1712931 (Refugee)

1712931 (Refugee) [2022] AATA 4661 (25 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michele Ann Clayton (MARN: 0957773)
CASE NUMBER:  1712931
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Mara Moustafine
DATE:25 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 September 2022 at 10:06am
CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from military and police – questioned in relation to murder and arson – land disputes with foreign company – participation in one political protest – vague and inconsistent claims and evidence – multiple travel on own passport – application made just before visitor visa expired – wife’s separate protection visa application refused and affirmed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 15 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a citizen of Fiji and is [Age] years old. He first arrived in Australia on a visitor visa sub-class 600 [in] September 2016 and since that time, has departed and returned to Australia three times, most recently [in] March 2017. The applicant applied for a protection visa on 5 April 2017.
Evidence before the Department
According to his Protection visa application form, the applicant was born on [Date] in [Town] on [Island], Fiji. He identified his ethnicity as Fijian, his religion as Christian and his occupation as [Occupations 1/2]. The applicant speaks, reads and writes in Fijian (Bauan) and English. He completed secondary school in [Year 1] and he worked in the [Employer 1] between [Year 2] and [Year 4], as [an Occupation 1] for [Employer 2] from [Year 7] to [Year 8] and was unemployed between [Year 4] to [Year 6] and 2016 and 2017. The applicant married in [Year 5]. He identified several relatives in Fiji and Australia. He stated that he lived in [Village 1], [Island] all his life before coming to Australia in 2016. He stated that he left Fiji legally [in] March 2017 using his own passport issued [in] 2015, a copy of the biodata pages of which was submitted with his application.
In summary, the applicant’s claims for protection were that:
a.The present Fijian government does not allow criticism. They introduced decrees and village by-laws to legalise their governance.
b.Indigenous land rights are being abused and the Great Council of Chiefs has been dismantled.
c.Relocating in Fiji is not permitted by village by-laws.
d.Unemployment and the cost of living is high in Fiji.
On 15 June 2017, the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Protection Visa Application
On 19 June 2017, the applicant applied to the Tribunal for a review of the Department’s decision. The applicant was represented in relation to the review.
Pre-hearing submissions
On 4 April 2019 the applicants’ migration agent submitted to the Tribunal a statutory declaration from the applicant dated 13 January 2019, in which he made the following claims:
a.He is afraid to return to Fiji as he believes his name would be ’on the list’ for the military and police for things that happened in the past, including the murder of a [Person], the burning of a [Workplace 1] where he worked and things he may have said about the government.
b.His best friend reported him to police for the murder of a [Person], which he did not do. The police took him in for investigation but later released him and later caught the person who killed the [Person]. This happened a long time ago. He thought it may have been around [Year 8].
c.During ‘Rabuka’s coup’ in 1987, when Suva was on fire, someone started a fire at the [Workplace 1] where he worked. He was taken to the police station for questioning regarding the fire and released after a few hours.
d.He has not had any other problems in the past with the police or the military in Fiji. But he now believes he has a problem with the police and the military as he had been talking about them to people at the [Workplace 1] and is worried about what people have said about him as he has not been careful enough.
e.He is also nervous about his wife’s family relationship with [Mr A],
f.Land is the worst problem in Fiji now. His wife’s family has already lost their land and there is fighting about the land in his village of [Village 2], where a [Foreign] company had built a small [Work site]. He doesn’t like to be politically involved but if he returns to Fiji now, he will be involved in protests regarding the land being taken by the government and given to the [Foreign company]. He is afraid to take the position of the mataqali (clan or landowning unit) if his uncle passes away as he doesn’t want problems with the government.
On 2 September 2022 the migration agent submitted a statutory declaration from the applicant dated 31 August 2022 stating that he continued to maintain the claims made in his statutory declaration of 13 January 2019 and did not wish to make any further points. Copies of his previous statutory declaration, the US State Department Fiji 2020 Human Rights Report, the DFAT Fiji Country Information Report of 20 May 2022 and notes and background information relating to the cases of the applicant and his wife were also submitted.
