1709464 (Refugee)

1709464 (Refugee) [2020] AATA 2573 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1709464
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:11 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the directions that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 June 2020 at 7:09am

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – homosexual male – tribal and family taboos – physical assault – state protection – frequent return visits to Fiji – obligation to the village community – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 5H, 5J, 36, 65
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

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 12 April 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 18 December 2014. The delegate refused to grant the visa on the basis that the application did not satisfy subsection 36(2).
On 8 April 2020 the applicant appeared before the Tribunal to give evidence and present arguments.
The applicant also provided two witnesses for the hearing in support of his review application.
The Tribunal hearing was conducted in the English language without the assistance of interpreters.
The applicant was not represented in relation to this review by a registered migration agent or legal representative.

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 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 Australia has protection obligations in respect of [name] (the ‘applicant). For the following reasons, the Tribunal has concluded matter should be remitted for reconsideration.

Country of Nationality and Identity

Based on a copy of the applicant’s passport which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Republic of Fiji and that Fiji is the applicant’s country of nationality and for the purposes of the Refugees Convention, and that Fiji is his receiving country for the purposes of complementary protection.

Third Country protection

There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe Third country for the purposes of section 36(3) of the Act (as amended).

Applicant’s Department file

The Tribunal has before it the Department’s file relating to the applicant.

The applicant’s protection claims as provided to the Department and Tribunal

The Tribunal made the following claims:
§The applicant is ‘gay’ and finds it hard to exercise his gay rights freely in Fiji
§He has been verbally abused and discriminated against.
§He has been forced to financially support his village but is not allowed to give opinions or make decisions.
§He was attacked at work by a male who hated him because he is gay
§On another occasion, another male swore at him and threw a beer bottle at him, causing a deep gash on his forehead.
§He reported these incidents to his employer but no action was taken.
§He fears he will not be accepted back in his village and will have to look for another place to live.
§He fears [if he returns] that he will be bullied, not heard and not respected.
§If he returns, he will be harmed by the village chief, his brothers, young males in the village or community and his work colleagues and superiors.
The applicant told the Tribunal that he had no new claims to make or wished to make any changes to what had already been submitted. The Tribunal noted and accepted the applicant’s comments as far as it concerned the claims the Tribunal was going to examine and deliberate upon.

The applicant’s migration and visa history

[In] October 2009 the applicant arrived in Australia as the holder of a [Tourist] visa. [Later in] October 2009, he departed Australia. [In] October 2010 he arrived in Australia on [another] Tourist visa and departed Australia [later in] October 2010. He returned to Australia [in] November 2011 – again, on [a] Tourist visa and departed Australia [in] December 2011. [In] August 2012 he arrived in Australia on [a] Tourist visa and departed Australia [later in] August 2012. The applicant returned to Australia [in] October 2012 on [a] Tourist visa and again departed [later in] October 2012. He again arrived in Australia [in] May 2013 on the same class of visa and again departed for Fiji [in] July 2013. [In] November 2014 the applicant again arrived in Australia on [a] Visitor visa and [in] December 2014 he applied for XA-866 Protection visa.

Background of the Applicant

The applicant was born at [a named] Village, [in a specified province in] Fiji and is [age] years of age. He is also a Christian. He has completed his education in Fiji and after he had completed his secondary education, he furthered his studies in the [industry 1] sector. The applicant is a graduate of the [named college] and qualified for a ‘certificate’ in ‘[subject]’ in 1994. Thereafter, the applicant has been employed in the [industry 1] sector. He has worked – in 1993 to 2005 at [Employer 1] and from August 2005 to November 2014, he was working at [Employer 2] in Fiji as [an occupation]. He has family still living in Fiji with which he has some communication with but not on regular basis.

EVIDENCE PROVIDED AT THE HEARING

The applicant stated that he first realised that he was ‘gay’ was when he was still in primary school. He told the Tribunal that in his interaction with other students, he developed a liking and preference for males than females. The applicant went on to tell the Tribunal that he never questioned or had doubts in his ‘feelings’. In other words, from the earliest that ‘…he could remember…’ he did not think of himself as – other than ‘gay…’ His affability to males was always strong and never had he presented a preferment for females.
The applicant went on to tell the Tribunal that his first same-sex experience while in Fiji was in ‘…year ten…’ with another male which he enjoyed and this relationship endured for a two year period. Nevertheless, the relationship with other males was always difficult to maintain, according to the applicant due to constrained village life environment and the strong tribal and family ‘taboos’ as far as they concerned ‘homosexuality…’
The applicant stated that his immediate family knew of his homosexuality and disapproved of this. The applicant’s brothers, in particular disapproved of his homosexuality as they were deeply involved in their local Christian community and were also ongoing servants of the local village church. The applicant recalled that on one occasion, one of his brothers abused and assaulted using the applicant’s homosexuality as a pretext. On another occasion, another brother of the applicant who was ‘drunk…’ physically harassed the applicant and on one occasion his brother even ‘chased him out of the village…’
The applicant explained to the Tribunal though he was subjected on a number of occasions to verbal and physical abuse, he always returned to his village as he always had an overriding obligation to his village community and to his family. The applicant worked not only for himself but also for his village and family. To him, accordingly despite the violence, the traditionalism of Fijian village life provides no other avenues of escape or respite.
Facing personal harm in his village and from family was the norm according to the applicant which he tolerated because of his familial obligations but he also faced issues while working in [industry 1] while in Fiji. The applicant recalled being ‘punched’ and ‘assaulted…’ by ‘drunks…’ and having no recourse to the authorities for some kind of personal protection. As the applicant said, “…the concerned people [will] brush this aside and attend to it another time…” The result being, that no actions against any perpetrator was ever investigated or acted upon when the applicant complained.
The Tribunal asked the applicant to explain his many trips to Australia and why he always returned to Fiji – a country which he claimed caused his persecution as a male Fijian homosexual. The applicant told the Tribunal that he loved Australia from the first time he came here. The applicant appreciated the personal and general freedoms people from whatever walk in life – enjoyed. While in [Australia] the applicant enjoyed the liberated life that all gays and lesbians enjoyed. Though, he has had a number of casual gay relationships while in Australia, the applicant admitted that he was not currently in any serious same-sex relationship. The applicant in discussing his life here in Australia recalled that he does not feel any constraints or feelings of fear nor having experienced societal abuse because of his homosexuality.
The applicant stated that he always returned to Fiji despite the abuse because he never wished to cause migration issues for himself with Australia. Even if, the applicant returned to Fiji after spending time and working in Australia, it was to continue with his ‘obligations’ to his community and family. At the time, his parents were still alive and most of his siblings still unmarried. Now the home situation is very different and the applicant told the Tribunal that he has no reasons to obligate his life to a lifestyle which no longer requires him to fulfil obligations which no longer exist.
The applicant provided also witness statements in support of his application for protection from his cousin, [Ms A], a [Mr B] [a member of the applicant’s village], a friend of the applicant, Mr C] and a female friend, [Ms D].
[Ms A] explained that the applicant was always ‘gay’ from a very young age. She went on to say that the applicant throughout his life in the village and after, always found himself in a ‘use and abuse’ situation as far as it concerned his family and community in the applicant’s village. At time, according to the cousin, one would observe ‘people shouting all kinds of different names [at] him…’ and the applicant (according to his cousin) could not seek help from the authorities to stop this personal abuse. The cousin spoke of the applicant as having to live in a very religiously strict environment which was governed by ‘traditional taboos’.
[Mr B] explained that he spent most of his life with the applicant in the same village. He went on to describe the applicant as a ‘kind hearted person…’ who would always ‘…go out of his way to assist people’. He also witnessed the ‘abuse’ the applicant encountered by villagers and others in the community because he was different. The witness went on to explain, that the village had two ‘strong Christian denominations’ which were active –that of Methodism and Catholicism. The Methodist Church to which the applicant belonged to held strong attitudes against homosexuality, the witness explained. This caused issues between the applicant, his family and those in the village which were of the same denomination. Indeed, the witnessed recalled that on one occasion, the applicant sought shelter at his home because the applicant had been violently assaulted by one of his brothers who did not tolerate his homosexuality. However, the witnessed spoke of a person, who despite the problems he faced, he would never refuse to assist his family and community.
Mr C] acknowledged that the applicant ‘grew up in an environment that was against all odds with conflict of interest’. Having been raised by his parents and [older siblings] who were active Methodists, the applicant’s sexual preferences for males was either accepted or tolerated. This caused tensions in the family which subsisted throughout the applicant’s life. [Mr C] described the applicant as living a life in complete conflict. While he was away from his family and village, the applicant was who he wanted to be but upon his return to fulfil his familial obligations he could not be that person. Moreover, he was the subject of community ridicule because his community could not accept his ‘rather feminine behaviour…’ The witness also recalled a number of incidents where he and the applicant were victims of verbal and physical abuse.
[Ms D] for her part recalled an incident which saw the applicant seriously injured by a group of men who had assaulted as a retribution for him being a ‘gay…’ According to the witness, such incidents are very widespread throughout Fiji and gays and lesbians are targeted and provided with little state protection.

COUNTRY INFORMATION – HOMOSEXUALITY [LGBTI COMMUNITY] IN FIJI

A report by the Department of Foreign Affairs and Trade (DFAT), 14 April 2015, states that Fiji’s 2013 Constitution bans discrimination on the basis of sexual orientation and gender identity or expression. The interim government repealed a law criminalising homosexuality in 2010. While same-sex marriage is not legal, official treatment of lesbian, gay, transgender and intersex (LGBTI) people is generally tolerant.[1]
[1] CISEC96CF1559: “ DFAT Country Report Fiji April 2015”, DFAT, 14 April 2015, at p.20
According to DFAT, homosexual men and women find limited acceptance in Fiji. There are several gay rights NGOs operating in Suva, but these are cautious in    undertaking public advocacy because of continued conservative values in society.[2]          The report notes:[3]
Gay men and lesbians do not come out to their families and are often not accepted when they do,            particularly when co-habitating. They may find more acceptance in Suva, particularly in wealthier      socio-economic areas…
There are some reports of discrimination on the basis of sexual orientation or gender identity in access to state protection…Overall DFAT assesses that LGBTI Fijians and those of heterodox gender       identity are at a low risk of official discrimination, and moderate risk of societal discrimination.
[2] Ibid at pp20-21
[3] Ibid at p.21
A United States (US) Department of State report on Fiji dated 3 March 2017 notes:[4]
There was some societal discrimination against persons based on sexual orientation and gender identity, although there was no systematic discrimination. On January 6 [2016], Prime Minister Bainimarama said that for as long as his tenure in government leadership continued, there would be no same-sex marriage in the country. After some from the community voiced fears of backlash because of the prime minister’s remarks, Police Commissioner Sitiveni Qiliho assured the lesbian, gay, bisexual, transgender and intersex (LGBTI) community that police would protect the LGBTI community in line with the bill of rights and constitution.
[4] OGD95BE926860: “Country Report on Human Rights Practices 2016 – Fiji”, US Department of State, 3 March 2017 at p. 23
Freedom House reported that, in August 2015, President Ratu Epeli Nailatikau launched a campaign in partnership with the UN to combat prejudice and violence against LGBTI persons. However, due to conservative social mores, discrimination and violence persist.[5] Ratu Epeli Nailatikau was replaced as President in November 2016.[6]
[5] NGE43874C476: “Freedom in the World 2016 – Fiji”, Freedom House, 23 August 2016, at p.2
[6] Ibid at p. 2

FINDINGS AND REASONS

The applicant claims he has been physically and verbally abused and singled out because he is a homosexual. He also claims that, if he returns to Fiji, he will be bullied, not respected and harmed by his village community and surviving family members who hold a deep religious conservative antipathy for his choice of way of life – wanting and desiring to live as a male Fijian homosexual.

The Tribunal accepts that the applicant was a person of credibility and provided his evidence truthfully and without any embellishments.
Having considered the country information before the Tribunal, the Tribunal accepts that Fijian society is generally conservative in its views about homosexuality and that societal discrimination exists. It is also noted from that same information that in recent years certain measures have been put into place – in Fiji – legislatively and constitutionally, in order to provide protection for Fiji’s LGBTI community. However, these legislative and constitutional reforms provide [in the Tribunal’s opinion] very little real protection against abuse and harm for the applicant when he faces within his small village community, deep seeded prejudices and ongoing discrimination from a community that adheres to strict conservative religious mores as far as it concerns the applicant’s homosexuality.
The applicant presented consistent evidence in the Tribunal’s opinion about his life as a Fijian gay male. He admitted to the Tribunal that his same-sex feelings were discovered by him very early in his life and he tried to live his life as such within his immediate community and family. This has also been described as such by the applicant’s witnesses who make convincing statements attesting to the applicant’s same-sex lifestyle while living in Fiji. The applicant never concealed his sexuality and as a result endured harsh reprisals from his family and violence from the wider community in his village and at his workplace. The Tribunal noted from the Department’s decision that the Department though acknowledging that he may have experienced some physical and verbal abuse, the Department was not satisfied [on the evidence before it] that such ‘acts of discrimination amounted to discrimination’ or the that the applicant suffered ‘harm’. The Tribunal disagrees with this conclusion after having considered the applicant’s evidence at the hearing and after taking into account the witnesses and what they said about how the applicant lived his life. The applicant had an on-going obligation to his village community and family which he could not escape from carrying out despite his gay life style and thus endured difficulties and also instance of harm which have not been forgotten. Even if the applicant returned to his village there is no guarantee that his fellow villages would tolerate him for who he is which they all know and let alone, finding a sustained calmness in any other part of the Fijian Islands.
After all, despite some legislative and constitutional changes having been made in Fiji since 2010 as far as it concerned the rights of the LGBTI community, there remains a strong and forceful attitude within the local and wider community in Fiji – influenced by strong religious belief (and established church organisations) which considers persons belonging to the LGBTI community and who are openly ‘gay’ as ‘corruptors’ of ‘public morals’. The Tribunal noted that this concern was expressed in the DFAT country information above, which made it clear that LGBTI individuals (like, the applicant) faced a moderate risk of societal discrimination spurned on by various religious organisation and conservative societal mores. These societal mores pose a continuing risk of harm to the applicant in the Tribunal’s opinion. The Tribunal places high weight on this information and considers it relevant to the applicant’s current and future circumstances.
The Tribunal accepts that the applicant is a member of a particular social group, that group being LGBTI group in Fiji.

Refugee criterion assessment -36(2)(a)

The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act. For the reasons given above, the Tribunal        has made the following findings:
A.    The Tribunal is satisfied that the applicant fears being persecuted for reasons of membership of a particular social group, that being the LGBTI group in Fiji;
B.    The Tribunal is satisfied that there is a real chance that, if the applicant is returned to Fiji, the applicant would be persecuted for reasons of membership of a particular social group, that group being the LGBTI group in Fiji;
C.   The Tribunal is satisfied that there is a real chance of persecution that relates to all areas of Fiji;
D.   The Tribunal is satisfied that the applicant has a well-founded fear of persecution;
E.    The Tribunal is satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act;
F. 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 directions that the applicant satisfies s.36(2)(a) of the Migration Act.

Peter Vlahos
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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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 2573

11 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction