1816285 (Refugee)

1816285 (Refugee) [2022] AATA 4925 (4 November 2022)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816285
COUNTRY OF REFERENCE:                   Fiji
MEMBER:L. Symons
DATE OF DECISION:  4 November 2022
DATE CORRIGENDUM
SIGNED:10 November 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Incorrect spelling of the representative’s name in paragraphs 8 and 35 and witness’s name in paragraphs 7 and 33 within the Decision Record.
In paragraph 7 of the Decision Record replace the name ‘[name]’ with the correct spelling ‘[name]’.
In paragraph 8 of the Decision Record replace the name ‘[name]’ with the correct spelling ‘[name]’.
In paragraph 33 of the Decision Record replace the name ‘[name]’ with the correct spelling ‘[name]’.
In paragraph 35 of the Decision Record replace the name ‘[name]’ with the correct spelling ‘[name]’.
L. Symons
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816285
COUNTRY OF REFERENCE:                   Fiji
MEMBER:L. Symons
DATE:4 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 04 November 2022 at 5:03pm
CATCHWORDS
REFUGEE – protection visa – Fiji – applied for a Protection visa so that he could get permission to work – not a refugee – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, first arrived in Australia on [date] November 2008 as the holder of a [visa]. He departed Australia on [date] November 2008 and returned on [date] October 2012 as the holder or a [second visa]. He departed Australia on [date] November 2012 and returned on [date] March 2014 as the holder of a [third visa]. He was granted a further [fourth visa] on 30 October 2014 which was valid until 1 June 2015. He departed Australia on [date] December 2014 and arrived on [date] February 2015 as the holder of a [fifth visa]. He again departed Australia on [date] April 2015 and returned on [date] May 2015 as the holder of a [sixth visa]. The applicant was unlawfully present in Australia for 15 days from 2 June 2015 to 16 June 2015.
On 17 June 2015, the applicant lodged an application for a subclass 836 Carer (Residence) visa. He was granted an associated Bridging visa the same day. On 8 March 2017, the Department of Immigration (the Department) refused to grant him the visa on the basis that he did not meet the criteria. On 27 March 2017, he applied to the Tribunal for a review of that decision. Further associated Bridging visas were granted to him on 3 April 2017 and 22 May 2017. [In] May 2017, the Tribunal affirmed the decision made by the Department.
On 4 July 2017, the applicant applied to the Department for a Protection visa. On 5 July 2017, he was granted an associated Bridging visa which was valid until 9 October 2017. The application for a Protection visa was subsequently withdrawn by the applicant on 4 September 2017.
On 31 August 2017, the applicant lodged a request for Ministerial intervention pursuant to s.351 of the Act. On 6 September 2017, an assessment was made that his request for Ministerial intervention did not meet the guidelines. The applicant was unlawfully present in Australia for 55 days from 10 October 2017 to 3 December 2017. On 4 December 2017, he was granted a Bridging E visa. This visa was valid until 18 December 2017. The applicant was unlawfully present in Australia for one day on 19 December 2017. Further Bridging E visas were granted on 20 December 2017 and 3 January 2018 the last of which was valid until 10 January 2018. The applicant was unlawfully present in Australia for five days from 11 January 2018 to 15 January 2018. Further Bridging E visas were granted on 16 January 2018, 5 April 2018, 26 November 2018, 8 March 2019, 12 April 2019, 8 September 2020, 15 December 2020, and 30 June 2021.
On 5 January 2018, the applicant made a second application for a Protection visa to the Department. On 15 May 2018, the Department refused to grant him the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 4 June 2018, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 2 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Ms A], and his cousin, [Mr B].
The applicant was assisted in relation to the review by his representative (and his mother), [Mrs C], who attended the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
Criteria for a protection visa
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He was born on [date] at [City 1] in Fiji and is a citizen of Fiji.
·He lost his job in Fiji as he has been living in Australia assisting his mother to care for his terminally ill stepfather.
·He lodged an application for a Carer visa in 2015 and it was in the processing queue for 2 years.
·He fears he will not find employment if he returns to Fiji as he has been away from Fiji for 3 years and there have been changes in the industry, he worked in which he strongly believes will affect him in obtaining employment.
The applicant provided the Department with copies of the bio data page of his Fijian passport issued [in] 2017, a Fijian Birth Certificate and a Fijian Marriage Certificate registered on [date] May 1999 between the applicant and [Ms A].
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 15 May 2018. He has also filed with the Tribunal a reference letter from [Organisation 1] dated 9 July 2020, a support letter from the senior pastor at [Church 1] dated 30 May 2020, a Queensland driver’s licence issued [in] September 2020 together with a payment receipt, a web brochure on a [course], a list of family expenses and budget, a Medicare card valid [to] February 2021, a Queensland Blue Card valid [to] June 2023, a tenancy agreement for the period 15 June 2020 to 13 May 2023, a tax invoice for [TAFE] for the period 1 April 2020 to 30 April 2020, a support letter from [Mrs C] dated 24 September 2020, an overdue [phone] bill issued 11 April 2020, a statement from him dated 23 October 2022 and correspondence from the Department.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
The applicant claims to be a citizen of Fiji and has provided copies of his Fijian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji. The Tribunal finds that Fiji is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.
Assessment of claims
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Fiji and Australia, what he has been doing in Australia since 2014, why he applied for a Protection visa and why he does not wish to return to Fiji.
The applicant’s evidence to the Tribunal is that he usually lives in Fiji with his wife and six children. His eldest child, a daughter, is now married and does domestic duties. His younger five children are at school. His wife is also engaged in home duties and does not undertake any paid work. She is currently in Australia as her eldest sister passed away and she was granted a Visitor visa to attend the funeral. She expects to return to Fiji [in] November 2022. He asked his wife to attend the hearing to support him and give evidence on his behalf. He also has a brother who lives in Fiji.
The applicant gave evidence that his mother lives in Australia and is an Australian citizen. He travelled to Australia in 2014 to his visit his mother and stepfather. He was then granted a multiple entry [visa] that he used to travel to and from Australia on a couple of occasions. His father had a number of illnesses and required care. His mother was unable to care for him on her own particularly as he was a large made man. He decided to stay in Australia and help her care for his stepfather. He applied for a Carer visa in 2015 and was awaiting the outcome of his visa application. His stepfather passed away in 2017 and he was therefore unsuccessful in his Carer visa application.
The Tribunal asked the applicant why he did not return to Fiji after his stepfather passed away and his application for a Carer visa was unsuccessful. He responded that he did not have a job in Fiji, would have had to find work and “start from zero”. He decided to stay in Australia because he needed to work to take some money back to Fiji. Fiji was facing hardship at that time.
The applicant stated that he then applied for a Protection visa (on 4 July 2017). He subsequently made a request for Ministerial intervention (on 31 August 2017) and withdrew his application for a Protection visa (on 4 September 2017). His request for Ministerial intervention was unsuccessful (on 6 September 2017). He then made a second application for a Protection visa (on 5 January 2018) as he had no other option available to him. His stepfather used to financially support him and his family until his death. His mother then financially supported him and his family.
The applicant stated that the Department granted him a Bridging E visa (in association with his application for a Protection visa) which was subject to a no work condition. He made many applications to the Department to give him work rights so that he could financially support himself and his family but was unable to get work rights. This caused him and his family financial hardship. His mother obtained an ABN (Australian Business Number) to set up a [business] that he could operate if granted work rights. He was unable to operate the business as he did not have work rights. He had to rely on family members including his mother and cousin for financial support. He and his mother moved from Brisbane to Sydney in 2021 to be closer to family in Australia.
The applicant stated that, as he was unable to do paid work, he did some volunteer work through his Church. He provided the Tribunal with a reference dated 9 July 2020 from [Mr D], Executive Director, [Organisation 1]. [Mr D] stated in part that he has known the applicant as a volunteer at [Organisation 1], a charity, since February 2020. He provided details of the work done by the applicant and stated that he found him to be responsible, trustworthy, industrious and diligent. He recommended him as an upstanding community member.
The applicant stated that his Bridging E visa also did not give him the right to study in Australia and he was therefore unable to study and get a qualification in Australia in the years he has lived here.
The applicant gave evidence that he first obtained immigration advice in Australia in 2014. He again sought legal advice from a lawyer/migration agent in 2017. When asked whether he understood what a Protection visa is and why Protection visas are granted, he responded that he did not have any other option. He used a Protection visa application so that he could wait for another option. There were no other visas available to him. The Tribunal explained to him the criteria for a Protection visa. He responded that he applied for a Protection visa because it was his best option. He does not need protection. He applied for a Protection visa so that he could get permission to work.
The applicant stated that he is not a refugee. There was no other visa that would have enabled him to find work. He knows he is not entitled to a Protection visa. He needs to work and support his family. His mother is getting old and he cannot rely on her anymore. He asked his mother what other visa he could apply for to be able to work. When asked what he thought would happen if he returned to Fiji, he responded that if he returns to Fiji he will not have anything. He will have to start from zero. He is nearly [age] years old. He did not have the option to study in Australia and did not study here. He was not able to prepare himself after 8 years. If he has some money, he will be able to start a business in Fiji.
The applicant stated that it is difficult to find work in Fiji. When asked whether that applied to everyone or to him in particular, he responded that it applies to everybody. Many people seek work overseas.
The applicant’s wife, [Ms A], gave evidence that she wanted the Tribunal to give her husband work rights. When asked if there was anything else she wanted to say, she responded no. When asked whether she had told the Tribunal everything she wanted to say, she responded by asking the Tribunal to help her husband.
The applicant’s cousin, [Mr B], gave evidence that he lived with the applicant and his mother in Brisbane from 2017 to 2019. He had a work contract in Brisbane at that time. He and the applicant had grown up together. He and his mother were struggling financially and he moved in to assist them financially. He assisted by giving him money to send to his family in Fiji weekly and with what was needed in their home (in Australia). When asked if there was anything else he wanted to say, he responded no. When asked whether he had told the Tribunal everything he wanted to say, he responded yes.
The applicant’s mother, [Mrs C], who was also his representative provided the Tribunal with a statement dated 24 September 2020. In her statement, she stated, in part, that the applicant had been supporting her to provide personal care for her late husband who had been bedridden for three years. She and her late husband had been financially supporting him, his wife and their six children from 2014 to January 2017 when her late husband passed away. Since January 2017, she has been financially supporting him and his family from her Aged Pension and this has caused considerable financial difficulties for all of them. The applicant has not been able to get work rights (on his Bridging visa) despite several applications being made to the Department for work rights and supporting documents being provided.
The Tribunal has had regard to the character reference from Senior Paster [name] dated 10 May 2020 and the reference from [Mr D], Executive Director, [Organisation 1], dated 9 July 2020. The Tribunal has also had regard to the other documentary evidence provided by the applicant.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Fiji and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and evidence, the Tribunal accepts that he is married and has six children. The Tribunal accepts that his wife and children live in Fiji and are financially dependent on him. The Tribunal accepts that his mother has lived in Australia for several years and is an Australian citizen. The Tribunal accepts that his stepfather had terminal illnesses and was bed ridden for three years from 2014 until January 2017 when he passed away. The Tribunal accepts that he assisted his mother to provide personal care to his stepfather between 2014 and January 2017.
The Tribunal accepts that the applicant’s mother and stepfather financially supported him and his family between 2014 and January 2017. The Tribunal accepts that his mother and his cousin, [Mr B], have been financially supporting him and his family since January 2017. The Tribunal accepts that he applied for a Carer visa on 17 June 2015 and his application was refused by the Department on 8 March 2017. The Tribunal accepts that his application for review to the Tribunal was also unsuccessful. The Tribunal accepts that his application for Ministerial intervention was unsuccessful. The Tribunal accepts that he was granted a Bridging visa in association with his application for a Carer visa which was subject to a no work condition.

The Tribunal accepts that the applicant did not return to Fiji when his stepfather passed away in January 2017 and decided to stay in Australia because he wanted to work here and take a lump sum of money back to Fiji to set up a business there. The Tribunal accepts that he was concerned that he would have difficulty getting a job in Fiji because of the economic circumstances in Fiji at the time. The Tribunal accepts that he applied for a Protection visa, after his application for a Carer visa was unsuccessful, because he thought he had no other visa options.
The Tribunal accepts that the applicant applied for a Protection visa so that he could get a Bridging visa with work rights. The Tribunal accepts that he does not want to rely on his mother for ongoing financial support and believes that he needs to work and support his family. The Tribunal accepts that he does not think he needs protection or consider himself to be a refugee and knows he is not entitled to a Protection visa. The Tribunal accepts that when he was not granted a Bridging visa with work rights, he made several unsuccessful applications to the Department to obtain work rights.
The Tribunal accepts that the applicant has not undertaken any paid work in Australia. The Tribunal accepts that he undertook volunteer work at [Organisation 1] from February 2020.
The applicant’s evidence is that he has worked as a [Occupation 1], in the [specified] industry and in an administrative position in a [specified] company in Fiji. In Australia, he has been an informal carer. He has not made any claims in relation to being prevented from working in Fiji in the past or fears that he will be denied the opportunity to work in the future. His evidence is that the economic situation in Fiji makes it difficult for people to obtain employment and many people travel overseas seeking better employment opportunities.
The applicant’s evidence is that his mother and his cousin, [Mr B], have been financially supporting him and his family for many years. There is no indication that they will not continue to do so if he returns to Fiji now or in the reasonably foreseeable future and until he is able to obtain employment in Fiji. He also has the support of a brother in Fiji.
In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any reason claimed if he returns to Fiji now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criteria?
Having considered all of the applicant’s claims and the evidence, individually and cumulatively, and in view of the findings above, the Tribunal is not satisfied that there is a real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criteria in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criteria for the grant of a Protection visa pursuant to the complementary protection criteria.
Having considered all of the applicant’s claims and evidence, individually and cumulatively, and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
L. Symons
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4925

4 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction