1709913 (Refugee)

[2023] AATA 1902

1709913 (Refugee) [2023] AATA 1902 (22 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709913

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Nora Lamont

DATE:22 May 2023

PLACE OF DECISION:  Brisbane

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 22 May 2023 at 12:41pm

CATCHWORDS
REFUGEE – protection visa – Fiji – member of particular social group – homosexual woman – physical and emotional abuse by family members – marriage after rape, beating and abuse by husband and restraining order – relationships in home country and Australia – country information – laws and political, societal and church attitudes – decision under review remitted

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 13 August 2015.

3. The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments.

4. Based on copies of the applicant’s passport which were provided to the Department and to the Tribunal, the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Fiji and has assessed her claims against that country in relation to s 36(2)(a) and s 36(2)(aa) of the Migration Act.

5. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.

6. There are no non-disclosure certificates on the applicant’s file.

7. The Tribunal has before it the following submissions and documents: [1]

   [1] AAT Folio/Departmental File.

   ·Department file.

   ·Tenancy agreement.

   ·Marriage certificate.

   ·Birth certificates.

   ·Interim Domestic Violence Restraining Order.

   ·Three reference letters from Redress Support Services.

   ·Reference letter from [named] Shire Council.

   ·[Ms A] partner statement.

   ·Letter from [Ms B].

   ·Letter from [Ms C].

   ·Letter from [employer].

   ·Applicant impact statement.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

    Claims for Protection

14. The applicant’s claims for protection as written in her application for protection, her submissions to the Department and Tribunal and in her oral evidence are summarised as follows:

    ·The applicant was physically and emotionally abused by her family for her being a lesbian and in a lesbian relationship. Her father and sister were both physically and emotionally abusing her.

    ·The applicant was condoned in public for being a lesbian.

    ·Her former husband raped her, and she became pregnant and had to marry him, but he was abusive, and she had to get a restraining order on him. She struggled to get help from the police.

    ·Fiji claims to be open to the LGBTIQ+ community but the reality for her and others is that they are not accepted, they are abused and sometimes murdered.

    ·Many people in Fiji are Christian and conservative and she has been told she brings shame on the family, and she is not accepted in Fiji by her family or by society at large.

    Tribunal Hearing

15. The applicant said her mother died when she was [age] and her father was [an Occupation 1] and they moved around a fair bit as a child. She has [number] sisters who are all married with one living in [Country 1]. She went to university and began working for [an employer] doing admin and [specified] work.

16. The applicant met her husband as he was a friend of the family. He raped her and she became pregnant which is the reason she married him. He drank a lot on weekends and when he would go to work, he never brought any money home. He would beat her and when she went to the police, they asked her what she did to make him react this way.

17. The applicant said her family was Pentecostal Christians and that her father always talked about Adam and Eve and that being gay was sinful. She met a woman named [Ms D] and began a same sex relationship with her.  She was able to be herself with [Ms D] and confided in her that she was a lesbian. The two became inseparable. The applicant said one day her sister caught them being intimate and beat [Ms D] and slapped her. She then proceeded to tell [Ms D]’s family and the applicant’s father. The applicant and [Ms D] were both mentally and physically harmed and told they had brought the family shame.

18. The applicant spoke about her father and his religious beliefs that it was Adam and Eve not Adam and Steve and how this was reinforced whilst she was growing up. The applicant spoke of knowing her father loved her, but he cannot accept that she is a lesbian.        

19. The applicant said she just wants the feeling of being accepted and she would love to be accepted by her own family. She spoke about when the physical beatings had stopped, she and [Ms D] were left with feelings of isolation, depression and anxiety.

    The physical bashings stopped but the rejection (feeling of isolation and alienation), verbal abuse (name calling, insults and hurtful comments), exclusion and isolation (from family events or gatherings), threats (physical violence and emotional harm from other family members because of our sexuality) and discrimination continued from our families. This extremely affected [Ms D] and I’s mental and emotional state. It was never ending.[2]

    [2] AAT Folio Impact Statement.

20. The applicant spoke of her work with family violence victims and the sense of peace and belonging she has here in Australia.

    Country Information

    Women 3.49

    Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.

    3.50 The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur, and many women work on land that is owned by their male relatives.

    3.51 A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.

    3.52 Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.

    3.53 Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence (see Police). Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.

    3.54 A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.

    3.55 An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.

    3.56 NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.

    3.57 Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.

    Sexual orientation and gender identity

    3.58 Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.

    3.59 There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people. DFAT Country Information Report FIJI May 2022 19

    3.60 Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.

    3.61 Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.

    3.62 In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.

    3.63 The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.

    3.64 Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.

    3.65 Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.

    ACTS OF VIOLENCE, CRIMINALIZATION, AND OTHER ABUSES BASED ON SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR SEX CHARACTERISTICS [3]

    [3] Fiji - United States Department of State

    Criminalization: No laws criminalize consensual same-sex sexual conduct between adults.
    Violence against LGBTQI+ Persons: NGOs reported violence against members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment. Reports indicated transgender women continued to face extremely high rates of sexual and gender-based violence, including routine harassment and targeting by police.

    Discrimination: The constitution prohibits discrimination on the grounds of sexual orientation, gender, and gender identity and expression. The law prohibits discrimination in employment based on sexual orientation. Nevertheless, NGOs reported complaints of discrimination against LGBTQI+ persons in employment, housing, access to health care, and other fields.

    Research by the NGO Diverse Voices and Action for Equality (DIVA) found that a majority of lesbian and bisexual women, and of transgender persons, lived in poverty due to unemployment. According to DIVA, approximately 62 percent of this group were unemployed or involved in precarious casual work.

    Availability of Legal Gender Recognition: Legal gender recognition was not available. The lack of identification that aligned with their gender expression created significant problems for some persons in employment, education, housing, and other aspects of daily life.

    Involuntary or Coercive Medical or Psychological Practices Specifically Targeting LGBTQI+ Individuals: There were no known reports of involuntary or coercive medical or psychological practices on LGBTQI+ persons. Although the country does not have a law banning so-called conversion therapy, health-care professionals are prohibited from attempting to change a person’s sexual orientation. There were no known cases of enforcement action.

    Restrictions of Freedom of Expression, Association, or Peaceful Assembly: There were no known reports of restrictions on those speaking out concerning LGBTQI+ topics, although cyber bullying and hate speech against transgender individuals increased.

    LGBTIQ+ members are afraid to report violence against them to the police according to an article published in Suva. [4]

    The Fiji Constitution contains a strong Bill of Rights, based on the South African Constitution. Article 37 of the Constitution safeguards rights to privacy, while Article 38 specifically provides for non-discrimination including on grounds of sexual orientation. Article 43(2) of the Constitution requires that the rights enshrined in the Fijian Constitution are construed in light of public international law. In a judgment calling heavily on international and comparative law to interpret the relevant Fijian constitutional provisions, Judge Winter found that sections of the Penal Code were inconsistent with the Constitution of Fiji and were therefore invalid to the extent that they criminalise private consensual sexual conduct. In respect of the right to privacy, Judge Winter adopted a broad construction of privacy in line with international law namely that the right to privacy does not just mean freedom from unwarranted State intrusion, but includes “the positive right to establish and nurture human relationships free of criminal or indeed community sanctions”. The State argued that limitations on the right to privacy – in this case, criminalisation of sexual conduct – were justified by reference to morality. While recognising that the law provides limits on privacy, the judge found that criminal sanctions restricting sexual acts on the grounds of morality were “wholly disproportionate to the right to privacy”. He found “this right to privacy so important in an open and democratic society that the morals arguments cannot be allowed to trump the constitutional invalidity… Criminalising private consensual adult sex acts… is not a proportionate or necessary limitation ”.With respect to equality, Judge Winter adopted the view propounded by Sachs SJ in the landmark South African Constitutional Court case of the National Coalition for Gay and Lesbian Equality and Another v The Minister for Justice and Others that equality and privacy rights cannot be separated in the circumstances of the case because they had been violated simultaneously by the laws. He found that in this case, the Penal Code both overtly and in its selective enforcement discriminated against homosexuals, and therefore violated Article 38 of the Bill of Rights. In conclusion, the judge emphasised that the Constitution of Fiji requires that the law “acknowledges difference, affirms dignity and allows equal respect to every citizen as they are… The State that embraces difference, dignity and equality… creates a strong society built on tolerant relationships with a healthy regard for the rule of law”.

    The judgment reinforces that legal prohibitions on the sexual conduct of homosexuals violate international human rights law, and are out of step with the international trend towards decriminalisation. It also firmly underlines the limits on States' margin of appreciation in legislating for morality, reiterating the jurisprudence of various national and regional courts which have held that moral and religious disapproval of gay sex alone cannot warrant the application of penal sanctions when only consenting adults in private are involved. Finally, the way in which the judgment invokes the International Covenant of Civil and Political Rights, and decisions of the United Nations' Human Rights Committee, as well as comparative jurisprudence, demonstrates how this growing body of law can be effectively utilised by judges to guide the interpretation of critical concepts such as privacy and equality in their domestic jurisdictions. It is hoped that the judgment will lead not only to greater recognition of equal rights of gay and lesbian people in Fiji, but in the Pacific and beyond.

    Findings

    [4] type="1">

21. Whilst the Tribunal accepts that the applicant was in an abusive marriage and that she had to get a restraining order against her former husband, the larger issue is the issue in this review is the applicant’s sexual identity. The applicant has not been with her ex-husband for over ten years, and they have little to no contact. She stated at the hearing that she is divorcing him.

22. The Tribunal accepts that the applicant was raped and abused by her ex-husband and that she was abused by her family for her sexuality. The applicant provided detailed descriptions of the abuse and her life whilst in Fiji. The applicant also provided lengthy written evidence about the abuse she suffered at the hands of her ex-husband and her family.

23. The Tribunal accepts that the applicant is a lesbian and has been since she first identified as a lesbian when she was younger. She has had lesbian relationships in Fiji with her partner [Ms D] and is currently living with her partner [Ms A] in a long-term relationship. If she was to return to Fiji, she would not be allowed to marry her partner and would be subjected to discrimination amounting to persecution. Whilst the government has changed the former Prime Minister made the following remarks about gay marriage:

    Prime minister of Fiji Frank Bainimarama has slammed same-sex marriage as "rubbish" and advised same-sex couples to move to Iceland and stay there if they want marriage equality. The Fiji Sun reports that Mr Bainimarama's statement was in response to calls for same-sex marriage on a Fijian television news program featuring the head of the Fiji Women's Crisis Centre, Shamima Ali. “Tell Shamima Ali there will be no same sex marriage in Fiji, a topic pushed by NGOs such as hers under the issue of human rights," Bainimarama said. “Not in her lifetime and not in ours. They should not be confused with the wording of the constitution about the equality and love for one another." He said that any woman who wants to marry another woman should "go and have it done in Iceland and stay and live there". “Fiji does not need that rubbish," he said. [5]

    [5] Move to Iceland: Fiji PM's advice for gay couples | Pride (sbs.com.au)

24. This rhetoric reinforces the societal discrimination against gays and lesbians and the Tribunal considers that the country information supports the applicant’s contention that lesbians in Fiji face harm and that many believe not only is same sex relationships against God but also ‘rubbish”.

25. The provisions of s 5J(3) of the Migration Act states that:

    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:

    (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

26. The applicant’s sexual identity has been hers for her whole life. It is fundamental to her identity and the Tribunal finds that the provisions in s 5J(3) of the Act do not apply to the applicant’s circumstances. The applicant should not have to conceal an innate characteristic of her identity.

27. The Tribunal finds that the applicant has a real chance of serious harm on return to Fiji as a lesbian and that the applicant is a member of a particular social group ‘lesbians in Fiji’.  The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

28. In Fiji whilst the constitution has a Bill of Rights reality can be quite different. The Tribunal accepts that the population is Christian and conservative and unforgiving of those who do not conform. Country information is clear that society at large holds distain for the LGBTIQ+ community and the applicant would be forced to hide her identity as a lesbian if she would return to live in Fiji. [6]

    [6] >

    The Tribunal has considered whether the applicant has the ability to avail herself of state protection. The Tribunal notes that whilst there are legal protections under the constitution this does not translate to protection on the ground. Lesbians are frightened to go to the police when they are abused or when violence is perpetrated by their families or the public. Conservative attitudes abound in Fiji, and this makes it hard for lesbians to seek assistance when it is needed.

29. In respect of relocation, the pervasive attitude throughout Fiji is conservative and families and society discriminate against lesbians. Lesbians overall struggle to get employment and live in poverty throughout Fiji. For these reasons the Tribunal consider that there is no location within Fiji where the applicant would be able to relocate to get away from the harm, she fears in her home area.

30. For the reasons set out above, the Tribunal finds that the applicant has a well-founded fear of being persecuted for reason of her membership of the particular social group constituted by “lesbians in Fiji” if she returns to her country of nationality. The Tribunal accepts that the applicant is unwilling, owing to her fear of persecution, to avail herself of the protection of the government of Fiji.

    DECISION

31. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Nora Lamont
    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.

    …