1601317 (Refugee)

1601317 (Refugee) [2018] AATA 2740 (1 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601317
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Mara Moustafine
DATE:1 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 June 2018 at 12:09am

CATCHWORDS
Refugee – Protection visa – Fiji – Imputed political opinion – Anti-government – Social Democratic Liberal Party (SODELPA) – Support for deposed former Prime Minister Qarase – Pacific Indigenous Samaritan Association Inc (PISAI) – Particular social group – Fijian children of asylum seekers – Bullying and ostracism by the Fijian community – Child abuse and exploitation – Possible sedition charges – Family mental health issues – Detention – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration on 4 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was born in Australia on [date] to Fijian parents, who at the time of his birth were the holders of Australian Bridging visas.
He applied for a Protection visa on 3 June 2015 and a delegate of the Minister for Immigration refused to grant the visa on 4 January 2016 under s.65 of the Migration Act 1958 (the Act).
On 5 February 2016, the applicant sought review of that decision, a copy of which his mother provided to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.
The applicant’s parents appeared before the Tribunal on 30 January 2018 to give evidence and present arguments on behalf of the applicant, who is a minor, as his carers and guardians. The applicant was also present at the hearing.
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Application to the Department
According to his Protection visa application, the applicant fears he will be targeted and harmed if he returns to Fiji due to his parents’ political opinion against the current Fijian government and their support for deposed Prime Minister Qarase.
In a submission to the Department in support of the applicant’s claims dated 16 October 2015, his migration agent submitted that the applicant was owed protection for the cumulative reasons of his imputed political opinion of opposition to the Bainimarama government; as a member of the particular social groups of children of Fijian parents perceived as anti-Bainimarama activists; and Fijian children whose parents applied for asylum on the basis of political violence in Fiji. The adviser also posited that the applicant was owed protection under the complementary protection criterion as he would face serious harm and torture if returned to his home country. On 8 October 2015 the applicant’s adviser submitted to the Department copies of medical reports relating to the applicant’s mother and letters in support of her protection claims, including from [a former official].
The applicant’s parents attended an interview with the Department on 19 October 2015 on his behalf, where his mother was interviewed in relation to his claims. On 27 October 2015 the adviser submitted further newspaper reports in support of the applicant’s claims.
Application for review
At the hearing before the Tribunal, the applicant’s parents submitted a 232 page submission in support of his claims, containing statutory declarations from each of them dated 29 January 2018; and supporting documentation, including DFAT’s Country Information Report on Fiji of 27 September 2017, as well as reports from Amnesty International, the United Nations Human Rights Council, the Law Society Charity and the media regarding the political and security situation, healthcare, mental health and child abuse in Fiji; photographs purporting to be of the applicant’s mother in unidentified political protests; a letter from [SODELPA NSW], dated [in] January 2018 confirming that the applicant’s parents were members of the organisation; reports from [Welfare Agency 1] regarding counselling of the applicant’s mother regarding her PTSD condition; a letter from [a public agency] regarding [benefits] for the applicant and other documents related to the children’s safety.
Key relevant points from the statutory declaration of the applicant’s mother were that, if the family returned to Fiji, the applicant would:
a.suffer significant harm from abuse and neglect, stigma, bullying and ostracism by the Fijian community that would affect his survival and development mentally, emotionally, physically and socially.
b.suffer because of her support for Mereoni Kirwin and the autonomous Christian Separatists in Ra and Nadroga; her membership of PISAI as well as the Fiji Native Government in Exile; attendance at meetings and financial support for legal fees for people in trouble in Fiji; belief in Indigenous sovereignty and that Fiji should be a Christian country; and is ‘prepared to be very vocal about her support and participation in the government in Exile’ and other issues about which she was angry.
c.be ostracised and bullied by the community because of his mother’s mental health issues and be susceptible to peer pressure resulting in substance (drugs) abuse or mental health issues/ depression and eventually suicide.
d.be at risk of abuse, neglect and domestic servitude if placed with relatives who were already struggling to put food on the table, meet bills and take care of their children; or may even be forced into sexual exploitation and prostitution to contribute to the survival of the family.
Key relevant points from the statutory declaration of the applicant’s father were that if the family returned to Fiji the applicant would:
a.be robbed of his right to survive and develop his full potential (mentally, emotionally, physically and socially), his rights to protection from child abuse, neglect, exploitation and cruelty and his rights to participate to express his opinions and heard on matters concerning his future and well-being;
b.vulnerable to significant harm as a member of the particular social group of women and children in the current volatile political climate in Fiji;
c.may be deprived of his primary carers who can provide support and a safe home as he and his wife may face sedition charges because their activities in support of Mereoni Kirwin and the Native Government in Exile and membership of the opposition SODELPA party in Australia were known to the Fiji Government; and because his wife will continue to argue and stand with the government in exile and may face trumped up charges over her previous issues with [a public agency] in Fiji.
d.suffer significant harm, be traumatised with the abuse and neglect affecting his development and not realising his full potential, as his mother may relapse into depression with constant threats of investigations and imprisonment in Fiji, where the facilities to deal with trauma and depression are not available; and he may be ostracised, bullied and ridiculed because of his mother's mental health issues, which will affect him psychologically and hinder his development physically, socially, mentally and emotionally.
e.be forced to live on the streets without access to education, health and home because he could not be placed in the care of extended family in Fiji due to increasing poverty and abuse at the hands of families.
At the beginning of the hearing, the applicant’s parents each confirmed that they were fit to give evidence. During the hearing, the Tribunal discussed with each of them their background, family, employment, where they lived in Fiji, their reasons for leaving Fiji and why they feared the applicant will face harm if he goes to Fiji.
The Tribunal noted that it would need to take account of the fact that the applicant’s mother’s claims for protection had previously been assessed and rejected by the Department and the Refugee Review Tribunal (RRT) and that this decision had been upheld in judicial review. It emphasised that the present Tribunal was focused solely on whether the applicant was a person in respect of whom Australia had protection obligations.
Evidence of the applicant’s mother
The applicant’s mother confirmed that she came to join her husband in Australia with two of their children in 2012, while their two other children went to live in [Country 1] with [relatives]. Before coming to Australia, she had been working in Suva as a civil servant ([number] years in [a named agency] and a year in [another]). Her siblings were still working in Suva [in an occupation].
Asked what she feared would happen to her son if he went to Fiji now, the applicant’s mother said that her political activities in Australia, including with Mereoni Kirwin’s PISAI movement and Native Government in Exile and the opposition SODELPA party would get her into a lot of trouble if she returned to Fiji. She feared that because of this, as well as her past run-ins with the government, she might be charged with sedition, imprisoned, tortured or raped, as happened to those who stood up for what they believed in Fiji. If something happened to her, her son would suffer significant harm as a result of seeing his primary carer, being forced from her home and beaten. His life would be in danger and he would not be able to cope.
The applicant’s mother said both she and her husband had become involved with the PISAI movement and the Native Government in Exile since June-July 2015 because they supported Indigenous rights and the establishment of a Christian separatist state in Fiji. They attended meetings and protest, including in [2016], and provided financial contributions for legal fees for the people charged with sedition in Fiji. They had also joined SODELPA in 2016 and supported its stand against Bainimarama’s decrees, indigenous policies and brutality. She claimed she had been very vocal and Bainimarama had made it clear that people residing overseas would be “taken to task” because they had been inciting violence by standing up to his government. As her husband had also attended some of the Native Government in Exile meetings in 2016 and supported SODELPA, she expected that he would be taken to task too.
The applicant confirmed that, while living in Fiji, she had not been involved in any political parties or in any separatist organisations or movements and nor had any of her family members in Fiji, although her [relatives], who lived in [Country 1] as citizens were involved with SODELPA. She claimed that the [named agency] where she had worked was highly politicised and her employment had been [terminated].
The applicant’s mother also claimed that, if the family returned to Fiji, her son would suffer as a result of the likely deterioration of her mental condition, including a relapse into depression and possible resort to physical violence, for which there was no support in Fiji. She noted that she had a current court case over [another issue], but had been able to receive counselling at [Welfare Agency 1]. She also feared that her son would be bullied, ostracised, mocked in the Fiji community because of her mental health issues.
Evidence of the applicant’s father
The applicant’s father told the Tribunal that he came to Australia in 2010 on a [temporary] visa. After his wife lost her job in Suva, he got her and [his children] to Australia. His parents and siblings continue to live in Fiji.
The applicant’s father said he feared that, if the family now returned to Fiji, his son would be neglected, abandoned and may be subject to sexual violence because there would be no one to look after him. This might happen because of his wife’s poor psychological state, the possibility that she might be taken ‘back to camp’ over her past problems, when she was sacked from her job as a relative of [a former official]; and the fact that he himself would be busy working as the sole breadwinner in the family. He noted that women and children were frequently the targets of violence and rape in Fiji, including at the hands of their own relatives. It would also be hard for his son to adapt to the way of life in Fiji as he was born in Australia.
