1701070 (Refugee)

[2020] AATA 3532

1701070 (Refugee) [2020] AATA 3532 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701070

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Linda Symons

DATE:27 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 27 August 2020 at 2.42pm

CATCHWORDS

REFUGEE – protection visa – Fiji – politics – supporter of breakaway regions – no activity, and no threats or harm while in Fiji – short-term, low-level activity in Australia – credibility – delay in applying for protection – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 424AA

Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, who claims to be a citizen of Fiji, first arrived in Australia [in] July 2010 on a subclass 675 Visitor visa that was valid until 18 October 2010. He departed Australia [in] October 2010. He returned to Australia [in] April 2012 on a subclass 676 Visitor visa that was valid until 1 June 2012. He departed Australia [in] May 2012. He returned to Australia [in] July 2016 on a subclass 600 Visitor visa that was valid until 2 October 2016. He has not departed Australia since then.   

3. The second named applicant, who claims to be a citizen of Fiji, is the spouse of the first named applicant. She arrived in Australia [in] July 2016 on a subclass 600 Visitor visa that was valid until 2 October 2016. She has not departed Australia since then.  

4. The third named applicant, who claims to be a citizen of Fiji, is the daughter of the first and second named applicants. She arrived in Australia [in] July 2016 on a subclass 600 Visitor visa that was valid until 2 October 2016. She has not departed Australia since then. 

5. The fourth named applicant, who claims to be a citizen of Fiji, is the son of the first and second named applicants. He arrived in Australia [in] July 2016 on a subclass 600 Visitor visa that was valid until 2 October 2016. He has not departed Australia since then. 

6. On 11 November 2016, the applicants applied to the Department of Home Affairs (the Department) for Protection visas. They were granted a number of Bridging visas thereafter. The delegate refused to grant the visas on 6 January 2017 on the basis that the first named applicant was not a person in respect of whom Australia has protection obligations. On 21 January 2017, the applicants applied to the Tribunal for a review of that decision.

7. The first named applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments.

8. The issues that arise on review are whether the first named applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.    

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

12. 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.

13. 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

14. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

15. The first named applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He is a strong supporter of the two Christian sovereign States of Nadroga-Navosa and Ra.

    ·He is a member of the Pacific Indigenous Samaritan Association Inc  (PISAI) and the Fiji Native Government in Exile. Their purpose is to fight for their survival as a race of people and for self-determination. They cannot do this in Fiji because there is no rule of law, no independent judiciary, no freedom of speech, freedom of press etc. It is fast becoming a Police State.

    ·He will be picked up by the authorities and thrown into prison on allegations of sedition and causing communal antagonism like what happened to the 70 members of the sovereign State of Nadroga-Navosa and Ra.

    ·Mr Bainimarama’s threats in relation to sedition are becoming aggressive and similar in tone to his behaviour before the 2006 coup. He is using tactics used by Adolf Hitler and Joseph Stalin.

    ·The Fijian race is being killed by the Khaiyum thesis that was introduced in the 2013 Constitution. The Muslim Khaiyum is waging jihad by the pen against Fijians. He is unable to relocate within Fiji as everyone spies and reports on each other.

16. The second, third and fourth named applicants are members of the same family unit as the first named applicant. They have not made any claims in their own right.

17. The first named applicant has provided to the Department copies of his Marriage Certificate, Birth Certificates for all applicants and the bio-data pages of Fijian passports for all applicants.

18. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 6 January 2017.

    Country of reference

19. The first named applicant claims to be a citizen of Fiji and has provided a copy of the bio-data page of his Fijian passport to the Department and a copy of his Fijian passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji. The Tribunal finds that Fiji is the country of reference for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

20. The Tribunal finds that the first named applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Membership of the same family unit

21. The Tribunal finds that the second named applicant is the spouse of the first named applicant and the third and fourth named applicants are his dependent children. The Tribunal finds that the second, third and fourth named applicants are members of the same family unit as the first named applicant. The Tribunal finds that they are citizens of Fiji.

    Assessment of claims

22. During the hearing, the Tribunal discussed with the first named applicant his background, his family, his employment, where he lived in Fiji, his travel to [Country] and Australia, his reasons for leaving Fiji and why he fears returning to Fiji.

23. The first named applicant gave evidence that he has [brothers], [sisters] and their families who live in Australia. He stated that one of his brothers is a citizen of [Country] living in Australia and his other siblings are either Australian permanent residents or Australian citizens. The only family he has in Fiji are nieces and nephews. Since filing his application for Protection visas, he and the second named applicant have had another child; a son who was born in Australia and is now [age] years old.

24. The first named applicant stated that he travelled to [Country] between 2006 and 2010 for the purpose of playing [Sport] and working. He gave this up to care for his mother after she was diagnosed with [a medical condition] and had no one to care for her. He cared for her for 2 years until she passed away.

25. The first named applicant stated that he first travelled to Australia in 1995 to visit his siblings. He returned to Australia in 2010 to accompany his mother so that she could get medical treatment in Australia and to visit his siblings. He last arrived in Australia [in] July 2016 for the purpose of attending [an Event]. He thereafter had a discussion with one of his brothers who suggested that he remain in Australia and apply for asylum. This brother had helped him to start a [business] in Fiji. He lent money to [people] who did not repay the loans. He did not seek to recover the outstanding loans from them as he did not wish to have any trouble. The business was unable to survive and was closed down.

26. The Tribunal asked the first named applicant whether he was making a claim for protection in relation to the loans to [people] who did not repay them, and he answered no. He stated that he was just trying to illustrate what it is like in Fiji.

27. The first named applicant gave evidence that his application for Protection visas was prepared by a woman named [Ms A] who was an associate of Ms Oni Kirwin and worked in her office. He stated that he gave her some information and she prepared the visa application. He did not wish to proceed with some of the claims in the visa application. He wished to withdraw the claims in relation to being a member of PISAI and the Fiji Native Government in Exile. He also wished to withdraw the claims in relation to the Fijian race being killed by Mr Khaiyum and him “waging jihad by the pen against Fijians”. He wished to proceed with the rest of the claims.

28. In his visa application, the first named applicant claimed that he is a strong supporter of the two Christian sovereign States of Nadroga-Narosa and Ra. He claimed that he will be picked up by the authorities and thrown into prison on allegations of sedition and causing communal antagonism like what happened to the 70 members of the sovereign State of Nadroga-Navosa and Ra. He claimed that Mr Bainimarama’s threats in relation to sedition are becoming aggressive and similar in tone to his behaviour before the 2006 coup and he is using tactics used by Adolf Hitler and Joseph Stalin. The Tribunal discussed these claims with him.

29. The first named applicant gave evidence that he first decided to support the two breakaway States in 2016 when he was in Australia. He did not support this movement when he was in Fiji. He attended a few meetings and made financial contributions when there was some fund raising. Ms Kirwin required him to attend meetings and make financial contributions before she was prepared to assist him with his application for Protection visas. The meetings were organised by a group called the Fiji Native Government in Exile. He last attended a meeting in 2017 and has had nothing to do with them since then. He has not been involved in any other political activities in Australia.

30. The Tribunal asked the first named applicant why he supported the two breakaway States. He responded that he supported them because of their views. When asked about their views, he was unable to articulate the views that attracted his support. When asked whether the Provincial Councils and the chiefs in these breakaway States support the movement, he responded that it is his understanding that they do.

31. The first named applicant’s conduct has not been consistent with his claims for protection. Despite his claim that he is a strong supporter of the two Christian sovereign States of Nadroga-Narosa and Ra, he was unable to provide a satisfactory explanation for why he supported the two breakaway States. He appeared to be misinformed (see country information from DFAT[1] below) in relation to whether the Provincial Councils and the chiefs in these breakaway States support the movement. He did not engage in any political activities in Fiji.

    [1] Department of Foreign Affairs and Trade.

32. The extent of the first named applicant’s support of the two breakaway States whilst in Australia was to attend a few meetings and contribute some money during fund raising in 2016/2017. He has not attended any meetings or contributed any funds since 2017. He has not been involved in any political activities in Australia since 2017. These issues raise serious doubts that he is a supporter, let alone a strong supporter, of the two Christian sovereign States of Nadroga-Narosa and Ra.

33. In view of the above, the Tribunal concludes that the first named applicant attended the meetings and made financial contributions as they were conditions imposed on him by Ms Kirwin before she or her colleagues would assist him to prepare his application for Protection visas. He stopped attending the meetings after his visa application was lodged with the Department.

34. The first named applicant’s conduct in Australia and his delay in applying for Protection visas are also of concern. The records of the Department indicate that he came to Australia [in] July 2016 on a Visitor visa. That visa expired on 2 October 2016 and he thereafter remained in Australia as an unlawful non-citizen. He was granted a Bridging visa E on 5 October 2016. He did not depart Australia and instead applied for Protection visas on 11 November 2016. This was more than 4 months after his arrival in Australia.

35. The Tribunal put this information to the first named applicant, pursuant to s.424AA of the Act, and noted that if he feared returning to Fiji the Tribunal would have expected him have obtained some immigration advice and lodged an application for Protection visas as soon as possible after his arrival in Australia. Instead, he allowed his Visitor visa to expire leaving him in a situation where he could have been deported to Fiji. The Tribunal noted that his delay in lodging the application for Protection visas raised concerns about the credibility of his claims. The Tribunal noted that it may find that he applied for Protection visas to extend his stay in Australia and not because he was in need of protection.

36. The first named applicant responded that he obtained advise from a friend who told him that he could only apply for Protection visas at the end of his Visitor visa. He stated that he was provided incorrect information and only found out a day before his Visitor visa expired. He stated that he also feared applying for protection in case the Fijian government found out. The Tribunal explained to him that the Australian government would not disclose to the Fijian government or the Fijian community that he had applied for protection. The Tribunal is of the view that if he had these concerns it was all the more reason to obtain advise from a registered migration agent rather than someone who was not qualified to give immigration advice.

37. It is also curious that the first named applicant’s siblings, some of whom have lived in Australia for over 20 years, did not make inquiries on his behalf as to where he could obtain immigration advice including free immigration advice. The Tribunal would expect them to have been more involved particularly if there was a genuine fear that the first named applicant was at risk of serious harm or significant harm on his return to Fiji.

38. The Tribunal put to the first named applicant the following country information from the DFAT: “Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced themselves from the groups involved in seeking self-government in the two Christian States and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to the groups involved”.[2] The first named applicant declined to respond. His evidence to the Tribunal was, it was his understanding, that Provincial councils in the breakaway States and the chiefs supported the movement seeking self-government. The Tribunal would expect him to be correctly informed in this regard if he is a strong supporter of the breakaway States as he claims.

    [2] DFAT Country Information Report on Fiji, 27 September 2017.

39. The Tribunal put to the first named applicant the following country information from the DFAT: “The Fiji Democracy and Freedom Movement (FDFM)[3] and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.

    [3] The predecessor to the Fiji Native Government in Exile.

40. Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. 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.”[4] The first named applicant declined to respond.

    [4] DFAT Country Information Report on Fiji, 27 September 2017.

41. During the course of the hearing, the first named applicant claimed that during the time he has lived in Australia he has grown in confidence and learnt to stand up for himself. He stated that if he returns to Fiji he will have to speak out on behalf of Fijian people. He stated that if he speaks out in Fiji he will be victimised. The Tribunal pointed out to him that he had the opportunity to speak out on behalf of the Fijian people whilst living in Australia but had not done so. He agreed and stated that he has family in Fiji. He stated that he wanted his brother-in-law to give evidence at the hearing but decided against that because he did not wish to put his family at risk.

1. The first named applicant’s evidence is that he is an ordinary person and he does not belong to any political organisation. Other than for attending some meetings and donating some money in 2016/2017, he has not been involved in any political activities since 2017. He has lived in Australia since [July] 2016 and has had the opportunity to express his political opinions on the internet if he had the desire to speak out on behalf of the Fijian people. He could have done so anonymously if he had concerns for family members in Fiji, as he claims, but did not do so. In these circumstances, the Tribunal is not convinced that he would speak out on behalf of the Fijian people, or have any desire to do so, on his return to Fiji now or in the foreseeable future.

2. In any event, DFAT assesses that “high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention….The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections”.[5] In view of this country information, it is highly unlikely that, as an ordinary person who does not belong to any political organisation and who is not in a leadership role, he would attract adverse attention from the Fijian authorities if he expressed his political opinions or spoke out on behalf of the Fijian people.

   [5] Ibid.

3. In view of the above country information, the Tribunal is not satisfied that the first named applicant is at risk of serious harm or significant harm because he attended a few meetings and contributed to fund raising undertaken by the Fiji Native Government in Exile in Australia in 2016/2017 if he returns to Fiji now or in the reasonably foreseeable future. The Tribunal is also not satisfied that, in the unlikely event that he expresses his political opinions on his return to Fiji now or in the foreseeable future, he would be at risk of serious harm or significant harm. 

   Other considerations

4. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the first named applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Fiji and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

5. Having considered all the evidence, the Tribunal accepts that the first named applicant was born on [Date 1] at  Suva in Fiji. The Tribunal accepts that he has [brothers] and [sisters] all of whom reside in Australia with their families. The Tribunal accepts that he married the second named applicant [in] October 2007. The Tribunal accepts that they have three children of their marriage the youngest of whom was born in Australia.

6. The Tribunal accepts that the first named applicant travelled to [Country] between 2006 and 2010 for the purpose of playing [Sport] and working. The Tribunal accepts that he gave this up to care for his mother after she was diagnosed with [a medical condition] and had no one to care for her. The Tribunal accepts that he cared for her for 2 years until she passed away.

7. The Tribunal accepts that the first named applicant then set up a [business] in Fiji, with the assistance of one of his brothers who lives in Australia. The Tribunal accepts that this business was not successful and had to be closed down. The Tribunal accepts that this was at least partially due to the fact that he lent money to [people] who did not repay the loans and he did not take steps to recover the debts as he did not wish to get into trouble.  

8. The Tribunal accepts that the first named applicant travelled to Australia for a third time [in] July 2016, accompanied by the second, third and fourth named applicants, for the purpose of attending [an Event]. The Tribunal accepts that he was thereafter persuaded by one of his brothers to remain in Australia and apply for asylum.

9. The Tribunal accepts that the first named applicant’s application for Protection visas was prepared by a woman named [Ms A] who was an associate of Ms Oni Kirwin and worked in her office. The Tribunal accepts that he was told that he would have to attend some meetings and donate some money before she would assist him to prepare his application for Protection visas.

10. The Tribunal does not accept that the first named applicant is a supporter of the two Christian sovereign States of Nadroga-Narosa and Ra. It follows that the Tribunal does not accept that he will be picked up by the authorities and thrown into prison on allegations of sedition and causing communal antagonism or that he will be unable to relocate within Fiji as everyone spies and reports on each other.

11. The Tribunal accepts that the first named applicant was not involved in any political activities in Fiji. The Tribunal accepts that, whilst in Australia, he attended some meetings organised by PISAI and the Fiji Native Government in Exile in 2016/2017. The Tribunal accepts that he donated some money to these organisations when they raised funds. The Tribunal accepts that he stopped attending meetings and donating money to these organisations in 2017 and has had nothing to do with them since then. The Tribunal accepts that he has not been involved in any political activities in Australia since 2017.  

12. In view of the country information above, the Tribunal is not satisfied that the first named applicant would be at risk of serious harm or significant harm because of his involvement with PISAI, the Fiji Native Government in Exile and Ms Oni Kirwin if he returns to Fiji now or in the foreseeable future.

13. For the reasons given above, the Tribunal is not satisfied that the first named applicant would be at risk of serious harm or significant harm in the unlikely event that he speaks out on behalf of the Fijian people or if he expresses his political opinions on his return to Fiji now or in the foreseeable future.

14. The Tribunal is not satisfied that the first named applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.

15. The Tribunal accepts that the first named applicant would prefer to live in Australia with his family than to return to Fiji.

    Does Australia have protection obligations to the first named applicant under the refugee criterion?

16. Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the first named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the first named applicant under the complementary protection criterion?

17. As the Tribunal has found that the first named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

18. Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence and in view of the above findings, the Tribunal is not satisfied that the first named 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 returns to Fiji now or in the reasonably foreseeable future. The Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.

19. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named 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 he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

20. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

21. There is no suggestion that the first named 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) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

22. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the second, third and fourth named applicants are unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second, third and fourth named applicants do not satisfy the criterion in s.36(2) of the Act.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Protection visas.

L. Symons

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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