1703793 (Refugee)

1703793 (Refugee) [2020] AATA 705 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703793
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Penelope Hunter
DATE:12 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2020 at 9:45am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – supporter of the 11-11 group – race – indigenous Fijian – ability to find employment – evidence at the hearing – not politically active – no personal involvement – no experience of past harm – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 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 and Border Protection on 14 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 12 December 2016. The delegate refused to grant the visa on the basis that the applicant was not found to be a person in respect of whom Australia had protection obligations.
For the following reasons, the Tribunal has determined that the decision under review should be affirmed.
CLAIMS AND INFORMATION BEFORE THE TRIBUNAL
The applicant is a [age]-year-old national of Fiji and a Christian. He was born in [Fiji]. His mother is an Australian citizen and his brother is a permanent resident. His wife [and children] continue to reside in Fiji. He has lived at the one address in [Village 1], in the province of Naitasiri in Fiji, and has worked as a [Occupation 1], [Occupation 2] and [Occupation 3] prior to arriving in Australia on a visitor visa [in] May 2015. He had lodged an invalid protection visa on 31 July 2015 and an invalid visitor visa on 7 August 2015. On 24 August 2015 he was granted a further visitor visa. He lodged an application for protection visa on 12 December 2016.
In his application for protection visa, the applicant made the following claims (in summary):
i.He is a supporter of the 11-11 group members Ratu Inoke Takiveikata and Ratu Peceli Rinakama, whom he believed were illegally detained with nine others for a crime they did not commit.
ii.As a supporter he experienced military heavy-handed tactics which violated human rights and constitutional rights.
iii.He believes he would be treated wrongfully and unfairly as a supporter of the 11‑11 member Ratu Inoke Takiveikata. He was sentenced to life imprisonment with Ratu Peceli Rinakama for advocating for indigenous Fijian land rights. Ratu Peceli Rinakama was released after three years.
iv.He experienced assault by the military and police officers when they rounded up their peaceful meeting and forcefully removed the 11-11 group member.
v.He cannot seek help from the police as they were the ones assaulting them. Officers still go to the residence of the 11-11 group members.
vi.He cannot relocate as the military officers and intelligence monitor their family’s movements.
vii.He fears being wrongfully imprisoned for supporting the group in advocating the indigenous Fijian land rights.
In support of his protection visa application, he provided the following documents to the Department:
i.His identity documents and marriage certificate.
ii.A statement from Ratu Peceli Rinasau Rinakama, undated.
iii.A submission from the ‘11-11 group’, undated, in relation to their illegal detention.
iv.A letter to the then Interim Prime Minister Mr Bainimarama, dated [in] December 2007, demanding the release of members of the 11-11 group.
v.Two lists titled ‘Notes Raised Group Discussion for lawyers’ and ‘Points on RFMF Intelligence Unit’.
Tribunal application
The Tribunal received an application for review from the applicant on 3 March 2017.
The applicant has filed with the Tribunal a copy of the decision of the delegate, and no further material to support his claims.
On 5 March 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The Tribunal asked the applicant why he had come to Australia in 2015, and he said that he had come with his brother to visit his father, as his father was ill. The applicant confirmed that both his mother and father were Australian citizens. His father has subsequently passed away, but first came to Australia when the applicant was around [age] years old. The applicant told the Tribunal that his father obtained Australian citizenship and then sponsored his mother, and she has been in Australia since he was in his early [age range]. The applicant has [brothers], two are in Australia, one is a permanent resident and the other travelled with him to Australia in 2015 and also lodged a protection visa application. His other [brothers] remain in Fiji. He is currently being supported in Australia by his mother and brother. He also has extended family in the form of nieces and nephews, in Australia.
The Tribunal asked the applicant why he could not return to Fiji and he said that there was no life back home. There was a lack of employment and problems on the political side. They have no rights and their voice is not heard. The Tribunal then questioned the applicant about his employment and he said that he started work as a [Occupation 1] when he left school, then he had worked as a [Occupation 2] and when he came to Australia he had been employed in a [specified] factory. He claimed that he was not working in Australia. His wife was not working when he left Fiji but now she had a job in a factory. The applicant suggested that he could not return to Fiji as he needed to support his family. The Tribunal put to the applicant that he was not currently supporting his family, and that he had been gainfully employed in the past, his wife had obtained employment since he departed, he was still of working age and it was probable therefore that he would find work in the future. The applicant responded that he had lost his job in the [factory] when he stayed in Australia. The Tribunal then put to the applicant that he had a home, family and extended family to support him while he found a new job if he returned to Fiji. The applicant told the Tribunal that he did not want to return to Fiji and that he wanted to bring his family to live in Australia.
The Tribunal then asked the applicant about political problems that he had in Fiji. He told the Tribunal that he had never had problems due to politics in the past in Fiji. The Tribunal asked the applicant if he was ever harmed in Fiji in the past and he responded that he was not. The Tribunal asked the applicant why he had set out in his visa application that he had experienced assault by the military and police officers when they rounded up their peaceful meeting and forcefully removed the 11-11 group member. The applicant responded that this did not happen. He was not present when any of the group were arrested, he had not been assaulted by the police and military. When asked why he had made this claim in his application, the applicant responded that it might be something that could happen to him in the future.
The Tribunal asked the applicant about his association with Ratu Inoke Takiveikata, and he responded that he was his chief. He claimed to have met Mr Takiveikata when they would go to listen to him when he would talk in the village. The Tribunal asked the applicant about his relationship with Mr Ratu Peceli Rinakama and he said that he knew him through rugby and he was also a government Minister for his area. The Tribunal asked the applicant if he had any personal knowledge or was present for any of the events set out in the statement of Mr Rinakama and he said he was not. The applicant claimed not to have been involved in politics while he was in Fiji. He had never run for a political position and claimed that he was not a member of any political party in Fiji. He had not demonstrated or been politically active in Fiji. The Tribunal asked the applicant about the submission from the 11-11 group filed with the Department and whether he was present for any of the events in the submission and he said that he was not. The applicant said he did not know anyone else in the 11‑11 group other than Mr Takiveikata and Mr Rinakama. The applicant said he did not have any trouble in Fiji when the 11-11 group were arrested. The Tribunal asked if he knew why they were arrested and he said that it was about a plot to kill the Prime Minister. The applicant had no problems between 2007 and his departure from Fiji in 2015. He further told the Tribunal that his family had not had any problems arising from his past support of Mr Takieveikata and Mr Rinakama since he departed Fiji. He had not been politically active in Australia or critical of the government in Fiji.
The applicant said that Mr Takieveikata supported land rights. The Tribunal asked the applicant whether he owned land in Fiji and he said that he did not. The applicant told the Tribunal he had not had any association with Mr Takiveikata since he was arrested in 2007. He was unsure whether he was granted parole in 2019 but thought that it might have been refused. Mr Rinakama remains in his village in Fiji.
The Tribunal asked the applicant why he thought that he might have any problems due to the past support if he returned, and the applicant said that the authorities might look at some old video and see him at meetings and look for him. The applicant did not know anyone who this had happened to. When the Tribunal asked him why they would be looking for him now when these events had occurred over 12 years ago, he did not know. It was put to the applicant that the political climate had changed significantly since 2007, there had been several elections since then, and the results of the last elections were generally considered by various international observers to be reflective of the general will of the populace. The Tribunal asked if he had ever had any trouble with the police or the authorities in the past, and he said that he was involved in a fight when he was about [age] and the police charged him and he went to a court case and was released. He had no other problems in Fiji.
The Tribunal asked the applicant about his delay in claiming protection, and he said that with his first protection application in July 2015 he was not sure what to put in the forms and it took them until December 2016 to find a migration agent. He said that he had applied many times to come to Australia and he did not want to return to Fiji. After his parents had migrated to Australia the applicant claimed to have applied to travel to Australia at least six times but he was refused a visa. That is why when he came to Australia he wanted to stay. He does not want to go back to Fiji.
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 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
FINDINGS AND REASONS
Country of reference
The applicant has produced to the Department a copy of his Fijian passport, birth certificate and marriage certificate to verify his claimed identity, date of birth and nationality. He also produced a copy of his passport to the Tribunal. In the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Fiji and has assessed his claims against Fiji.
Is the applicant a refugee and does he have a well-founded fear of persecution?
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. It remains for the applicants to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.
