1706102 (Refugee)

1706102 (Refugee) [2022] AATA 5023 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sabinus Robi (MARN: 0849550)
CASE NUMBER:  1706102
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Tamara Hamilton-Noy
DATE:26 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 October 2022 at 1:37pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – women in Fiji – victim of family violence – well-founded fear of serious harm – inadequate level of protection available to family violence victims in Fiji – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia [in] September 2015 and departed Australia [in] September 2015.
The applicant arrived in Australia [in] January 2016 and claimed protection on 24 February 2016.[1]
[1] Movement details taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
On 17 March 2018 a delegate of the Department refused to grant the applicant a protection visa.
Claims and Evidence
Evidence before the Department
In her written protection application, the applicant stated that she was born in Suva, Fiji and that both parents are Fijian citizens. The applicant stated that she was married [in] 1998 and was separated [in]2015. The applicant stated that her mother resides in Fiji, her father is deceased, that one sister resides in Australia and that two brothers and one sister reside in Fiji. She stated that she completed secondary school in 1992 and then worked from 1994 to 2014 as a [occupation] officer in the [Organisation deleted] in Suva.
As to her reasons for having left Fiji, in the written protection application the applicant said that she had left Fiji [in] December 2014 with her children to join her husband in Auckland, New Zealand where he had been working on a work visa. The applicant stated that, if she returns to Fiji, she believes she will be killed by her husband if he is living in Fiji, or by his family such as his [family members], who are ‘against’ her for leaving her husband. During their marriage her husband constantly threatened her that if she left, his [family members], who have connections in the Fiji Army, would deal with her. The applicant stated that in Fiji there is a patriarchal culture of oppressing women and of conditioning women to accept staying in an abusive marriage or relationship. Within this culture she could be killed and no one would care.
The applicant stated that during her marriage she had experienced physical, verbal and emotional abuse. Her husband beat her when she was pregnant with her second child and forced her to have sex with him. He also taunted her and called her names. She sought help from the [police] station after she had been to hospital, the police made a report regarding assault and the matter ended up before the local Magistrates’ Court. Her husband was given a warning. After that he stopped abusing her for one month. She fears that if she returns, she will face physical and emotional harm from her husband and his family. She does not believe the authorities will protect her as the authorities are corrupt and don’t protect abused women in a marriage.
The applicant was not invited to attend an interview with the Department.
A delegate of the Department accepted that the applicant fears harm from her husband and his [family members] and that she was part of the particular social group of women who are victims of family violence in Fiji. The delegate considered relevant country information and found from this that state protection is generally available in Fiji. The delegate had concerns about the credibility of the applicant on the basis that she had not sought protection while living in New Zealand and because of her return to New Zealand after a short visit to Australia in 2015 during which, the delegate considered, she had had a chance to apply for protection. The delegate found that the applicant’s husband was living in New Zealand and that any harm from her husband in Fiji was remote. The delegate found that the authorities would provide protection to the applicant if her husband returned to Fiji or if she was threatened by his [family members]. The delegate did not accept the applicant’s husband’s [family members] would have the power to control or influence the authorities in Fiji. The delegate found that the applicant has the skills and resources to re-establish herself in Fiji. The delegate was not satisfied that the applicant met the definition of a refugee or that she was owed complementary protection.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 27 July 2017, the applicant provided to the Tribunal a police report dated 24 March 2017; handwritten document headed ‘minute sheet’; letters of support; media reports relating to violence against women in Fiji.
On 19 August 2019, the applicant’s representative provided to the Tribunal a written submission dated 16 August 2019, media and academic articles on violence against women in Fiji, and a police statement dated [in] March 2011.
On 8 July 2022, the Tribunal wrote to the applicant stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 8 August 2022.
The applicant attended the hearing on 8 August 2022 to give evidence and present arguments. The applicant’s representative attended the hearing with her and the Tribunal was assisted during the hearing by a Fijian interpreter.
On 8 August 2022 and 9 August 2022, the applicant provided further information to the Tribunal including police documents from Fiji, a character reference, media and social media articles, a photo of an individual she states is her ex-husband’s [family member], and intervention orders, statements and charge sheets relating to proceedings in Australia. Relevant parts of these documents are discussed further below.
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 (Cth) (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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT report for Fiji was published on 20 May 2022 and the relevant parts of this report are set out further below.
Assessment, reasons and findings
The issue for the Tribunal in this matter is whether the applicant meets any of the alternative criterion in s 36(2)(a), (aa), (b) or (c), that is, whether she is owed protection as a ‘refugee’ or is owed complementary protection, or is a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on a Fijian passport and has at all times maintained she is a citizen of Fiji. The Tribunal accepts the applicant is a Fiji citizen and has assessed her claims against Fiji as her country of nationality.
The applicant’s background
The Tribunal found the applicant to give her evidence at the Tribunal hearing in a credible manner. The details she gave to the Tribunal about her upbringing and experiences in Fiji were consistent with her written claims for protection.
The Tribunal accepts that the applicant was born in Suva and that she has family members currently living in Fiji, which includes her mother and sister who live together in Suva, a brother who lives in Suva, another brother who lives in [location deleted] and a younger sister who is married and lives separately in Suva. The Tribunal accepts that the applicant’s father passed away in 2013 and that she has extended family living interstate in Australia.
The Tribunal accepts that the applicant was married in March 1998. The applicant’s evidence about her husband’s circumstances was consistent with her written claims and consistent with her travel history and the Tribunal accepts that the applicant’s husband has resided in New Zealand for ten years. The applicant stated that her husband has ‘work rights’ in New Zealand and works for a [occupation deleted] company and, given the Tribunal has accepted the applicant’s husband has resided in New Zealand on a long term basis, it is prepared to accept that her husband is living and working legally in New Zealand on a visa arrangement that allows him to remain in New Zealand. The Tribunal accepts that the applicant’s three children, all now adults, are also living in New Zealand.
The applicant gave evidence to the Tribunal at hearing that she is now divorced from her husband and that her husband initiated the divorce in 2021. She stated to the Tribunal that her husband’s family all reside in Suva. The Tribunal is prepared to accept this evidence as correct.
The applicant told the Tribunal that she completed high school in Fiji and then worked as a [occupation]. She stated that she had applied for a visa for the [Country deleted] as her aunt is residing there, but that she ultimately preferred to travel to Australia. She gave evidence that she has been working in Australia in various roles including in hospitality, customer service and housekeeping. The Tribunal is also prepared to accept this evidence as correct.
Claims of risk from former husband
The applicant has consistently claimed to fear returning to Fiji due to a history of family violence from her husband. The applicant was not invited to attend an interview with the Department and the Tribunal had the benefit of speaking to the applicant in detail about her claims, and the history of her relationship, during the Tribunal hearing. The Tribunal accepts from the evidence given by the applicant at hearing that she experienced physical, sexual and verbal violence at the hands of her husband over a prolonged period of time, including a significant incident of physical violence while she was pregnant with their child, while they were living in Fiji together.
The Tribunal has accepted, as set out above, that the applicant’s husband has resided in New Zealand on a long term basis and is working in New Zealand. The Tribunal has accepted that the applicant is now divorced from her husband and that her husband initiated the divorce process. Given the applicant’s husband’s long-term residence outside of Fiji and his initiation of the application to divorce the applicant, the Tribunal finds that any risk to the applicant in Fiji from her husband is remote. The Tribunal does not accept the applicant faces a real chance of serious harm from her former husband if she returns to Fiji now or in the reasonably foreseeable future.
Claims of risk from former husband’s family
The applicant claims to fear harm from her former husband’s, in particular from her former [husband’s family member] who she states is part of the military and who she claims has threatened to harm her if she returns to Fiji. The applicant provided to the Tribunal a photo of a male in a military uniform which she states is her former [husband’s family member] and the Tribunal is prepared to accept that the individual in question is the applicant’s former husband’s [family member].
The Tribunal considered that the applicant gave unconvincing evidence about her [former husband’s family member]s claimed threats towards her. For example, she claimed that her [former husband’s family member] contacted her through social media such as Facebook messenger. When asked by the Tribunal about any evidence of this, such as messages on Facebook messenger, she then stated that a cousin of hers relayed the messages to her. She then gave evidence that her [former husband’s family member] spoke to her directly through Facebook and that he had done this only once, during 2021.
The applicant also gave evidence that her husband’s other family members had contacted her with threatening messages but she had deleted them all. When asked the reasons for this, she stated she didn’t want anything to do with them. When asked who was sending threatening messages, she then stated it had been one time only and had been her [former husband’s family member] and that his [other relative] had ‘backed him up’. When asked whether her [other relative] had contacted her directly, she stated ‘she is not my friend on Facebook’. She then stated that apart from one contact from her [former husband’s family member], there had not been anything else that had happened since she had been in Australia.
The Tribunal observed during the hearing that it was having difficulty accepting the applicant’s [former husband’s family member] would contact her on one occasion during 2021, seven years after she had left for Australia, to threaten her. The applicant stated in response that at that time he was hearing from his [former husband’s family member]. The Tribunal observed it was also having difficulty accepting the applicant would pick up a call from her [former husband’s family member] given the concerns she had raised abut him, to which she stated she had a different name on Facebook and he had started to call her. These explanations by the applicant did not alleviate the concerns the Tribunal had about the credibility of the applicant’s claims to have been harassed or threatened by her former husband’s family members since she arrived in Australia.
The Tribunal was not persuaded, given the inconsistent information given by the applicant during the hearing about any contact with her former husband’s family members as set out above, that she has been contacted, harassed or threatened by any of her former husband’s family members since she arrived in Australia in 2014. The applicant is now divorced from her husband, her former husband initiated the divorce, and she is in a new relationship. Given this, and given the passage of time since she last had contact with her former husband’s family, the Tribunal finds that any risk to the applicant from her former husband’s family is remote.
The Tribunal does not accept the applicant faces a real chance of serious harm from her former husband’s family members if she returns to Fiji now or in the reasonably foreseeable future.
The applicant’s current relationship
The applicant gave evidence that she met her current partner in Australia and that she has been living with him for six years. The applicant gave evidence that her current partner is not working and she is meeting part of the household expenses and her current partner is meeting his share of expenses through his mother. The applicant raised for the first time at the Tribunal hearing that her current relationship is also characterised by family violence. The Tribunal accepts that the applicant was not interviewed by the Department and that the Tribunal hearing was the first opportunity for her to raise claims relating to her current relationship.
The Tribunal accepts that the applicant obtained a two year intervention order in May 2018, with her current partner listed as the respondent in the application. The Tribunal accepts that the background to this intervention order application was the applicant being locked out of her home on more than one occasion, having her phone smashed, being spat at, being kicked, being stood on on her head and back, and being pushed over while her partner was under the influence of alcohol. The Tribunal accepts that the applicant’s current partner was charged with property damage after smashing her phone.
The Tribunal accepts that the applicant obtained a further two year intervention order in February 2020, with her current partner again listed as the respondent in the application. Details of the alleged abuse supporting the application included constant verbal and emotional abuse, verbal abuse and physical threats and other instances of physical abuse not previously reported.
The Tribunal accepts that the applicant’s current partner is also a Fijian citizen and that she has been residing with him for six years. Given the longstanding nature of the relationship, the Tribunal finds that, if she returns to Fiji now or in the reasonably foreseeable future, the applicant would return to Fiji with her current partner and would continue residing with him. The Tribunal is prepared to accept from the information provided by the applicant to the Tribunal that the relationship has been characterised by family violence and that the range of violence experienced by the applicant at the hands of her partner has included emotional, verbal and physical abuse.

The most recent DFAT report for Fiji notes that Fiji is a traditionally male-dominated society with well entrenched traditional gender roles. Women’s participation in the labour force is the lowest in the Pacific region. While there are no laws that prevent iTaukei women from participation in political processes, traditional gender roles restriction that participation in practice. Traditional practice also limits the inheritance of land by iTaukei women and many women, as a result, work on land owned by male relatives.[2]
[2] DFAT Country Information Report Fiji, 20 May 2022, at 3.49, 3.50.
Domestic violence and sexual harassment is widespread in Fiji. Family violence is reported to have increased since the COVID-19 pandemic began, with a 60 per cent increase in reported cases from 2020 to 2021. The law defines domestic violence as a specific offence, and police practice a ‘no drop’ policy in which they are required to pursue investigations of domestic violence cases even if allegations are later withdrawn later by a victim. However, despite this, women’s organisations have reported that police do not consistently follow this policy and courts have dismissed some cases or given perpetrators light sentences. The law also recognises rape, including spousal rape, and provides for a maximum penalty of life imprisonment for this offence.[3]
[3] US Department of State, 2021 Country Reports on Human Rights Practices: Fiji, 12 April 2022 at
In October 2020, the Minister for Women, Children and Poverty Alleviation reported that up to 72 per cent of Fijian women may experience violence in their lifetime and that violence affects women in Fiji from all socioeconomic backgrounds.[4] Elsewhere this figure has been reported as 64 per cent of Fijian women having lifetime experience of physical and/or sexual violence by an intimate partner and 58% experiencing emotional violence by an intimate partner, one of the highest lifetime rates reported worldwide.[5]
[4] DFAT Country Information Report Fiji, 20 May 2022, at 3.51, 3.52.
[5] Asian Development Bank, Gender Statistics: The Pacific and Timor-Leste, 2016 at
The applicant’s claims about her experiences with her current partner were credible, were consistent with the above country information considered by the Tribunal and were supported by documentation confirming a history of intervention order applications and the prosecution of the applicant’s current partner for family violence related offences.
The Tribunal accepts that, if she returns to Fiji now or in the reasonably foreseeable future, the applicant fears harm from her current partner given the history of family violence perpetrated against her in Australia. The Tribunal accepts that the harm feared by the applicant includes physical and verbal violence and that this is serious harm within the meaning of s 5J(5), and that it is systematic and discriminatory. The Tribunal finds that, given the extent of the family violence committed against the applicant despite the presence of two intervention orders prohibiting such behaviour, the chance is more than remote that the applicant would continue to face family violence from her current partner if they return to reside in Fiji.
The Tribunal finds that the essential and significant reason for the harm feared is because the applicant is a member of the particular social group of women in Fiji. The characteristics of the group are shared by each member of the group, is innate or immutable and distinguishes the group from society, and is not a shared fear of persecution.
The Department delegate has found that the applicant would be able to access effective state protection from any harm from her husband upon return to Fiji.
The Fiji Police Force has been described as professional and as generally treating victims of crime with dignity. DFAT states that the FPF has an overall capacity to protect individuals from societal harassment, discrimination and violence and that police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[6]
[6] DFAT Country Information Report Fiji, 20 May 2022, at 5.6 – 5.10.
However, DFAT also states that protection for women is available but not consistently.[7] Some police stations lack equipment or transport to deal effectively with cases of gender-based violence.[8] As noted above, while there is a ‘no drop’ policy, this is not enforced consistently. In 2017, the Fiji Women’s Rights Movement reported, from a longitudinal study, that women surveyed had experienced violence for an average of 868 days before going to a police station or courts to resolve the issues, and that two in three women surveyed had had faced difficulties in going to the police as the police had told them to resolve their issues within the family or village and had not taken what they reported seriously.[9] In a survey completed by the organisation, sixteen per cent of women reported that they had been sexually harassed or threatened by the police they had approached and forty per cent had reported the police as having attempted to reconcile them with their partner, refused to take any action in response to their complaint or delayed serving a domestic violence restraining order.[10]
[7] DFAT Country Information Report Fiji, 20 May 2022, at 3.53.
[8] DFAT Country information Report Fiji, 20 May 2022, at 3.53.
[9] Fiji Women’s Rights Movement, Balancing the scales: Improving Fijian women’s access to justice, November 2017, p.23, at
[10] Fiji Women’s Rights Movement, Balancing the scales: Improving Fijian women’s access to justice, November 2017, p.23, at
Judicial independence is disputed, with many judges appointed on three-year contracts and reports that these affect independence because judges critical of the government will not have their terms renewed.[11]
[11] DFAT Country Information Report Fiji, 20 May 2022, at 5.19.
Having weighed up the country information set out above, the Tribunal is not satisfied that the level of protection available to family violence victims in Fiji is adequate. The Tribunal finds that effective protection measures are not available to the applicant in Fiji.
The Tribunal is satisfied that, given the prevalence of family violence within Fiji and the particular circumstances of the applicant, the risk to the applicant exists across all areas of Fiji.
The Tribunal finds that the applicant has a well-founded fear of serious harm for reasons of her membership of the particular social group of women in Fiji. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2022] AATA 5023

26 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing