1714611 (Refugee)

[2022] AATA 4926

1714611 (Refugee) [2022] AATA 4926 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Michele Clayton (MARN: 0957773)

CASE NUMBER:  1714611

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Peter Vlahos

DATE:9 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

This Statement was made on 9^th November 2022 at 9.22AM.

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – first applicant committed corrupt acts under instruction from superiors and has knowledge of other corruption – second applicant has evidence implicating members of military in torture and murder – credibility – long-term employment in sector and no previous investigation or harm – multiple departures and returns on legally-issued passports – country information – official investigation and media reporting of members of military – unlikely to experience prosecution or official or societal discrimination – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997)191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 dependants.

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 26 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Fiji, applied for the visas on 4 June 2015. The delegate refused to grant the visas on the basis that applicants’ application did not satisfy sub-section 36(2) of the Act.

3. The First-named and second-named applicants appeared before the Tribunal on 5 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the second-named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

4. No other applicants (children of the applicants) were present at the hearing.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   Criteria for a protection visa

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of origin, nationality, and identity of the applicants

13. Based on the copies of the applicants’ passports which were provided to the Department of Home Affairs (‘the Department’), the applicants’ oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of the Republic of Fiji and have had their claims individually and collectively assessed against that country in relation to ss. 36(2)(a) and 36(2)(aa) of the Migration Act (as amended) (hereinafter referred to as ‘the Act’). On the basis of this information and reasons provided to the Tribunal, the Tribunal further accepts and finds that the applicants’ identities are as is claimed.

    The Applicants’ migration and visa history

    (a)First-named Applicant’s migration history

14. On 5 December 2013, the applied and was granted an FA-600 visa. [In] December 2013, the applicant arrived in Sydney. [In] January 2014, the applicant departed Sydney. [In] March 2015, the applicant arrived in Sydney. [In] June 2015, the applicant lodged a Protection visa which was subsequently refused by the Department but was issued with the associated Bridging Visa.

    (b)Second-named Applicant’s migration history

    On 21 December 2001, the applicant was issued a Sub-class [1] visa. [In] January 2002, the applicant arrived in Sydney. [In] February 2002 the applicant departed Sydney for Fiji. On 28 May 2002, the applicant was granted a Subclass [2] visa. [In] August 2002, Applicant arrived in Sydney, Australia. [In] November 2002, Applicant departed Sydney, Australia for Fiji. [In] September 2004 a Visa Subclass [2] was granted. [In] October 2004, the applicant arrived in Sydney, Australia. [In] November 2004, the applicant departs Sydney for Fiji. On 14 November 2005, [a Subclass 2 visa] was granted. [In] November 2005, the applicant arrived in Sydney. [In] January 2006, the applicant departs Sydney, for Fiji. On 7 November 2006, a Visa Subclass [2] was granted. [In] November 2006, the applicant arrived in Sydney. [In] January 2007, the applicant departed Sydney for Fiji. On 18 October 2008, a Visa Subclass [1] is granted. [In] November 2008, the applicant arrived in Sydney. [In] February 2009, the applicant departed Sydney for Fiji. On 14 April 2009, a Visa Subclass [1] was issued.

    [In] August 2009, the applicant arrived in Sydney, Australia. [In] November 2009, the applicant departed Sydney, Australia. [In] November 2009, the applicant arrived in Sydney, Australia. [In] December 2009, the applicant departed Sydney, Australia. [In] March 2010, the applicant arrived in Sydney, Australia. [In] June 2010, the applicant departed Sydney. [In] December 2011, the applicant arrived in Sydney. [In] March 2012, the applicant departed Sydney. On 23 November 2011, a Visa Subclass [1] was issued to the applicant. On 5 December 2013, a Visitor visa FA600 granted. [In] March 2013, the applicant arrived in Sydney. [In] June 2013, the applicant departed Sydney. [In] July 2013, the applicant arrived in Sydney. [In] October 2013, the applicant departed Sydney, to return to Fiji. [In] December 2013, the applicant arrived in Sydney. [In] January 2014, the applicant departed Sydney. [In] March 2015, the applicant arrived in Sydney, Australia. On 3 June 2015, the applicant lodged his protection visa which the Department refused but was issued with the associated Bridging visa.

    The first-named Applicant’s claims for Protection

15. The applicant claimed that she has committed corrupt acts (under direct instruction of her superiors) and claimed to live in fear of reprisals. The applicant also claimed to fear that the Fiji Government will hold her responsible for corruption and would harm her to prevent whistle blowing of irregularities in Government financial expenditure. The applicant told the Tribunal that she was employed by the following departments of state (in Fiji) at the specified times and has claimed the following events of significance:

    ·[Year 2]-[Year 3] [Employer 1]

    The applicant started working there just before the coup. She claims that she made irregular payments to [Government official Mr A]. In December 2006, she was a [Occupation 1] during the coup. She claims that she was assaulted by police officers in the basement of [Building] after having taken a car to the garage and changing the government numberplate to private plates.

    • [Year 3]-[Year 4] [Employer 2]

    The applicant claims ongoing corruption in terms of the purchase of equipment and stated that a few of her colleagues ended up in court and some are even gaoled.

    • [Year 4]-[Year 5] [Employer 3]

    The applicant was interviewed by the police with regards to payments she authorised to a non-existent company.

    • [Year 5] - Current [Employer 4]

    The applicant was transferred before [an] election and returned to a substantive role. The applicant signed a three-year contact.

    The applicant claimed that the Fijian government had not completed a financial audit of the various departments since 2006.

    The second-named Applicant’s claims for Protection

16. The second-named applicant made the following claims:

    ·The second-named applicant claims that in November 2000, Coroner Dr Fred Merchant performed autopsies on [members] of the Counter Revolutionary Warfare (CRW) unit. The unit was involved in a mutiny at an army barracks some months after the May 2000 coup. The unit was formed by Sitiveni Rabuka for the sole purpose of guarding him. They were tortured and killed by soldiers under orders from Frank Bainimarama who was then Commander of the Fijian Military Forces.

    • The applicant claims that he worked [for Employer 5] and [Mr A] brought [film] taken at the autopsies to [Employer 5] where the applicant worked. The applicant claims that he together with [other] staff members each made a [copy].
    • The applicant claims that the photographs show evidence of torture and that he has a copy on a zip disk which he brought to Australia in 2002. Of the [other] staff who have copies, none are in Fiji any longer. The applicant claims that the photographs are evidence that the soldiers were tortured over a period of time, and that no one was held accountable for the deaths.
    • The applicant fears that if the photographs are leaked, or he leaks them himself, he will be discovered as responsible, and tortured, treated inhumanely and or possibly face life imprisonment because of the sensitive information he (still) holds in relation to the November 2000 mutiny.
    • The applicant believes that the Fijian military will harm him if his knowledge and custodianship of the photographs becomes known. The applicant further fears the increased likelihood of harm if he disseminates the photographs to any third party, including an Australian agency, but the applicant intends to do so

    EVIDENCE AT THE HEARING

17. The Tribunal asked the first-named applicant to describe the situation and circumstances that caused her to leave Fiji and to seek protection in Australia. The applicant said that between the years [Year 2] to [Year 5], she was employed in various ministries of state in Fiji. The applicant was employed as a public servant – for example, between [Year 2]-[Year 3] the applicant worked for [Employer 1]. Later, between [Year 3]-[Year 4] she worked for [Employer 2] and for the years [Year 4]-[Year 5] the applicant was employed by [Employer 3].

18. The applicant said that she had been in involved in the public service since [Year 1] and had observed many instances of public funds being misappropriated by persons involved in the government and by other public officials.

19. The applicant said that she was responsible for “making payments” at first (in the years [Year 2]-[Year 3]) “on instruction of the then [Government official]” in a process to purchase “airline tickets” for the [Official] for his “travel overseas”. The applicant said that she had been instructed by the then [Official] to “reimburse to him money” which “he had not expended.”

20. The applicant said that these moneys were wrongly claimed by the [Official] and that she knew that this was the situation.

21. The applicant said that “one day” she was “called” and told that the [Official] “wished to see her in his office” and was told that any claims made by [Official] should be forwarded to the Accounts office for payment “without question.” The applicant said that she did as she was required and though she believed these requests were inappropriate (in her opinion) she acquiescence with the instruction.

22. However, according to the applicant, her knowledge of this caused her to be concerned about the things she had knowledge of.

23. The applicant told the Tribunal that “…I did what I was told and authorised payments…” which should “not have been authorised” and could be considered irregular for their intended purpose.

24. The Tribunal asked the applicant to explain or to clarify as to how a person, a public servant (which she was) who was privy (with knowledge) to this government corruption was re-appointed to other ministries of state. The applicant said that she did what she was told even though was she was told to do “was wrong” she carried out the instructions of the minister of other higher official involved.

25. The applicant was asked to explain to the Tribunal – how she was able to escape the accusation of being a party or active participant in this ‘official corruption.’ Further, the Tribunal asked the applicant if any ‘corruption charges’ had been raised against her with regards to the various malpractices in the ministries she worked at. The applicant said that while was in [Employer 2], there was an issue with regards to a purchase costing approximately $F40,000.00.

26. The applicant said that she recalled that there were some irregularities concerning this payment. The applicant said that as [Occupation 2] she was concerned about this recommendation for payment she received from officials in the Ministry and questioned its appropriateness but was told by her superiors to facilitate the purchase and transfer of money ‘without questioning’. The applicant said that she did so without any further hesitation.

27. The applicant said that she was told by her superiors in the Ministry to ‘make a statement’ that the F$40,000.00 was for the purpose of ‘purchasing [an item].’ The applicant admitted to the Tribunal that she made this statement.

28. The Tribunal asked the applicant  who received the benefit of the sale or the money - $F40,000.00? The applicant said someone got the money but ‘she could not specifically tell’ who.

29. The applicant then said that half of this money ‘went to benefit (directly) some [person]’ and what concerned the applicant was that ‘all of this (transferring of public money) was done in her name.’

30. The applicant was asked by the Tribunal to explain – when she determined that matters were so difficult and had decided to leave Fiji – did the applicant leave with a ‘legally issued’ passport? The applicant said that she ‘did leave with a legally-issued passport’. The applicant further explained that ‘her passport had already been issued to her’ and she did not experience any issues when she decided to leave Fiji for Australia. Also, the applicant noted in her explanation about the issue of her passport, that her passport had been issued with consent or on instruction of the ‘government department’.

31. The applicant said that she feared to return to Fiji because the ‘same government then’ and ‘now’ will maker answer for the issues she faced while working in the various government Ministries.

32. The applicant also said that she could face harm because of the information she was privy to concerning misappropriation of public funds.

33. The Tribunal asked the applicant  if, since she had left Fiji, was there any ‘notification’ on part of the Fijian government concerning the applicant and her activities as a public servant concerning her time when she worked for the various ministries. The applicant said that ‘no one had contacted her’ but anything could happen.

34. The applicant said that when she was working for [Employer 3], she recalled that the ‘younger brother of the Minister ‘paid’ on ‘direction of the Minister.’ On another occasion, the applicant said that (on direction of the Minister) a ‘nephew was paid’ but the applicant could not recall for ‘what purpose’ the ‘brother’ and ‘nephew’ were paid money.

35. The applicant was asked by the Tribunal  did she receive any benefits for her compliance? The applicant said that she ‘received no benefit’ for what she did ‘on instruction.’

36. The applicant said that the police were involved in an investigation for the payment of F$48,000.00. The applicant said that there was some concern that [Manager B] noted that ‘materials purchased’ ‘were not fully document.’ The applicant said for this  the ‘applicant was held liable.’

37. The applicant confirmed that she was held responsible for the expended (but unaccounted) F$48,000.00.

38. The applicant was asked by the Tribunal – was she prosecuted for this? The applicant said that ‘she was subject to any prosecution’. There was, according to the applicant ‘no reprimand at the time.’

39. The applicant said that while working at the various Ministries, the applicant ‘made complaints’ about what was happening but, in the end, “I did what I was told to do.”

40. The Tribunal asked the applicant if she had been involved in any ‘anti-government protests’. The applicant did not indicate that she had openly protested against the current Fijian government but did state that she disapproved of it. The applicant said that in her time  working as public servant, she had witnessed many issues, where a lot of money had been misappropriated by Ministers and high officials and feared that if she returned to Fiji she may be blamed and held responsible for some or all of this misappropriation which had occurred in the Ministries she had worked for as a responsible public servant.

    EVIDENCE FROM THE SECOND-NAMED APPLICANT

41. The Tribunal then heard evidence from first-named applicant’s husband, the second-named applicant.

1. The second-named applicant (hereinafter referred to as ‘the husband’ or the ‘applicant’s husband’) said that he fully supported his wife and her specific claims that she had presented and discussed with the Tribunal.

2. The applicant’s husband presented to the Tribunal his own set of claims.

3. The husband claimed that sometime in November 2000, the Coroner had performed autopsies on the deceased [named] who (according to the husband) were members of the Counter Revolutionary Warfare (CRW) unit. According to the applicant’s husband, this unit was involved in a mutiny at an army barracks some months after the May 2000 coup. This unit was formed by Sitiveni Rabuka for the sole purpose of providing protection for Rabuka.

4. The applicant’s husband told the Tribunal that these persons were apprehended by the Bainimarama forces and were tortured and murdered by soldiers under the specific orders from General Frank Bainimarama who was then Commander of the Fijian Military Forces and is today, Prime Minister of Fiji.

5. The applicant’s husband said that at that time he was working [for Employer 5] and [Mr A] brought [film] taken at the autopsies. The applicant’s husband together with [other staff members]s each made a copy of the film of the autopsies.

6. The applicant’s husband told the Tribunal that that these photographs are evidence of the torture (authorised by Bainimarama) and that he had a copy of these photographs on a zip disk which he brought to Australia in 2002. According to the applicant’s husband the other [staff members] who also have copies are currently in other countries and have not returned to Fiji.

7. The applicant’s husband said that these photographs were very incriminating evidence which attached responsibility for the murders of these rebels to the present Prime Minister of Fiji. The applicant’s husband said that if these photographs are published he will be in direct danger considered as one who was part of this evidence leaving the shores of Fiji.

8. The applicant’s husband said that he fears that if the photographs are leaked, or he leaks them himself, he will be discovered to be responsible, and will be tortured, treated inhumanely and or possibly face life imprisonment because of this sensitive information he (still) holds in relation to the November 2000 mutiny.

9. The applicant’s husband fears that as a Seventh Day Adventist (SDA) he will be perceived as being complicit in the 2000 coup, as the leaders of that coup were SDA and relatives of his. The applicant’s husband also told the Tribunal that he was a supporter of the Social Democratic Liberal Party (SODELPA) in Fiji.

10. The Tribunal asked the applicant – have the photographs been ‘leaked’ as he claimed to the general media? The applicant’s husband said, “yes”.

11. The applicant’s husband then said to the Tribunal he was “…not sure” and then went on to say, “one [photo] was released.

12. The applicant’s husband was asked – whether the authorities knew that who the person or persons were who had these incriminating photographs? The applicant did not provide a definite answer.

13. The Tribunal asked the applicant’s husband if he feared for his well-being, why did he return to Fiji on a number of occasions? The applicant’s husband said that he returned to Fiji on a number of occasions but “with fears”.

14. The Tribunal asked the applicant’s husband  had he (while in Australia) participated in public protests against the current Fijian government. The applicant’s husband said that he participated in “a protest” at the “[Location]”. He was asked when did this occur and he said, “in [Year]”.

15. The applicant’s husband told the Tribunal that he feared returning to Fiji because Bainimarama was still in office and controlled the country.

16. Both applicants in their turn told the Tribunal that Australia has been a good country to work and for their children. Australia, according to the applicants offered a better way of life and many opportunities. The applicants have been living in [City], WA since 2015, they have [children], who have been educated here.

17. Both applicants told the Tribunal that their time in Australia was full of benefits for themselves and their children.

18. The applicants were provided by the Tribunal with a further period of fourteen days (14) to provide further submissions to the Tribunal concerning their claims. The applicants were provided until the 19 October to provide these submissions.

    COUNTRY INFORMATION – REPUBLIC OF FIJI – RULE OF LAW AND ORDER – REPRISALS FOR COUP PARTICIPANTS

19. The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.

20. Street protesters: Street protests are relatively uncommon in Fiji. In the last several years protests have been especially uncommon due to COVID-19 lockdowns and restrictions. The lack of protests may also be related to the country’s turbulent political history and police restrictions; permits are needed for a protest and these are sometimes denied. Violence has been reported in some protests and police will attend to violent incidents, but there is no suggestion that street protests or street protesters are inherently violent.

21. DFAT assesses that protesters in general may be prevented by the state from protesting lawfully. DFAT notes that COVID-19 restrictions against protest have been enforced by police as they have elsewhere, including in Australia. Laws, including provisions outlawing sedition and the Public Order Act, can be used against protesters which can lead to prison sentences.

22. DFAT has not observed a strong pattern of interference against low-level attendees of protests (protest leaders are more likely to be charged). On that basis, DFAT assesses that protesters face a low risk of official discrimination, but notes that such discrimination is not impossible. There is a moderate risk of violence in the form of police brutality.

23. Online protesters: A former political candidate, Benjamin Padarath, was charged with sedition, among other crimes, for his social media posts that were found to interfere with an investigation by the Fiji Independent Commission Against Corruption (FICAC). Padarath allegedly destroyed evidence and leaked information in a way that was considered prejudicial to the investigation. At the time of writing the matter has not been resolved. DFAT notes that, apart from the application of ‘sedition’ charges, such actions would likely also be illegal in Australia and other liberal democracies.

24. According to media reports, in 2019, a 16-year-old boy was taken from his home by men claiming to be from the army. The men questioned the boy for two days after he posted a picture of graffiti critical of Prime Minister Bainimarama on Facebook. The facts of the case are disputed and DFAT is not aware of the outcome of incident. DFAT is aware of other cases where arrests have been made for online criticism that have not led to prosecutions.

25. DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law.

26. Media: Fiji has a range of non-government television and radio stations and newspapers. Like other industries, the media has suffered with the effects of COVID-19. Falling advertising revenues have reduced the number of media outlets, causing many to struggle to find and produce content, and narrowing the media landscape of Fiji in recent years. Reporters without Borders ranked Fiji 55th out of 180 countries for press freedom in 2021. 

27. Under the Media Industry Development Act (the Act), media outlets must be registered with the Government. The need for regular re-registration causes some outlets to self-censor for fear of registration being denied. The Act also has a provision that allows the Government to prevent the broadcast or publication of information that ‘may give rise to disorder’ that could cause ‘undue demands to be made on security agencies, result in a breach of the peace, promote disaffection or public alarm or undermine the Government’. Those who do not comply with these broad provisions can be ‘ordered’ to ‘cease all activities and operations’, which is not further defined in the Act. However, in broad terms, two-year prison terms exist for failure to comply with the Act.

28. Under the Act, media are bound by a code of ethics that promotes balance and fairness, accuracy and privacy, and prohibits harassment, ‘subterfuge’ and discrimination. Some of the terms of the code are vague. For example, journalists are required to avoid ‘deceptive practices’, defined as disseminating material that may diminish public confidence in the integrity of the media. Journalists are also required to ‘recognise socially accepted general standards of decency’, which are not defined. DFAT understands that the provisions of the Act are not often enforced, but the legislation may result in self-censorship to avoid breaches of the Act.

29. Two New Zealand journalists were arrested and briefly detained when investigating a Chinese development firm in 2019. The journalists were released and received an apology from the Prime Minister who blamed ‘rogue’ police for the action. 3.47 Journalists have been charged under sedition provisions in the criminal law. In 2018 three journalists were charged with sedition for claiming that Muslims had been involved in historic acts such as invading other countries, and associated war crimes such as rape and murder. This, according to prosecutors, was seditious because it could promote hostility towards Fiji’s Muslim population. The journalists were found not guilty by the High Court.

30. DFAT assesses that journalists are generally at a low risk of official discrimination or violence, but notes that actions against them, including for alleged breaches of the law or by rogue police, are possible. As a result, some self-censorship may occur among journalists.

31. Opposition Parties: The main opposition parties at the time of writing are the Social Democratic Liberal Party (SODELPA) with 21 members of parliament, and the National Federation Party (NFP) with three. The ruling party, FijiFirst, has 28 seats in the Parliament. FijiFirst emphasises diversity and has Indo-Fijian members of parliament. SODELPA and (to a lesser extent) the NFP draw their support from iTaukei. The Fiji Labour Party, which has no seats in Parliament, tends to be supported by Indo-Fijians and is led by former Prime Minister Mahendra Chaudry. Former SODELPA leader and former Prime Minister (and 1987 coup leader) Sitiveni Rabuka has established the People’s Alliance Party (PAP) to contest the next election and is seeking to draw multi-ethnic support. 3.32 Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.

32. SODELPA was suspended in 2020 under electoral rules for breaching its own constitution. SODELPA is factionalised with personal loyalties and geographic loyalties tied to particular chiefs. Factional disputes can be very public and ill-disciplined, which may have increased attention paid to them by the media and regulators.

33. SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election but was released on bail. He was later cleared and an appeal by the anti-corruption commission was dismissed.

34. Planned protests by the National Federation Party, the second largest opposition party, were denied permission in October 2020 (during the COVID-19 pandemic) and August 2019 (before the COVID-19 pandemic). The 2019 protest was denied permission due to incorrect documents being provided.

35. DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.

36. For example, in 2020 police raided a meeting held by Rabuka in Rakiraki in the north of Viti Levu. The meeting was stopped because Rabuka allegedly did not have a permit for a meeting of more than 10 people. Police were aware of the meeting going ahead as organisers had sought clarification on a permit to operate outside of a curfew implemented to control COVID-19. The dispersal was apparently peaceful, and the media reported that police headquarters in Suva had asked Rakiraki police for an explanation of the events. 3.38 The events described above have been directed at high-profile people within the opposition. DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.

37. Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.

38. People involved in coups d’état: Fiji has had four coups d’état in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.

39. People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in[1]country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination.

40. Judiciary and access to law Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.

41. The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.

42. Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.

43. The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.

44. Treatment of Returnees: Fiji’s main international airport is in Nadi and a smaller international airport exists in Nausori (about 30 minutes’ drive from Suva), both on Viti Levu. In practice, many Suva passengers take shuttle flights to Nadi. Passengers must present their passport, visa if required and an arrival card to an immigration officer. Passengers are also subject to customs and quarantine inspections. Corruption is unlikely. Most people entering Fiji obtain a visa on arrival; visitors are largely from Australia and New Zealand, and, to a lesser extent, from other Western countries.

    REASONS AND FINDINGS FOR DECISION

    Preliminary comments

45. The mere fact that a person claims fear of prosecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded”. In similar terms, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any of the responsibility or obligation to specify, or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant: see, MIEA v Guo (1997)191 CLR 559 at 596, also see: Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-170.

46. No further submissions were submitted by the applicants.

47. As noted by the Tribunal in paragraph [59] above, the Tribunal provided the applicants with time for post-hearing submissions. As at the writing of this decision, the applicants had not submitted any new submissions and the Tribunal has proceeded to provide its decision in this matter which follows:

    The first-named Applicant’s claims considered

1. The applicant claims that she was instructed by her superiors to commit various acts of corruption and claims to live in fear of reprisals if she was to return to Fiji. The applicant claims that her fear centers on the Fijian government which she fears will blame her and hold her responsible for the corruption that occurred and would cause her harm in an attempt to prevent her from whistleblowing the corrupt practices which occurred in various government financial transactions. The applicant claimed that she was employed by the following departments and claimed the following as having occurred:

   (a)[Year 2]-[Year 3] [Employer 1]. The applicant started there according to her evidence just before the coup. She told the Tribunal that she made irregular payments to the [Official 1].

   (b)[Year 3]-[Year 4] [Employer 2]. The applicant claimed that on-going corruption in terms of equipment and claimed that a few of her colleagues were arraigned before the courts in Fiji and jailed.

   (c)[Year 4]-[Year 5] [Employer 3]. The applicant claimed that she was the subject of investigation by Fiji Police with regards to payments she had authorised to a non-existent entity.

   (d)[Year 5] – Current [Employer 4]. The applicant claimed that she transferred to the Division before the [Year 5] election and played a significant role in the Division.

2. The applicant also claimed that the Fijian government had not yet completed a financial audit of the various departments since 2006 and feared that this audit when completed would implicate her in practices of corruption in which she played a role (being instructed to do certain acts) but did not receive any benefits. Though the Tribunal accepts that the applicant was employed by various government departments in Fiji and was a member of the Fijian civil service, the Tribunal does not accept as credible the applicant’s claims that in her various roles in these departments she would be held responsible for any or all official corruption that had occurred.

3. The applicant in her evidence before the Tribunal said that her actions as a civil servant working for the various ministries of state and in particular involving the transfer of public money were actions, she took at the direction of her various departmental managers and ministers.

4. The applicant admitted to the Tribunal that she never made any transaction (involving money) that directly or indirectly benefited her personally or her family members. The applicant recalled in her evidence to the Tribunal that she always had been instructed by her superiors to issue cheques and or money transfers at various times during her civil service career in Fiji. The applicant admitted to observing serious corruption and especially, after the 2006 coup d’état but the applicant admitted that the benefits of this official corruption benefited either ministers personally (i.e., the [Official] (airlines tickets reimbursement)) or ministerial cronies (i.e., the purchase of the [item] for F$40,000.00) or merchants dealing the government (i.e., irregularities in [Division]).

5. The applicant told the Tribunal that at the time she could not complain about these circumstances to anyone because it was all going on in the government by people involved in the government. Therefore, the applicant believed that she would (if she returned to Fiji) face prosecution and will be placed before the courts as one of the perpetrators of corruption because of the findings of an official audit to find those responsible for the missing and misappropriated funds. The Tribunal asked the applicant whether she had received any notification from her former employers, police, or judicial authority with regard to her actions in the finance departments she had worked for. The applicant admitted to the Tribunal that though having a brief discussion with the Fijian police concerning housing materials, no interest was shown in her by the authorities for any corruption nor was she the subject of any restraining order or warrant. In particular, the Tribunal noted from published information available online showing that the Fijian government had published all public finance audits up to and including 2015 and no mention is made of the applicant.[1]

   [1] Accessed 19 June 2017.

6. The Tribunal from its consideration of the applicant’s evidence is of the view that the applicant had committed no wrongdoings nor had acted inappropriately as she had claimed in her capacity as a civil servant acting on the instruction of her superiors to make certain payments to certain persons or entities. All of her actions were carried out following a direction from a higher and responsible (at the time) government representative or departmental official. No action was the applicant’s action alone and the applicant having carried out these instructions of her superiors did not in any way directly benefit (financially) from such “corrupt authorisations” when dealing with public revenue.

7. Furthermore, and after considering the available country information, the nature of the politics of post-coup Fiji being as it is, if there was any official doubt in the minds of the Fijian authorities as to the applicant’s bona fides as a public servant, it would have been the norm that the applicant would not have been permitted to be issued with a passport to leave Fiji if she was under any cloud of doubt and suspicion for any irregular actions concern the handling of public money as a public servant and employee of the government, the applicant would have been restrained, the subject of a warrant baring her from leaving Fiji until her actions had been examined. That was not the case here and will not be the case in the reasonably foreseeable future. So how could she legitimately fear being held to account for something she did not commit to. The Tribunal accepts that the applicant was a witness of truth when she states that she made payments in her role as [Occupation 2] when working for the various ministries of the Fijian government. The Tribunal accepts that the applicant may have had pressures placed upon her to issue or authorise payments she did not consider were correct and proper. However, the Tribunal does not accept nor find that the applicant has been or will be held liable for those payments of public money. The Tribunal therefore finds that the applicant will not face prosecution by the Fijian government by being called to account for corruption and misappropriation of public funds because of her past role as finance officer who acted as required by her superiors and therefore the applicant does not have a well-founded fear of persecution in accordance with s. 5J(1)(a)(b) or (c) of the Act.

   The second-named Applicant’s claims considered

8. The applicant’s husband (‘the second-named applicant’) claimed that he had in his possession the autopsy photographs. The applicant claimed that in November 2000, the then Coroner, Dr. Fred Merchant, performed autopsies on a number of deceased who had been members of the group known as “Counter Revolutionary Warfare” unit (CRW). The applicant claimed that this clandestine unit of the Fijian military were involved in a mutiny at an army barracks some time after the May 2000 coup d’état. The applicant told the Tribunal that this unit had links to former Fijian dictator and PM Gen. Sitiveni Rabuka. The applicant said these deceased had been tortured and murdered by Fijian soldiers under ‘orders from Gen (now PM) Frank Bainimarama.

9. The applicant’s husband (at the time) worked [for Employer 5] and [Mr A] brought the film that had recorded the autopsies and according to the applicant he and [other] staff made copies of this evidence. The applicant’s husband told the Tribunal that this photographic evidence provided evidence of torture linked directly to the present prime minister of Fiji. The applicant claimed that he brought this evidence to Australia. The applicant also told the Tribunal that the other [custodians] of this evidence are no longer in Fiji fearing for their lives.

10. The applicant told the Tribunal that he fears that if these photographs are leaked or if he leaked them, he would be considered by the Fijian authorities as responsible and if he returned to or was returned to Fiji in the future, he would be tortured and possibly killed as a reprisal for leaking such sensitive information.

100.   The applicant told the Tribunal that these photographs were evidence that incriminated the present PM of Fiji and if released would go a long way in achieving justice for the deaths of the soldier mutineers and would bring the PM to justice for his actions at time of the coup. The Tribunal discussed with the applicant’s husband his claim concerning the photographs and whether they had been released into the public domain. The Tribunal was told that he could not say with certainty whether the photographs had been made public. The Tribunal also asked the applicant’s husband to explain why he had continuously chosen to return to Fiji since the coup in 2000 on many occasions and had not been questioned by the authorities. The applicant’s husband told the Tribunal that he had always returned to Fiji with fear on his mind. The applicant husband was also asked whether he had involved himself in any protests against the Fijian government while here in Australia. The applicant’s husband admitted to the Tribunal that he had participated as a supporter of the Fijian opposition at a protest which was held at [Location] but provided no details of this protest’s theme or who spoke at this public gathering. The applicant’s husband also said that this public event happened in [Year] but offered no other examples of his political involvement or association with any opposition groups while here, in Australia. Is the applicant’s husband a person of interest to the Fijian authorities for the information he holds and for his political beliefs?

101.   Let us consider the (a) the information he holds concerning the coup d’état. He has photographs which may not be in the public domain. Having said that, the applicant’s husband did not explain and could not explain how he would be in direct danger from the Fijian authorities because he is one of [number] persons having in their possession the so-described incriminating evidence concerning the PM of Fiji. The applicant’s husband did not explain to the Tribunal  how the authorities would know he had a copy of such evidence. The applicant also continued to go ‘in and out of Fiji’ on numerous occasions while all this uncertainty persisted as he claimed. Moreover, though he had fears (as he admitted) he continued to return to Fiji and left Fiji without issue being caused to him by the authorities. It would seem if he had incriminating information, sensitive information, he would not have been allowed to travel let alone leave Fiji as his travel records show. Also, the available country information states the following[2]:

People involved in coups d’état

3.40 Fiji has had four coups d’état in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.

3.41 People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution.

[2] DFAT Country Information – Republic of Fiji – December 2020.

102.   As DFAT understands from in-country sources the 2006 coup may be a ‘sensitive topic’ but ‘it is not aware of related pattern of violence or discrimination’ to opponents of the coup[3].

103.   The Tribunal accepts that the applicant holds anti-Fijian government beliefs. He identified himself as such at the hearing when asked about his politics. He spoke very unfavourably about the current PM and his past involvement in the military and coups that had occurred in Fiji. However, the applicant did not display any aspects associated with his beliefs that he was a person the Fijian authorities would be interested in for political or national security reasons. The applicant did not have a personal connection with any of the deceased CRW soldiers, he had secured because of his employment at [Employer 5] the claimed controversial photographs which have not been disclosed for more than a decade. Having said that, the Tribunal noted that the families of the deceased CRW soldiers have (in the time that has passed) of the deaths and the unlawfulness committed (since 2009). The photographs in the present circumstances have no relevance to any investigation. The coup and mutinies as noted above are history in Fiji and those who caused the deaths of the CRW unit mutineers (in the military) have been brought to account.[4] It was noted by the Tribunal, that, the AGE reported as early as March 16 2005[5] that “…a court-martial has heard that five Fijian soldiers who were said to have been killed in action during a mutiny last year had been tortured to death, media reports said yesterday.” This all indicates in the opinion of the Tribunal that the issue that the applicant’s husband claims would cause him harm and persecution if he was to return to Fiji in the reasonably foreseeable future because it attached to him an anti-Fijian government political opinion is no longer a real issue and therefore, it is proper having considered the evidence and available country information to conclude and find that the applicant’s husband (the ‘second-named applicant’) did not have a well-founded fear of persecution as provided for in s. 5J(1)(a), (b) or (c) of the Act.  

104.   The Tribunal noted that the applicants’ children did not provide any specific claims of their own except to claim that they were members of the same family unit.

[3] Ibid

[4] The [Fiji Sun] published an account which reported that the military involved in the put-down of the CRW mutiny had been brought to justice.

[5] accessed 19 June 2017

Conclusions

105.   For the reasons given above, the Tribunal is not satisfied that the applicants face a real chance of persecution in Fiji in the reasonably foreseeable future and therefore the applicants are not persons in respect of whom Australia has protection obligations as provided for by s.36(2)(a) of the Act.

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

   decision

107.   The Tribunal affirms the decision not to grant the applicants protection visas.

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

(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.

…