It was clear from the applicant’s evidence at the hearing that his claims in his visa application were not reflective of his actual experience. He has claimed in his application that he had left Fiji because of his support for the 11-11 group, and this appears to be a reference to 11 people who were reportedly arrested in November 2007 arrested in Fiji over an alleged plot to assassinate interim Prime Minister Commodore Frank Bainimarama, members of his cabinet and some military officers.[1] They were identified as a New Zealand citizen Ballu Khan, Colonel Metuisela Mua, Naitasiri, Ratu Inoke Takiveikata, Colonel Jone Baledrokadroka, Peceli Kinivuwai, Peceli Rinakama, Siva Waqa, Barbadoes Mills, Inia Tueli and another person identified as Seoko.[2] As to his actual support for the group, the applicant gave evidence at the hearing, and the Tribunal accepts, that he only knew two people in the group, Mr Rinakama and Mr Takiveikata, the former because he was a rugby player and a government Minister and the latter because he was a chief of his area and had attended cultural and other meetings in his area where he was present.
[1] 'NZ citizen beaten and detained in Fiji', National Business Review, The (NZ), 05 January 2007, CX294866
[2] As above
Although the applicant set out in his claims that he had experienced assault through the military and police officers when they interrupted his meeting to forcefully remove the 11‑11 group member, his actual evidence was that he was not present when any of the 11 were arrested. The applicant gave evidence to the Tribunal that he had never been harmed in the past in Fiji. The Tribunal accepts his evidence at the hearing, and finds that the applicant has not been assaulted by military and police officers in the past, nor has the applicant experienced military heavy-handed tactics which caused him harm. The Tribunal is not satisfied that the applicant has ever experienced any harm in Fiji in the past, due to his support for the 11-11 group or for any other reason.
While the applicant set out in his visa application that the military and intelligence have monitored his family’s movements, based on the applicant’s evidence at the hearing the Tribunal finds that this did not actually occur. The Tribunal accepts the applicant’s evidence at the hearing that he never had any problem with the military or police in 2007, when the 11-11 group were arrested, or at any time prior to his departure from Fiji. The Tribunal further accepts the evidence of the applicant at the hearing that his family have not had any problems, and it is not satisfied that the claim in his visa application is factual. Although in the visa application the applicant set out that he positively believed he would be wrongly and unfairly treated because of his support for the 11-11 group, the Tribunal is not satisfied that the applicant would be identified as someone who supported the 11-11 group. The Tribunal accepts the applicant’s evidence that he was not politically active in Fiji in the past, he has never been a member of a political party in Fiji and has never come to the attention of the police, military or intelligence in the past due to his actual or imputed political activities.
The Tribunal accepts that Mr Peceli Rinakama was a former member of the Fijian parliament, whose term ended in 2000, when the government was overthrown by a military coup. It is accepted that Mr Rinakama was arrested in November 2007 in relation to an alleged plot to assassinate the then interim Prime Minister and members of parliament. It is also accepted that Mr Rinakama is from the applicant’s province of Naitasiri. The Tribunal also accepts that Mr Ratu Inoke Takiveikata was a council chief for the applicant’s province of Naitasiri. It is also accepted that in 2010, Mr Takiveikata was one of eight people sentenced to imprisonment following a hearing in the Fijian High Court in March 2010, in relation to an alleged assassination plot. However, the applicant has not presented evidence that, other than hearing the men speak, he has engaged with either of them in their political capacity. The actual evidence of the applicant is that he was not engaged in politics in Fiji and not a member of any political party. In addition, he has not been politically active or critical of the government of Fiji while in Australia. The Tribunal further notes that the arrests of the 11‑11 group occurred in 2007, some eight years prior to the applicant’s departure from Fiji, and over 12 years from the time of the Tribunal hearing. The applicant has presented no evidence that anyone in Fiji is looking for him. The Tribunal has considered the applicant’s previous charge in relation to a fight but also to the fact that this was dealt with by the courts over 20 years ago, and the applicant had not come to the attention of the police since. The Tribunal finds that the applicant does not have any political profile in Fiji that would be of interest to the Fijian government, the military, intelligence, police or anyone else in Fiji.

In assessing the applicant’s claims the Tribunal has had regard to the information contained in the latest DFAT Country Information Report on Fiji,[3] in particular the information that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services and that they are at a low risk of being arbitrarily detained or otherwise harassed.[4] In reviewing this information, it appears that the risk to high profile persons is low. In the circumstances of the applicant, his connection to former senior members of political parties is that he hails from a similar area and has attended meetings and functions where they were present. The Tribunal also accepts that the applicant may support land rights for indigenous Fijians. However, considering the totality of the applicant’s circumstances the Tribunal does not accept that he would have any political profile, or perceived political profile by the government of Fiji, the police, military or security forces. As the applicant is not and has not been a member of an opposition political party, has not run for office, has not been politically active, has not come to the attention of the authorities in the past in Fiji, has not previously been harmed in the past, and has not been politically active since departing Fiji, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm if he returns to Fiji. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as a consequence of his actual or imputed political opinion were he to return to Fiji now or in the reasonably foreseeable future.
[3] 27 September 2017
[4] DFAT Country Information Report – Fiji, 27 September 2017, at 3.46
Although the applicant did not raise any claims of harm because he is an indigenous Fijian, the Tribunal has considered any implied claims. It is accepted that the applicant is an indigenous Fijian; however, the applicant did not provide any evidence of any harm or discrimination directed against him because of his heritage in the past in Fiji. The Tribunal has had regard to the assessment in the 2017 DFAT report that the overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. Further, that with respect to land rights, indigenous Fijians communally hold approximately 87 per cent of all land, and that in rural and outlying areas, such as where the applicant hails from, indigenous Fijians are in the majority and unlikely to be the victim of discrimination.[5] Overall, DFAT assesses that there is no official discrimination against indigenous Fijians and there is a low level of societal discrimination against indigenous Fijians.[6] In circumstances where the Tribunal is not satisfied that the applicant has identified any incidents of official or societal discrimination directed against him, where the overall risk is assessed as low, the Tribunal is not satisfied that there is a real chance the applicant will suffer any serious harm on return to Fiji for reason of him being an indigenous Fijian.
[5] As above at 3.15
[6] As above at 3.16
The Tribunal has also considered the applicant’s claim that there are no jobs or future in Fiji in relation to the refugee criterion. The evidence of the actual experience of the applicant is that he was employed when he departed Fiji. He had held several jobs since he left school as a [Occupation 1], a [Occupation 2] and [Occupation 3] at a [factory]. The Tribunal is not satisfied that the applicant has established any reason why he would be denied employment in the future. He told the Tribunal that his wife had told him that there were no jobs. Yet the evidence is that his wife has also obtained employment since he departed Fiji. The Tribunal is not satisfied that the applicant would be denied employment for any of the reasons in s.5J(1)(a) of the Act. Furthermore, the Tribunal is not satisfied that the applicant will suffer serious harm as a consequence of being unemployed. The Tribunal accepts that he would have to find a job if he was to return and that this may take some time. In the meantime, he has a home in Fiji and a family and extended family in Fiji to support him. The applicant claimed that his mother and brother from Australia were sending money for the support of his family in Fiji, and there is no reason to expect they would cease doing so if the applicant was to himself return to Fiji. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as a consequence of being unable to find employment were he to return to Fiji now or in the reasonably foreseeable future.
The Tribunal has also considered the delay in the applicant lodging a protection visa application. It has considered the information in the delegate’s decision that the applicant’s first visa application filed in July 2015 was invalid and the fact that the applicant waited a further 15 months before he lodged another application, although the applicant said he did not know how to make claims for protection until he spoke to an agent in December 2016. It is clear because he lodged an earlier protection application that the applicant was aware that a claim could be lodged for a protection visa. The Tribunal considers that the delay in the applicant lodging a valid application is further indicative of the fact that the applicant did not genuinely hold fears of harm if he returned to Fiji.
The Tribunal accepts that the applicant does not want to return to Fiji and that he had wanted to come and live in Australia for several years prior to his arrival. However, considering the claims of the applicant, individually and cumulative, and all the relevant information, the Tribunal does not accept that the applicant has a well-founded fear of persecution for any of the reasons contained in the Act if he was to return to Fiji, now or in the reasonably foreseeable future.
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).
Does the applicant satisfy the complementary protection criterion?
The Tribunal has also considered the applicant’s claims against the complementary protection provisions of the Act. For the reasons given above, the Tribunal also does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm by reason of his actual or imputed political opinion, or his indigenous heritage. The Tribunal has considered the applicant’s claims that he will not be able to find employment and, as set out above, the applicant has a home, family structure and history of previous employment that can assist him until he finds employment, if he returns to Fiji, and that he can rely upon for support. It does not accept that he will be subject to significant harm for this reason. The Tribunal is also not satisfied that he will experience significant harm for any other reason. Having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that he will be arbitrarily deprived of his life, have the death penalty carried out, be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act.
The applicant also does not meet the complementary protection criterion. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5(1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 705

12 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice