1815529 (Refugee)

1815529 (Refugee) [2023] AATA 2757 (12 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Thomas Baena
CASE NUMBER: 1815529

COUNTRY OF REFERENCE: Uganda
MEMBER:James Silva
DATE:12 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 May 2023 at 5:08pm
CATCHWORDS
REFUGEE – protection visa – Uganda – imputed political opinion – opposition to the government – refusal to join police – detention – forced recruitment of sports coaches – fear of kidnapping – threatening phone messages – overstaying in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437 at 451
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is [an age] year old man from Uganda, who claims to be a national of that country. He arrived in Australia [in] April 2018, on a temporary activity visa associated with his attendance at the 2018 Commonwealth Games.
The applicant applied for a protection visa on 7 May 2018. On 25 May 2018, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth)(the Act).
This is an application for review of that decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. A summary of the relevant law is set out below, in the attachment to this decision.
CLAIMS AND EVIDENCE
Protection claims
The applicant worked as [sport 1] coach, on a contractual basis, at several [agencies]. He claims that in November 2015, two plainclothes police approached him asking him to join the police force as a coach. The applicant briefly declined the offer. During 2016 and 2017, the applicant received three anonymous telephone calls referring to the offer for him to join the police force, two of which were threatening in tone.
The applicant claims that the police arrested him in January 2018, alleging that he had been involved in an unlawful student protest against President Museveni in September 2017. The applicant gave an alibi that checked out, and was released on his own recognisance.
The applicant claims that, during the Commonwealth Games in April 2018, he learned that some unknown men had been monitoring his home and the gym where he trained, asking neighbours about his whereabouts. He believes that these enquiries, together with the January 2018 arrest, are typical of Ugandan police intimidation, and signal their ongoing adverse interest in him.
The applicant claims to fear that the Uganda police and authorities will persecute or significantly harm him if he returns to Uganda, due to his past defiance of their demands, and also because he failed to return after the Commonwealth Games.
Background
The applicant is [an age] year old man from Kampala. His languages are English (in which he is fluent) and Luganda. He is a Christian.
The applicant lived at one address in Kampala from [year] to his departure from Uganda. At hearing, he said that he lived alone in one-room dwelling owned by [a relative].
The applicant attended primary and secondary school in Kampala, up to [specified year]. He started a [specified] degree course at [a named university], but withdrew from it in May 2009 for financial reasons. In May 2012, he completed a two-day youth coach training course with [a sports group].
The applicant claims to have been [a sportsperson] [details deleted]. [Injury] cut his [career] short. From August 2009, he worked as a [sport 1] coach, on a contractual or seasonal basis, as follows:
§ [names, dates and positions].
The applicant also worked as a casual volunteer coach at [Agency 1] from 2009 to 2016. At hearing, he said that these positions kept him busy. He had a good reputation, and other [agencies] had sought his coaching services from time to time.
The applicant confirmed that he is not married but said that he had a girlfriend in Uganda. The applicant’s father, who worked [in a profession], died many years ago; and his mother died in October 2016. He has [specified family members] in Kampala, and is in regular contact with one sister. He said that he has [other specified extended family].
The applicant holds a Ugandan passport issued [in] 2016, valid for ten years. He held a previous passport which expired in 2016. In 2012, he applied unsuccessfully for a [Country 1] visa to attend a [Coaching] Course. He travelled to [Country 2] in 2014 and 2015, and [Country 3] in 2016, for regional sports events.
The applicant obtained a temporary activity visa (subclass GG408) on 24 January 2018, to attend the Commonwealth Games in the Gold Coast. He arrived in Australia [in] April 2018, and lodged a protection visa application on 7 May 2018.
The submission of 12 September 2022 notes the applicant’s contribution to the Australian community, through paid work, volunteer activities and further education, noting that he opted not to receive asylum seeker support payments. He provided supporting documents, such as reference letters and proof of income. This material relates to the applicant’s character and interests, but in the Tribunal’s view, are not directly relevant to an assessment of Australia’s protection obligations in respect of him.
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The protection visa application, attached to which is a statement of claims dated 3 May 2018.
§ The applicant provided a copy of his current Ugandan passport, issued in Kampala [in] 2016.
§ Supporting documents:
-   A copy of a police report dated [in] January 2018, indicating that the applicant had been charged with [offence 1].
-   Photographs purporting to show the applicant being arrested by a policeman (one of him standing in handcuffs, another of him being led to an unmarked car).
-   Several press reports regarding Ugandan Government policy regarding [sportspeople], including those who had disappeared during the 2018 Commonwealth Games.
§ Protection visa interview (‘Department interview’) held on 22 May 2018. The Tribunal has listened to the recording of the interview, which is on the Department file.
§ The protection visa decision record (‘delegate’s decision’) of 25 May 2018.
§ Review application form, lodged on 28 May 2018.
§ Pre-hearing submission dated 12 September 2022, which includes:
-   Overview of the applicant’s protection claims, and comments on the delegate’s decision record (factual and legal issues).
-   Further copies of documents provided to the Department and referred to in the delegate’s decision record (including photographs of the applicant’s purported arrest). Also, copies of documents relating to the applicant’s [coaching] certificate issued in Kampala in May 2012.
-   Documents relating to the applicant’s activities in Australia, including a character reference from [Welfare Agency 1],[1] training certificates, copy of certificate of appreciation from [Community Group 1] (dated 12 September 2021), employment letter from [a named manager at Employer 1] (dated 21 September 2021) and income tax assessment for June 2019.
-   Press reports on the security and human rights situation in Uganda, including one article on Ugandan government and sports officials’ warnings that athletes attending the Commonwealth Games should return to Uganda or face (unspecified) consequences.
[1] [Details deleted].
The applicant appeared before the Tribunal on 21 September 2022, to give evidence and present arguments. The hearing was conducted in English, in which the applicant is proficient. The applicant did not present any witnesses or documentary evidence at the first hearing.
After the hearing, the representative sent a brief email succinctly stating the applicant’s protection claims. Attached was a screenshot of a text message dated [in] April 2018 from a [Cousin A] to the applicant, describing some incidents in Kampala. As this screenshot included some new information, the Tribunal considered it appropriate to hold another hearing, to clarify the contents and relevance of this information.
A second hearing took place on 19 October 2022, by teleconference. The Tribunal determined it was reasonable to hold the second hearing by telephone, taking into account that the applicant does not require an interpreter, and that the first hearing had provided an opportunity to discuss the bulk of his claims and evidence in person. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal received a further submission dated 18 October 2022, just before the second hearing, with documents relating to Zebra Ssenyange, a prominent boxer and pro-government political activist killed by security forces on 30 December 2020. There was discussion of these materials at the second hearing.
At the end of the first hearing, the representative commented that the applicant is not ‘articulate’. He explained that the applicant had tended to respond to the Tribunal’s questions by asking further questions, rather than address the issue at hand. At the second hearing, the representative again commented that the applicant does not express himself well.
The Tribunal found that, on some occasions, the applicant’s accent or phraseology made it necessary to clarify individual words, or his intended meaning. It did so by paraphrasing the applicant’s evidence, to confirm its understanding, and by asking more questions where necessary. This proceeded without interrupting the flow of the applicant’s evidence. The Tribunal does not consider that the applicant is ‘inarticulate’ or unable to express himself. It is satisfied that he was able to present his claims and evidence effectively.
The applicant is represented in this matter by Mr Thomas Baena, of Baena Legal.
Receiving country
The applicant claims that he is a national of Uganda. He holds a Ugandan passport, and has provided other evidence consistent with this claim. There is nothing to suggest he has any other nationality. The Tribunal accepts that the applicant is a national of Uganda, and assesses his claims against that Uganda as the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of claim
The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
The applicant and the representative in this case impressed on the Tribunal the need for caution in assessing the credibility of his claims.
§ First, as noted above, the representative raised some concerns about the manner in which the applicant articulated his claims. In a similar vein, the pre-hearing submission of 12 September 2022 noted the applicant’s frequent use of the phrase ‘not really’ at the Department interview. The representative suggested that the delegate had been unreasonable or unfair in interpreting this phrase as ‘no’, and/or in drawing adverse inferences from it. The Tribunal acknowledges the need for care in evaluating oral evidence but, for the reasons stated above, it does not accept the suggestions that the applicant has difficulty express himself or that his oral evidence should be discounted.
§ Second, the applicant and the representative stressed that the Ugandan authorities often act secretly, and with impunity. As a result, they noted that it is difficult to obtain corroborating evidence, or further details. They cautioned in particular against drawing adverse inferences from the lack of available information, given the nature of the Ugandan authorities and their control of the media. The Tribunal accepts these observations, in principle. As discussed at hearing, other sources of information – for instance, anecdotal accounts, reports from diplomatic and other international sources, and the media outside Uganda – can address or overcome some of these limitations. Moreover, the applicant’s personal circumstances and conduct, and those of the people around him, provide important context when assessing his claims. In short, the Tribunal takes into account the Ugandan authorities’ poor human rights record and lack of transparency, and acknowledges the dangers in relying on the absence of information to make adverse findings of fact. However, it is satisfied that there are other tools to assess the credibility of the applicant’s claims and evidence. In its view, it is neither necessary nor appropriate to accept the applicant’s claims uncritically.
The Tribunal accepts that the applicant disagrees with the Museveni government and shares the distrust of many Ugandans towards the police. However, it is concerned that he has taken some individual experiences – such as suggestions he might coach the police force, and once being questioned about [political] activities – and exaggerated and misconstrued these to form a basis for protection claims. Its full assessment follows below.
Police attempts to forcibly recruit the applicant
The applicant claims that the police tried to recruit him as a coach for the police force, motivated by two related factors: (a) his skills as a coach, and his capacity to strengthen their sports teams’ performance; and (b) the applicant’s profile with young [sportspeople] (i.e. an influencer), by which he could encourage them to join the police force and attend political rallies. The police approached him in person once, in late 2015, and there were three anonymous telephone calls during 2016 and 2017.
Context: Sports, politics and the police in Uganda
The applicant emphasised that Uganda’s population is youthful, and its leaders focus on gaining the support of young people, including through sportspeople and their coaches.
Country information discussed at hearing lends some support to this general proposition.
§ Key agencies such as the police, prisons service, Uganda Wildlife Authority (UWA) and Uganda People’s Defence Force (UDPF) have clubs with ‘fully-fledged sports directorates manning the game, particularly the talent scouting, development and wellbeing’.[2] Reports indicate that the agencies use sports for staff development and morale, as well as to bolster their public image, including through the agencies’ participation in the popular ‘Inter-forces Games’, which the applicant referred to. The Tribunal accepts as plausible that this serves a broader political purpose of bolstering public support for the agencies, and indirectly the government.
§ The authorities encourage elite and upcoming [sportspeople] to join police, army and prison sports clubs. For instance, in April 2018, Ugandan President Yoweri Museveni referred to Uganda’s medal achievements at the Commonwealth Games, adding: ‘My guidance to the sports administrators is that if you identify talent, please attach them to our security institutions; police, prisons or the army. This will ensure they have a house, a salary even if modest, and technical support’.[3] As noted at hearing, the government is keen to offer inducements for elite [sportspeople], particularly international gold medal winners, to return to Uganda and pursue careers, rather than staying abroad for economic or similar reasons.
§ There are many reports of high profile [sportspeople] taking up senior positions in the police force and in other agencies.
§ Overall, it is clear that the Ugandan authorities have put resources into employing [sportspeople], both to induce those performing at international meets to return home, and also to enhance the government’s political appeal, especially to young people.
[2] ‘Why Ugandan athletes are loyal servants’, New Vision, 18 August 2022,
[3] ‘Uganda: Museveni to Construct Houses for Gold Medallists Cheptegei, Chesang’, The Monitor, 23 April 2018, CXBB8A1DA2698
The Tribunal noted, however, that it had found no information to indicate that the police forcibly recruit sportspeople or coaches. The applicant addressed this, directly and indirectly, with the following comments:
§ First and foremost, as noted above, he emphasised that the Ugandan authorities are secretive, and it is unsurprising that there is no public record of forced recruitment by the police (or other agencies). It would therefore be unsafe to infer from the absence of such reports that this does not occur.
§ Second, he highlighted the importance the police placed on their sporting achievements, in terms of their morale, their prestige (particularly vis-à-vis other agencies, in the Inter-Forces Games) and their political appeal to younger people. He said that while most of the senior coaches were actually attached to the forces (i.e. employed by the police and other agencies), he was also valuable to them, given his coaching skills and his direct contact with young people.
The Tribunal considers that, while there is some validity to these points, they are of limited probative value in assessing whether the Ugandan authorities in fact forcibly recruit [sportspeople] or others (such as coaches), and critically, whether this happened to the applicant.
§ The available material suggests that the Ugandan authorities use inducements (including employment, housing and funds), rather than compulsion. Moreover, their focus appears to be on [sportspeople], rather than coaches and general support persons. Even if the Ugandan authorities suppressed reporting about forced recruitment, and practices like threats or violence, it would be surprising if the international media, sporting federations and others were completely unaware of and/or failed to mention it.
§ Importantly, the applicant’s own account of the Uganda police force’s (claimed) efforts to recruit him provides a basis on which to assess the credibility of his claims.
The applicant stated that the Ugandan authorities systematically pressure [sportspeople] to join their political cause. They respond harshly to resistance. If [a sportsperson] starts to cooperate, that becomes an ‘irreversible’ decision. The Ugandan authorities deal ruthlessly with anyone who fails to meet their expectations.
In support of this contention, he submitted several articles[4] about the killing by security forces of former national boxing captain Isaac Ssenyange, also known as Zebra Mando, in late December 2021. According to the articles, Zebra Mando was an ardent supporter of the ruling National Resistance Movement (NRM) who mobilised local youth, including in the provision of security services for local politicians. He was killed in the early hours of the morning on 30 December 2021. President Museveni apologised publicly for what was described as a botched security operation, and promised an investigation, but it appears that the circumstances remain unclear. At hearing and in the submission, the applicant cited Zebra Mando as an example of an athlete who was pressured to support the government, who succumbed to the pressure, and who was killed when he failed to deliver.
[4] These included The Observer: How NRM top wigs used slain boxer Zebra Mando, 6 January 2021,

He claimed that there were many other similar instances, most of which went unreported. He cited the example of Ugandan boxer Justin Juuko, whom he said had been influential with youth and subsequently targeted by the Ugandan authorities. He did not have any further information relating to this person.
The Tribunal is not satisfied that there is a parallel between such athletes of national prominence, and the applicant (who explained that he had not been included in the official Ugandan Commonwealth Games contingent because of his junior status). Moreover, the articles and references that the applicant provided do not illustrate that the Ugandan authorities forcibly recruit athletes to their political cause, or harm them if they refuse.
First approach in person: November 2015
The applicant claims that [in] November 2015, two men approached him as he was leaving a training session at [Agency 1]. They identified themselves as police officers. They asked him to join the police force as a coach, offering him a good salary and benefits. They intimated that he would be in a position to encourage students to join the police force. The applicant declined the offer, indicating to the men that he did not think it right to mix sports and politics, or to encourage students to join the police.
The applicant added in his statement that he considers the police to be corrupt and repressive. He confirmed at hearing that he does not want to be associated with them.
Telephone approaches: May 2016, August 2016 and April 2017
The applicant claims that on three subsequent occasions, he received anonymous telephone calls, all essentially asking him to join the police force.
§ In May 2016 (a ‘week or two after President Museveni’s swearing in ceremony’), an unknown caller referred to the applicant’s earlier refusal to join the police, and threatened to abduct him and take him to a secret place until he changed his mind. The applicant remained silent, and the caller hung up.
§ In about August 2016, a person called to say that the applicant had to join the police force as a coach; there was no threat, or further exchange.
§ In about April 2017, a person called and referred to the Inter-Forces Games that had just concluded, in which the Prisons Force had emerged as winners. The person stated that the Police Force would have won if the applicant had been a coach, and that they would use ‘all possible means to get [him] into the police force’. Again, the applicant did not respond.
The applicant confirmed the gist of these calls at the hearing. Given the passage of time and the claimed brevity of the calls, the Tribunal did not seek further details or the exact words. The applicant said that, although he had no details of the caller(s), the calls clearly referred to the same thing.
The Tribunal explored the circumstances surrounding these approaches. The applicant said that he told family members about the calls, but did not confide in anyone else. He explained that most senior coaches were already attached to the forces, and there were government informants, even at [various agencies]. He said that he knew some people doing similar coaching work to him (from sports trials, etc.), but was unaware whether they had been similarly approached or threatened.
The Tribunal noted the passage of time between the first approach in November 2015 and late 2017, during which there had been just one face-to-face contact, and no tangible steps to recruit him. In response, he said that ‘they’ (the police, or the Ugandan authorities) take their time, but were continuing to track him. He did not elaborate on this, other than to say that he knows how these people operate.
In relation to any precautions the applicant took in response to these calls, the Tribunal noted the applicant’s stable living and work arrangements. The applicant said that he felt scared, and started going home directly after work (i.e. he curtailed his other activities), but did not take any other steps.
Consideration and findings: The Tribunal accepts as plausible that the applicant was drawing to some extent on personal experience, i.e. a conversation with a police officer or third party which included mention of the applicant possibly being engaged as a coach or fitness trainer for the police. It also accepts as plausible that the applicant, who already had a busy training schedule and was not enamoured with the idea of working with or for the police, did not take up the suggestion.
However, it has significant concerns as to whether any such conversation was threatening, in content or tone. First, a single in-person approach and several anonymous telephone calls, over a period of almost 18 months, do not, in the Tribunal’s view, represent any concerted effort to (forcibly) recruit him. Second, if the applicant genuinely thought that the threats were credible (for instance, the May 2016 threat to abduct him and hold him in a secret place until he complied with the police demands), the Tribunal expects that he would have turned his mind to taking some precautions. The Tribunal formed the impression at hearing that the applicant had not really thought much about this, and did not have any genuine fears during this period. Finally, the Tribunal found the applicant’s overall account, and his interpretation of the claimed incidents, to be somewhat contrived.
Taking all of these concerns together, the Tribunal does not accept at face value that the applicant was subject to any threats, express or implied, in relation to suggestions that he might train the police.
The applicant’s arrest: January 2018
The applicant claims that on [a day in] January 2018, just after he had finished a (volunteer) training session at the [Agency 1] training ground, about five police officers approached him and told him he was under arrest.
The applicant claimed that the police took him to a nearby police station, and pressed him to admit to his involvement in an unlawful student protest in September 2017 (protests against the law to remove the presidential age limit). The applicant denied the allegation, explaining that on the day in question, he was in fact coaching at [Agency 2], i.e. a different location. The police confirmed this alibi with the head of the [Agency 2] sports department, and released him.
The applicant presented two photographs of the purported arrest:
§ One shows the applicant with outstretched arms, handcuffed, next to a man in plain clothes who has his hand at the applicant’s back. It appears to have been taken on a sports field, with a number of men in the background.
§ A second photograph, referred to at the Department interview and forwarded to the Tribunal, appears to show the same man leading the applicant to an unmarked white car whose number plates are visible. This appears to have ben taken at the same location, albeit from a different angle.
The submission of 12 September 2022 contended that the photographs of the applicant in handcuffs demonstrate that the applicant was subject to police threats. The Tribunal is not satisfied that the photographs, even taken at face value, reveal any information about the reasons for any such arrest, such as the claimed police approaches to the applicant in 2015, 2016 and 2017. There is also no demonstrable link between the claimed arrest in January 2018 (allegedly in relation to the unlawful student protests in September 2017) and the (claimed) police efforts to recruit him as a coach
Mr Baena also contended that, if the delegate had had doubts about the photographs and their relevance, they could ‘have easily verified with the Ugandan authorities […] to the ownership of that vehicle’. The Tribunal is not satisfied that any such enquiry would be appropriate or productive. In its view, approaching the Ugandan authorities to establish the ownership of the vehicle – even if this were relevant to its decision - would risk breaching the confidentiality of the applicant’s protection visa application, irrespective of the results of such an enquiry. Moreover, even in the unlikely event that the Ugandan authorities were to confirm that the vehicle is an unmarked police car, this would not establish the circumstances in which the photographs were taken.
The Tribunal discussed with the applicant the nature and provenance of the photographs, and their relevance to his protection claims. It put to him that the photographs appeared to have been staged. For instance, they showed him with only one man, a purported police officer in plainclothes, rather than five officers (as claimed). One of the photographs showed him with arms outstretched, in handcuffs. This seemed to be a posed, rather than a dynamic, shot. The applicant said that there had been other plainclothes officers nearby, just out of the camera’s view, ready to catch him if he tried to escape. He said that one of the students took the photograph. Asked why the officer allowed the arrest to be photographed, he suggested that the students were headstrong and bold. The Tribunal finds these responses unconvincing. It makes no sense for arresting police officers to stand at a distance from a suspect, or for them to agree to pose for photographs.
In response to the Tribunal’s enquiries about the source of these photographs, the applicant said that one of the [local] students took them. The applicant printed them out and placed them in a photo album at home. His cousin later retrieved them from his home and sent them to him in Australia. The applicant’s evidence leaves several loose ends, such as the purpose of having photographs printed and stored in one’s home, and his cousin’s continued access to the premises. In the Tribunal’s view, the applicant’s account suggests instead that he had pre-planned both his protection visa application and supporting evidence, before departing Uganda.
The applicant also presented a copy of a Uganda Police Form 18, ‘Release on Bond’, dated [in] January 2018. This states that he was charged with [offence 1], and released later that day on his own recognisance, to appear at the police station on [a day in] January 2018. The applicant wrote in his statement of claims that he ‘appeared on that day [in] January 2018] and then left’. At hearing, he confirmed that he attended the police station, as required. The officer checked the file, and said that he was free to leave.
The Tribunal has a number of concerns about the credibility of this account, the weight that can be placed on the supporting evidence, and the relevance of any such incident to the applicant’s protection claims.
§ Leaving to one side the photographs, which the Tribunal finds were staged and not are not a genuine record of any arrest, the Tribunal also has some doubts about the purported ‘release on bond’, which appears on a pro forma with simply a wet stamp. However, it proceeds on the basis that it is plausible that the applicant was arrested in January 2018, in connection with the earlier student protests, and that the release on bond, Form 18, is genuine.
§ The Tribunal finds nothing in the applicant’s account of his arrest, the initial questioning at the police station, his release on bond or the brief exchange at the police station on [the day in] January 2018, that is untoward. Having accepted as plausible that the police may have arrested him on suspicion of involvement in the student protests (as a coach and ‘influencer’), the Tribunal finds that the police checked and accepted his alibi, and demonstrated no further adverse interest in him.
§ At hearing, the applicant impressed on the Tribunal that he knew that the arrest, charges and later release were linked with the authorities’ continued, secretive and intimidatory pursuit of him. That, he said, is how ‘these people operate’. In other words, this was not a routine arrest because of his suspected links with the protesting students, but rather part of the authorities’ campaign to recruit him. He added that this one of the factors that informed his decision to seek protection in Australia.
The Tribunal accepts, albeit with reservations, that the applicant may have been arrested [in] January 2018. However, it does not accept the applicant’s interpretation of this incident. It does not accept that it was connected with any past approaches or threats from the police, or that the applicant genuinely feared harm from the police in relation to the arrest.
Departure from Uganda
The applicant claims that [a specified sports official] allowed him to join the Ugandan team, to accompany the [competitor] [Sportsman B]. Due to his relatively junior status, the applicant had not been selected in the official team, but he was allowed to accompany [Sportsman B] in his personal capacity, and at his own expense.
Asked for details of his departure arrangements, the applicant said that due to the contractual nature of his coaching work, he simply advised his employers verbally that he would be going to Australia (i.e, without any firm commitment or arrangements about his return). He paid his rent three months in advance, and gave his cousin the key to his accommodation. He had no problems departing Uganda.
The applicant claims that he did not intend to seek protection in Australia on arrival, but he later changed his mind after his cousin contacted him with further bad news. The Tribunal views this with scepticism, particularly given its view that (at least) the photographs of the purported arrest were staged with a view to a future protection visa application.
Developments after arriving in Australia
The applicant claims that he attended the Commonwealth Games, focused on providing sports and motivational support for his [client] [Sportsman B] on a personal basis (rather than in any official capacity or as part of any official team schedule). He was vague about other official team activities. In response to questions, he said that he no longer has direct contact with [Sportsman B]. The Tribunal formed the impression that the applicant’s real intention was to secure a visa for Australia; that his association with [Sportsman B] was a pretext for this; and that he has no genuine interest in his claimed former protégé, at any time.
The applicant claims that he decided to stay in Australia only after receiving a call from his cousin [in] April 2018. Some neighbours had told his cousin that unidentified men had come to his house, and asked them about his whereabouts. He presumed these were plainclothes police.
At hearing, the applicant did not offer further insights into these events. He said that he relied on the information that his cousin had given him by telephone. Asked whether there was any record of this development, the applicant said that he thought that his cousin might also have mentioned it in a later message, but did not offer to look for or provide such evidence. The Tribunal queried about any further information from the neighbours or any relatives living nearby. The applicant replied only that his sister lives some distance away.
Shortly after the first hearing, the applicant submitted a screenshot of a purported text message sent by his cousin [Cousin A] [in] April 2018. The first paragraph addresses the applicant’s absence from training. The second paragraph describes the menacing presence of men who appeared interested in the applicant:
Ooh and another thing, there are some guys looking for you almost every day. They came to your place and asked if you came back. The neighbours said that they see a white car with tinted glasses every day parked in a distance and two guys in plain clothes came out but one had a pistol under the shirt so everyone got scared. These guys come every day but I saw the same kind of car they told me about at the gym while I was there but no one came out. They stayed in the car almost 4 hours. I felt [left?] the gym but it was still there in the parking lot. I will let [you] know that happens. I also went to your place but the padlock looks like they were trying to cut it and I think they wanted to break into your house. But I put on another padlock.
In a mostly obscured response dated [April] 2018, the applicant replied ‘Oh my God what’s really going on over there …]’.
The applicant stated that the only person he has contacted in Uganda is his cousin [Cousin A]. He said that he gave [Cousin A] the keys to his accommodation. After the applicant decided to stay in Australia, [Cousin A] emptied the accommodation and gave the contents to charity. The applicant said that he has had no contact with his employer, the [sportsman] he accompanied to Australia ([Sportsman B]) or any of the young men he used to coach. He emphasised that he is fearful of the consequences of any such contact. As such, the applicant suggested that the text exchange with his cousin is his only means of corroborating this claim.
The Tribunal asked for context to this text exchange, such as why the applicant suspected that these men were linked with the police who had allegedly tried to recruit him, and/or the police who had arrested him for his suspected involvement in the unlawful protest. In reply, the applicant reiterated that this is how the Ugandan police and authorities work. The Tribunal wondered why the police would have invested so much time waiting outside his home and/or the gym, when it would have been easy to confirm that he had left the country (by checking with the neighbours, the gym or the neighbours, or officially). It also noted the contrast between this apparent effort, and the low-key contacts while the applicant was still in Uganda. The applicant replied that the local police are not ‘well-informed’; they act on their own initiative; and they work in plainclothes to avoid being identified. Similarly, the Tribunal wondered why [Cousin A] or the applicant assumed that the people trying to break the padlock into his accommodation were police, rather than common criminals. It noted, for instance, that the police might have equipment and be proficient at breaking padlocks, if they were genuinely trying to enter the premises. In response, the applicant said that the neighbours saw these men, and it was not possible to rule out that they were police. He commented in passing that the padlock had been sturdy.
The Tribunal asked whether there had been any further developments since April 2018. The applicant replied vaguely that men in plain clothes continue to hang around the places he used to go. He said that they do not directly ask after him (but said that, due to his profile and influence with youth, they would do so in the future).
In the Tribunal’s view, the claimed (plain clothes) police efforts to locate the applicant after his departure from Uganda contrasts sharply with the applicant’s experiences while in Uganda. It considers the purported exchange between the applicant and his cousin [Cousin A] to be contrived, and places no weight on it as independent corroboration for the claim that armed men have come looking for the applicant in April 2018, or at any other time.
Findings
The Tribunal has significant concerns about the truthfulness of the applicant’s claims and evidence, and his interpretation of events, as set out above. Taking all of these together, it makes the following findings.
§ It accepts that the police may have suggested that he undertake some [sport 1] coaching or fitness training for them, but it does not accept that there was any coercion, threats or intimidation.
§ It accepts, as plausible though far from certain, that the applicant may have been detained and questioned in January 2018, in relation to unlawful student protests, but it finds that the police accepted his alibi and that they have no further interest in him.
§ It finds that the applicant departed Uganda when the opportunity to obtain an Australian visa presented itself, and not for any reasons associated with his protection claims.
§ It does not accept that the applicant’s cousin alerted him in April 2018 that unidentified men – who the applicant suspects are policemen – were looking for him, or that this news prompted the applicant to seek protection.
§ It does not accept that the applicant has any genuine fear of persecution or significant harm in Uganda, for any reasons.

The applicant signalled in his statements and in his oral evidence his disapproval of the Ugandan government, its politics and in particular the police force, which is widely viewed as corrupt and under-resourced. The Tribunal accepts that he holds such general views about his country’s governance and quality of life. However, it is not satisfied that this amounts to a political opinion that motivates the applicant to oppose the government, or otherwise engage in political activities.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a). The Tribunal assesses this in light of the applicant’s past circumstances in Uganda, and having regard to other relevant factors such as his future conduct and country information.
The applicant told the Tribunal that he remains committed to his work as a sports coach and his involvement with youth. He would therefore resume such activities if he returned to Uganda, and face renewed demands and threats from the police. Asked whether he has worked to maintain any profile or influence with young Ugandan [sportspeople] since leaving Uganda, he replied obliquely that there is ‘no way [he] can hide’ his commitment to youth and sports in the future. (In other words, he did not directly address the Tribunal’s question of whether he has maintained any contacts.) The representative noted that the applicant is passionate about training young [sportspeople], and would be easily able to resume this work if he returns to Uganda.
The Tribunal accepts that the applicant has past experience and some local profile as an [sport 1] coach in Uganda. If he returns to Uganda, he may contact former associates, and resume some volunteer or paid work as an [sport 1] coach or fitness instructor, and/or engage in youth work. The applicant’s prolonged absence from Uganda, his failure to keep up his network of contacts there and his focus in Australia on other kinds of work all suggest that there may be little immediate demand for his services, but the Tribunal proceeds on the basis that he may find work in this field.
Refusal to train police officers
The Tribunal accepts that the police may have flagged with the applicant the prospect of him training officers, or even joining the police force. However, it has rejected his claims that there was any coercion or threats. It has also found that, if there was any arrest in January 2018 (in connection with student protests), it was unrelated to any requests or demands for the applicant to coach the police. The Tribunal also does not accept that the applicant left Uganda fearing for his safety, or that the police or other Ugandan authorities have any adverse interest in him, for any reason. It also rejects the claims that plainclothes police were looking for him in the first half of 2018.
It follows that the Tribunal does not accept that there is a real chance in the reasonably foreseeable future of the Ugandan police or other authorities targeting the applicant due to his past refusal to join the police, and/or train its officers, or any associated incidents.
Based on the Tribunal’s findings as to his past experiences in Uganda, and having regard to country information and the applicant’s prolonged absence from the country, the Tribunal finds there is no real chance of the Ugandan police or any security forces trying to forcibly recruit the applicant, either to join their organisation or to provide coaching services.
As such, the Tribunal finds there is no real chance of the applicant resisting such attempts; or of the Ugandan authorities developing an adverse interest in him. It follows that there is no real chance of the Ugandan authorities inflicting serious harm on the applicant – including in the form of harassment, threats, detention, trumped-up criminal charges or psychological pressure – for reason of his refusal to join their organisations or train their members.
Commonwealth Games overstay
The applicant said that, aside from the authorities’ pursuit of him for having refused to coach the police, he also fears punishment for having overstayed after the Commonwealth Games. The Tribunal noted country information and media reports showing official concern about [sportspeople] who had failed to return to Uganda. In reply, the applicant said that the Ugandan authorities had indicated that they would punish anyone who failed to return to Uganda following the Commonwealth Games, alluding to an (unspecified) article that he had provided.
The applicant provided a number of press reports, mainly addressing political oppression and the misconduct of the Ugandan security forces. One of these, an article in Xinhuanet dated 18 January 2018 (hence, before the Games), includes a passage that the applicant’s representative (or the applicant) highlighted in the margin. This reads:
‘We are going to act tough on athletes and associations whose athletes disappear when they go for these Games’, William Blick, President of the [Uganda Olympic] Committee told Xinhua in an interview on Monday.
The submission of 12 September 2022 refers to this article[5], contending that it supports the following: (a) athletes ‘were refusing to return to Uganda because they fear for their lives as their only crime was their refusal to join the police force that was fully under the control of a brutal regime; and (b) ‘athletes such as the applicant’ face severe punishment that may include loss of life. The submission is difficult to follow, but it appears to conflate several issues, and to blur the distinction between (a) what the article actually states, and (b) what the applicant intended to illustrate by presenting the article.
[5] Paragraphs 26, 27 and 28 of the submission refer both to Attachment C to Form 866 (the protection visa application) as well as Attachment C to the submission, which is the Xinhua article.
For the reasons that follow, the Tribunal is not satisfied that the Xinhuanet article itself, or other country information, supports the representative’s assertions.
§First and foremost, the applicant is not currently [a sportsperson]. He travelled to the Commonwealth Games in a personal capacity, self-funded, to assist a single [sportsperson]. The submission’s attempt to equate the applicant to ‘these [sportspeople]’ is, in the Tribunal’s view, inaccurate and misleading.
§Second, the article does not indicate that Ugandan [sportspeople] were refusing to return to Uganda because they refused to join the police force, and were fearing for their lives. The applicant has provided no other country information to support this claim, and the Tribunal is not aware of any. The Tribunal is not satisfied that the articles support the applicant’s contention that he – and other [sportspeople] – fear for their lives after having refused to join the police force.
§Third, the article quotes the President of the Uganda Olympic Organisation (UOC) as warning that the UOC will act tough, and that it will ‘start stopping associations whose [sportspeople] vanish from taking teams for international events’. These are administrative deterrents. There is nothing to suggest that [sportspeople] will be at risk of ‘severe punishment that may include loss of life’.
As discussed at hearing, the Ugandan authorities have indicated their concern that [sportspeople] return to Uganda after competing abroad, for various reasons, such as the country’s reputation, their expectation of a return on their investment in elite [sportspeople], and the prospect of future sporting achievements. There is nothing to suggest [a sportsperson’s] past refusal to join the police force had any bearing on their inclusion in the Uganda CG team, or their treatment on return.
Also, as discussed at hearing, the available country information indicates that the Ugandan authorities and sporting officials have indicated their sensitivity to Ugandan [sportspeople] remaining abroad after international competitions. According to reports, officials acknowledge the lure of economic benefits and better training facilities in other countries. However, they argue that these are illusory in the long-term, and they seek to offer employment and other inducements for [sportspeople] to return. Although the UOC President and officials have warned that they will ‘act tough’ on [sportspeople] who overstay, and their associations, the consequences appear limited to their future participation in events. There is no mention of ‘loss of life’, as asserted in the submission of 18 October 2022, or other harm that might amount to persecution or significant harm.
The Tribunal finds that there is no real chance of the Ugandan authorities targeting the applicant for reason of his having stayed in Australia, including as a person who travelled to the Commonwealth Games and/or a person who has sought asylum in Australia.
The Tribunal accepts that the applicant disapproves of the Ugandan government, including the police force. Country information discussed at hearing indicates that the police are widely viewed as corrupt, and are chronically under-resourced, with resulting low levels of public support.[6] It also accepts that he disapproves of the authorities’ use of sports and youth groups for political purposes.
[6] ‘BTI 2018 Country Report Uganda’, Bertelsmann Stiftung, 22 March 2018, p.9 and 15.
Nonetheless, based on the available material, the Tribunal finds that he has focused on his coaching and other non-political activities. It does not accept that he has any political opinion that has motivated him to engage in any activities that are, or that would be perceived as anti-government. And for the reasons stated above, it does not accept that he has refused to join or coach the police force, and is therefore considered to be anti-government.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It is not satisfied that he genuinely fears persecution. It is also not satisfied that there is a real chance that he would be persecuted if he returns to Uganda, for any reason, including his past or future coaching activities, any past contacts with the police (such as any arrest in January 2018), his overstay or his having sought protection here. The Tribunal finds that he does not have a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a),
It finds that there is no real chance of the Ugandan authorities persecuting him if he returns to Uganda, including for any reasons arising out of his past work as [a sport 1] coach, any past contacts with the police (including any arrest in January 2018), his overstay and application for a protection visa in Australia, or any actual or imputed political opinion.
The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Uganda.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Uganda.
Having regard to the above assessment of his circumstances and concerns, the Tribunal concludes that there are no substantial grounds for believing that the applicant will be subject to harm from the Ugandan authorities, or anyone, if he returns to Uganda. The Tribunal notes the applicant’s dissatisfaction with aspects of life in Uganda, such as its political system and governance, including the role of the police. However, it is not satisfied that the applicant’s exposure to such conditions give rise to a real risk that he will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. (The Tribunal notes that, in any event, these conditions and the associated risks are faced by the population of Uganda generally, and not by the applicant personally. Even if the Tribunal were satisfied that there is a real risk that the applicant will suffer significant harm – which it is not – there would be taken not to be a real risk, as per s.36(2B)).
The Tribunal therefore finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on him such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no grounds that suggest he will be subject to significant harm, for any reason, if he returns to Uganda.
Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Uganda, there is a real risk that he will suffer significant harm, as required by s.36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member
ATTACHMENT - 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 (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 themself 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 immediately below.
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.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2757

12 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice