1612583 (Refugee)

1612583 (Refugee) [2018] AATA 5161 (4 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612583
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Penelope Hunter
DATE:4 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 December 2018 at 10:48am
CATCHWORDS
REFUGEE – protection visa – Fiji – no Convention link – extramarital affair – dispute with soldier – fear of military – fear of arrest – applicant instigated contacts with soldier – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 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 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 2 February 2016.
On 15 August 2016, the applicant lodged with the Tribunal an application for review of the delegate’s decision. His application for review included a copy of the decision of the delegate.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee. If he is not a refugee the Tribunal must consider whether he meets the criteria for complimentary protection. If the applicant does not meet the criteria for complimentary protection, the Tribunal needs to consider whether he meets the criteria for membership of the same family unit as a person who holds a protection visa.
Material before the Tribunal that was considered in this application
In considering this application, the Tribunal has considered the contents of the Department file [number], the contents of Tribunal file 1612583, and the DFAT Country Information Report on Fiji dated 27 September 2017 and other relevant country information referred herein.
Background
The applicant was born on [date], in [City 1] in the Republic of Fiji. He is a citizen of Fiji, identifies himself as of Fijian ethnicity and is of the Christian (Methodist) religion. He can speak, read and write English and Fijian. He was married in 1996, and has children in Fiji, the youngest aged [age] years. He arrived in Australia [in] November 2015, and claimed that he had resided in his home [village] in the Province of Ba since his birth.
The applicant worked in Fiji as [an occupation 1]. From [specified year] to [year] with [one employer] and then [between specified years] with [a second employer]. He completed secondary school in [year] and underwent further post-secondary school training in [two subjects].
With his application for review the applicant provided identity documents in the form of his passport, birth certificate, marriage certificate, and workplace identity cards. He also submitted a personal reference from his partner, [named].
Claims in his visa application
i.The applicant claimed that he left Fiji because of the continuous threats that he faced during the previous year. He had left his village to move into staff quarters that his work area. The premises were [close to a location] in [City 1], an extramarital relationship developed between his wife and a soldier. Their affair escalated to the level where it was public knowledge and the applicant confronted the soldier. He was continually harassed, abused, insulted and intimidated and this fear forced him to abandon his family and escaped to Australia.
ii.If he returns to Fiji he fears he will be physically assaulted and abused because the military is working with the police force and there was a possibility of him being sent to prison. He claimed this was not the first time this happened in Fiji and that members of the military have used their positions and power and authority to abuse innocent families. Most family break-ups in Fiji were caused by soldiers having extramarital affairs. Cases were not reported fear of victimisation, and often reported cases result in further harm and abuse to the victims.
iii.The applicant claimed he was physically assaulted two days before coming to Australia. Aside from that he had been subject to physical and verbal abuse since the affair started in 2015. The applicant claimed to have reported the matter to the police department. Unfortunately no action was taken because the military is working with the police in Fiji. The newly appointed police Commissioner, Col. Sitiveni Qililo, was one of the key figures in the military takeover in Fiji in December 2006.
iv.The applicant claimed he could not move because the nature of his job required him to live close to his work area and premises. He was on duty call out every weekend and could not live elsewhere.
v.He did not think the authorities in his home country and protect because the military and police Fiji will work together.
Interview with the delegate
At an interview on 28 July 2016 the applicant discussed his claims with the delegate. In their decision the delegate set out the following further claims made by the applicant;
i.He had extended family members, [specified] in Australia.
ii.His wife had begun an affair with a soldier around February to May 2015. He confronted his wife in February or March. He had caught his wife and the soldier red-handed at [an event] in February 2015. After this incident his wife either stayed at their company accommodation or with her siblings that lived near the [same location].
iii.Between February and May 2015, he had a scuffle with the soldier in front of a shop in [City 1]. Two days before his departure for Australia he was involved in a fist fight with the soldier, neither of them sustained injuries and it was described as cathartic.
iv.He reported the soldier to the police in February 2015, on the night of the [event] as he wanted it on record in case something happened to him or he hurt the soldier in the future, and to warn the soldier to cease and desist the affair.
v.He had been employed in his role in Fiji for 15 years and had not been successful in obtaining pay rises.
vi.He had recently started work in a [business] and was living in [Australia] with his Australian partner who is a citizen since [2016]. He first met his partner in Fiji in May 2015.
Tribunal hearing
The applicant appeared before the Tribunal on 1 November 2018 to given evidence and present arguments attended a hearing. The hearing was conducted with the assistance of an interpreter in the English and Fijian languages.
The Tribunal also received oral evidence from [Counsellor A] of [Agency 1]. The applicant presented written references from [a second person] of [Agency 1], [a named person] of [Agency 2], his partner [named], and her son [named]. In addition the Tribunal attempted several times to contact [the applicant’s partner] unsuccessfully during the hearing.
Applicant’s evidence
He had lived in staff quarters next to [the location] with his wife and [children]. He confirmed that he had [number] children, not [number] as recorded in his visa application. Occasionally he had to go away for work, to undertake jobs at [other worksites]. After he had returned from a trip in February or March 2015, he heard news about his wife having an affair with a soldier. Some of his work colleague identified the soldier that his wife was with, and the applicant spoke to his wife and told her to stop it.
Then in about June or July 2015, when he was out at a social function he saw his wife together with the soldier. He confronted the soldier and told him to stop. The applicant said that he knew the soldier as they had previously played [sport] and for this reason he tried to talk to him.
The applicant claimed that after this whenever he came in contact with the soldier he received some threatening comments. This gave him fear because the man was working with the army. The Tribunal questioned the applicant as to what was said and he said that it was threatening behaviour, nothing really directed at him just using the military presence to intimidate him. The applicant claimed that the base was located close to his accommodation and many military exercises happened close to the vicinity where he lived. The applicant continued to see the soldier often.
The applicant said he had spoken to the soldier on a few occasions and told him that what he had done was affecting the applicant and his work. The soldier had said to him that he would face the consequences. The applicant said that this occurred on a roadside when the soldier was going to military training at the same time. When he spoke the words the applicant claimed that the soldier had pointed his fingers at him, like a gun.
In July 2015, in the town of [Town 1], he had seen the man and wanted to talk to him. It turned out to be a heated argument and the applicant was told that he would face the consequences of what he was trying to talk to him about. Around this time he also spoke to the police. They told him they would wait for any serious incidents to happen. The applicant said he told them that the most serious thing was the way it was affecting his family. He decided to report it to the police as a precautionary thing, just in case there was something serious to jeopardise his employment.
Almost every day when they would see each other they would try to talk and one time the applicant physically grabbed the man by the collar and shook him. However the man had a few colleagues with him so it did not eventuate into a fist fight. Before this he had reported to the police at [Town 1] what was going on, just as a precaution, in case something serious happened to jeopardise his employment.
The applicant said that it got to a stage where he was getting frustrated and stressed out. The best thing that he could do was to get away and this was when he started to plan to come to Australia. He was starting to be afraid of the man as he had heard about people being killed by the military. His feelings towards his wife had changed. He separated physically and emotionally from her. He was also worried that he would do something that would put him in trouble.
He told his wife that he was planning to leave, and two or three months after July 2015, he took his younger children to live with his mother. His wife was not welcome in the village and she went to stay with some friends who lived nearby. His family village was about [distance] away from the base. He did not know whether his wife’s affair continued, the applicant claimed that because he knew that he was coming to Australia he tried to look after himself emotionally and not do anything to jeopardise his travel. [One child] was already married and before he departed Fiji he made arrangements to transfer to his accommodation at [the location] to [specified relatives].
Two or three days before the applicant departed Fiji he had physical fight with the soldier. It was in a similar area at [Town 1]. The applicant told the Tribunal that he was not hurt because there was a bit of disparity in size between himself and the soldier. The applicant claimed that it satisfied him to give the soldier a few punches. The applicant confirmed that he had instigated this altercation and that at this stage he had already made plans to travel to Australia.
If he returned to Fiji the applicant claimed that he would continue to encounter similar difficulties because the military have connections. He was afraid of the influence of the military in his country. The threatening words that he had received from the soldier, that he would have to face the consequences had given the applicant the perception that he would be in trouble. Due to the proximity of the army base to his former accommodation, they would socialise and engage in sport together. The soldier would know that he had returned. Due to the elections in Fiji, the government may also want to flex its muscles.
The applicant claimed that it was his priority to support his children. If he returned to Fiji he may not be able to live comfortably, what had happened in the past would be a hindrance. In Australia he was excited to be learning new skills with his [work]. The new fields that he had learned were empowering him as a person and assisting him to support his family.
Evidence of [Counsellor A]
[Counsellor A], spoke to the Tribunal about the applicant’s experience in Australia. That he had been in a relationship with [his partner] for three years and step parent to her son. He was a valuable member of their family. In Australia he had secured full time [employment], and the applicant would not have this opportunity in Fiji. He did not have personal knowledge of the applicant’s circumstances in Fiji.
Following the hearing [the applicant’s partner] submitted a further letter to the Tribunal in support of the applicant. [His partner] confirmed that she had been in a relationship with the applicant since 2016, and that they intended to marry in the future. She claimed that the applicant had his share of challenges in Fiji but that she “could not really comment” on this.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s passport and his evidence that he is a citizen of Fiji, 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) of the Act.
In essence the applicant claims to fear harm because his wife had an affair with a soldier. The Tribunal accepts that the applicant’s wife had an extra-marital relationship with a soldier. As recorded by the delegate, the applicant claimed to the Department that he learned of the affair in February 2015, to the Tribunal he claimed that it was in June or July 2015. It is accepted by the Tribunal that the applicant discovered their relationship in 2015, at least 6 months prior to his departure in November 2015, leading to his estrangement and separation from his wife.
The Tribunal also accepts that having to work and live in close proximity to the soldier that the applicant blamed for the breakdown of his marriage caused the applicant personal and emotional difficulty. It is also accepted that the applicant may have been humiliated by the breakdown of his marriage.
The applicant fears harm from the soldier and because of his position the military and authorities in Fiji. However the applicant has not demonstrated that he was ever harmed in the past by the soldier, or the military, or the authorities in Fiji when he learned about the affair, or the many times he spoke to the soldier about the affair between mid 2015 and his departure from Fiji in November 2015. The applicant has not provided evidence that he was harmed by the army, the authorities in Fiji or anyone else at any time.
The Tribunal has considered the applicant’s evidence claim that he was continuously threatened, harassed, abused and insulted by the soldier. The actual evidence of the applicant does not support this claim. It is accepted that there were some verbal exchanges between the applicant and the soldier, and that in the context of the breakdown of his marriage they may have become heated. It is also accepted that the solder may have told the applicant that there would be consequences if the applicant harmed him. The Tribunal does not consider that this was a threat of anything other than lawful consequences, and is not satisfied that it was a threat of harm directed to the applicant for the purposes of the refugee criterion in the Act. The Tribunal is not satisfied that this amounted to abuse, harassment or insult, serious harm or systematic or discriminatory conduct toward the applicant. The applicant’s evidence was that on many occasions he actually instigated communication with the soldier. Furthermore, the evidence is that the applicant twice became physical with the soldier, and the applicant also instigated these events. Yet prior to his departure, he actually suffered no harm or consequences. Even though one of the physical incidents occurred when the soldier was in the company of his colleagues.
The Tribunal has also considered the claim by the applicant that the soldier used his military presence to intimidate the applicant. Again, the Tribunal is not satisfied on the evidence that the applicant has demonstrated this claim. It is accepted that he interacted with the soldier when he was undertaking work as part of his position in the military, however the Tribunal is not satisfied that the soldier used his position to direct harm toward, or threaten the applicant. On the contrary, the applicant by approaching the soldier when he was working to talk about the situation, and on another occasion instigating a physical exchange when the soldier was in the company of colleagues, demonstrates that he was not actually intimidated by the soldier’s military presence.

Additionally, the Tribunal does not accept that the soldier pointed a finger at the applicant on numerous occasions and mimed the actions of shooting him. As discussed with the applicant at the hearing, he had not previously raised claims of this nature to Department, and no such claims are recorded by the delegate in their decision. The Tribunal considers that if these direct threats had genuinely been made, the applicant would have raised the claim at an earlier stage. The Tribunal is not satisfied that it occurred and considers that the applicant has embellished this matter in order to add extra gravity to his claims for protection.
The Tribunal has also considered the claim by the applicant that he will be sent to prison because the police are working for the military and the police did not do anything to act on his complaints. The actual evidence of the applicant was that he approached the police proximate to the time he observed his wife with the soldier, and was satisfied that the affair was taking place. He did not at this time report any criminal conduct or file a complaint, but just wanted to let the police know as a precaution. The Tribunal is not satisfied that the police withheld protection from the applicant for any reason, or because they were working with the military. The evidence of the applicant to the Tribunal was that he did not expect the police to do anything at this time. His evidence to the Tribunal was that this was a precaution, the Tribunal is satisfied from this action that the applicant considered that he would have police assistance. The Tribunal further notes that the delegate, in their decision records the applicant intended this action to act as a warning to the soldier ‘to cease and desist’ the affair. The Tribunal is not satisfied on the evidence that the applicant fears any harm from the police.
Despite the continual claimed contact between the applicant and the soldier, there is no evidence presented from the applicant of any harm from the soldier. The events leading to his departure from Fiji were proximate to the time of his marriage breakdown. The current situation is that the applicant has now re-partnered and been in another stable relationship for the last three years. He has not maintained contact with his ex-wife and he indicated to the Tribunal that he did not have any interest as to whether her affair with the soldier had continued. Considering the totality of the evidence, particularly the absence of any past harm to the applicant, and the passage of time and change in his particular circumstances, the Tribunal is not satisfied that there is a real chance of any harm to the applicant should he return to Fiji now or in the reasonably foreseeable from the soldier or the military authorities in Fiji because his wife had an affair with a soldier.
With respect to the applicant’s claim that he was forced to abandon his family due to his fear, the threats and intimidation, once more the Tribunal is not satisfied that the applicant has established this claim on the evidence. The applicant’s evidence was that he was dissatisfied with his personal circumstances on the breakdown of his marriage, he informed his wife he would be leaving the country several months prior to departing and made arrangements for ongoing care of his children. It is accepted that due to higher wages in Australia the applicant is better able to provide financially for himself and his children, however the Tribunal is not satisfied that the applicant would not be able to provide for himself and his family economically if he returned to Fiji. In addition to his existing skills as [an occupation 1] the applicant has obtained new skills arising from working [in a different role]. It is considered on the evidence that the applicant has skills and experience that would assist him in obtaining employment in the reasonably foreseeable future if he were to return to Fiji.
It is accepted that the applicant is in a relationship with [his partner], and that he is important to her and her son, and that this relationship would experience difficulty if he were to return to Fiji. It is also accepted that the applicant had gained and provided assistance to the community via [Agency 1]. However these circumstances do not related to his fear of serious or significant harm in Fiji, and are not material to whether the applicant meets the criterion for a protection visa.
The applicant also claimed that he was worried about the political situation in Fiji because there were elections this year, and the Fijian government and military may wish to flex its muscles. The applicant did not claimed that he was concerned for any particular outcome from the elections which would affect or target him for any reason, or which would discriminated against him for any reason. To the extent that the applicant has claimed that he fears harm in his country due to the general outcome of the elections the Tribunal finds that, for the purposes of the refugee criterion, that this would not involve any systematic or discriminatory conduct directed toward the applicant and therefore the applicant does not have a well-founded fear of persecution in Fiji in relation to this claim.
Therefore for the purposes of the refugee criterion contained in the Act, the Tribunal finds that the applicant does not have a well-founded fear of persecution for one or more of the reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to Fiji.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Furthermore, the Tribunal has also considered the applicant’s claims in relation to the complementary protection criteria. On the evidence before the Tribunal, considering the applicant’s claims individually and cumulatively the Tribunal does not accept that there is a risk of the applicant being arbitrarily deprived of his life or that he will face the death penalty. The Tribunal does not accept that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Accordingly I do not accept 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: s.36(2)(aa).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
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 5161

4 December 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction