1621460 (Refugee)

1621460 (Refugee) [2020] AATA 1575 (3 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621460
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Jane Marquard
DATE:3 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 March 2020 at 10:38am

CATCHWORDS
REFUGEE – protection visa – Fiji – general fear of government and army – no actual harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

The applicant is a man from [City 1], Fiji, born in [Year]. He arrived in Australia [in] November 2014 on a [temporary] visa as part of [a Sport] team. The visa was valid until [December] 2014.
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 18 December 2014.
A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visa on 14 November 2016. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act.
CRITERIA FOR A PROTECTION VISA
An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
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 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The evidence taken into account
In coming to a decision the Tribunal has taken into account the evidence adduced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Fiji.
Summary of evidence before the Department
The applicant made claims in his application forms to the Department, a summary of which follows.
He comes from [City 1] in Fiji. He is a Christian and an ethnic Fijian. His parents and [siblings] are living in Fiji. He told the Department that he calls them every second day to check up on the situation.
He attended primary and secondary school in [Suburb 1], Fiji and then a [College] in [Suburb 1] in 2007. He stated his occupation as ‘[sport] player’.
He said that he left Fiji ‘mainly to start a new life’, and to pursue his talent for [sport] in a place that was safe and where he did not feel scared. He said that since the new government, he was ‘in danger of things that I don’t want to be part of’. Asked what he feared, he said ‘the fear of being the victim and being part of things that I don’t want to be part of since working under authority’. He said he mainly fears the army, if he does not abide by the orders given by the ranks. He said that he has lived his life following orders, but has realised that there is a big difference between doing good, and doing what is right. He said that he feels insecure in Fiji and feels that his life is at risk. He said anyone you trust could stab you in the back.
Summary of evidence before the Tribunal
The applicant provided three letters of support as follows:
·A letter from [Mr A], Club Secretary, [Sport] Club, certifying that the applicant had been playing [sport] at the club for 12 months and was a respectful person dedicated to training and [playing] duties.
·A letter from [Mr B], Pastor of [Church organisation] in Sydney stating that the applicant was a close friend. They had attended the same [Church] in Fiji, and the same church in Australia. He stated that the applicant is a member of the youth group, is a gentle young man and very trustworthy.
·A letter from [a] Manager at [Employer] stating that the applicant was a full-time employee and he had commenced employment in 2015.
The applicant confirmed that he had lived in [City 1]. He said that he is in touch with his parents [and siblings], who live in [City 1], [number of] days a week.
His parents are retired now but when they were working his father was [an Occupation] and his mother was a home keeper. Neither of his [siblings], who are unmarried, are working currently as there is no employment. They do not have any trade or qualification. His [other sibling] is also unmarried and unemployed. The applicant supports his family from Australia and his father has some savings. They have a large extended family – uncles, aunts and cousins living in [City 1]. All his family members live together. They grow their own food.
The applicant attended primary and secondary school in [Suburb 1], a suburb of [City 1]. He finished secondary school in year [Number], about three years before he came to Australia. After he finished school in year [Number] for a little while he had a job in [work sector]. After that he played [sport] for [a Team]. He played in that team until he came to Australia. He did not receive any income through [sport], but a member of his family in Australia supported him.
He came to Australia for [a] competition with [the] Club. The club organised the visas. He played in the [competition] when he arrived in 2014.
The rest of the team returned to Fiji after the [competition], but he decided to stay on in Australia because he had a hard life in Fiji as there is no employment, and everything is very expensive. His income from [work sector] was not enough to support the whole family. He knew that the only way to support his family was to stay here and look for work. It was his idea to remain in Australia. His uncle who is an Australian citizen helped him get work in [work sector]. He has been able to send money home to his family. He has continued to play [sport] in Australia for [Sport club]. But now he has moved to Canberra for work so is looking for a club in Canberra.
The Tribunal discussed the relevant law with the applicant and in particular that in order to be granted a protection visa, a person must have a well-founded fear of persecution involving a real chance of serious harm, or there must be a real risk of significant harm. The applicant said that he would not suffer serious harm but life at home in Fiji is really difficult.
He was asked if he suffered serious harm during the time he lived in Fiji. He said that living in Fiji is hard because the government does not look after its people. He is not worried about serious harm, he is worried about finding work as he did not qualify from high school.
He was asked if he returned if he would have to rely on savings from his father or income from his uncle as other family members do. He said that they grow their own food, [but] they live in [City 1] and there is no more retirement money. His uncle will not help them financially any more although he has done so in the past, so they will need to find a way to survive. He said that social security is only available for children and the elderly, and it is very low, only $30 a month.
The Tribunal referred the applicant to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which states that unemployment is 6.2%, which is much lower than in many developing countries, and that while poverty is prevalent, the economy is broadly sound with growing GDP.[1] The applicant responded that this is what the government wants you to know. He said that Fiji has a corrupt government, there is no work and the standard of living is low. He said that an income of $2.50 an hour is low, and no way to live, but politicians are rich. He said that what you read about Fiji is what the government want you to know. However in reality many people are struggling and that is why many people want protection visas. He said that he has a job and is young and helping his family back home.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
The Tribunal explained that an applicant must meet the criteria for a protection visa. In order to meet the refugee criteria there must be a well-founded fear of persecution for one of the reasons set out in the legislation. However it appeared that it is the economic conditions of the country are the cause of his problem. He said that in Fiji you cannot be part of a political group. If the government thinks you are talking about them, you can suffer consequences. He said that the government does not look after indigenous Fijians the way it once did, and the Indian Fijians are integral in the government. He was asked if he suffered harm as an indigenous Fijian in the past, and he said that the government used to look after the indigenous people but now the military runs the country. He said that if you speak badly about the government you get beaten up. There is no freedom of speech.
The Tribunal provided him with an opportunity to comment further in relation to his claims. He said that he really wants to stay in Australia, as no-one in his family works, and his father has retired. He said that the only way for his family to survive is working on the plantation in [Suburb 1]. He said that he is the only family member with employment, and he can help his family and one day they can visit Australia. He said that he cannot afford to go back home. The money he gets from [working] in Australia can support his family with food and education. He said that the Fijian government is very smart as they use social media to portray messages about Fiji that the world wants to know, and only Fijians know what is really going on. He said that the people speaking out against the government are overseas and there is no freedom of speech.
FINDINGS AND REASONS
Relevant legal principles
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169-70]).
The Tribunal is not bound by legal forms and technicalities or rules of evidence, in reaching a decision although it is guided by them. The Tribunal may take into account any matter relevant to the issues to be determined, and considers all of the evidence before it in order to make the correct or preferable decision. The Tribunal must determine the weight to be given to evidence before it.
The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
The applicant provided a copy of his passport and gave evidence that he is a citizen of Fiji, and born in Fiji. The Tribunal is satisfied on the basis of the passport and his evidence that the applicant is a citizen of Fiji, and that Fiji is the receiving country for the purposes of the legislation.
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2] The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[3]
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]
[3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [204]
This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[4] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, of fact in relation to this matter
The Tribunal found the applicant to be an honest and credible witness. He openly discussed the problems he has encountered in Fiji, without attempting to embellish for the purposes of bolstering his refugee claim. His honesty and good character were attested to by the club secretary for [Sport] Club and a pastor at his church. His employer also provided a reference.
The Tribunal is satisfied on the basis of the applicant’s evidence that he and members of his family have found it difficult to find employment in Fiji, and that the standard of living for his family has been low. The Tribunal is also satisfied that the applicant opposes military control of the government in Fiji and believes that the government does not support indigenous Fijians.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation (the refugee criteria)?
Under s.5H(1) of the Act, a person is a refugee if he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themself of the protection of that country. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The Tribunal is satisfied based on his concern about the financial situation of his family that the applicant has a genuine fear of returning to Fiji.
The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion). That reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to the reason. However, persecution for multiple motivations will not satisfy the relevant test unless the reason/s constitute at least the essential and significant motivation for the persecution feared.

The Tribunal has accepted on the basis of the applicant’s evidence that the applicant and his family have faced financial difficulties in Fiji. The Tribunal is also satisfied that the applicant may face financial difficulties if he returns to Fiji in the reasonably foreseeable future. However the Tribunal is not satisfied that any harm the applicant may suffer would be for one of the reasons set out in the legislation: race, religion, nationality, membership of a particular social group or political opinion. The cause of these difficulties, as reflected on by the applicant, is economic conditions in the country, unemployment, and low wages in Fiji rather than any of the reasons set out in the legislation.
For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
The Tribunal has considered whether there is a real chance of serious harm for the reasons of the applicant’s indigenous ethnicity. However, as discussed with the applicant at the Tribunal hearing, independent country sources such as the most recent DFAT Report states that there is no official discrimination against indigenous Fijians.[5] The applicant, in response to this information, suggested that Fiji wants to tell you what the world wants to see and what happens in Fiji is hidden. There is no doubt that there may be some truth in this, in that official government figures may sometimes obscure some hidden discrimination. However, Fiji does provide access to non-government organisations and to official representatives from other countries, and they are able to research human rights abuses themselves, such that if there was a pattern of discrimination or abuse it is likely this would have been revealed. The Tribunal is not satisfied that the applicant would not be denied job opportunities or services on the basis of his ethnicity such that he would suffer serious harm such as being denied the ability to subsist.
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
The Tribunal has also considered whether there is a real chance of serious harm for reasons of the applicant’s political opinion. The Tribunal has accepted that the applicant has a political opinion in opposition to the government. However the Tribunal is not satisfied that he would suffer serious harm for reasons of his political opinion. As discussed with the applicant at the Tribunal hearing, independent sources suggest that freedom of speech in the country has improved since the 2014 elections, and that it is mainly high level activists or leaders of opposition parties who are targeted by authorities. Freedom House’s 2015 report[6] indicates the 2014 elections produced a democratically elected government in elections, which were independently assessed as free and fair. The report indicates that commentary on political issues, including criticism of government policies, was permitted after the elections and occurred regularly. The report stated that the media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted and at times such gatherings include robust political criticism of Fiji First and the government.[7]
[6] Freedom House, Freedom in the World 2015 – Fiji, 15 April 2015
[7] Freedom House, Freedom in the World 2015 – Fiji, 15 April 2015
The Department of Foreign Affairs and Trade notes that the Constitution protects rights to life, liberty, equality and freedom from discrimination, as well as freedom of assembly, expression and religious belief. It does state however that the Bill of Rights is weakened by a number of caveats particularly in that it can be restricted by law and during a State of Emergency. Rights of assembly can be restricted on grounds relating to public safety, national security and orderly elections.[8] The United States Department of State Report on Human Rights Practices also comments on constitutional protection of freedom of expression and the restrictions on this:
The constitution provides for freedom of expression, including for the press, but it grants the government authority to restrict these rights for a broad array of reasons. These include preventing hate speech and insurrection; maintaining national security, public order, public safety, public morality, public health, and the orderly conduct of elections; protecting the reputation, privacy, dignity, and rights of other persons; enforcing media standards; and regulating the conduct of media organizations. The POA also gives the government power to detain persons on suspicion of “endangering public safety” and to “preserve the peace.”[9]
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
[9] US Department of State, Country Reports on Human Rights Practices for 2017, 20 April 2018, p. 7.
In addition, the US Department of State notes criticism of the government may amount to sedition. As noted: ‘This includes statements made in other countries by any person whom authorities may prosecute on their return to the country.’[10]
[10] US Department of State, Country Reports on Human Rights Practices for 2017, 20 April 2018, p 7.
Notwithstanding the caveats on freedom of expression and the ability to prosecute persons who make statements in opposition to government, the DFAT Report assesses that those at risk are generally high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy. DFAT assesses that senior members of opposition political parties, such as those running for office, are at a moderate risk of being monitored and intimidated by security services and at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system.[11] The report also states that most NGOs and human rights activists in Fiji have freedom of operation and are able to hold public meetings; publish reports and documents; implement programs and meet with government and non-government figures although the environment for civil society is subject to certain legal and non-legal constraints, including participating in elections. Human rights activists who are outspoken in opposition to government or engage in public protests critical of the government are at a moderate risk only.[12] While some journalists have been under pressure, the DFAT Report states that social media is a significant forum for political discussion.[13] Furthermore the most recent Freedom House report states that there were no confirmed reports of government restrictions on private discussion on political matters or other sensitive topics during the year.[14]
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017
[14] Freedom House, Freedom in the World 2019, >
When this information was discussed with the applicant, he responded that if a person talks they suffer consequences. While there may have been incidents of this taking place, the country information indicates that a person such as the applicant, who has not been involved in politics and is unlikely to be so in the future, does not face a real chance of serious harm on the basis of expression of political opinion. The Tribunal is satisfied that the chance of harm would be insubstantial, remote and a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were he to return to Fiji in the reasonably foreseeable future.
Does the applicant meet the complementary protection criteria?
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has accepted that the applicant is an honest and credible person who may face some financial difficulties if he returns to Fiji. The Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation arising from financial hardship. Further, as discussed with the applicant at hearing, in order for there to be significant harm in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment, such treatment or punishment must be intentionally inflicted. However the financial hardship he fears would arise from economic circumstances, rather than being intentionally inflicted.
The Tribunal has accepted that the applicant has a political opinion in opposition to the government but has not accepted that the applicant will face a real chance of serious harm for reasons of his indigenous ethnicity or political opinion for reasons set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of significant harm if he was removed from Australia to Fiji due to his political opinion or ethnicity or for other reasons.
The Tribunal is not satisfied therefore 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 of significant harm.
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
Jane Marquard
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1575

3 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction