2119220 (Refugee) [2022] AATA 1544 (20 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2119220
COUNTRY OF REFERENCE: Uganda
MEMBER:D Creedon
DATE:20 March 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 20 March 2022 at 3:40pm
CATCHWORDS
REFUGEE – Protection visa – Uganda – cancellation – complementary protection –left Uganda as young child – long-term residence in Australia – Australian citizen children – lost documentation – parents’ affiliation with Uganda People’s Congress Party and subsequent death in Ugandan civil war – easy target as foreigner – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, [an age]-year-old citizen of Uganda, applied for the visa on 21 November 2019.
The applicant first arrived in Australia [in] March 1993 as the holder of Refugee [visa] granted on 7 January 1993. That visa was cancelled on 4 September 2015. The applicant is presently in immigration detention on Christmas Island.
Protection visa application.
The applicant’s written claims for protection are set out in his protection visa application. They may be summarised as follows:
a.The applicant was orphaned as a young child “during the Idi Amin regime” and fled Uganda with his aunt, first to Kenya and then, when he was [age] years old, to Australia.
b.As a teenager the applicant was warned by his aunt not to return to Uganda as his birth family were “well known” in Uganda because of their involvement in the “People’s Congress” political party.
c.The applicant states that he is afraid to return to Uganda because he will be killed. He states that he has lived in Australia for over 25 years and has an Australian accent; he does not know “overseas customs [and] cultures” and does not speak Ugandan.
d.He states that if he is caught without an ID he could easily be mistaken for being a “rebel, terrorist or criminal” and he is “sure” that he will be prosecuted when his family background is discovered; he states (uncorrected):
IF I AM UNWILLING TO SPEAK OR PROVIDE THEM WITH THE INFORMATION THEY-REQUIRE I WILL BE SUBJECT TO FORCE, COERCION, TORTURE AND HARRASMENT. IN THEORY IT IS THE RESPONSIBILITY OF THE UG IMMIGRATION OFFICE TO ARRANGE HELP FOR LOCATE…
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CaseChat Overview and Summary
The applicant, a citizen of Uganda, sought review of a delegate of the Minister for Home Affairs' decision to refuse to grant him a protection visa. The applicant had arrived in Australia in 1993 and his previous visa was cancelled in 2015. He claimed to have fled Uganda as a young child due to the death of his parents during the Idi Amin regime and subsequent civil war, living in Kenya before arriving in Australia. He asserted a fear of returning to Uganda due to his lack of familiarity with the country, his Australian accent, inability to speak the local language, and the potential for being mistaken for a criminal or terrorist due to his family's past political affiliations with the Uganda People's Congress Party. He also highlighted that he had no family remaining in Uganda to claim him and feared being subjected to force, coercion, torture, harassment, or inhumane detention conditions.
The court was required to determine whether the applicant had established a well-founded fear of persecution or a real risk of suffering significant harm upon removal from Australia to Uganda, thereby engaging Australia's protection obligations under the *Migration Act 1958* (Cth). Specifically, the court needed to assess if the applicant met the criteria for a protection visa under section 36(2)(aa) of the Act, which concerns substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of suffering significant harm.
The court considered the applicant's submissions regarding his orphaned status, his upbringing in Australia, his lack of connection to Uganda, and his fear of being identified as a foreigner and targeted. It noted the applicant's assertion that his family was involved with the Uganda People's Congress Party and that his parents died during the civil war, making him an "easy target." The court also took into account the applicant's statement that he lacked documentation to prove his Ugandan identity and could not speak the language, increasing his vulnerability. The court found that the applicant was a person in respect of whom Australia had protection obligations and satisfied the criterion set out in s 36(2)(aa) of the *Migration Act*.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the *Migration Act*.
The court was required to determine whether the applicant had established a well-founded fear of persecution or a real risk of suffering significant harm upon removal from Australia to Uganda, thereby engaging Australia's protection obligations under the *Migration Act 1958* (Cth). Specifically, the court needed to assess if the applicant met the criteria for a protection visa under section 36(2)(aa) of the Act, which concerns substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of suffering significant harm.
The court considered the applicant's submissions regarding his orphaned status, his upbringing in Australia, his lack of connection to Uganda, and his fear of being identified as a foreigner and targeted. It noted the applicant's assertion that his family was involved with the Uganda People's Congress Party and that his parents died during the civil war, making him an "easy target." The court also took into account the applicant's statement that he lacked documentation to prove his Ugandan identity and could not speak the language, increasing his vulnerability. The court found that the applicant was a person in respect of whom Australia had protection obligations and satisfied the criterion set out in s 36(2)(aa) of the *Migration Act*.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the *Migration Act*.
Orders
Orders of the court
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Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant, [an age]-year-old citizen of Uganda, applied for the visa on 21 November 2019. The applicant first arrived in Australia [in] March 1993 as the holder of Refugee [visa] granted on 7 January 1993. That visa was cancelled on 4 September 2015. The applicant is presently in immigration detention on Christmas Island.Protection visa application. The applicant’s written claims for protection are set out in his protection visa application. They may be summarised as follows:a.The applicant was orphaned as a young child “during the Idi Amin regime” and fled Uganda with his aunt, first to Kenya and then, when he was [age] years old, to Australia. b.As a teenager the applicant was warned by his aunt not to return to Uganda as his birth family were “well known” in Uganda because of their involvement in the “People’s Congress” political party. c.The applicant states that he is afraid to return to Uganda because he will be killed. He states that he has lived in Australia for over 25 years and has an Australian accent; he does not know “overseas customs [and] cultures” and does not speak Ugandan.d.He states that if he is caught without an ID he could easily be mistaken for being a “rebel, terrorist or criminal” and he is “sure” that he will be prosecuted when his family background is discovered; he states (uncorrected):IF I AM UNWILLING TO SPEAK OR PROVIDE THEM WITH THE INFORMATION THEY-REQUIRE I WILL BE SUBJECT TO FORCE, COERCION, TORTURE AND HARRASMENT. IN THEORY IT IS THE RESPONSIBILITY OF THE UG IMMIGRATION OFFICE TO ARRANGE HELP FOR LOCATE MY RELATIVES, BUT GIVEN I DO NOT HAVE ANY IN UG AND THE GOVT HAS LIMITED RESOURCES AVAILABLE I WILL BE PUT IN .CRIMINAL DENTION AT THE AIRPORT AND THIS IS NOT ONLY UNACCEPTABLE BUT THE CONDITIONS ARE INHUMANE AND DEGRADING. UG HAS NO OFFICIAL POST-DEPORTATION MONITORING MECHANISM OR INTERGRATION PROGRAMME TO GIVE MUCH NEEDED ASSISTANCE TO PEOPLE LIKE ME. THERE WILL ALSO BE NO MEDICAL ATTENTION PROVIDED TO ME.e.The applicant states that he is at risk of being easily identified as a “foreigner” in Uganda as he does not know local customs and cannot speak the language. He fears, as a “foreigner”, being kidnapped for ransom or being kidnapped, tortured, and killed for money. The applicant then states in his application that if his identity is discovered by the Ugandan authorities, they will persecute him and that he could not obtain protection from the authorities there as they are the persecuting authorities he fears.Evidence before the delegate[Aunt A]’s letter: 2 March 2016 By a letter dated 2 March 2016 the applicant’s [Aunt A] provided the following information to the department, in summary:a.[Aunt A] states that she is the applicant’s aunt and she arrived in Australia [in] March 1993.b.She states that the applicant was born in Uganda on [date] and that he has [a] [brother].c.[Aunt A] states that the applicant and his brother “lost their parents in the war in 1981” and that she then “raised them up”.d.[Aunt A] states that she left her home country when the applicant was [age] years of age and [his brother] was [age]; she states (un corrected):[The applicant] was very young to understand and this was not a topic we discuss because of culture. I raised the two boys together with my other children…My children did not know like I said in my culture we don’t talk about the dead. [The applicant] and his brother know me as their mother and my children know them as a brother.e.She states that when they came to Australia the applicant was [age] years of age. The applicant attended high school, however he struggled with “culture shock”.f.[Aunt A] states that prior to coming to Australia the family lived in Kenya for 13 years as refugees; she states that life was difficult; the applicant spoke Swahili rather than “her” language, Bungaro. She states that she did not return to Uganda until 2006.g.[Aunt A] states that the applicant does not know where the family come from as he was only [age] years old when he left Uganda; she states:Back in Uganda, I don’t have any one living my father, mother, dead long time ago. My only living stepbrother dead in 2006. So there is no one there that is why I find it difficult to go holidays in Uganda. If [the applicant] is deported back there he does not know Uganda, and does not know anyone there…h.[Aunt A] states that the applicant has five children in Australia; she states that the applicant suffered trauma after losing a friend in a road accident (in which he was involved) and that he sought counselling.i.She states that she is “very supportive” of the applicant and his brother and that they only have her in their lives. She states that she did not meet or know the applicant’s father’s family.j.[Aunt A] states:The hardest part is if [the applicant] is taken back to Uganda he does not have any documents to prove that he is a Ugandan. Uganda is a very troubled country, I am worried that he might be killed if he does not have any one to claim him, and he can’t speak the language I am very scared for his life.Applicant’s affidavit: 20 July 2017
Evidence
Evidence Before The Court
The applicant then states in his application that if his identity is discovered by the Ugandan authorities, they will persecute him and that he could not obtain protection from the authorities there as they are the persecuting authorities he fears.Evidence before the delegate[Aunt A]’s letter: 2 March 2016 By a letter dated 2 March 2016 the applicant’s [Aunt A] provided the following information to the department, in summary:a.[Aunt A] states that she is the applicant’s aunt and she arrived in Australia [in] March 1993.b.She states that the applicant was born in Uganda on [date] and that he has [a] [brother].c.[Aunt A] states that the applicant and his brother “lost their parents in the war in 1981” and that she then “raised them up”.d.[Aunt A] states that she left her home country when the applicant was [age] years of age and [his brother] was [age]; she states (un corrected):[The applicant] was very young to understand and this was not a topic we discuss because of culture. I raised the two boys together with my other children…My children did not know like I said in my culture we don’t talk about the dead. [The applicant] and his brother know me as their mother and my children know them as a brother.e.She states that when they came to Australia the applicant was [age] years of age. The applicant attended high school, however he struggled with “culture shock”.f.[Aunt A] states that prior to coming to Australia the family lived in Kenya for 13 years as refugees; she states that life was difficult; the applicant spoke Swahili rather than “her” language, Bungaro. She states that she did not return to Uganda until 2006.g.[Aunt A] states that the applicant does not know where the family come from as he was only [age] years old when he left Uganda; she states:Back in Uganda, I don’t have any one living my father, mother, dead long time ago. My only living stepbrother dead in 2006. So there is no one there that is why I find it difficult to go holidays in Uganda. If [the applicant] is deported back there he does not know Uganda, and does not know anyone there…h.[Aunt A] states that the applicant has five children in Australia; she states that the applicant suffered trauma after losing a friend in a road accident (in which he was involved) and that he sought counselling.i.She states that she is “very supportive” of the applicant and his brother and that they only have her in their lives. She states that she did not meet or know the applicant’s father’s family.j.[Aunt A] states:The hardest part is if [the applicant] is taken back to Uganda he does not have any documents to prove that he is a Ugandan. Uganda is a very troubled country, I am worried that he might be killed if he does not have any one to claim him, and he can’t speak the language I am very scared for his life.Applicant’s affidavit: 20 July 2017 On 20 July 2017 the applicant affirmed an affidavit in connection with proceedings then before the Federal Court of Appeal. The applicant made the affidavit “of [his] own knowledge and belief unless otherwise stated”. It is convenient to reproduce the material paragraphs of the affidavit in full:6. I was born in Uganda in [year] and my parents were killed during the Ugandan civil war when I was [age] years of age.7. My brother and I were taken in by our [Aunt A] to Kenya to escape the war and we lived in Kenya as a refugee until I was [age] years old.8. I arrived in Australia on 1994 when I was [age] years of age with my brother and aunt. I have spent most of my life in Australia and I do not have any persona! or cultural connections with Uganda.9. On 4 September 2015, my visa was cancelled.…17. I have significant ties to Australia. My entire family live here and I have five children of Australian citizenship, all of whom of a minor age: [details deleted]. I believe that the Minister did not properly consider the effect that my departure would have on my family. In particular, I have two children in the care of the Department of Child Protection because their mother cannot properly care for the children.[Aunt A]’s statutory declaration: 27 November 2019
Decision
Reasons for decision
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.D CreedonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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