1702676 (Refugee)

1702676 (Refugee) [2019] AATA 6533 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702676
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christopher Smolicz
DATE:20 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 August 2019 at 4:06pm

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – letter of support from Fijian political group in Australia – personal dispute with mother about relationship – no harm and no fear of harm – previous travel to Australia without applying for protection – mental health – services available in Fiji – credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 8 February 2017 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 March 2016.
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 s.5J(2)–(6) and ss.5K–5LA, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·of a personal dispute with her mother
·of her political opinion
·of her mental health.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [age]-year-old single woman born in [Town 1], Fiji. She described her ethnicity as “Fijian” and her religion as Christian ([denomination]).
The applicant travelled to Australia on a visitor visa [in] December 2015 and applied for the protection visa on 2 March 2016.
Summary of substantive claims
First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, her entry interview, the delegate’s decision and statements of claim and submissions dated 3 March 2016.[1]
Relationship
[1] The applicant provided the Department with submissions dated 24 March 2016 which are identical to the submission dated 3 March 2016.
In 2009, the applicant was awarded a [scholarship] to further her study at the [named university] studying [Subject 1]). At the time she was [age] years old and she commenced a relationship with a person called [Mr A]. [Mr A] was an international student and was enrolled in a two-year program studying a [Qualification] majoring in [Subject 2]. The applicant claims that her mother controls every aspect of her life and did not approve of the relationship.
At the time the applicant was [an Occupation 1] in a [workplace] in the western part of Fiji and attempted to be transferred to a [workplace] closer to [Mr A]’s home but was unable to find accommodation. Her mother heard she was planning to move out and burnt her belongings including her passport. The applicant moved out of home and into her own flat and commenced living independently.
She claims that her mother disapproved that [Mr A] was not following traditional Fijian dating protocols. Her mother went to [Mr A]’s work and humiliated him in front of his workmate.
Her mother found out that the applicant was planning to marry [Mr A]. The applicant claims [a public figure, Mr B] is her mother’s [relative] and in October 2010 her mother approached the [public figure] and told him about the relationship. Her mother obtained a warning letter and [Mr A] was told that he had 72 hours to leave Fiji. Her mother also told the applicant’s [manager] that she was ‘sleeping’ with [Mr A] and this was against the teaching of their church.
When she found out she was heartbroken and she has never seen [Mr A] again. She claims she will never forgive her mother. It took her years until she was able to see her mother again or even to talk to her mother. She is still angry at her mother for the way she and [Mr A] were humiliated.
She did not have a chance to say goodbye to [Mr A] and feels guilty. As a consequence she felt depressed and stressed. She felt shy and embarrassed to see people from her church, her fellow students and work colleagues.
After the relationship ended she tried to engage in social groups, undertake social work and church activities. She studied to keep herself occupied to eliminate the painful experiences she had to endure. Her father is a [senior church official] and she joined [a church] Association and became an effectively involved member of the association and youth ministry and was involved in many church activities and community outreach programs. She fears that the gossip about her relationship has spread through the church community and her work. The Tribunal finds that despite the gossip the applicant was able to freely practise her religion in Fiji. The Tribunal finds that the applicant has not made any claims that she fears serious harm in Fiji because of her religion. The Tribunal finds the applicant will be able to continue to practise her religion if she returns to Fiji in the reasonably foreseeable future.
In 2014 the applicant commenced working for [Employer 1] as an [Occupation 2]. The applicant states that [Employer 1] is a statutory body that operates alongside [a government department] and reports directly to the PM’s office. She claims that her job was very demanding and she felt stressed and out of place.
She claims when she was in Australia she requested extended leave from [Employer 1] because she was bitten by [a wild animal] and was suffering mental health issues. Her employer was not sympathetic and her contract was terminated and this contributed to her depression.
The Tribunal observed at the hearing that [Employer 1] has provided positive reference letters dated [March] 2015 and [April] 2016 about the applicant’s past employment with [Employer 1] which did not seem consistent with her claim that she was humiliated and discredited by her employer in Fiji. For example the Tribunal notes that the letter dated [March] 2015 states:
…[The applicant] has been an integral member and key driver to the [work] process. She helped develop numerous policies, [guidelines] and [programmes]…
“I have worked with [the applicant] for a little over one year and she has assumed a strong leadership role in her capacity in the [specified] position. She has acquired special skills in Communication, Planning and Leadership, Team Building and Computer Skills.”
…
[The applicant] has passion and commitment for what she does and enjoys sharing her knowledge and experience with others. She is a very good communicator and has established important links with all those who have worked with [her].
The applicant said that the letters were written by her team leader who always supported her and was not responsible for terminating her employment.
The applicant maintained that it was difficult to find suitable employment as [an Occupation 1] in Fiji and many Fijian Indians were travelling to Australia to look for work. She claims that her contract with [Employer 1] has since been terminated because she did not return to Fiji.
The Tribunal referred the applicant to the delegate’s decision and noted that it discloses that she has previously travelled to Australia on a visitor visa on the following occasions:
·13 December 2010 to 21 January 2011
·1 December 2011 to 20 January 2012
·29 November 2013 to 4 February 2014
·21 December 2014 to 1 March 2015.
The applicant said that she travelled alone to Australia and paid for her own trips. She travelled to get away from her problems. The Tribunal told the applicant the evidence would suggest that she did have independence in Fiji and was able to freely travel to Australia despite her claims that her mother controlled every aspect of her life.
The applicant claimed she was not aware she could apply for a protection visa at the time. The Tribunal finds that the applicant’s travel history appears inconsistent with her claim that she fears harm in Fiji and lacked freedom because of her controlling mother.
The Tribunal referred the applicant to the delegate’s decision and noted that the delegate did not accept her mother was related to the [public figure, Mr B]. The Tribunal told the applicant it found it difficult to accept that [Mr B] would get involved in her relationship issues.
The applicant maintained that her mother was a distant relative of [Mr B] and that he became involved because she was in a relationship which was not being conducted according to traditional Fijian customs. The Tribunal found the applicant’s evidence about [Mr B] becoming involved in her personal relationship vague and lacking in credibility. The Tribunal does not accept that [Mr B] played any role in her relationship and arranged for [Mr A] to leave Fiji.
The Tribunal explained to the applicant that it must assess her claims looking to the reasonably foreseeable future. The Tribunal noted that her relationship with [Mr A] ended in 2011 and she has now been in Australia for three and a half years.
The Tribunal invited the applicant to explain why she now fears returning to Fiji. The applicant maintained that she feels humiliated and embarrassed about what her mother has done to her. She claims she is suffering from anxiety and depression and fears her condition will deteriorate if she returns to Fiji. She claims that there is a social stigma associated with mental illness in Fiji and she will not be able to obtain treatment for her mental health issues.
After further questioning the applicant said she maintains regular contact with her father in Fiji. She does not fear physical harm from her mother and understands that her mother’s actions were motivated by love.
The Tribunal accepts that the applicant was in a relationship with a person called [Mr A]. The Tribunal accepts that her mother did not approve of the relationship and this caused some tension and conflict between the applicant and her mother. The Tribunal accepts that the applicant may have felt emotionally hurt and humiliated by the mother’s actions.
The Tribunal does not accept that the applicant experienced serious harm in Fiji from her mother because of her relationship with [Mr A]. As detailed above the applicant said the relationship ended and she does not fear physical harm from her mother and understands that her mother’s actions were motivated by love. The Tribunal finds this was a personal dispute and that the applicant’s fear of persecution in Fiji was not for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
Employment
The Tribunal questioned the applicant about her employment in Australia. The applicant said she has become a registered [Occupation 1] in South Australia and works as [an Occupation 3] with [Employer 2] in [Town 2]. She is also employed by [Organisation 1] as a Team Leader and as [an Occupation 1] at [Employer 3]. The applicant said she also spends considerable time working with young people at [a named] Scout Group where she is undertaking Leader Training to become a fully qualified Leader. The applicant said that she is finally happy with her life and enjoys living and working in [Town 2].
The Tribunal referred the applicant to the positive references she has provided from the [named Church], her employers in Australia and various charities where she has undertaken volunteer work. The Tribunal observed that the reference letters speak highly of her and indicate that she has been able to work within the community and maintain employment despite her mental health issues.
Mental health
The applicant said she is seeing a psychologist and is not taking any medication but fears her condition will deteriorate if she returns to Fiji. In assessing the applicant’s claims the Tribunal has had regard to a psychologist’s report dated 18 May 2017 which was located on the Department’s file. In assessing the applicant’s evidence the Tribunal has had regard to the report. The Tribunal also notes that the psychologist concluded that if interviewed in person the applicant could address any questions and concerns the Tribunal may ask of her in an open and honest way. The Tribunal was able to observe the applicant at the hearing and finds that she was able to be meaningfully engaged in the hearing process and articulate her claims.
The 2017 report states that the applicant has been suffering from anxiety and depressive disorder. The psychologist states “It is my opinion that family dynamics, being terminated by [Employer 1] and decline of her application for Protection Visa have resulted in high levels of stress.” The psychologist also states that he believes that it would be detrimental to the applicant’s mental health if she was compelled to return to Fiji given the conflict, betrayal and public humiliation she has encountered prior to leaving her homeland. The Tribunal has not been provided with any current medical or psychological reports for the applicant.
DFAT reports that Fiji’s life expectancy at birth is comparatively high at just over 70 years, reflecting higher than regional average health outcomes. The government provides generous public health services, including free primary and secondary health care. There are five major hospitals in Fiji, however, X-ray and other support services are not generally subsidised.[2]
[2] DFAT Country Information Report Fiji 27 September 2017 [2.24]–[2.25]
Information located indicates that free and generally effective government healthcare is generally available in Fiji, and that Fiji has a government Free Medicine Scheme for low income individuals under which antidepressant, anxiolytic, antipsychotic and bipolar disorder and mood stabilising drugs are available. For example, the Fiji Ministry of Health and Medical Services website provides information on mental health and wellness which includes contact details of services available for people with mental illness.[3] Recent media reports indicate that scientists in Fiji, in collaboration with researchers in New York, have just completed a trial looking at how a mobile phone app could assist in diagnosing mental illness.[4]
[3] see also Mental Health Care in Fiji Country Report, Asia-Pacific Psychiatry 6 December 2010 ISSN 1758-5864,
[4] Fiji nurses trial mobile phone app designed to diagnose mental illness ABC Radio Australia, 14 August 2019, >
In February 2015 UNICEF Pacific and Fiji’s Ministry of Women, Children and Poverty Alleviation, reporting on social protection for children in Fiji, stated of Fiji’s health services:
Fiji can be said to have used public money with the aim of achieving a social minimum for all. In its health services, Fiji has prioritized equity, risk protection and access for the poor, with free or almost free and very extensive services, overseen by the Ministry of Health.[5]
[5] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February <CISEC96CF15027> page 147
In March 2017 the United States (US) Social Security Administration reported that Fijians are covered by a ‘universal (medical benefits) system’:
Public hospitals and clinics provide free health care. Benefits include preventive care, generalist and specialist services, and hospitalization.
Private hospitals and clinics provide services on a fee-for-service basis.[6]
[6] United States Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation, and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March) <CSEDB50AD5682> pages 81–82
The Tribunal accepts that the applicant feels anxious at the prospect of having to return to Fiji in circumstances where she has managed to find employment and build positive networks within her local community in Australia. The Tribunal also accepts that the applicant’s relationship with her mother and the circumstances in which she ended her relationship with [Mr A] were contributing factors to her mental health problems. The Tribunal notes however that the applicant has now moved on with her life and her relationship with [Mr A] ended in 2011. The Tribunal finds that the applicant is an educated woman and has relevant work experience in Fiji and Australia. The Tribunal finds that the applicant has the skills and work experience to enable her to find suitable employment in Fiji in the future. The Tribunal finds that Fiji has health care facilities and initiatives that will assist the applicant with her mental health issues. The Tribunal also notes that the applicant’s father has supported her in the past and there is no suggestion that he would not continue to support her in the future if she was to return to Fiji. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Fiji because she is a female with a mental illness. The Tribunal finds that the applicant’s fear of harm because of her membership of a particular social group is not well-founded.
Political opinion

In support of her protection visa application the applicant provided the Department with a letter dated [August] 2016 issued by Ms Oni Kirwin, Executive President, Pacific Indigenous Samaritan Association (PISA) and Executive President of the Fiji Native Government in Exile (FNGE). The letter states that the applicant is a registered member of the FNGE and PISA.
The Tribunal questioned the applicant about her involvement with PISA and the FNGE. The applicant could only provide limited information about the organisations. After further questioning the applicant said that a Fijian friend introduced her to Ms Kirwin. She was told that Ms Kirwin would assist her to apply for a protection visa. She had to pay Ms Kirwin $50 so that she would write a letter to support her claims.
The Tribunal noted that the delegate was concerned that the letter incorrectly referred to the applicant as a male and was a generic letter that the Department had seen on many occasions associated with Fijian protection claims. The applicant agreed it was a generic letter and that she also observed the errors in the letter. The applicant told the Tribunal that she no longer relies on the letter written by Ms Kirwin. The applicant said she has nothing further to do with Ms Kirwin and the PISA or FNGE. The applicant said that she discovered that Ms Kirwin was charging a lot of money by claiming to assist Fijians with their claims for protection. She did not approve of Ms Kirwin’s actions and became suspicious about her motivation.
The Tribunal questioned the applicant about photographs located on the Department’s file which claim to be of PISA and FNGE members gathering together in Australia. It is claimed the photographs are on Ms Kirwin’s Facebook page which is monitored by the Fijian government. The applicant said the photographs were taken in Canberra and Ms Kirwin told them that they would be marching with the Fijian flag. When she attended the march she was surprised that the meeting was actually attended by many Aboriginal Australians and she could not see that it had anything to do with Fijians.
In assessing the applicant’s claims the Tribunal has also had regard to the following country information prepared by the DFAT regarding the treatment of FDFM members in Fiji.
3.51 The Fiji Democracy and Freedom Movement (FDFM) 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.

….
3.56 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.
The Tribunal finds it regrettable that many protection visa applicants are exploited and taken advantage of by unscrupulous migration agents or members of their own community who pose as agents. Having said that, the Tribunal is also aware that some applicants seek out advice and engage agents to facilitate migration outcomes or to simply prolong the time they can stay in Australia.
Having considered the applicant’s evidence the Tribunal accepts the applicant displayed limited understanding of the protection visa application process and in the circumstances she may have been exploited by an unscrupulous agent.
The applicant admitted at the hearing that she has had no involvement with an anti-Fiji government organisation such as the FDF, the FNGE or the PISA. As stated above the applicant described herself as an ordinary person in Fiji who was not involved in politics or protest activity in Fiji. The Tribunal finds that the applicant paid money to Ms Kirwin and was issued with a generic letter that had no relevance to her personal circumstances and reasons for seeking protection in Australia. The Tribunal has placed no weight on the letter dated [August] 2016 created by Ms Kirwin.
Having considered the country information and the applicant’s profile the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if she returns to Fiji in the reasonably foreseeable future because of her actual or imputed political opinion. The Tribunal finds that the applicant’s claim that she will face persecution in Fiji because of her imputed political opinion is not well-founded.
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).
The Tribunal has also considered the applicant’s claims having regard to the complementary protection criteria.
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’ in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention or the Convention) definition: MIAC v SZQRB [2013] FCAFC 33.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.
The Tribunal accepts that the applicant was in a relationship with a person called [Mr A]. The Tribunal accepts that her mother did not approve of the relationship and this caused some tension and conflict between the applicant and her mother. The Tribunal accepts that the applicant may have felt emotionally hurt and humiliated by the mother’s actions. The relationship with [Mr A] ended in 2011 and the applicant has moved on with her life. As detailed above the Tribunal finds that the applicant does not fear physical harm from her mother and understands that her mother’s actions were motivated by love.
Looking at the applicant’s claims individually and cumulatively, for the reasons that are detailed above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Fiji.
The Tribunal accepts the applicant’s concern that she will face some hardship returning to Fiji because of her long absence, inadequate mental health facilities and the poor economic circumstances of Fiji. However, the Tribunal finds that these circumstances are circumstances faced by the population of the country generally and not faced by the applicant personally. As such, in accordance with s.36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm on her return to Fiji.
For the reasons detailed above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk she will suffer significant harm.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…
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.
…
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.
…
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.
..
36 Protection 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.
…

[2019] AATA 6533

20 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction