2119220 (Refugee)

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
SZSPT v MIBP [2014] FCA 1245
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 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
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
On 27 November 2019 [Aunt A] made a statutory declaration in which she declares the following (in summary):
a.[Aunt A] states that she is the applicant’s “auntie and guardian”.
b.She states that in order to travel to Australia for resettlement she was issued with “a document” by the Australian High Commission Nairobi as she was:
…unable to obtain a travel document from the country of our nationality, Uganda (from which we had sought asylum).
c.[Aunt A] states that she was travelling with “five dependents” being her own children and the applicant; consequently, as dependents, they were included in her “travel documents”; the applicant’s brother, being [age] at that time, had his own documents.
d.The applicant states that, with the passage of time, she has lost these documents.
Applicant’s statutory declaration: 3 December 2019
On 3 December 2019 the applicant made a statutory declaration which is in effect a counterpart to [Aunt A]’s of 27 November 2019 accounting for a lack of documentation on the applicant’s part. There are, however, certain passages in the declaration which are appropriate to reproduce in full; the applicant states (uncorrected):
I do not have a Passport and have never held a passport. I have never travelled outside of Australia since my arrival on [date]/3/1993. I was born in Uganda on [date]. I have [a] [brother]. I lost my parents in the war in 1981 and from then on my [Aunt A] took over the role as our primary carer. She left my home country with us, when I was [age] years of age and sought asylum in Kenya in 1982. I grew up in Kenya and lived there for about 10 years as a refugee before coming to Australia for resettlement. I arrived in Australia on [date]/3/1993 at the age of [age] of a humanitarian visa.
Protection visa interview
The applicant participated in an interview with the delegate of the Minister on 4 December 2019 via teleconference; the interview may be summarised as follows:
a.The applicant states that he was born in Uganda. He does not know precisely where in Uganda as he left that country when he was [age] years old.
b.The applicant states his religion as “Christian, Catholic”. He recalls being in a Catholic school in Kenya but does not know if his parents were Catholic.
c.His aunt told him he is a member of the “[name]” tribe.
d.As he was [age] years old when he left Uganda, the applicant does not remember anything of his life there.
e.The applicant recalls living in [a] suburb of Nairobi, Kenya.
f.The applicant has never returned to Uganda; his brother has returned there seeking the family history, however he did not like it and returned to Australia.
g.When pressed by the delegate, the applicant stated that his brother could not find any of his family’s history in Uganda. His mother’s brother had died by the time his brother visited.
h.The applicant stated that his aunt has also visited Uganda.
i.The applicant was unsure that he was a citizen of Uganda; he “thinks” that his parents were born in Uganda.
j.He has never been associated with any political groups or organisations and has never protested against the government of Uganda.
k.When he was told that his aunt was not his biological mother, he was “upset” and did not wish to discuss the family history in detail. He never discussed his biological mother’s or father’s name.
l.His aunt is from his “mother’s side”; his mother’s sister.
m.The applicant’s aunt has four children; he came to Australia with his aunt, his [brother], and his cousins.
n.He does not know anything of his father’s family as he is “still annoyed”.
o.The applicant is not aware of any “family, friends or contacts” in Uganda.
p.The applicant had completed “five” years of schooling when he arrived in Australia and left school in Year [grade].
q.The applicant has done “a lot” of work in Australia, [details deleted]; the applicant has no savings.
r.The applicant stated that he feared returning to Uganda because his father was involved in politics. He feared for his life if people discovered his [family] name. He states that he was told that his parents were killed for their involvement in a “political movement”.
s.The applicant stated that he has no idea where to start in Uganda
t.The applicant stated his concern that without ID he would be regarded as an “informer” in Uganda, he would be “taken in” and “tortured”.
u.When asked what he believed would happen to him if he returned to Uganda, the applicant stated that he feared been tortured and killed because he has no identity there and would present as an outsider.
v.When asked who it was that he feared would harm him, the applicant stated:
The government, mostly; they crush the opposition.
w.When asked whether he had ever had any threats from anyone in Uganda, the applicant referenced what happened to his parents; he stated that he never wanted to go there. He has heard things about Uganda that scare him.
x.He is not aware of any of his family in Australia having received threats.
y.When asked what happened to his parents, the applicant stated that his aunty had told him that that they were killed during the “Idi Amin war”. When pressed he stated that they were killed by the “government” for “political reasons”.
z.The applicant stated his belief that his aunt was in danger when she left Uganda because of the applicant and his brother and their connection with their parents.
aa.When pressed by the delegate, the applicant stated that he was not sure who killed his parents. He stated:
I don’t even know much of the story; I didn’t want to know… I was upset.
bb.When asked why he believes he would be targeted now if he returns to Uganda, the applicant stated that he does not have documents, he is concerned that his family name would be recognised and anybody perceived as being an outsider is taken as a threat.
cc.The applicant stated that the two family names with which he is associated, his own [and] his [aunt’s], were well-known families in Uganda during the relevant period because of their “politics”, specifically the Uganda People’s Congress Party. The applicant stated that he discovered this information from talking to his brother, but that he himself chooses to distance himself from these issues.
dd.When pressed, the applicant stated that he was “not quite sure” what the nature of the connections between his family and the Uganda People’s Congress Party was.
ee.The delegate put to the applicant that his aunt had returned to Uganda in 2006, 2009, 2012 and 2018; the applicant stated that she had gone there to try to look for family.
ff.The delegate put to the applicant that his brother had returned to Uganda in 2015 and 2018; the applicant stated that he himself had never returned to Uganda.
gg.The delegate put to the applicant that his cousins have returned to Uganda at various times and that they had stayed for several weeks. When the proposition was put to the applicant that they did not have a fear for the personal safety, the applicant stated that he himself had never returned. He stated that when his family members had returned, they had done so as Australian citizens with that protection.
hh.The delegate put to the applicant that Uganda is a member of the East Africa Community, facilitating the free movement of labour; the applicant stated that he could not avail himself of that as he had no “Ugandan documents”, no identification. The applicant has never applied for such documents.
ii.The applicant stated that there is war in the region and that without documents he may be taken to be a “rebel” and taken for interrogation. The applicant stated that his was one of his “main fears”.
The delegate refused to grant the visa on 3 February 2020 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 15 December 2021, following renotification of the delegate’s decision on 14 December 2021.
Application for review
Hearing
The applicant appeared before the Tribunal on 1 March 2022 via video link to give evidence and present arguments. The applicant was legally represented in relation to the review.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Post-hearing submissions
By letter dated 15 March 2022 the applicant’s representative provided the Tribunal with written submissions and a number of documents.
The written submissions comprise 11 pages and may be summarised as follows:
a.Paragraphs [1] to [5] summarise the law in respect of the refugee and complementary protection criteria.
b.Paragraphs [6] to [19] concern the applicant’s citizenship.
c.Paragraphs [20] and [21] note Australia’s protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
d.Paragraphs [22] to [26] summarise the evidence of [Aunt A], the applicant’s aunt.
e.Paragraphs [27] to 33] set out certain information in respect of the applicant’s background; it is convenient to set them out in full (citations omitted):
27.     A look at the history of circumstances that led to the death of [the applicant’s father] will assist in demonstrating the future risk of the situation to the Applicant if deposted to Uganda.
28.     The 1981 - 1986 war in Uganda then, pitted two opposing sides, the National Resistance Army, NRA, led by the current president of Uganda, Yoweri Kagutta Museveni and the Ugandan People’s Congress, UPC, then led by Milton Obote.
29.     The surname [applicant surname] is popular with the [named] tribe of eastern Uganda. They are sometimes referred to as [deleted]. When the Ugandan People’s Congress, UPC, was still politically active in Uganda, the party was more popular within the Eastern and Northern peoples of Uganda from the Applicant is from.
30.     The Applicant’s parents had tribal connections with the [named] people of eastern Uganda.
31.     His parents were known supporters of the UPC which led to them being targeted and eventually killed.
32.     The murder of the Applicant’s parents were politically motivated.
33.     The people who murdered the Applicant’s parents are NRA and its supports which is the currently government in power in Uganda.
f.Paragraphs [34] to [36] appear under the heading “The Current Political Situation in Uganda”; it is convenient to set them out in full (citations omitted):
34.     The current president of Uganda is Mr Yoweri Kagutta Museveni who has been in power since the military victory of 1986. While Uganda has experienced some improvements in the economic sphere, the political situation has continued to deteriorate under his leadership.
35.     Opposition party members and civil society activists have continued to be targeted by the security forces. They have been tortured, jailed and some have even disappeared.
36.     The current Ugandan president has shown little tolerance to those opposed to his government policies and party politics.
g.Paragraphs [37] to [48] appear under the heading “How the Political Situation obtaining in Uganda Affects [the applicant]”. The essence of these paragraphs is that as the applicant’s parents were (it is claimed) murdered for their political allegiances, the applicant risks being targeted by “those who killed his parents” out of fear that the applicant may seek revenge. It is submitted that this is customary across Africa citing examples such as the Democratic Republic of Congo and Rwanda.
h.It is submitted (citations omitted):
44.     There is no doubt that once the Applicant will be handed over to the Ugandan Security or immigration officers for interview. Their personal details are registered and they will be subjected to what is referred to as “routine interrogation”. During the process, details regarding their deportation and their contacts in Uganda are entered into an immigration database at the airport.
45.     The Applicant will be handed to the targeted and possibly elimination by those members of the NRA and other tribes who might suspect him of having come back to revenge the death of his parents.
46.     The Applicant’s life remains in danger as long as those who killed his parents are still alive and belonging to the ruling party of the National Resistance Army (NRA).
i.Paragraphs [49] to [50] concern the applicant’s lack of family support in Uganda.
j.Paragraphs [51] to [60] touch upon the psychological effects of his life experiences upon the applicant.

The applicant’s legal representative provided copies of the following articles:
a.Lyodu, B, Pambazuka News, “Uganda: The silent practice of deportations”, 6 May 2010;[1]
b.McVeigh, K; Pearse, D, The Guardian, Ugandan Lesbian wins temporary reprieve from deportation, 29 January 2011;
c.Human Rights Watch, “Uganda: Ensure Independent Investigation into Kasese Killings”, 15 March 2017;
d.Onyoin, C, FMR Online, “A grim return: post-deportation risks in Uganda”.[2]
[1] See: < accessed 20 March 2022.
[2] See: < accessed 20 March 2022.
The applicant’s legal representative also provided copies of a number of rehabilitation and social awareness courses that the applicant has completed while in prison and immigration detention; it is submitted that he has completed at least 23 such courses.[3]
Country information: historical perspective
[3] Namely: i. An Alcoholics Anonymous program for alcohol rehabilitation; ii. ‘Toddler Time’ course for parenting; iii. Relationship/Conflict; iv. Good Stress v Bad Stress; v. Combat My Life Traps – schema – 1,2,3; vi. What is Domestic Violence?; vii. Self Esteem/Self Image – Anger/Violence; viii. Why Do I Re Offend?; ix. Skills Anger/Violence; x. Substance Abuse/Addiction; xi. Understanding Mental Health Group; xii. Managing Stress & Dealing with Expectations Group; xiii. Understanding and Managing Anxiety Group; xiv. Breaking My Cycle of Addiction; xv. Getting to Know You – Group Cognitive Therapy (2) (3) ; xvi. “Back On Track Jack” – Rehab Trauma Grief & Substance Abuse; xvii. Detention Rehab – Good Stressors v Bad Stressors; xviii. Journey to Recovery – part – 1, 2; xix. “Back On Track Jack” – Post Traumatic Stress Disorder & Substance Abuse; xx. Exploration of Anger; xxi. Understanding Domestic Traps; xxii. Recovery from Trauma; and xxiii. “Cycle of Addiction.”
The Political Handbook of the World 2020-2021 provides a concise description of Uganda’s recent political history:[4]
Uganda became a British protectorate in 1894–1896 and began its progress toward statehood after World War II, achieving internal self-government on March 1, 1962, and full independence within the Commonwealth on October 9, 1962. A problem involving Buganda and three other traditional kingdoms was temporarily resolved by granting the kingdoms semiautonomous rule within a federal system. The arrangement enabled Buganda's representatives to participate in the national government, and the king (kabaka) of Buganda, Sir Edward Frederick MUTESA II, was elected president of Uganda on October 9, 1963. The issue of national unity versus Bugandan particularism led Prime Minister Apollo Milton OBOTE, leader of the Uganda People's Congress (UPC) and an advocate of centralism, to depose the president and vice president in February 1966. A constitution eliminating Buganda's autonomous status was ratified in April 1966 by the National Assembly, which consisted mainly of UPC members. Failing in an effort to mobilize effective resistance to the new government, the kabaka fled the country in May, and a new republican constitution, adopted in September 1967, eliminated the special status of Buganda and the other kingdoms. Earlier, on April 15, 1966, Obote had been designated president by the National Assembly for a five-year term. In December 1969 he banned all opposition parties and established a one-party state with a socialist program known as the Common Man's Charter.
On January 25, 1971, Maj. Gen. Idi AMIN Dada, commander in chief of the army and air force, mounted a successful coup that deposed Obote while the president was abroad at a Commonwealth meeting. In addition to continuing the ban on opposition political activity, Amin suspended parts of the constitution, dissolved the National Assembly, and secured his own installation as president of the republic.
Following an invasion by Tanzanian troops and exile forces organized as the Uganda National Liberation Army (UNLA), the Amin regime, which had drawn worldwide condemnation for atrocities against perceived opponents, was effectively overthrown with the fall of Kampala April 10–11, 1979, with Amin fleeing to Libya. Concurrently, the National Consultative Council (NCC) of the Uganda National Liberation Front (UNLF) designated Professor Yusuf K. LULE, former vice chancellor of Makerere University, as president of the republic and head of a provisional government. On June 20 the NCC announced that Godfrey Lukongwa BINAISA, a former attorney general under President Obote, had been named to succeed Lule in both capacities.
After a series of disagreements with both the NCC and the UNLF's Military Commission, Binaisa was relieved of his authority on May 12, 1980. (Binaisa died at age 90 in 2010.) On May 18 the chair of the Military Commission, Paulo MUWANGA, announced that a threemember Presidential Commission had been established to exercise executive power through a cabinet of ministers on advice of its military counterpart, pending a national election later in the year.
Former president Obote returned from Tanzania on May 27, 1980, and in mid-June agreement was reached between party and UNLF representatives on four groups that would be permitted to participate in the presidential/legislative campaign. Following balloting December 10–11, the UPC declared that it had secured a majority in the National Assembly, thus assuring Obote's reinvestiture as chief executive. Although the runner-up Democratic Party (DP) denounced the results as fraudulent, most victorious DP candidates took their legislative seats. The Uganda Patriotic Movement (UPM), led by former president Lule and his former defense minister, Yoweri MUSEVENI, refused to accept the one seat it had won. After shedding the party apparatus, Lule and Museveni formed a National Resistance Movement (NRM) and initiated a guerrilla campaign against Obote through the affiliated National Resistance Army (NRA).
During the next five years, while the UNLA achieved some success in repulsing the rebels, the NRA continued to hold the agriculturally important “Luwero triangle” north of Kampala, as well as its traditional strongholds in the Banyankore-dominated southwest. During the same period, many army actions against civilians were reported, including the harassment, wounding, or killing of DP members; by mid-1985, more than 200,000 were estimated to have died, either from army “excesses” or official counterinsurgency efforts.
…
[Tribunal’s emphasis.]
[4] Political Handbook of the World 2020-2021 Tom Lansford, Jorge Brown, John M. Callahan, David Harms Holt, Robert J. Pauly, Jr., and Alexander D. Stephenson, eds. Thousand Oaks, CA: CQ Press, 2021.pp.1711-1712.
The civil war fought in Uganda by the official Ugandan government and its armed wing, the Uganda National Liberation Army, against a number of rebel groups, most importantly the National Resistance Army, from 1980 to 1986, has become known as the “Ugandan Bush War”. It has been estimated that approximately 100,000 to 500,000 people, including combatants and civilians, died across Uganda as a result of the Ugandan Bush War.[5]
Country information: present situation
[5] Bercovitch, Jacob; Jackson, Richard (1997). International Conflict: A Chronological Encyclopedia of Conflicts and Their Management 1945–1995. Washington: Congressional Quarterly.
Freedom House, in its “Freedom of the World 2021” report assess Uganda as “not free” noting in relation to the executive government that:[6]
While Uganda holds regular elections, their credibility has deteriorated over time, and the country has been ruled by the same party and president since 1986. The ruling party, the National Resistance Movement (NRM), retains power through the manipulation of state resources, intimidation by security forces, and politicized prosecutions of opposition leaders. Uganda’s civil society and independent media sectors suffer from legal and extralegal harassment and state violence.
…
Power is concentrated in the hands of the NRM leadership, the security forces, and especially the president, who retains office through deeply flawed electoral processes. Lawmakers have little practical ability to influence legislation in which the government has a particular interest, though there is more consultation on ordinary policy matters. The executive has secured passage of key legislation through inducement, harassment, and intimidation of the legislative branch. For example, several opposition lawmakers were assaulted and forcibly removed from Parliament by plainclothes military officers during the reading of the 2017 constitutional amendment bill that removed the presidential age limit.
Corruption is a serious problem. There are laws and institutions designed to combat official malfeasance, including the Anti-Corruption Act of 2009 and the Inspectorate of Government, and instances of alleged graft have led to investigations and intense media attention. However, the system has not been effective at addressing corruption in a sustained manner, and top government officials are rarely prosecuted in practice.
[6] See: < accessed 20 March 2022
In respect of the rule of law, Freedom House noted that executive influence weakens judicial independence in Uganda, as does systemic corruption;[7] it was further noted that:
Police routinely engage in arbitrary arrests and detentions, despite legal safeguards against such practices.
…
Rape, extrajudicial violence, and torture and abuse of suspects and detainees by security forces are persistent problems, and prosecutions of the perpetrators are rare.
[7] Ibid.
On the issues of equality of opportunity and freedom from economic exploitation Freedom House noted that poor enforcement of labour laws contributes to unsafe or exploitative conditions for some workers, including extremely low pay.[8]
[8] Ibid.
In its 2020 Country Reports on Human Rights Practices: Uganda[9] The United States’ State Department (USSD) noted numerous areas of concern:
[9] See: < accessed 20 March 2022.
a.In its assessment under the heading “Respect for the Integrity of the Person” it was noted that:
There were numerous reports the government or its agents committed arbitrary or unlawful killings, including due to torture. The law provides for several agencies to investigate, inquire into, and or prosecute unlawful killings by the security forces. Human rights campaigners, however, claimed these agencies were largely ineffective.
…
Opposition activists, local media, and human rights activists reported that security forces killed individuals the government identified as dissidents and those who participated in protests against the government (see section 1.e).
…
Local media reported several disappearances. Officials of the opposition National Unity Platform party (NUP) said they could not account for dozens of their supporters whom they said the security agencies had arrested while participating in party activities. The government neither acknowledged the persons were missing nor complied with measures to ensure accountability for disappearances.
…
The constitution and law prohibit [torture and other cruel, inhuman, or degrading treatment or punishment]. … Human rights organizations, opposition politicians, and local media reported that security forces tortured dissidents as punishment for their opposition to the government. … Civil society organizations and opposition activists reported that security forces arrested, beat, and killed civilians as punishment for allegedly violating regulations to combat the COVID-19 pandemic. … Impunity was a problem, and it was widespread in the UPF, UPDF, the Uganda Prisons Service (UPS), and the executive branch. The security forces did not take adequate measures to investigate and bring to account officers implicated in human rights abuses, especially in incidents involving members of the political opposition.
…
Although the law prohibits arbitrary arrest and detention, security forces often arbitrarily arrested and detained persons, especially opposition leaders, politicians, activists, demonstrators, journalists, LGBTI persons, and members of the general population accused of violating COVID-19 restrictions. The law provides for the right of persons to challenge the lawfulness of their arrest or detention in court, but this mechanism was seldom employed and rarely successful.
…
The law requires that judges or prosecutors issue a warrant before authorities make an arrest unless the arrest occurs during commission of a crime or while in pursuit of a perpetrator. Nevertheless, authorities often arrested suspects without warrants. The law requires authorities to arraign suspects within 48 hours of arrest, but they frequently held suspects longer without charge. Authorities must try suspects arrested for capital offenses within 360 days (120 days if charged with an offense triable by subordinate courts) or release them on bail; however, if prosecutors present the case to the court before the expiration of this period, there is no limit on further pretrial detention.
…
The constitution and law provide for an independent judiciary, but the government did not always respect this provision. Corruption, understaffing, inefficiency, and executive-branch interference with judicial rulings often undermined the courts’ independence. … The executive, especially security agencies, did not always respect court orders.
…
Authorities detained numerous opposition politicians and activists on politically motivated grounds. Authorities released many without charge but charged others with crimes including treason, annoying the president, cyberharassment, inciting violence, holding illegal meetings, and abuse of office. No reliable statistics on the total number of political detainees or prisoners were available.
…
The constitution and law prohibit [arbitrary or unlawful interference with privacy, family, home or correspondence], but there were reports the government failed to respect these prohibitions. Police did not always obtain search warrants to enter private homes and offices.
…
Human rights activists said that government agencies broke into activists’ homes without judicial or other appropriate authorization and arbitrarily sought to access activists’ private communication.
[Tribunal’s emphasis.]
b.In its assessment under the heading “Respect for the Integrity of the Person” the USSD noted that the Ugandan government “often” restricted democratic civil liberties including freedom of expression; internet freedom; academic, artistic and cultural freedom; and freedoms of peaceful assembly and association.
In respect of the treatment of “deportees” to Uganda, Iyodu[10] notes (citations omitted):
Once reaching Uganda, the outlook for deportees is grim at best. The Refugee Law Project has heard first-hand accounts of these experiences from deportees. One woman, having been repeatedly tortured and raped in Uganda, fled to the UK but was subsequently deported back. Upon her return, she was immediately taken to prison where she languished for nine months until a relative was able to bribe a guard. Another Ugandan deported from the UK was immediately detained for two weeks and then brought to the Head of Military Intelligence (CMI) and charged with various sham offences. She was finally acquitted one year later because no evidence was ever produced relating to these purported charges.
Currently, most deportees come from the UK, and the UK considers deportations to Uganda safe and legal due to assurances offered by President Yoweri Museveni. However, the personal accounts relayed to our office match a general pattern documented by experts and journalists:
'A failed asylum seeker, with a deportation certificate, arrives at Entebbe airport and is handed over to one of the security organisations. If suspected of political dissident activities, the person is taken to a safehouse for questioning. Rape, for women, is inevitable. Children over the age of three are taken from their mother and put in an orphanage. Detention can last weeks, or months; a number of people have "disappeared" from custody.'
In many instances, political ideology need not be the instigator for the mistreatment as people who have claimed asylum in the West are immediately regarded as a threat and are automatic targets. In the face of this evidence, the UK and other countries maintain a stance of wilful ignorance and continue to accept Museveni’s 'assurances' as sufficient.
[10] Op.cit.
Onyoin[11] similarly notes (citations omitted):
The risks to deportees start on arrival at the airport – where they are vulnerable to abuse of their rights and to physical violence by state agents – and continue during their reunification with family and friends. During their integration back into Ugandan society, they may be vulnerable to social, economic and psychosocial risks, and continuing persecution.
Arrival at the airport
‘Distressed’ and ‘disturbed’ are two words commonly used by RLP and immigration officers to describe a deportee’s appearance upon arrival. While many wish to arrive ‘silently’, the opposite occurs. On disembarking, a deportee – who may or may not be escorted by agents of the deporting state but who is often exhausted, traumatised and at times injured – is handed over to the immigration office for interview by immigration officers. Their personal details are registered and they are then subjected to what is referred to as ‘routine interrogation’. During this process, details regarding their deportation and their contacts in Uganda are entered into an immigration database at the airport.
This process is deeply problematic. Firstly, it makes deportees – and their contacts – vulnerable to detention, torture and harassment, particularly where an individual’s asylum application was based on fear of persecution for political or sexual orientation reasons. Secondly, it further traumatises deportees, the majority of whom have already been held in detention for weeks or months before deportation. Lastly, in the absence of legal representation, it is difficult to ensure that no force or coercion is used where an individual is unwilling to speak to immigration officials
CONSIDERATION OF CLAIMS AND EVIDENCE
[11] Op.cit.
The relevant law
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.
Analysis, findings and reasons
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. The substance of the applicant’s evidence to the Tribunal was materially identical to that provided in the immigration interview as summarised above. The Tribunal considers that that applicant’s account of his background and circumstances has remained consistent throughout his application process. The Tribunal also accepts that he (subjectively) believes that the information he has been provided by his aunt as to his family background is true.
Findings
The Tribunal makes the following findings based upon the applicant’s oral and affidavit evidence and the written evidence of his aunt [Aunt A], allowing the applicant the benefit of the doubt where it is appropriate to do so:
a.The applicant was born in Uganda to Ugandan parents in or around [year].
b.The applicant is a member of the [named] tribe.
c.The applicant identifies as a Christian of the Catholic denomination.
d.In or around 1981 the applicant’s aunt took primary care responsibilities for him and his brother; the siblings, their aunt and cousins relocated to Kenya as refugees from Uganda.
e.The applicant, his brother, his aunt and cousins lived in Kenya as refugees until the applicant was [age] years old.
f.The applicant arrived in Australia in 1994 when he was [age] years of age together with his brother and his aunt and cousins.
The applicant’s family history in Uganda
The applicant stated in evidence his belief that the two family names with which he is associated, his own [and] his [aunt’s], were well-known families in Uganda because of their “politics”, specifically their association with Uganda People’s Congress Party (UPC).
It is submitted on the applicant’s behalf that the applicant’s family history in Uganda, in particular the nature and cause of his parents’ death, place him at risk of persecution there.
The principal evidential difficulties the applicant faces in establishing his family history in Uganda are twofold:
a.firstly, due to his age at the time the material events occurred in Uganda he is unable to recount them from personal experience and is reliant upon his aunt’s recollections; and
b.secondly, there is no documentary evidence available to corroborate those recollections.
Neither of these difficulties are the applicant’s fault.
The Tribunal finds, therefore, that there may be doubt about the veracity in respect of those aspects of the applicant’s claims that relate to his family history in Uganda, and specifically the proposition that his parents were killed due to their affiliation with the UPC.
The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:
62      In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63      Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
64      In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[Emphasis in original]
While the Tribunal has doubts about the veracity of the applicant’s claims concerning the proposition that his parents were killed due to their affiliation with the UPC, the surrounding country information regarding
a.the Amin regime and its aftermath;
b.the conduct of the Ugandan Bush War; and
c.the involvement of the UPC during the hostilities,
when combined with the fact that the applicant, his brother, aunt, and cousins were granted humanitarian entry to Australia, is generally supportive of the applicant’s family having experienced the type of persecution he claims.
In view of this the Tribunal accepts the possibility that the applicant’s parents were killed in 1981 because of their affiliation with the UPC. The Tribunal considers that possibility sufficiently plausible as to find, for the purposes of this review, that his parents were killed in 1981 for their affiliation with the UPC.
Does the applicant’s family history place him at risk if he is returned to Uganda?
The applicant’s evidence is that he fears returning to Uganda because of his family history, in particular that he may be at risk of being targeted in Uganda on this account. The Tribunal accepts that, subjectively, the applicant holds this fear.
It is submitted on the applicant’s behalf that upon arrival in Uganda he will be interviewed by security or immigration officers, his personal details will be registered, and he will be subjected to what is referred to as “routine interrogation”, during which details regarding the applicant’s deportation to Uganda and his contacts there will be entered into an immigration database.[12] The process of interview, and the anecdotal experiences of “deportees” to Uganda, are set out in the articles from Iyodu and Onyoin cited above. Making appropriate allowance for the anecdotal nature of these articles and their age, when considered in the context of the USSD and Freedom House country information set out above the Tribunal is prepared to accept these accounts as sufficiently credible.
[12] See: Onyoin, C, FMR Online, “A grim return: post-deportation risks in Uganda”, op cit.
During the process of interview with the security or immigration officers, and what might be reasonably expected to follow that interview, the country information set out above suggests that the applicant would be at risk of arbitrary arrest, detention, torture and (potentially) killing.
The Tribunal finds that, during such an interview, the appellant would relate information to the officials consistently with his evidence to the Tribunal, that is, evidence that he subjectively believes to be true regarding his family’s history of political involvement in Uganda. The Tribunal considers it more than mere speculation that this information could exacerbate the risks already faced by the applicant as outlined in the country information cited above.
Overall, having regard to the whole of the evidence and country information, the Tribunal accepts that the applicant has a chance that is equal to or more than a real chance of serious harm, arising from significant physical harassment due to arbitrary arrest, detention, torture and (potentially) killing, if he were to return to Uganda, now and into the reasonably foreseeable future.
Well-founded fear of persecution for a Convention Reason
Having reached the finding that the applicant has a real chance of serious harm, the Tribunal is required to reach the related finding that the applicant has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, as required by Article 1A(2) of the Refugees Convention.
The Tribunal has considered whether the applicant will face a real chance of serious harm based on membership of a particular social group, namely as [an age]-year-old man of Ugandan parentage, perceived as having a history of family political involvement, whose upbringing in an English-speaking, developed country will likely identify him as different from his peers in Uganda and from whom he will stand apart.
The Tribunal is cognisant of, and accepts, the country information that the government of Uganda targets those it perceives as dissidents and protestors.
Notwithstanding this, the Tribunal is not satisfied that, even if he were so targeted, the applicant would be identified for the reason of his membership of this social group. Put differently, the Tribunal does not find that a sufficient causal nexus exists between the applicant’s membership of the social group defined and his being targeted in Uganda.
Even when considering a combination of the applicant’s background, including his age, gender, socio-economic status and that he will be perceived to be a “foreigner” in his home country, the Tribunal remains unsatisfied that the applicant will be targeted based on any Convention reason, as the essential and significant reason for that harm as required by s.91R(1)(a), if he were to return to his home country.
Having considered all the applicant’s dispositive claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
As the “real chance” standard is the same as the “real risk” standard, the Tribunal has substantial grounds to believe the applicant, as a necessary and foreseeable consequence of departing Australia for Uganda, has a real risk of harm based on risks outlined above.
Section 36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country. In order to find that an applicant meets s.36(2)(aa), decision-makers will need to be satisfied that none of these circumstances exist. The circumstances are:
a.where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, pursuant to subsection.36(2B)(a); or
b.where the applicant 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, pursuant to subsection.36(2B)(b); or
c.the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally, pursuant to subsection.36(2B)(c).
The Tribunal accepts that it would not be reasonable to relocate the applicant anywhere within Uganda as the appreciable risk of significant harm persists throughout the applicant’s country of reference. Further, based on the country information whereby Uganda is beset with unacceptable levels of official corruption and human rights abuses by the authorities there with impunity, the Tribunal finds that the applicant could not obtain from an authority of the country sufficient protection if the applicant returned to any area of Uganda.
In the present instance, however, the Tribunal is not satisfied the real risk outlined in respect of the applicant is one faced by the population of the country generally and is not faced by him personally.
The Court’s reasoning in SZSPT v MIBP[13] suggests that the “faced personally” element of this qualification requires the individual to face a risk of differential treatment because of characteristics that distinguish them from the general populace, Rares J holding that:
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
[13] [2014] FCA 1245
Adopting the terminology of Rares J, the Tribunal must assess the risk faced by the population of Uganda generally, as established in the country information, as opposed to the applicant’s claim for complementary protection based on his individual exposure to that risk.
Having regard to the evidence before it, the Tribunal concludes that the applicant’s individual exposure to the risk meets the statutory threshold. In arriving at this conclusion, the Tribunal places weight upon the following factors:
a.the applicant has not lived in Uganda since he was [age] years old, and has lived in Australia since he was [age] years old;
b.the applicant would relate information to the security or immigration services in Uganda that is consistent with the evidence he provided to the Tribunal, specifically that he believes that his parents were killed in 1981 for their political affiliations with the UPC;
c.it is more than mere speculation that this information would exacerbate the risks already faced by the applicant as a returning “deportee”;
d.the applicant has not been raised in an environment equipping him to be situationally aware of, or to successfully avoid or resist, the exercise of arbitrary power in Uganda; and
e.he speaks no Ugandan dialect, immediately marking him as a “foreigner” or “outsider” and therefore an “easy target”.
The cumulative effect of these factors, when taken with the whole of the evidence before the Tribunal, including the country information cited, places the applicant at risk of differential treatment because of characteristics that distinguish him from the general populace in Uganda.
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 Creedon
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 1544

20 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies