1715327 (Refugee)

[2022] AATA 3729

1715327 (Refugee) [2022] AATA 3729 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715327

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Luke Hardy

DATE:26 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2022 at 1:39pm

CATCHWORDS

REFUGEE – protection visa – Fiji – membership of a particular social group – member of the LGBTQ+ demographic – male homosexual – suffered severe mistreatment and harassment in the past from his late father – requirements of significant harm not met – referral for Ministerial intervention – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, [Mr A], is a citizen of Fiji. He arrived in Australia on [date] July 2016 on a tourist visa valid [until] October 2016. He lodged a PV application on 21 September 2016. The delegate refused to grant the visa on 16 June 2017. [Mr A] then sought review of that decision by this Tribunal and the matter has been constituted to me. I find the review application valid.

3. [Mr A] appeared before the Tribunal on 23 August 2022 to give evidence and present arguments. He is unrepresented and did not require an interpreter.

   Criteria for a protection visa

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF Claims and evidence

   The issues

10. The key issue in this case is whether, on accepted evidence, [Mr A] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

11. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims to the Department of Home Affairs (the Department)

12. In his original PV application, [Mr A] claimed he is a male homosexual, or gay male, identifying as a member of the LGBTQ+ demographic. This claim comes under the “membership of a particular social group” criterion in s. 5J(1)(a) of the Act.

13. [Mr A] claimed that gay men are lowly regarded in Fiji and often ridiculed and sometimes physically mistreated.

14. [Mr A] cited several examples of public humiliation as well as physical and mental abuse he suffered as a child at the hands of his father, who died in 2004 when he, [Mr A], was [age] years old. He claimed discovered in 2003 that his birth certificate had been altered without his prior knowledge by his father who had formerly removed his own surname from the register in an act of disowning his gay son.

15. [Mr A] claimed he was kicked out of the family home in or around 2000 and moved into a share home with three other LGBTQ+ people all of whom were sex workers, at least one of whom, his cousin called [Ms B], was transgender. He claimed that  in about 2002 the house was invaded by a small group of armed, aggressive and violent males, two riding a horse, who wielded wooden bats which they used to beat and injure them. He claimed he and his housemates reported the matter to local police who said they could not take a report and then offered to drive them to a larger station. On the way, the police forced them out of the vehicle in a remote place, turned their vehicle around and drove away, abandoning them there.

16. [Mr A] said he visited his family to attend his father’s birthday in 2002 and was physically beaten by his father in front of two police offices who were guests there. He said the police did not intervene. He said he never saw his father again after that night.

17. In his application, [Mr A] said he gained employment in March 2003 [and] stayed in that job until February 2005. He claimed he then worked as [an occupation] based in [City 1] from March 2005 until he left for Australia in July 2016.

18. [Mr A] claimed at the time of application to be in a relationship with an Australian citizen. The latter, along with others, submitted letters of support. I understand directly from [Mr A] that the relationship with the Australian has ended and that he is not currently in a relationship. One of the supporting letters is from [Mr A]’s sister, an Australian citizen who is married with children. In her letter, the sister attests to the one family member still living in Fiji being [Mr A]’s estranged brother who used to abuse and humiliate him.

19. The delegate drew negative inferences as to the credibility of some of [Mr A]’s evidence due to apparent inconsistencies as to the year in which the alleged violent raid on the group household occurred. Having interviewed [Mr A] myself, I do not consider the perceived inconsistency to be significant overall. I accept that the incident occurred.

    Independent country information

20. I have had regard to the following information from the DFAT Country Information Report: Fiji (20 May 2022):

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

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

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

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

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

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

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

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

    Evidence to the Tribunal

21. At the Tribunal hearing, [Mr A] presented as a candid and truthful witness. He spoke consistently about mistreatment he received from his father, in particular. [Mr A] said he was overwhelmed when he came to Australia after living a relatively closeted life in Fiji. However, he also indicated that his sexual orientation was either known to or guessed by people in whose company he either worked or moved socially. He said that, in the main, he sensed negative attitudes from people who did not necessarily express views to him directly.

22. Generally, however, [Mr A] indicated that life after 2002 evidently improved, when he an adult who was living away from his family and not living with [Ms B] and the other sex workers. He said that working in hospitality and tourism in Fiji was somewhat of a dream fulfilled as he was loved more in the workplace than he had ever been at home. He did say at one point that he believed his status as a gay male might have been an obstacle to promotion in the [company] for which he worked from 2005 to 2016. When I questioned him about this, he said he was the only gay man in the [company] for which he worked. He said he saw gay males in other companies promoted by their employers. He then speculated that they might have had more specialised educational background, such as diplomas earned from study abroad.

23. [Mr A] said he was overwhelmed when he came to Australia after living a relatively closeted life in Fiji. However, he also indicated that his sexual orientation was either known to or guessed by people in whose company he either worked or moved socially. He said that, in the main, he sensed negative attitudes from people in Fiji who did not necessarily express views to him directly.

24. [Mr A] said that where he grew up and usually worked, [people] are more conservative. He indicated that the lives of LGBTQ+ people in the larger cities like Suva are easier. He acknowledged they can live more easily there. I asked him if he could not relocate to work in the tourism/hospitality industry in Suva, say, if he preferred not to live on the west coast. In reply, he said that the idea of going back to live in Fiji had been out of his thinking ever since he first came to Australia. He said he would still have fear. Meanwhile, his evidence indicated that he had suffered no potentially significant harm since his leaving home and, later, his ceasing to reside with [Ms B] and the sex workers. The main source of harm or harassment in his life had been his father who died in 2004, around twelve years before he himself left Fiji for Australia, during which he worked in what he called his preferred occupation.

25. [Mr A] told me he had been promoted to the role of [position] here in Australia. I accept that claim to be true. I asked him if the experience he had gained here would give him a stronger CV for work in the hospitality industry back in Fiji. He said that if he had to return to Fiji he would feel lost. I put to him that a finding as to a “well founded fear of being  persecuted” requires more than a subjective element, however genuine, and in reply, he said that he never had the chances in Fiji that he has here in Australia.

26. We talked about social and legislative matters in Fiji. [Mr A] said that while he was in Fiji sexual intercourse between males was still an offence under the Penal Code. He said that it was nevertheless not enforced. I accept that the existence of such a law, however, can reinforce prejudice, and may be taken by some to justify harassment and even violence in some instances, particularly in a relatively more conservative, religious environment, as is understood to exist in Fiji, where preaching against “sin” can be met with relatively little public debate. The law in question here was repealed, though, in 2010, which is not to say that society has rallied instantly and uniformly in support of the reform. Everywhere, broader shifts in social and family tolerance take their own time.

27. [Mr A] referred me to an article he had submitted to the Department citing the current Fijian Prime Minister’s comments on 1 August 2016 on the subject of marriage equality. He said that the Prime Minister had told all Fijian gays to go and live in Iceland. This is not strictly correct: the PM had said that gays and lesbians who want to marry each other should “go and have in done in Iceland and stay and live there.” However, it is hard to suggest that the PM merely disparaged reform of marriage laws and did not insult and marginalise LGBTQ+ into the bargain. I accept [Mr A]’s suggestion, essentially, that the current PM is resistant to embracing processes of fuller inclusion of LGBTQ+ people into productive society in Fiji, and that this legitimises broader social and close family discrimination against them.

28. [Mr A] mentioned two unpunished murders of LGBTQ+ persons, one of them apparently a transgender female, in recent years that sounded like the two referred to in the DFAT report cited earlier. I have taken that evidence into account.

    Findings in relation to s.36(2)(a) of the Act

29. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220.

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

30. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]

    [3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [4] Sun v MIBP [2016] FCAFC 52 at [69].

31. I accept on the evidence before me that there is prejudice and discrimination against LGBTQ+ persons including gay males in Fiji, notwithstanding reforms in the country’s constitution and other law. I accept that such prejudice and discrimination is more keenly experienced by LGBTQ+ persons within their own families and the closer society through which they move in childhood and adolescence, such as at school. I accept that reforms to the law and the availability of support services for LGBTQ+ has not uniformly improved the lives of all LGBTQ+ persons in Fiji, such as transgender persons and the arguable subset of the latter who are, or have been, sex workers. However, each case involving an LGBTQ+ person applying for a PV must be considered on its own individual merits.

1. [Mr A] impressed me as a truthful and candid witness; his evidence was detailed, unforced and heartfelt. I accept that he is gay. I find that he is not a transgender person. I have no reason to conclude he was ever a sex worker.

2. I accept that [Mr A] nevertheless suffered severe mistreatment and harassment in the past from within his own family, particularly from his late father. I accept that two policemen witnessed such abuse on a social occasion to which they were invited and did nothing to protect him. I do not necessarily conclude that the inaction of those two individuals in the context of their witnessing the abuse is indicative of the overall attitude of the authorities in Fiji to the question of protecting LGBTQ+ persons from serious harm, although I do not rule out manifestations of indifference and even prejudice amongst individual officers around the country.

3. I accept that [Mr A] was bullied as a child, not least by his estranged brother who still lives in Fiji. I accept he was likely bullied and disrespected at school. I accept that religious people would frown on him.

4. I accept that the attack on the occupants of the house shared with [Ms B] and other sex workers actually occurred and that prejudice against them as sex workers and transgender persons was an essential and significant reason for the attack. I find that [Mr A], who is neither a sex worker nor transgender, was likely in a bad place at a bad time. However, I find on the evidence before me that the event was isolated and not systematic. Even considered alongside the murders described by [Mr A] in his oral evidence, which may or may not be the same murders described in the 2022 DFAT report, I am not satisfied on the evidence before me in its entirety that such treatment is indicative of a real chance of being persecuted in the reasonably foreseeable future.

5. Although I accept that may have felt some social shame subjectively, I am not satisfied on the evidence before me that [Mr A] suffered any significant discrimination, let alone serious harm, in the workplace in the period from when he started work [at a workplace] and throughout his eleven years with the  [company]. On the evidence before me, once he ceased living with the family and moved away from the demi-monde, as it were, that was the house of [Ms B], he was generally treated with respect and able to subsist in a job in his preferred field of work, and one that, DFAT reports, is generally tolerant and respectful of gay staff. I give some weight in this matter to the fact that [Mr A] was able to live and work in [an area] and did not suffer even cumulatively serious harm. On this evidence, there is no need to consider whether relocation to what he called the easier environment of the capital, Suva, would be safe, reasonable and practicable, although, on the evidence before me, it would be, should [Mr A] prefer not to reside on the western coast.

6. I accept that [Mr A] has blossomed personally, socially and professionally in Australia in ways he could not have imagined he would ever do in Fiji. I accept that this means he would suffer disappointment, distress and a sense of having to start all over in the event of return to Fiji. I accept that this would be distressing for him and for his sister, who is an Australian citizen. However, as discussed at the hearing, eligibility for protection requires more.

7. On the evidence overall, I am not satisfied that [Mr A] faces a real chance of being persecuted, even cumulatively, in Fiji for any of the reasons cited in s.5J(1)(a) of the Act. His fear of being persecuted is not well founded. He is not a refugee.

8. For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

9. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

10. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

11. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

12. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.

13. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

14. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

15. Accepting that [Mr A] is a national of Fiji, I find that Fiji is the receiving country in this matter.

16. [Mr A]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed overall to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [Mr A]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.

17. Although I recognise that [Mr A] would suffer psychological hardship in the event of removal to Fiji, I am not satisfied that this would be intentional; hence it would not meet the requirements of significant harm as particularised in s.5(1) of the Act.

18. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Fiji, there is a real risk that [Mr A] will suffer significant harm as exhaustively defined under s.5(1) of the Act.

19. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

20. There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).

    Referral for Ministerial intervention

21. [Mr A] has a sister who is an Australian citizen who has asked in her letter that Australia extend humanitarian consideration to [Mr A] and herself in these circumstances. This request corresponds with two of the Minister’s guidelines for referral:

    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident; [and]

    compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

    [Tribunal’s emphasis]

    decision

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    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.

    …