The applicant’s father confirmed that he had never been involved in politics in Fiji and nor had his wife, apart from being related to [a former official], as a result of which she lost her job. He said that, in Australia, he and his wife had been going to SODELPA meetings since 2016 and last year joined Mereoni Kirwin’s parties which campaigned for Indigenous rights in Fiji. His wife went to marches and dinners, which he could not do as he was usually busy, and they also gave financial support.
The applicant said he had been working in Australia for the past years as the sole breadwinner for his wife and children and could not think of going back to Fiji with the children. They felt free and confident to do things in Australia that they could not do in Fiji. The children were doing well in team sports and his wife had received great help for her mental condition from various organisations. They did not intend to go back to Fiji. His other [children] had been given citizenship in [Country 1], where their [relatives] lived and he was hoping Australia would give them citizenship too.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s birth certificate on the Department file, the passports of his parents presented at hearing and in the absence of evidence to the contrary, the Tribunal finds that the applicant is a Fijian national and that Fiji is the receiving country for the purposes of s.36(2)(aa). Based on a letter from [Welfare Agency 1], the Tribunal accepts that the applicant’s mother has, at various times, undergone counselling for PTSD, anxiety and depression.
In essence, the central claims made on the applicant’s behalf by his parents are that he will suffer significant harm as a result of their involvement in opposition to the Bainimarama regime, variously through his mother being related to [a former official] and their involvement with the SODELPA party, Mereoni Kirwin’s PISAI movement and the Native Government in Exile in Australia. The couple have claimed that this will lead to their arrest and detention for treason or on other trumped up charges, depriving the applicant of his principal carers, their support and a safe home; leaving him with no one to look after him and vulnerable to violence and sexual and other abuse. They have also claimed that a deterioration of his mother’s mental health, for which there is no support in Fiji, may result in the applicant being ostracised and bullied in the community because of her mental health issues and, as a result, susceptible to peer pressure resulting in substance (drugs) abuse or mental health issues/ depression and eventually suicide.
Considered together, the reasons discussed below, lead the Tribunal to find that the claims made by the applicant’s parents on his behalf are not credible. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious or significant harm on his return to Fiji. The Tribunal accepts that the applicant’s parents wish to live in Australia with their family and do not wish to return to Fiji. It considers that the claims on behalf of the applicant have been contrived to achieve a migration outcome.
The Tribunal is concerned that the claims of the applicant’s parents on his behalf evolved over the course of the Protection visa application. As discussed with them at hearing, in their submissions and evidence to the Tribunal, they introduced new claims, not previously mentioned to the Department, that they would be detained and charged with treason because of their involvement in Australia with the SODELPA party and Mereoni Kirwin’s PISAI movement and the Native Government in Exile. The Tribunal also noted that according to the Department decision, the applicant’s mother had initially claimed that she was fired from her job by a senior official over [an administrative matter] as a scapegoat for his relatives, but later presented it as a dismissal by the military for political reasons.

Based on the letter from [SODELPA NSW] of [January] 2018, the Tribunal accepts that the applicant’s parents are members of the organisation. According to country information, including that referenced in the Departmental decision and DFAT’s Country Information Report on Fiji of 27 September 2017, a copy of which was included in the submission to the Tribunal from the applicant’s parents, Fijian citizens are now able to support opposition political parties without fear of reprisal. This includes SODELPA, which contested the 2014 election. DFAT assessed in its report that high-profile public figures, including leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, such as arrest or detention. However, the applicant’s parents do not have such a profile.
The applicant’s parents provided no evidence of their alleged membership of Mereoni Kirwin’s PISAI movement or of the Native Government in Exile, beyond some photographs purporting to show the applicant’s mother at marches in [Australia] in 2016 and 2017. Nor was evidence provided to support the claim in his mother’s statutory declaration that all those involved in the protest with Mereoni Kirwin and the Indigenous peoples of Australia on Australia Day in 2016 in [Australia] had been blacklisted by the Fiji Government. In light of the above, the Tribunal is not satisfied that the applicant’s parents are members of PISAI or of the Native Government in Exile, as claimed, or that his mother has been blacklisted by the Fiji government.
The Tribunal further notes that, with regard to the organisations linked to Mereoni Kirwin, DFAT indicated in the above mentioned report that it was not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni Kirwin herself, who is reportedly banned from entering Fiji. DFAT assessed that, overall, individuals associated with her groups were at a low risk of harassment and arrest or detention by the government solely for being a member or supporter.
