1730271 (Refugee)

[2022] AATA 4302

1730271 (Refugee) [2022] AATA 4302 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730271

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Luke Hardy

DATE:8 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 September 2022 at 11:29am

CATCHWORDS
REFUGEE – protection visa – Fiji – isolated incident of workplace brawl – sight of armed soldiers – no harm suffered – socio-economic claims – rule of law in Fiji – crime rate – complementary protection – ‘real risk’ test – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are a mother, [Ms A], and her [age] year-old daughter, [Ms B]. They are citizens of Fiji. They entered Australia together on family visitor visas [in] June 2017. They lodged their PV application on 29 June 2017. The delegate refused to grant the visas on 29 June 2017.

3. The applicants then sought review by this Tribunal. [Ms A] notified the tribunal that she had forgotten to include [Ms B] in the review application. The matter was constituted to me. I have treated [Ms B] as an applicant in this review because she was a subject of the primary decision. I find the review application by both applicants to be valid.

4. The applicants appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. They were accompanied by [Ms A]’s relative who was present to lend social support; he did not give evidence.

5. The Tribunal hearing was facilitated by an interpreter in the Fijian-English medium.

   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 (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, 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).

9. 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.  

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

    The issues

12. The key issue in this case is whether, on accepted evidence, either of the applicants is entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.

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

    Claims to the Department

14. The applicants’ claims to the Department are as follows.

15. [Ms A] claimed to have resided all her life in [City 1]. She claimed that she has [number] cousins all living in Australia. She claimed to have an uncle and aunt also living in Australia.

16. [Ms A] evidently claimed that she was one of the supporters of the two Christian sovereign states of Nadroga-Navosa and Ra. She said she was one of the many members of the Pacific Indigenous Samaritan Association Inc and Fiji native government in exile domiciled in Sydney. She said that the duty of her group was to fight for their survival as a race and self-determination. She claimed that Fiji has become a police state with no rule of law with non-independent judiciary system, no freedom of speech and no freedom of the press. She said she feared she would be arrested and sentenced to prison on remand for allegations of sedition and inciting communal antagonism, as there is no rule of law. She claimed that there have been 60 people who the police arrested and sentenced to prison for these allegations.

17. [Ms A] evidently claimed that she could not relocate anywhere in Fiji as the no rule of law applied everywhere in Fiji. She said members her race, which she identified in her application as the majority ethnic Fijian race, had been killed by “Khaiyum Thesis” in 2013. She said that the Fijian Constitution had robbed her race of their rights.

18. [Ms A]’s apparent claims about belonging to the Nadroga-Navosa and Ra sovereignty movement, the Pacific Indigenous Samaritan Association Inc and the Fiji native government in exile were all unsupported.

19. [Ms B] evidently claimed that anti-sedition laws in Fiji’s Constitution prejudice and repress, and have even killed ethnic Fijians. She evidently claimed the “Khaiyum Thesis” is the template for the Constitution.

    Independent country information

20. I have had regard to the following material from DFAT:

    2.4 Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia ...

    2.28 Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years.

    2.29 There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected ...

    2.30 Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court ...

    2.34 Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem … Accusations of police violence are commonly reported and regularly investigated …

    3.1 The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei ..

    3.3 Since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls. Ministers in the current FijiFirst Government are from both major ethnic communities.

    3.4 The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.

    3.5 Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race …

21. The reference to a “Khaiyum Thesis” having killed persons appears to be a reference to a Master’s thesis written by the former Attorney-General, Aiyaz Sayed-Khaiyum, entitled Cultural Autonomy - Its Implications for the Nation-State.

22. There were claims of nepotism and favouritism influencing appointments and contracts awarded by Sayed-Khaiyum to Muslim individuals and businesses. On 6 July 2016, allegations of nepotism were made against the Attorney General by the opposition member, Ratu Isoa Tikoca, stating that animosity was growing amongst Fijians over the concentration of power amid the Muslim elite. The Attorney-General refuted the accusations and Tikoca was subsequently suspended from parliament for the remainder of his two-year term. Rumours evidently persisted in Fiji that Sayed-Khaiyum was pursuing a racist agenda against iTauke ethnic Fijians. This information as essentially no bearing on the decision in this matter for reasons that follow.

    Evidence to the Tribunal  

23. At the hearing, [Ms A] and [Ms B] made completely different claims from what appeared in their PV application. Late during the hearing, [Ms B] essentially explained that the original PV application was the result of poor advice from friends. I took that to mean that the Nadroga-Navosa and Ra secessionist claims, and the material about Sayed-Khaiyum, did not originate from the applicants themselves. In view of the obvious candour of the applicants at the hearing, I have drawn no negative inferences from the discrepancy between what they claimed mainly through an interpreter at the hearing and what appeared in writing in English in the original PV application.

24. Both applicants said that the reason why they wish to remain in Australia is because since around 2007 they have relied substantially on social and material support from [Ms A]’s now-deceased mother in Fiji and on financial assistance from their relatives in Australia. They said that if they go back to Fiji there will be no family home to which they can return and they will not be able to find adequate work from which to derive adequate income to survive. [Ms A] said she still receives all financial and other support from her relatives here but explained that many of them now have children who have to be supported through school. She said that the financial support she and her daughter have hitherto relied upon may consequently diminish, making it hard for them to subsist in Fiji.

25. [Ms A] vaguely mentioned “race” at one stage of the hearing. I invited her to be specific about whether she and her daughter had suffered or would suffer discrimination or worse due to their “race” and she said that the military in Fiji denies people their rights. I thought she might have been referring to the military at, and for some years after, the time of the 2006 coup.

26. [Ms A] also said that the crime rate and the unemployment rate in Fiji are both high.

27. During the hearing [Ms A] said she was scared of the military in Fiji because its members are armed and she had encountered them armed on one occasion in her past. She said she had never worked in Fiji, after leaving school on completion of primary, except for four years from around 2006. She said she worked as a [Occupation 1] in a [business]. She then said something happened in 2007 that changed her work pattern. She said that after the episode in 2007 she worked less often at the [business] for a while, just taking shifts on call a few days here and there.

28. I asked [Ms A] what happened in 2007. She said that on one particular night there was a brawl that was not broken up until some soldiers intervened. She said the soldiers made her and others move outside so that they, the soldiers, could dissipate the conflict in the [workplace]. She said the soldiers were armed, and brandished their arms to take control of the scene. She said that seeing the guns scared her. She said she was not harmed by the soldiers or anyone else. Initially, she said she took on fewer shifts, but later she said she only did this for a while and quit. She said she was unemployed for the ten years between the night of the brawl and the time she and [Ms B] came to Australia, living on remittances of funds from family in Australia. She said she was never threatened in connection with the 2007 brawl by anyone but had remained scared. She said she suffered no harm from anyone as she just stayed home with her mother and infant daughter.

29. I asked [Ms A] if anyone tried to hurt her or her family in the period between the [workplace] brawl and 2017 when she came to Australia. She said nothing happened to her as she was looking after her daughter, [Ms B].

30. [Ms A] said that she initially came to Australia for a visit with [Ms B] who was only [age] at the time. Both said to me that they soon experienced a different lifestyle in Australia along with the security and closeness of family. [Ms B] said there are more opportunities in Australia for young Fijians than exist in Fiji.

31. [Ms B] said that because she is only [age], she would not be legally allowed to work. I put to her that her information about the minimum labour age in Fiji might not be correct. The ILO reports[1] that a child in Fiji may work from the age of 12.

    [1] “National Labour Law Profile: Fiji,” ILO, August 2006,

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

32. 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.[2] 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.[3]

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

    [3] 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.

33. 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.[4] 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.[5]

    [4] 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

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

34. In this matter I accept all of what was said to me by the applicants at the Tribunal hearing as truth. I believe that [Ms B], who was only [age] when she left Fiji, was honestly mistaken when she was talking about being too young to be allowed to take a job in Fiji.

1. I accept [Ms A]’s history of residing and subsisting with her daughter and late mother in Fiji, supported by remittances from relatives in Australia. I accept that she only worked for a few years in Fiji after giving birth to [Ms B]. I accept that [Ms A] was terrified on one occasion at the [business] where she worked when a brawl broke out and armed soldiers entered the venue to restore order. This would have been during the period shortly following the 2006 coup, so a lot of people would not have been comfortable encountering armed soldiers at that time. Still, from [Ms A]’s account, the soldiers did what was necessary to prevent destruction of property and further injury to people, and then they left. Although shaken by the event, [Ms A] says she continued to take shifts at the [workplace] for a while later. She does not suggest that anyone targeted her for harm in any way: seeing the guns just scared her. To the extent that [Ms A] was at risk of being collaterally harmed on that occasion, it was a very isolated episode, as evidenced by [Ms A] continuing to do some shifts in the same [workplace] and not experiencing any potentially relevant  harm from anyone. On the evidence before me, although I accept the [workplace] brawl episode occurred, I give it negligible weight in this matter, as it was such an isolated one, and was calmed quickly enough.

2. I give more weight to [Ms A]’s claims about not having been harmed by anyone in Fiji for any potentially relevant reason during her time there up until she last departed that country.

3. The socio-economic claims from [Ms A] and her daughter [Ms B], though accepted as truthful, do not involve any suggestion of their being persecuted for any relevant reason. I accept that they would miss their family in Australia and the environment in which [Ms B] has grown since the age of [age], but this kind of suffering is not serous or significant harm for the purposes of the Act.

4. [Ms A] and [Ms B] may hold opinions about there being no rule of law in Fiji and insufficient regard for human rights to ensure their protection there but the extent to which this gives rise to a real chance of their being persecuted in Fiji for any of the reasons in s.5J(1)(a) of the Act is purely speculative. In any event, the DFAT information cited earlier, satisfies me that Fiji is ruled by law, that people can elect their parliament and that there is a Bill of Rights.

5. As noted, it was explained to me at the hearing that the original PV application was filled out on poor advice from a friend, and I accept that. I accept [Ms B]’s evidence to the effect that she and her mother were advised to give the PV stream a try to see if they could extend their time in Australia. I give no weight in this decision to the claims about Nadroga-Navosa and Ra secession, or the material about Sayed-Khaiyum, or the suggested link between the university thesis of the latter and deaths of Fijians at some stage, or claims about ethnic Fijians feeling that they are victims of racial discrimination.

6. Also, there is insufficient information in this matter on which to be satisfied that the crime rate in Fiji gives rise to a real chance of the applicants being persecuted for any reason.

7. On the evidence before me, I am not satisfied that the applicants face a real chance of being persecuted in Fiji in the reasonably foreseeable future separately or cumulatively for any of the reasons cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.

8. For the reasons given above, I am not satisfied that the applicants are persons 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 the applicants 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 the applicants are nationals of Fiji, I find that Fiji is the receiving country in this matter.

16. The applicants’ claims to complementary protection are essentially the same as their 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, their protection claims can no more succeed as complementary protection claims than they have as refugee claims.

17. Although I recognise that the applicants would suffer psychological, emotional and potentially even some economic hardship in the event of removal to Fiji, I am not satisfied that this would be intentional, or that it would amount to arbitrary deprivation of life, let alone “the death penalty”; 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 the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.

19. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

20. There is no suggestion that the applicants satisfy 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, they do not satisfy the criterion in s.36(2).

    decision

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

    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.

    …