the LGBTI community, a failed asylum seeker, a woman, a divorced woman, and as a victim-survivor of family violence.
The Department delegate had a number of concerns about the credibility of the applicant’s claims and the Tribunal has considered these carefully and has also had regard to the applicant’s representative’s extensive written submissions about each of the delegate’s concerns. The Tribunal is mindful that it is required to adopt a reasonable approach in assessing the applicants’ claims and that ‘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’.[1] However, the benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[2]
[1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, 2019 at para 196.
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, 2019 at para 204.
This approach is supported by comments in numerous judgments and commentary, for example, as noted in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 (per Burchett J), it is necessary to:
…understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
Similarly, the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 that:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by this commentary and is mindful of difficulties faced by applicants, including nervousness in a Tribunal environment and stress caused by separation from home and family. The Tribunal has taken these matters into account, as suggested in the Tribunal’s Guidelines on the Assessment of Credibility, both in the conduct of the hearing and in assessing the evidence of the applicants as a whole.
In addition, the applicant’s representative has provided a letter prepared by the applicant’s mental health clinician, which states that the applicant was referred by her GP to the mental health team in August 2018. The counsellor reported having seen the applicant in 2018 and 2021 and referred her for further counselling in 2021, before the applicant again self-referred to the counsellor’s service more recently. The counsellor stated that the applicant had presented consistently in 2018, 2021 and 2022 and that the applicant had reported having experienced anxiety, panic attacks, feelings of depression, poor memory recall, intermittent suicidal ideation, flashbacks and moments of ‘blacking out’. The counsellor noted that the applicant’s reported symptoms were consistent with post-traumatic stress disorder and major depressive disorder. Given the matters raised in this letter, the Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons in assessing the applicant’s claims.
The applicant gave evidence to the Tribunal that she had completed a Bachelor of [Subject] in Kampala and that after university she worked part-time in an organisation where she met her husband and that for five years she did not work while her children were being born. She gave evidence that in [Year 3] she commenced with [Employer] in the [department 1] and that her previous part-time work assisted her to obtain this role. She stated that she later moved to the [department 2] in a different role and worked as [an Occupation], in [job task 1] and in [job task 2].
The Tribunal notes the Department’s concerns about the applicant’s claimed work in Uganda and claimed reasons for travelling to Australia. The applicant was granted a visa by the Department to travel to Australia for the [Event]. She provided to the Tribunal photos of her claimed attendance at the [Event]. The Tribunal spoke to applicant at some length about her employment arrangements in Uganda and found her evidence to be clear and plausible. The Tribunal is, based on its overall assessment of the applicant as a credible witness and based on the information she has provided to the Department and to the Tribunal, prepared to accept the applicant’s claimed work history with [Employer] in Uganda and selection by her employer to travel to Australia to assist [with a job task at the Event].
The Tribunal notes that the Department has also raised concerns about the applicant’s early evidence about her marriage and Tribunal accepts that the applicant gave incorrect information that her parents had organised the marriage to her husband and that it was only when a media report was put to her at the Department interview that she disclosed she had met her husband at work before introducing him to her family. The Tribunal finds that the applicant’s marriage was not arranged by her family and that she met her husband in her place of employment.

The Tribunal spoke to the applicant at some length about her experiences within her marriage. The applicant gave what the Tribunal considered to be plausible and credible details about the escalating emotional, physical and sexual violence she experienced within her marriage, that was consistent with claims she has previously raised. The Tribunal accepts that the applicant’s husband became emotionally and verbally abusive within a year of their marriage, that the violence then included physical violence by the end of [Year 3] that included the applicant being kicked in the stomach while pregnant, punched and bruised on the face and body. The Tribunal accepts that the applicant was subjected to sexual violence throughout her marriage. The Tribunal accepts that the applicant made her mother, a friend and members of her church aware of the state of her marriage and that she was pushed back to her husband due to societal expectations.
The Tribunal considers it plausible that the applicant portrayed an incorrect view of her relationship to a media reporter in 2015 due to pressure from her husband in circumstances where he had organised for the interview to take place and the applicant had not been involved in setting up the interview. The Tribunal considers it plausible that the applicant told a reporter what her husband wanted her to say and that she did not disclose problems that were occurring within her marriage to a member of the media. The participation of the applicant in this interview in 2015 does not, in the Tribunal’s view, detract from the Tribunal’s overall assessment of the applicant as a forthright and credible witness. While the applicant’s incorrect portrayal of the circumstances in which she met her husband causes concern for the Tribunal about her overall credibility, the Tribunal is prepared to accept, on balance, that the applicant’s failure to disclose to the Department the correct circumstances in which she met her husband does not detract from the overall credibility of her claims.
The Tribunal notes that there has been additional information available to it that was not available to the delegate, most notably a divorce order made in the Federal Circuit and Family Court [Day 1] February 2022, stating that the divorce of the applicant and her husband took effect from [Day 2] March 2022. The Tribunal accepts that the applicant has filed for divorce from her husband through the Australian court system. The Tribunal is prepared to accept the applicant’s evidence, given at hearing, that her husband has indicated he does not recognise or accept a divorce granted by an Australian court.
There has not been a DFAT report issued for Uganda. The US Department of State notes that Uganda is a constitutional republic, led since 1986 by President Yoweri Museveni. During 2021, voters re-elected Museveni to a sixth term. The elections fell short of international standards and were marred by allegations of arbitrary killings of opposition supporters, voter intimidation, harassment of opposition members, closure of social media websites and lack of transparency and independence. The periods before, during, and after the elections were reported to have been marked by a closing of political space, disappearances of opposition supporters, intimidation of journalists, and reports of widespread use of torture by security agencies.[3]
[3] US Department of State, 2021 Country Reports on Human Rights Practices: Uganda, 12 April 2022, at
The US Department of State has noted that Uganda faces a range of significant human rights issues, including torture and cases of cruel, inhuman or degrading treatment or punishment by government agencies, serious problems with independence of the judiciary, serious government corruption, and lack of investigation and accountability for gender-based violence including but not limited to domestic and intimate partner violence and sexual violence.[4]
[4] US Department of State, 2021 Country Reports on Human Rights Practices: Uganda, 12 April 2022, at
Uganda’s gender-based policy hub ‘Uganda None in Three’ reports that an estimated 51% of women in Uganda will experience violence in their lifetime, well above the average in Africa and worldwide, making Uganda one of the most dangerous places in the world for women. The same source states that 56% of women in Uganda aged 15 to 49 reported having experienced physical violence, while 22% had experience sexual violence, with few ever reporting the violence to police.[5] The experiences of women in Uganda is further outlined in the US Department of State’s 2021 country report for Uganda:[6]
Rape and Domestic Violence: The law criminalizes rape of women, which is punishable by life imprisonment or death. The law does not address spousal rape. The law defines rape as “unlawful carnal knowledge of a woman or a girl without her consent.” Men accused of raping men are tried under a section of the law that prohibits “carnal knowledge of any person against the order of nature.” The law also criminalizes domestic violence and provides up to two years’ imprisonment for conviction.
Rape remained a common problem throughout the country, and the government did not effectively enforce the law. Local media reported numerous incidents of rape, often involving kidnapping and killings of women, but authorities were often unable to investigate and hold perpetrators accountable. Local media often reported that perpetrators of rape included persons in authority, such as religious leaders, local government officials, police and military officers, health-care workers, and academic staff. According to local media and human rights activists, many rape survivors lacked faith in government institutions to bring their abusers to justice and declined to report the crime, while others remained silent to avoid stigmatization. Human rights activists and local media reported that, even when women reported cases of rape to police, officers blamed the women for causing the rape by dressing indecently, took bribes from the alleged perpetrators to stop the investigation and to pressure the survivors into withdrawing the cases, or simply dismissed the accusations and refused to record them. According to human rights activists, police personnel lacked the required skills for collection, preservation, and management of forensic evidence in sexual violence cases. Human rights activists also reported that some police stations lacked female officers on the staff, which discouraged rape survivors from reporting their cases. On March 16, local media reported that police in Moroto District arrested one of its officers, Moses Steven Ebu, on allegations of rape. According to local media, the survivor sought refuge at Camp Swahili Police Post after she was unable to find public transport home before curfew. Ebu allegedly raped her at the police post. On March 18, local media reported that police had arraigned Ebu in court and charged him with rape. The trial continued at year’s end.
Human rights activists also noted that government restrictions on movement to combat COVID-19 made it difficult for survivors to report rape or access postexposure prophylaxis after rape. Local government officials, academics, and journalists reported that gender-based violence was common and worsened during restrictions to combat COVID-19. Human rights activists reported that the restrictions increased poverty for many households, which raised tensions and conflict in domestic settings, particularly violence against women. The activists also reported that during the June to July COVID-19 lockdown, some survivor support centers closed and rendered many survivors unable to access help. On September 1, local media reported that military officer Samuel Ojara shot and killed himself after he had shot and killed a 20-year-old woman identified as Sharon Okello in what the police stated was an attempted rape.
Female Genital Mutilation/Cutting (FGM/C): The law prohibits FGM/C and establishes a maximum penalty of 10 years’ imprisonment for convicted perpetrators, or life imprisonment if the victim dies; however, the government did not effectively enforce the law. According to the 2016 Demographics and Health Survey, 0.3 percent of the female population younger than age 50 had undergone FGM/C. Local media and government officials, however, reported that the practice was common among some communities along the eastern border with Kenya. Government officials reported that some parents and cultural leaders in the Karamoja subregion used the school closures due to COVID-19 to force teenage girls to undergo FGM/C, which led many girls to flee into neighboring Kenya. Local government leaders also reported that some cultural leaders in Amudat District traveled to Kenya on the pretext of celebrating the end-of-year December-January holiday season and subjected girls to FGM/C. The United Nations Population Fund (UNFPA) reported that COVID-19 lockdowns exacerbated FGM/C incidents by enabling practitioners to carry out the practice in hiding. UNFPA also reported that the government had committed $55,000 to interventions against FGM/C in the Sebei subregion. The resident district commissioner in Amudat District announced on February 25 that the government had recruited a network of informers in communities throughout the district who would strengthen surveillance and enforcement efforts against FGM/C. UNICEF reported that it was working with 20 young men married to women who did not undergo FGM/C as social ambassadors to convince communities that FGM/C was unnecessary.
Other Harmful Traditional Practices: According to local media and human rights activists, violence against widows was prevalent. The activists reported that widows in remote areas complained that their deceased husband’s families forced them to marry their brothers-in-law to compensate for the bride price paid to their families. The law does not explicitly provide widows with the opportunity to consent before marrying their brothers-in-law. Local media also reported that many widows in remote areas experienced sexual violence at the hands of their deceased husband’s family and lost their rights to property (see section 6, Discrimination).
Sexual Harassment: The law criminalizes sexual harassment and provides for penalties of up to 14 years’ imprisonment, but authorities did not effectively enforce the law. Sexual harassment was a widespread problem in homes, schools, universities, workplaces, public transport, public spaces, media, and in the music and entertainment industry. Local media reported numerous incidents of senior executives, public servants in the legislature and judiciary, and music producers who demanded sexual favors from female subordinates in exchange for job retention, promotion, and nomination for official trips. On May 7, parliament called for the prosecution of philanthropist Bryan Kirumira, also known as Bryan White, after parliament’s Committee on Human Rights found that he sexually harassed women he employed in his charity, the Bryan White Foundation. The committee found that the military and police provided Kirumura with protection, which intimidated survivors and deterred them from seeking justice. The public prosecutor had not brought any charges against Kirumira by year’s end.
….
Discrimination: The law provides women the same legal status and rights as men, but the government did not enforce the law effectively. Human rights activists reported numerous cases of discrimination against women, including in divorce, employment, education, and owning or managing businesses and property. Many customary laws discriminate against women in adoption, marriage, divorce, and inheritance. Under customary laws in many areas, widowed women cannot own or inherit property or retain custody of their children. Traditional divorce law in many areas requires women to meet stricter evidentiary standards than men to prove adultery. In some ethnic groups, men can “inherit” the widows of their deceased brothers. The law does not recognize cohabiting relationships, and women involved in such relationships had no judicial recourse to protect their rights.
[5] Uganda None in Three, Uganda gender-based policy hub at
[6] US Department of State, 2021 Country Reports on Human Rights Practices: Uganda, 12 April 2022, at
A 2020 study on violence against women and girls in Uganda reported that intimate partner violence was the most prevalent violence reported by women and was the main reason for marriage breakdown. Women experiencing violence were reported to generally experience a range of forms of violence, with the most commonly reported forms of intimate partner violence including physical abuse, psychological and emotional abuse, controlling behaviour, sexual coercion and socio-economic violence.[7]
[7] 2020 Uganda National Qualitative Survey on Violence Against Women and Girls (VAWG), Department for International Development, page 18, at
The study revealed widespread acceptance and normalisation of violence, particularly violence occurring within an intimate relationship. Some participants reported that a man beating his wife was socially acceptable in some circumstances, including where a wife is disobedient or where they went out without their partner’s permission or whether they did not take care of children or argued with their partner. Participants in the study, both male and female, agreed that a man does not have the authority to perpetrate violence against his wife but nearly all qualified this by stating that it was acceptable for a man to perpetrate violence if provoked, if the violence was ‘mild’ or occasional.[8]
[8] 2020 Uganda National Qualitative Survey on Violence Against Women and Girls (VAWG), Department for International Development, page 32 at
The study further notes that weak law enforcement contributes to a culture of impunity, increasing the risk of violence against women and girls. In particular, the report noted that ineffective investigations and a failure to prosecute violence cases by police contributed to the culture of impunity.[9] Further, the study notes that the police faces human resources gaps, lack of logistical resources such as lack of human resources, lack of basic equipment such as vehicles and medical examination forms, lack of a capacity to collect, analyse, store and present forensic data, lack of counselling or interview rooms, and inconsistent response by police officers to allegations of violence. Some participants reported being discouraged from pressing charges; others reported police had charged bribes for services, or had taken bribes from perpetrators to frustrate victims from pursuing justice.[10]
[9] 2020 Uganda National Qualitative Survey on Violence Against Women and Girls (VAWG), Department for International Development, pp 33 – 39, at
[10] 2020 Uganda National Qualitative Survey on Violence Against Women and Girls (VAWG), Department for International Development, page 42, at
The Tribunal accepts that, if she returns to Uganda now or in the reasonably foreseeable future, the applicant would return as a divorced mother of [children]. The Tribunal is prepared to accept that, given the applicant’s husband has not accepted the divorce that was issued by an Australian court, he would continue to view her as his wife. The Tribunal finds that the applicant would return to live with her mother and children in Kampala, if she is required to return to Uganda. As her former husband has contact with her mother and children, the Tribunal finds that the applicant’s husband would be aware that she had returned to Uganda.
The Tribunal finds that the chance is not remote or fanciful that the applicant would face further violence at the hands of her former husband. The Tribunal makes this finding on the basis of the prolonged range of family violence the applicant experienced prior to leaving Uganda, and on the basis of the applicant’s husband’s refusal to recognise a divorce order issued by an Australian court. The Tribunal finds that the applicant faces gender-based violence more generally in Uganda, as a woman who is without the support or protection of a husband. Country information, set out above, states that women in Uganda face a range of gender-based violence and discrimination and the Tribunal finds that the chance is more than remote that the applicant would face such violence and discrimination. The Tribunal finds that the harm feared by the applicant as a separated woman in Uganda amounts to serious harm within the meaning of s 5J(5) and that the harm feared is systematic and discriminatory.
The Tribunal finds that separated women in Uganda are identifiable as a group, as they share a characteristic attributable to all members of the group, the characteristic is not the shared fear of persecution and the characteristic distinguishes the group from society at large.
The Tribunal finds that there is a real chance the applicant faces harm, amounting to serious harm, in Uganda if she returns now or in the reasonably foreseeable future, and that the reason for the harm feared is as her membership of the particular social group of separated women in Uganda. Given the prevalence and range of violence against women across Uganda, the Tribunal finds that the risk of harm to the applicant exists across all of Uganda.
As to whether there is effective state protection available to the applicant from the harm feared, the Tribunal had regard to country information as set out above. The Tribunal finds that, while the law criminalises rape and domestic violence, offences are not effectively enforced, the authorities lack the will and the resources to adequately investigate allegations of violence against women and are, in some cases, the source of the violence themselves. The Tribunal finds that the applicant could not access effective state protection from the harm feared as a separated woman in Uganda. Given these findings of the Tribunal, it has not gone on to consider other aspects of the applicant’s claims.
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).
Uganda is one of the seven countries forming the East African Community (EAC), along with the Congo, Burundi, Kenya, Rwanda, South Sudan and Tanzania. There is a recognised right of movement of people as one of the pillars of regional integration of the EAC.[11] The Treaty for the Establishment of the East African Community provides 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.[12] This Treaty only entered into force on 7 July 2022.
[11] East African Community website, ‘Pillars of EAC Regional Integration’ at
[12] Treaty for the Establishment of the East African Community, Article 104.
While an EAC citizen has a right to take up employment in another EAC country, at present this right does not extend to an unqualified right to travel and remain in another EAC country. Individuals should be able to cross borders with a national identity card and entry is granted for durations of three months.[13] The International Organisation for Migration has noted unexplained fees and opaque processes are in place for individuals crossing borders within the EAC.[14] Elsewhere, reports indicate that closures due to diplomatic disputes are also common; Uganda has, for example, only recently reopened its borders with Rwanda after three years of closures over a diplomatic dispute.[15]
[13] ‘Free Movement of Workers in the EAC’, Chapter 11 of East African Community Law: Institutional, Substantive and Comparative EU Aspects, C Kago and W Masinde, pp345 – 353.
[14] ‘Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania’, International Organisation for Migration, 2018, pp 60 – 61.
[15] ‘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.
The Tribunal finds from this information that the applicant has a right to take up employment in another EAC country, she does not currently have a right to enter and reside in another EAC country other than for the purposes of taking up employment. There is no evidence before the Tribunal that the applicant has employment in another EAC country and the Tribunal finds that she does not have a present 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 4563

17 November 2022

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