As discussed with the applicant’s parents, pursuant to s.5J(6), the Tribunal is bound to disregard any conduct they engaged in in Australia unless it is satisfied that they engaged in the conduct otherwise than for the purpose of strengthening the applicant's claims to be refugee. The Tribunal considered the comments of the applicant’s mother that they joined these organisations because they were passionate about indigenous rights and wanted to drive out the Bainimarama government, but does not find them persuasive.
By their own evidence, the applicant’s parents had no political involvement while living in Fiji and only joined these parties after his Protection visa application was refused by the Department on 4 January 2016. Although the applicant’s father’s claim that they knew nothing about Mereoni Kirwin’s party when they first came to Australia is understandable in light of country information that it is Australia-based and does not have a reported presence in Fiji, it does not explain why they did not join the opposition SODELPA party formed in 2013 after the well-known SDL party was dissolved. The Tribunal is not satisfied that the applicant’s parents joined SODELPA or participated in activities related to Mereoni Kirwin’s organisations in Australia otherwise than for the purpose of strengthening the applicant's claims to be a refugee. Accordingly, it must disregard this conduct in Australia when considering his claims under the refugee criterion.
The Tribunal has considered the applicant’s mother’s claim that if she returns to Fiji, she is prepared to be very vocal about her support and participation in the government in Exile in the context of DFAT’s advice that ‘individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities’. However, given that the Tribunal has not accepted that she was a member the government in Exile, as claimed; her evidence that she never participated in political activities in Fiji in the past; and its assessment that she did not participate in political activities in Australia otherwise than for the purpose of strengthening the applicant's claims to be a refugee, the Tribunal does not believe that, if she returns to Fiji, she will organise or take such action that will put her at risk of serious or significant harm.
As discussed with the applicant’s parents, his mother’s claims for protection have already been assessed by both the Department and the RRT and she was not found to be a person in respect of whom Australia has protection obligations. On the evidence before it, and in the context of the applicant’s claimed fears, the Tribunal does not accept that his mother will be harmed as a result of her previous claims, including that she was sacked as a result of being related to [a former official]. As discussed at hearing, the Tribunal is aware that, in the wake of the 2006 coup, many civil servants associated with the former regime were dismissed from their positions as part of a general restructure and replaced by associates of the Bainimarama regime. The Tribunal is not satisfied that the applicant’s mother was personally targeted because of any association with [a former official], nor that she will be so targeted in the future.
There is no evidence before the Tribunal that unsuccessful applicants for asylum on the basis of political violence in Fiji or any other grounds have been subject to harm upon return to Fiji, unless they were also otherwise high profile regime opponents, which the applicant’s parents are not.
In view of the above, the Tribunal is not satisfied that the applicant will suffer serious or significant harm as a result of any involvement by his parents in opposition to the Bainimarama regime, be it through their involvement with the SODELPA party, Mereoni Kirwin’s PISAI movement and the Native Government in Exile in Australia or his mother’s previous issues in Fiji. The Tribunal does not accept that the applicant’s parents will be arrested or detained for treason or other trumped up charges, depriving the applicant of his principal carers, their support and a safe home; or leaving him with no one to look after him and vulnerable to violence and sexual and other abuse; nor that his mother will face constant threats of investigations and imprisonment in Fiji, driving her to relapse into depression.
In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he goes to Fiji now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his imputed political opinion of opposition to the Bainimarama government; as a member of the particular social groups of children of Fijian parents perceived as anti-Bainimarama activists; and Fijian children whose parents applied for asylum on the basis of political violence in Fiji or on any other grounds under the refugee criterion if he goes to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has also considered the applicant’s claims under complementary protection, including whether he would face significant harm if removed from Australia to Fiji as a result of his parents’ political activities with SODELPA and Mereoni Kirwin’s PISAI movement and the Native Government in Exile in Australia. However, for reasons discussed at paragraphs 37-39 above, the Tribunal is not satisfied that his parents have the political profiles that would put them at risk of serious harm, such as arrest or detention, which would result in the applicant facing significant harm, including abuse, neglect, exploitation and cruelty and being robbed of his right to survive and develop his full potential.
Further, the Tribunal has considered the claim by the applicant’s parents that a deterioration of his mother’s mental health may result in his being ostracised, bullied and ridiculed because of his mother's mental health issues, which will affect him psychologically and hinder his development physically, socially, mentally and emotionally. However, the Tribunal does not accept that this rises to the level of significant harm as envisaged in the legislation. Further, it finds unsubstantiated and speculative their claim that, as a result of such treatment, the applicant may become susceptible to peer pressure resulting in substance (drugs) abuse, mental health issues/ depression and eventually suicide.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if removed from Australia to Fiji now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he goes to Fiji now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSIONS
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act 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) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 2740

1 June 2018

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