The Hearing
The applicant appeared before the Tribunal by video conference from [City] NSW on 8 September 2022 to give evidence and present arguments. By agreement with the applicant and his wife, whose case (1712928) was being heard by the same Tribunal Member on the same day, swearing in and preliminaries were conducted with both applicants jointly and their cases were then heard individually. Although the applicant nominated his wife as a witness, she did not give evidence when invited to do so. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
At the start of the hearing the applicant confirmed that all evidence he had submitted to the Department and Tribunal was true and correct. The Tribunal sought clarification of point 4 in his statutory declaration of 13 January 2019 that his Protection visa application, which he signed, was written by his friend and that he did not agree with all of it, in particular ‘something about the village’. The applicant confirmed that his friend had filled in his application at the last minute before his visitor visa expired, he said that the only thing he did not agree with in the application was about the village bylaws. He confirmed that his claims were correctly set out in his statutory declaration of 13 January 2019.
The Tribunal discussed with the applicant his background in Fiji, his reasons for leaving and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
The applicant’s key claims are that he is afraid to return to Fiji as he fears the military and police have his name ‘on the list’ for things that happened in the past, including the murder of a [Person], the burning of a [Workplace 1] where he worked and things he may have said about the government. He also fears that his tribal land may be taken away and sold to the [Foreign company] and claimed that he will participate in protests about this if he returns to Fiji.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to the applicant’s vague, inconsistent and implausible evidence on key aspects of his claims and other reasons detailed below.
The applicant told the Tribunal at hearing that he initially came to Australia for a funeral and in March 2017 decided to apply for Protection visa because he thought Australia was a good place, he could find something good to do here and it was a better place for him than Fiji. He had been working at a [Workplace 2] and was now working in a [Workplace 3] in [City].
The applicant said at hearing that he had never suffered serious harm in Fiji, never had problems with the military and was not involved in politics. With the exception of one religious protest against the prohibition of gatherings, he had never participated in protests. Nor had he ever had problems with the authorities when he departed or returned to Fiji on several occasions.
The applicant recounted two occasions when he was taken into custody or questioned by police in Fiji but confirmed that he was released without charge on both occasions. The first related to the killing of a [Person]. He could not remember when this was, other than it was a long time ago. The applicant said police released him and told him they would come back to him if anything came up. They subsequently caught the person responsible for the murder and never contacted the applicant again. On the second occasion, he was taken for questioning in relation to a fire at the [Workplace 1] where he worked at the time of the Rabuka coup. The police took his statement but did not charge him.
Asked why he was afraid to return to Fiji now, the applicant said that when he was released after questioning about the murder of the [Person], the police told him they would get back to him if something came up. He was afraid that, as his name was still on the police list, they might come after him, even if he had not done anything.
As discussed with the applicant, the Tribunal finds it implausible that the police in Fiji would come after him some [Number] years after the event allegedly took place, especially as the person responsible had been caught. Moreover, the applicant had continued to live in Fiji for many years after the incident and had been able to depart the country and return on several occasions without harm.
The Tribunal discussed with the applicant its concerns about inconsistencies between his original Protection visa application and his evidence to the Tribunal in his statutory declaration and at hearing. In his Protection visa application, he made no specific claims and referred only to the general difficulties of living in Fiji. By contrast, in his evidence to the Tribunal the applicant introduced claims relating to his problems with police over the murder of a [Person] and the fire at the [Workplace 1] where he worked. This suggested that he may have fabricated this evidence in an attempt to strengthen his protection claims after the Department refused Protection visa application. The applicant responded that his friend had written his initial application as it was done in a hurry just before his visa expired, while his statutory declaration to the Tribunal correctly identified his claims. The Tribunal considers this explanation disingenuous, especially in light of the applicant’s comments earlier in the hearing that the application was accurate apart from the reference to the village bylaws.
Furthermore, there were inconsistencies in the applicant’s evidence between his application form and at hearing in relation to where he lived in Fiji and his work history. In his form he indicated that he lived in [Village 1], [Island] from [Birth] to 2016. However, he told the Tribunal that he left [Island] in the [Decade] to live in Suva, first with his mother and after marriage with his wife. In his application form, he made no mention of ever working at the [Workplace 1 company]. However, he told the Tribunal that he worked as [an Occupation 3] at the [Workplace 1] in Suva for 2 or 3 years in the [Decade], in [Year 3] or [Year 4] or ‘something like that’, querying when the coup happened. The inconsistencies regarding his work are especially significant, as events at the [Workplace 1] where he claimed to work are central to his claims.
The applicant confirmed to the Tribunal that, apart from his concerns about the [Person] incident, there were no other reasons he was afraid to return to Fiji. At the suggestion of the applicant’s migration agent, the Tribunal asked him to elaborate on any concerns he had about the land issue and whether he might become involved in protests if he returned to Fiji.
The applicant then claimed that he feared returning to Fiji because his clan’s land in [Town], [Island] had been given to the [Foreign company] without their knowledge to build a [Work site] to dig for rocks for road construction. He claimed that this was an issue for him because he was a member of the mataqali to whom the land belonged and after their land was taken, they had nowhere to plant their crops. However, he said he did not have any evidence of his membership of the clan with him and could not remember when the land was given to the [Foreign company]. Asked when he last lived on the land, the applicant said before he left for Australia. When the Tribunal’s pointed out that he had earlier said he was living in Suva before coming here, the applicant said he went back to the village and the [Work project site] was still there.
Asked why he had not mentioned this claim earlier in the hearing, the applicant said, ‘Because you did not ask?’ The Tribunal reminded him that he had been asked earlier if there were any other reasons, he was afraid to return to Fiji apart from issues arising from the [Person] incident and he had said ‘no’. Asked what action was being taken about the land issue, the applicant said he did not know. The matter had gone to the Land Board but there had been no progress up till now. Asked if there had been any protests, he said nothing since he had been in Australia. As for what action he might take if he returned to Fiji, he said that, if there were protests, he would protest.
The Tribunal did not find the applicant’s evidence on the land issue convincing. To start with, the applicant gave inconsistent evidence as to the location of his clan’s land: [Town] in [Island] at hearing, but [Village 2] (located on the main island of Viti Levu) in his statutory declaration. He provided no evidence of his membership of the mataqali, as one would expect from someone with a land claim. Further, his evidence regarding developments on his claimed land issue in Fiji was vague and speculative. In light of this, the Tribunal is not persuaded that the applicant would, in fact, participate in any protests about the land if they took place. In any case, even if he did, he would not be at risk of serious or significant harm. According to its latest report, DFAT has not observed a strong pattern of interference against low-level attendees of protests, while protest leaders are more likely to be charged and, on that basis, assesses that protesters face a low risk of official discrimination[1].
[1] DFAT, DFAT Country Information Report Fiji, 20 May 2022, p.14

Asked again at the end of the hearing if he feared returning to Fiji for any other reasons, the applicant said no. He did not pursue the claims in his statutory declaration that the police may pursue him on his return in relation to the fire at the [Workplace 1] where he allegedly worked at the time of the Rabuka coup of 1987 or things he may have said about the government.
In light of the findings above and noting the applicant’s evidence that he never suffered harm in Fiji and decided to apply for a Protection visa because he thought his life in Australia would be better than in Fiji, the Tribunal is not satisfied that the applicant faces serious or significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant would prefer to live and work in Australia rather than return to Fiji. As discussed with the applicant, in the Tribunal’s view, the applicant’s claims for protection have been contrived to achieve a migration outcome.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any other reason set out in s.5J(1)(a) of the Act if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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 4661

25 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies