1924429 (Refugee)

1924429 (Refugee) [2023] AATA 1588 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ebenezer Banful (MARN: 1384705)
CASE NUMBER:  1924429
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Ann Duffield
DATE:13 February 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 13 February 2023 at 10:51am

CATCHWORDS
REFUGEE – protection visa – Uganda – imputed political opinion – accused of making anti-government statements – accused of being a spy – experienced extreme systematic discriminatory conduct – accused of orchestrating an anti-government letter – Ugandan government protection unavailable – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Uganda, applied for the visas on 30 September 2015. The delegate refused to grant the visas on the basis that were not refugees or persons to whom Australia had protection obligations.
The delegate refused the application on 19 August 2019.
The applicant appeared before the Tribunal on 19 December 2022 to give evidence and present arguments. The secondary applicant did not appear.
The applicants were represented in relation to the review and their representative attended the hearing.
PROCEDURAL FAIRNESS
The Tribunal noted, and the applicant’s representative has made submissions on, two documents located in the department’s files.
Department file [deleted], Folio 343 – this document is an email exchange approving a waiver for the applicant to seek a [Country 1] penal clearance for the time that she worked in [Organisation 1] in [Country 1] between July 2007 and December 2011.
Department file [deleted] folio 364 - this document is an email between two department officials dated 15 August 2016. The email identifies the applicant and her employment and states that the applicant “has been found to be owed protection” and seeks advice about whether or not a referral is required in relation to public interest criteria. The response to that email indicated that a waiver was granted, and a referral not required.
The applicant, through her representative argues that these emails at the department confirm that the applicant was found to be owed protection in August 2016. The applicant was interviewed by [a named person] and the decision maker was a different person, identified as [name].
The Tribunal notes that the applicant was invited, by letter on 27 November 2015 to attend a departmental interview scheduled for 17 December 2015. The representative told the Tribunal that they could not attend that interview.
A second invitation to attend an interview was sent to the applicant on 24 August 2016 requesting that she attend an interview on 7 September 2016. An audio record of this interview is on the Tribunal file.
The Tribunal explained to the applicant that the emails did not constitute a reviewable decision as defined by the Act. The Tribunal cannot and did not speculate about the meaning of the email dated 15 August 2016 or the basis upon which the statement about the applicant’s refugee status was made. There is no other information or reviewable decision on the department’s file which indicates that a delegate of the Minister provided reasons and findings to support the applicant’s claims that she is owed protection.
The Tribunal therefore proceeded to conduct its review only on the department’s decision to refuse the application dated 19 August 2019.
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.
background
The primary applicant, (the applicant), is a citizen of Uganda born in [year] ([age] years old). The secondary applicant is also a citizen of Uganda born in [year] ([age] years old).
The applicant arrived in Australia on a [Temporary] via in June 2014. She applied for protection on 30 September 2015 and has been on a bridging visa in relation to that application since that time. That application was refused on 19 August 2019.
The secondary applicant is the granddaughter of the applicant and she arrived in Australia [in] August 2016 when she was [age] years old. The applicant is the secondary applicant’s legal guardian by order of the High Court of Uganda.
The department conducted relevant identity checks and found both applicants to be whom they claim. The department was further satisfied that the relationship between the two applicants is as claimed that that the first applicant has legal guardianship over the second applicant. The second applicant is therefore a member of the applicant’s family unit and has been considered so in the application before the department and now, before the Tribunal. The secondary applicant has made no claims of her own.
The applicant has been employed [in a sector] since 1975, when Idi Amin was in power and has served as [an occupation] in [Ugandan] [organisations] in [various countries].
Protection Claims
The applicant states that she has a well-founded fear of persecution if she returns to Uganda for the following reasons:
a.She has been accused of making anti-government statements in relation to Uganda’s human rights abuses and persecution of dissidents by the then [Official 1] in Australia, [Mr A].
b.[Mr A] also accused her of being a spy and leaking information to groups in Australia opposed to the Ugandan government.
c.[Mr A] has subject her to extreme systematic discriminatory conduct.
d.She was subjected to psychological and physical harassment and on one occasion her persecutor asked her to have a sexual relationship with her, but she refused.
e.She was accused of orchestrating an anti-government letter by people in Australia critical of the Ugandan Government. She was threatened with harm should she return to Uganda because of her alleged role in the dissemination of this letter and told she would be put on a “blacklist’.
f.She has been attributed with holding anti-government views and aligning with anti-government groups.
g.Her family in Uganda have told her that they are being visited by people asking where she is and threatening her life.
h.She witnessed the former [Official 1] making false [allegations] against Australian officials. She also claims to be fear harm because she has seen media articles and country information about the treatment of opposition politicians in Uganda. She claims she would be arrested, charged with treason and made to “disappear” if she returned to Uganda.
i.The applicant claims that the government is unable to protect her from persecution.
Tribunal hearing
The applicant told the Tribunal that the secondary applicant was at school and not able to attend. The applicant has been working for many years in [a] sector and has rental accommodation. The applicant told the Tribunal that her properties in Uganda are occupied. She is unable to sell the family home and some distant relatives are living there. Her daughter sometimes stays in her house in Kampala.
[Official 1] has returned to Uganda. She claimed that he was [deleted]. The Tribunal put to the applicant that his public profile and CV on LinkedIn indicated he has been [an occupation] since around 1975 and that his CV looked a lot like hers [details deleted]. The applicant said that he was [an Occupation 1] in [an organisation] and worked with [an official]. The Tribunal asked the applicant to provide any evidence that [he] had been or was [an Occupation 1] in [named organisation].
She said that [the official] told everyone at [Organisation 1] that she was a spy before she even began work at [Organisation 1]. Asked why he would have done that given that she had said that she did not express her political views and had done nothing in the past to draw attention to herself the applicant said that he might have heard about her government views. The Tribunal reminded her that she had said in previous statements that she was entirely neutral and did not express her views, she responded that she worked for the government, and she expressed her views to her friends and was disappointed that the president was standing for another term.
The applicant told the Tribunal that she shared her views with colleagues which included that she didn’t think that the president should be seeking another term and that the government was imprisoning and torturing people.
After the first week she claims that the harassment escalated. She asked for a TV and some furniture to which she was entitled and did not receive them. She said the house was in a poor condition and she could not invite people there. She said she was sleeping on a broken bed that was never fixed. The Tribunal put to her that whilst these matters may be unpleasant, they did not amount to persecutory behaviour. She said that in the office [Official 1] partitioned the office and there was no phone in her office but there was a phone in [another person]’s office. She said that they talked in whispers. She said that [Official 1] then told her to work at [a certain] desk. She claims that he did this so that he could monitor her movements. She said that she was not allowed to park her car on the premises. After they moved offices in around May 2015, she was given an office and everyone else had phones except her. She says that she could see what was happening and she felt so unsafe, and she locked herself in her office and stayed there all day. She said that she was handling [certain work] for [Organisation 1]. She claims that he told her to leave at the end of September but was offered another contract. The Tribunal put to her that, given her evidence, it was surprising that she was offered another contract which she accepted despite claiming that she was so scared of what was happening with the [Official 1] that she locked herself in her office.
The Tribunal queried that, despite these claims she still did not apply for protection. The applicant said that she didn’t know how to, and she went to [people] who advised her. The Tribunal put to her that she just stated that she worked in [a certain area]. The Tribunal suggested that given her familiarity and long period with the [sector], including overseas, it seems unlikely that she would not know that she could apply for protection.
The applicant said that there were only two [staff], and she only did [certain] work sometimes. She also did some political reports which he asked her to do. The Tribunal put to her that if [Official 1] asked her to do political reports, then he must have had some confidence in her and not suspect her of having anti government views. The applicant said that he was trying to catch her out to see what she would write. She claims that she told him that she did not think she could write political reports and refused. She states that most of her work was with [a certain task].
The Tribunal put to the applicant that her evidence appeared to involve low level harassment and asked her at what point did she decide that she needed protection from persecution and what persecution she felt she faced. She said that [Official 1] had threatened her by saying telling her that he was powerful and could make bad things happen to her when she returned to Uganda. She claims that he told her, in front of junior staff, just wait to see what I will do to you when you get back to Uganda. She was thrown out of the house she had been allocated when she arrived in [City 1].
She said that she was a patient person, but the harassment just continued. She claims that she could not take sick leave and was suspected of going to [City 2] and seeing other people.
The Tribunal put to the applicant that she claimed that she talked about her anti-government views to her friends and that [Official 1] found out about them even before she came to [City 1]. The Tribunal asked the applicant that if her anti-government views were so well known, how was it that she came to be given an appointment in [City 1]? She said that she didn’t know.
The Tribunal put to the applicant that the fact that she was appointed to a position in [City 1], and that her appointment was extended after a year, indicated that she had no anti-government views that she expressed to anyone and that no-one, particularly not [Official 1], knew about her alleged anti-government views. The applicant stated that some people came to the office, purportedly to work on [a certain task]. However, she found out that they were in fact internal security organisation people sent to spy on her activities. Asked if she had any evidence of that she claimed that one of her friends who worked there told her. She claims that [Official 1] told them that she was a spy and that’s why they came to investigate her. She said that they came in August 2015. The Tribunal put to her that despite all of this, she claims she was still offered another contract for a further year in September 2015. The Tribunal put to her that the offer of a new contract seemed inconsistent with her claim that the internal security apparatus of Uganda had travelled from Kampala to [City 1] to investigate her because [Official 1] told them that she was a spy.
She said that the contract did not originate from p[deleted] but was from [her sector] and they didn’t know what was happening at the political level with [Official 1]. The Tribunal put to the applicant that it seemed unlikely that the was being investigated for being a spy without [her employer] being aware of the fact.
The applicant told the Tribunal that she was employed to establish a new [system] as one did not even exist in [City 1]. She said that a new contract did not mean that she would continue to work in her position in [City 1] but that she could go anywhere.
The Tribunal put to the applicant that when she talks about an extension to a contract it implies that it will relate to the current contract not a contract in relation to another position somewhere else.
The Tribunal asked the applicant about two letters in front of it dated [August] 2015 and [July] 2015. The Tribunal noted that they appeared to be letters renewing her contract for a further 12 months. She said that she had to retire at age [age] and was employed as a contractor. She said that she worked at [Organisation 2] from 2013 on renewable contracts.
The Tribunal put to the applicant that it was difficult to accept that she could have been offered [an] appointment in [Organisation 1] in [City 1] if, prior to her arrival, [Official 1] and others considered her to be an anti-government spy. The Tribunal further put to her that it found her explanation that the [employer] did not know what was happening [to] be far-fetched. The Tribunal put to her that despite all these claims she was still offered another contract.
The applicant told the Tribunal that [Official 1] thought she was a spy. She said that she knew many people in [City 2] and every time she was out of the office, he thought that she was in [City 2]. The applicant said that [Official 1] overturned the new contract and whilst he did that, he did not have the authority. She did not receive a recall letter. Asked if she had any evidence of him overturning the new contract, she said that she did not. The Tribunal put to the applicant that perhaps [Official 1] did not overturn her new contract and that the only reason she is claiming protection is simply because she wants to stay in Australia so that her granddaughter could have a good education and life. She said that she received her education in Uganda, and it was a good education. She denied that [her granddaughter] had anything to do with her making the claims and that she would be happy to return if she did not fear persecution.
The Tribunal asked the applicant what she thought would happen to her if she returned to Uganda, eight years after the events she alleges happened. She said that people are persecuted in Uganda. The applicant said that [Official 1] told her that if she ever returned to Uganda that she would be killed. She said that he was in government now and people had been going to her house asking for her and taking photographs. The Tribunal put to her that public information indicated that he was in [another] sector.

The Tribunal put to the applicant that she claimed that [Official 1] told un-named people in un-named offices that she was a spy. Asked who she thought he had told she said that she would have told “his people”. Asked who they were she said security people and others in government. The Tribunal put to her that given those claims it seemed impossible that she would have been re-appointed.
She stated that a lot of people have disappeared just because someone said something about them. The Tribunal put to the applicant that someone said something about her – that she was an anti-government spy – but she nevertheless was appointed to [Organisation 1] in [City 1] and re-appointed. The Tribunal put to her that her that in its mind she was not accused of being a spy. The applicant said that she knows some people in Uganda and Australia who are living in fear because they have been labelled something. She said people are tortured and thrown into prison and nobody will know what happened to them. She said that is what she is fearful of.
The applicant said that her son has disappeared, and she did not know where he was. She said that he was a more vocal anti-government activist. She said that they know his mother is in Australia. She said that these people have hit men. She said that someone may say that someone is their enemy and to deal with them.
The Tribunal put to the applicant that she had provided the Tribunal with a letter allegedly written by dissidents in Australia. Asked when she and [Official 1] became aware of it she said that she didn’t remember. Asked when [Official 1] accused her of being involved with the drafting of the letter, she said that it was a few weeks after she arrived in 2014. The Tribunal put to her that the letter was drafted in early 2015. She said that he accused her of being involved with dissidents after she arrived. He said that he knew she was involved in the writing of it. She claims that she was not aware of the letter and had not seen it. She knew some of the people who attached their signature to it. Asked if there were any consequences to the letter or if she knew whether it had arrived in Kampala she said she did not know what happened to the letter or if the president received it.
The Tribunal put to the applicant that on the evidence before it, it was having difficulty forming a view that she would have or does have a profile such that anyone in the government of Uganda, or anyone at all, would be interested in her such that they would seek to persecute her if she returned to Uganda and asked for her response to that.
The applicant said that she is fearful of going to Uganda because people are being tortured and killed and disappeared. She said that things work differently in Uganda in the public service. The applicant said that the way that [Official 1] had been talking, she knew she would be persecuted.
The applicant’s adviser put to the Tribunal that it should consider another scenario which is that the people in Uganda knew that the applicant was anti-government, however, there is a job that needs to be done and this person has the skill to do the job and that the government agencies will monitor and control her activities. Once she has done her job, it is suggested, the government agencies would ensure that she return to Uganda where she would be persecuted. The Tribunal suggested that whilst that might be a possibility it did not explain why the contract would be renewed, particularly as the applicant admitted to not having done the job that she was engaged to do. The representative further stated that it is entirely plausible that someone could not navigate the asylum system and the fact that there was a delay in making an application can be explained by the cumulative effects of the daily harassment.
The Tribunal told the applicant that she could provide additional evidence and information to help with her claims to the Tribunal by the end of January 2023.
Post hearing submission
The applicant, through her representative states that she delayed making a protection application in Australia because she had hoped that things in her workplace would improve.
The applicant also stated that her contract was renewed because there was no one immediately available with the same experience and knowledge to do the job she was engaged to do. She stated that [named organisation] in Uganda is her employer, and she is allocated to [an organisation].
The applicant said that her granddaughter is able to go back to Uganda and is therefore not the reason why she seeks to remain in Australia. She states that she does not wish to live in exile and would have had a more comfortable life in Uganda as she owns two properties. She states that her pension has been cancelled but has provided no evidence of that. She states that if she returned to Uganda she would suffer physical, psychological or economic harm by her own government and the government is unwilling and unable to help her.
The applicant states that she does not need to have any profile in order to be persecuted and more than 450 people were shot and killed during a government crackdown on the streets of the Ugandan capital, Kampala.
The applicant confirms that [Official 1] worked [with an official] around 1975-79. The Tribunal notes that this was in his publicly available CV. He was not, however, [an Occupation 1], nor did he serve in [named organisation]. The applicant however maintains that [he] is in a position to persecute her and ensure that others in government do the same.
Country information
The applicant provided a number of articles about the security situation in Uganda including from Human Rights Watch and Amnesty as follows.
The authorities restricted the work of activists and civil society groups.” Security forces arbitrarily arrest and beat opposition supporters and journalists, killed protesters, and disrupted opposition rallies. Ugandan authorities halted activities of some civil society organisations. forces used intimidatory tactics to suppress political opposition members and supporters in the context of the January elections, including arbitrary arrests, abductions, prolonged incommunicado detention, enforced disappearances and prosecutions. The rights to freedom of expression, peaceful assembly and association were severely restricted; the authorities targeted organizations working on human rights and shut down the internet for five days. There are arbitrary detentions and unfair trials. Limitations on freedom of movement, freedom of Association and lack of freedom of expressions. Uganda 2021 >
Over 270 people extra judicially killed during Kisanja Hakuna MchezoHuman rights violations, in utter disregard of the law, continue to occur under President Museveni’s fifth term, dubbed Kisanja Hakuna Mchezo, with increasing level of impunity on the perpetrators according to Human Rights and Peace Centre, a department of School of Law Makerere University. A report titled “Human Rights Violations in Uganda: The Abuse Of Civil And Political Rights In The Era Of Kisanja Hakuna Mchezo, Huripec” documents over 270 cases of extra judicial killings that occurred across the country between 2016 and 2018 as a result of intense physical torture, use of unwarranted, unjustified excessive and lethal force, heavy handedness and indiscriminate shooting at people resulting in death of innocent bystanders including children and students.
Returning asylum seekers
The Tribunal has considered whether the applicant would face persecution on the basis of her return as a failed asylum seeker.
In March 2019 Sulaiman Momodu, a Reporting Officer with UNHCR, wrote:
Africa’s hospitality towards refugees is remarkable. African countries are opening their borders and their hearts to receive refugees. Host communities are welcoming refugees even before UNHCR and the international community can assist […]
Though poor, Uganda is the largest refugee-hosting country in Africa, with over a million refugees, most of them from South Sudan, the Democratic Republic of the Congo (DRC), Burundi and Somalia. Kenya, Sudan, DRC and Ethiopia are also among the top refugee-hosting countries on the continent.[1]
[1]Momodu, S. (2018) Uganda stands out in refugees hospitality | africa renewal, United Nations. United Nations. Available at: (Accessed: January 31, 2023).
What remains unclear is whether there is a substantial difference in the treatment of refugees and returning asylum seekers.
Uganda remains an unstable country. With rising conflict in the northern part of Uganda, the government is increasingly being flagged for human rights abuses.
The UN human rights watch reported in 2023;
Authorities in Uganda, as in previous years, failed to hold security forces accountable for serious human rights abuses. The police and the military, which were implicated in serious rights violations around the 2021 general elections, continued to restrict rights to freedom of expression and assembly, especially for government critics and political opposition. The authorities placed restrictions on civil society organizations, media, and online communication, as state agents routinely harassed and intimidated journalists.[2]
[2] Watch, H.R. (2023) World Report 2023 - Uganda, "World Report 2023 - Uganda", Document #2085508. Available at: (Accessed: January 31, 2023).
Uganda continues to fetter freedom of expression, assembly, LGBTQ+ rights, land rights and the rights of the child.[3]
[3]Ibid.
A 2012 opinion article published in the Oxford University Forced Migration Review contends that returning asylum seekers in Uganda are vulnerable to social, economic, and psychosocial risks.[4] In this same article, sometimes returning asylum seekers are questioned on arrival at the international airport in Uganda which is referred to as a ‘routine examination’ where they can be questioned extensively about why they left the country and can be asked to divulge sensitive information that may expose them to persecution based on their reasons for leaving the country.[5]
[4] Onyoinv, C. (2017) “A grim return: post-deportation risks in Uganda,” Forced Migration Review, Oxford University. A grim return: post-deportation risks in Uganda | Forced Migration Review (fmreview.org)
[5] Dolan C, Schuster L & Merefield M (2012) ‘The Impact of Deportation: Some Reflections on Current Practice’ >
The Tribunal has been unable to locate any current information and the applicant has not, in any case, pursued this claim
Letters of support
The Tribunal has noted the letters of support provided to the applicant from [Ms B], an employee at [Organisation 1] at the same time as the applicant; [Ms C], a retired [staff member] who has known the applicant for some 20 years; and finally a letter of support from the Ugandan Association of [City 1].
[Ms B] was a personal assistant to [Official 1], [Mr A] at the time the applicant was also working at [Organisation 1]. She states that even before her arrival at [Organisation 1] [Official 1] began making derogatory remarks about the applicant. After her arrival, [Ms B] states that he accused the applicant of being a spy who had come to [City 1] to sabotage government programs and his appointment as [Official 1]. She states that [Official 1] constantly called the applicant names and belittled her in front of staff and visitors alike.
[Ms B] also states that [Official 1] cautioned her to be careful of the applicant as she was collaborating with antigovernment dissidents in New South Wales. She states that [Official 1] told her that he would make the applicant suffer for her political interference. She states that it is her belief that the applicant’s life would be in danger if she was to return to Uganda. [Ms B] does not give any reasons why she has formulated these views or evidence that [Official 1] is in a position to carry out any threats he may have made.
The Tribunal notes that this is a signed letter, however it is not a statutory declaration nor was it submitted with any evidence of the author’s credentials or identity. For these reasons the Tribunal gives this letter limited weight.
In the letter from [Ms C], it is stated that they have known the applicant for twenty years and known her to be reliable and trustworthy. [Ms C] states that she was working at [Organisation 1] at the same time as the applicant and witnessed her being abused, harassed and embarrassed. She states that the applicant was accused of causing the publication of an article in a Ugandan newspaper [details deleted].
[Ms C] states that the applicant was made to sit at [a certain] desk and when they moved offices she would lock herself in the office out of fear [Ms C] states that two officers from the external security organisation came to purportedly check on [deleted]. [Ms C] states that [Official 1] is a very vindictive person and constantly reminded her that he would cause to punish whoever sabotages his and government efforts. She states that now that [Official 1] is back in Uganda, he is definitely more harmful as he is still being used by the State. However she does not state why she has formulated these views or provided any evidence to support them.
The Tribunal notes that this is a signed letter, however it is not a statutory declaration nor was it submitted with any evidence of the author’s credentials or identity. For these reasons the Tribunal gives this letter limited weight.
The letter of support for the applicant from the Ugandan Association of [City 1]. This letter reiterates the applicant’s fear of being persecuted by [Official 1] for being anti-government and a spy. The letter also states that [Official 1] was a former [Occupation 1] and has political contacts in Uganda. Again, however, there is no evidence provided to confirm this.
The Tribunal notes that this is a signed letter on the letterhead of the Ugandan Association. However, it is not a statutory declaration nor was it submitted with any evidence of the author’s credentials or identity. Furthermore, it is an account which relies on the applicant’s account of events. There is no indication that the author of this letter was a witness to the events he describes. For these reasons the Tribunal gives this letter limited weight.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a refugee or a person to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Political opinion, imputed or otherwise
The applicant’s claims arise from claimed sexual and other harassment perpetrated against her by [Official 1] during her tenure at [Organisation 1] because of an imputed political opinion, being anti-government and a spy.
She states that [Official 1] began his harassment of her prior to her arrival by telling colleagues that she was a spy.
She has claimed that she kept her political opinions to herself [details deleted]. However, she has also said that [Official 1] told everyone at [Organisation 1] that she was a spy before she even began work at [Official 1] because he might have heard about her political views that the president should not be standing for another term.
Putting aside the Tribunal’s concerns that the applicant appears to adjust her account of events depending upon the Tribunal’s questions, the Tribunal finds it implausible that [deleted] to a [posting] in [City 1] if it was known in government circles that prior to that appointment, the applicant was a spy. The Tribunal does not accept that, if this was indeed known, the applicant was appointed, and her contract extended for a further 12-month term, because she was the only person that could do the job to which she was assigned. She claims that [Official 1] cancelled the extension of her contract but has provided no evidence to support this claim. In any case, if the applicant had indeed been considered a spy prior to her departure, it seems to the Tribunal that she would not have been permitted to leave the country.
The applicant’s account of the government sending two internal security officers to [City 1] in August 2015 to report on her under the guise of examining the visa operations is unpersuasive and unsupported by evidence. In her letter of support, [Ms C] states that these officers attended [Organisation 1] to investigate [matters] and, in a meeting with her pointed to the applicant stating, “this is the lady I have been telling you about”. However, she did not recount the details of any conversation that was had.
The applicant has said that she is one of only two [staff]. It seems to the Tribunal that if the applicant was indeed considered a spy, it would be a simple matter of recalling her from her position rather than sending two intelligence officers to [City 1]. The applicant has not said what kind of information she would have had access to such that the disclosure of which would give rise to accusations of spying. The applicant had [stated] duties and by her own admission did not have access to confidential material.
The Tribunal has considered the applicant’s claims that she was accused by [Official 1] of being involved in the drafting of a letter to the President of Uganda complaining about his conduct as an [Official 1] in Australia. She claimed that she had been accused of being involved in the drafting of the letter a few weeks after she arrived in 2014. The Tribunal put to her that the letter was drafted in early 2015. The applicant did not know if the president received the letter or even if it was sent. She was not aware of any consequences arising from the letter. The Tribunal is not persuaded that, given the evidence before it, [Official 1] or anyone else could make the assumption that she was involved in the drafting of the letter either in the weeks after she arrived as she claims, or at any other time. She claims not to know or associate with any of the signatories.
The applicant, in her written submission, made claims about witnessing [Official 1] make [allegations] against Australian officials, however has not pursued that claim. The Tribunal has therefore made no findings about this matter.
The applicant has said that [Official 1] is still in government and has connections in the government to ensure that she is killed if she returns. The Tribunal also finds this unpersuasive and unsupported by evidence. Putting aside for the moment the fact that the Tribunal does not accept that the applicant was or is of any adverse interest [Official 1] or indeed of anyone in the Ugandan government, its agencies or the public sector, [Official 1] appears to have returned to [another] sector. His CV is similar to the applicant’s in many ways [details deleted]. He is not, nor does he appear to have ever been [an Occupation 1], or indeed [any other role], in the Ugandan [named organisation] as claimed.
The Tribunal is not satisfied that the applicant was considered by her employers, or [Official 1], or by anyone in the Ugandan government and its agencies or public sector as a spy with anti-government opinions or that she would be considered as such to the extent that she would be persecuted if she returned to Uganda.
For these reasons, the Tribunal is not satisfied that the applicant’s family in Uganda have been visited by people threatening to harm her if she returns, or that she will be put on, or that she is currently on, any kind of “blacklist” which would lead to her being a target for persecutory behaviour or subject to significant harm.
She claims she would be arrested, charged with treason and made to “disappear” if she returned to Uganda as she has seen the treatment of opposition politicians in Uganda. The applicant is not an opposition politician and has not been involved in the public expression of any political views that may be considered anti-government or that would attract adverse attention to her such that she would be sought out for persecution by government members or agencies or by anyone.

The Tribunal is not satisfied, on the evidence before it, that the now ex-[Official 1] has either the capacity or the will to seek out the applicant, or have her sought out, for persecutory treatment or harm of any kind for any of the reasons she has claimed, or for any other reason.
The Tribunal has considered the applicant’s claims of sexual harassment and the general harassment and disrespect that she was allegedly shown by [Official 1] when she took up her post, including being sexually propositioned by him on one occasion and not receiving the allowances and perquisites to which she believed she was entitled. Even if these claims are true, they do not amount to persecutory behaviour, nor are the hurts that she felt because of these actions considered significant harm for the purposes of the Refugee Convention. Nor do they meet the threshold for consideration under the complementary protection criteria.
The Tribunal is not satisfied that the applicant is a refugee or has protection obligations under s 36(2)(a).
The Tribunal has considered whether the applicant meets the criteria for complementary protection under s 36(2)(aa). The Tribunal does note that the situation in Uganda is unsettled and there have been outbreaks of violence at demonstrations during which people have been killed. The Tribunal also accepts that political opponents in Uganda are not tolerated, and many have been killed or “disappeared”. However, the applicant has stated that she has not expressed her political opinions publicly and has not said that she intends to in the future or has in the past attended any anti-government demonstrations for any reason. She has two homes, one in Kampala and one in the country. She may or may not have access to a government pension or savings from Australia, but she does have family that may be able to provide her with some level of support and assistance.
The Tribunal is not satisfied that the applicant is of any adverse interest to the government or its agencies for the reasons claimed and the applicant is not claiming that she fears persecution from any other agency or person. The Tribunal has also considered whether the applicant would face significant harm by reason of her being a failed returning asylum seeker and has found no evidence to indicate that the government has targeted people for such a reason upon their return to Uganda.
The Tribunal is not satisfied, on the evidence before it, that the applicant would be subject to significant harm for the reasons claimed, or for any other reason, should she be returned to Uganda either now or in the reasonably foreseeable future.
The secondary applicant did not make any claims of her own but sought to rely upon the primary applicant’s claims.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Ann Duffield
Senior 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.
…

[2023] AATA 1588

13 February 2023

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