1836269 (Refugee)

1836269 (Refugee) [2023] AATA 4357 (22 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Benjamin Maurice Vevers (MARN: 1067816)
CASE NUMBER:  1836269
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christine Cody
DATE:22 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 September 2023 at 10:31am

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – anti-government – detained and assaulted – delay in applying for protection – insufficient evidence – credibility issues – unique or exceptional circumstances – biological father of Australian citizen child – serious, ongoing and irreversible harm and continuing hardship to an Australian citizen – child’s best interest – invaluable asset to remote community – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Summary

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 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, applied for the visa on 24 June 2018. His claims can be summarised as follows:
·He is an anti-government political campaigner/demonstrator.
·He claims to have been harassed, harmed and detained by military officers for information he knows about the [then] present government.[1]
·He was taken to [Location 1] in 2007 where he was harmed (punched and assaulted) and threatened by soldiers.
[1] The claims were made before the change in government in December 2022.
The delegate refused to grant the visa on the basis that, even if the applicant’s claimed detention in 2007 is plausible, this does not indicate that he subsequently remained of adverse attention to the Fijian authorities, having regard to country information. Reference was made to country information from the Department of Foreign Affairs and Trade: ‘high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention’[2]. The delegate did not consider there was reason for this to apply to the applicant.
[2] As set out in the delegate’s decision record
The applicant was represented in relation to the review.
On 15 August 2023 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 August 2023. On 23 August 2023 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal, and the Tribunal is not satisfied that the applicant meets the requirements to be granted a visa under s 36 of the Act.
However, the applicant requested that the Tribunal refer the matter for Ministerial intervention. The Tribunal agrees to do so, for the reasons discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. Relevant law is set out in Annexure A. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department, who accepted that he was a Fijian citizen and national, and assessed his claims against Fiji. The Tribunal was also provided with a copy of his passport and accepts that he is a national of Fiji, and that the appropriate country of reference for the assessment of his refugee claim, and the receiving country for the purposes of his complementary protection claims, is Fiji.
The applicant’s migration history
As set out in the delegate’s decision record provided to the Tribunal by the applicant:
·The applicant was granted a Visitor (Subclass 600) visa on 11 December 2014. He arrived in Australia on [date] December 2014, departing on [date] January 2015.
·The applicant was granted a second Visitor (Subclass 600) visa on 12 November 2015, valid until 4 September 2016. He arrived in Australia on [date] December 2015, departing on [date] January 2016. He again arrived on [date] March 2016 and departed [date] April 2016, and arrived again on [date] April 2016 and departed [date] May 2016. He arrived (for the last time) on [date] June 2016.
·The applicant was granted a further Visitor (Subclass 600) visa on 8 September 2016. This visa was valid until 22 November 2016. The applicant did not depart and remained unlawfully present from 23 November 2016 until he lodged his Protection (Subclass 866) visa application on 24 June 2018.
Claims made to the Department
The applicant provided protection visa application forms and supporting documents.
According to his protection visa application forms, the applicant is a [age]-year-old ethnic Fijian whose religion is Seventh-day Adventist. His parents and brother reside in Fiji and he is in contact with them. He is unmarried. In Fiji he was educated until 2009, and he was employed firstly as a [Occupation 1], then as a [Occupation 2] between 2012 and 2016.
His claims as set out in his protection visa application are:
·Provide reasons why this applicant left that country or those countries: I left Fiji in fear of my life and to start fresh in a country away from my oppresses. I was harrassed, harmed and detained without my will by military officers in Fiji for information I knew about the present government.
·Did the applicant experience harm in that country?: Yes. I was one of the many taken to [Location 1] in 2007 where I was harmed (punched & assaulted) and threaten by soldiers. The people responsible for this are soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.
·Did the applicant seek help within the country or those countries after the harm?: No. I couldn't seek redress because the military had imposed the emergency decree which meant that their actions were reasonable during that time. The Emergency Decree is still in force now in Fiji. Also government have their puppets in all government departments and statutory department.
·Did the applicant move, or try to move, to another part of that country or those countries to seek safety?: No. I believe that you know that Fiji is a very small country and even if I attempt to move I can be relocated within days by the authorities.
·Explain what the applicant thinks will happen to them if they return to that country or those countries?: I can arrested, detained and harmed since government are rounding up people or public figure who are trying to rise against government.
·Does this applicant think they will be harmed or mistreat if they return to that country?: Yes. As I have mentioned above that I was harmed and it can happen to me again should I go back to Fiji for information I know. The people responsible for this are police & soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.
·Does the applicant think the authorities of that country can and will protect this applicant if they go back?: No. They are only following orders and cannot protect me even though some are distant relatives or people who I know. If they don't follow orders then they can lose their jobs.
·Does the applicant think they would be able to relocate within that country to an area where they would not be harmed?: As I have mentioned above that Fiji is a very small country and relocating to another part is not safe or good option. The option is to look for refuge oversea like here in Australia.
The applicant provided the following supporting documents:
·Copies of his education qualifications (as well as a photo of him graduating), supporting letters from his employers including from the high schools where he worked as an [Occupation 2], and from his work as a [Occupation 1] in Fiji.
·His birth certificate, some pages from his passports and his national ID card.
·His parents’ death certificates.
·Supporting letter from [name], SODELPA [leader], dated 15 May 2018.
The Tribunal
The applicant did not provide any further documents in support of his protection claims to the Tribunal.
Satisfaction of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In the circumstances where an applicant does not attend a hearing to which they are invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Fiji.
The applicant has only provided an application form more than 5 years ago, and has not provided any updated information in support of his claims since then, despite his claim having been rejected by the Department, and being informed by the Tribunal (on 12 December 2018, 25 July 2023 and 15 August 2023) that he could provide updated information. He did not take the opportunity to provide any additional details either in writing or orally at a hearing.
The Tribunal had a number of concerns with the applicant’s claims, and considered that there was a lack of detail and information.
The applicant’s claims appear to centre on what happened to him in 2007, following the coup in 2006 by former Prime Minister Frank Bainimarama, however the timing is not made clear by the applicant. He has not specified what, if anything, has occurred to him since 2007. He provided a supporting letter claimed to be from SODELPA, suggesting that the applicant was investigated for information concerning the local government that he destroyed in 2006 and that he was taken to a military camp where he was interrogated and harmed. That letter alleges that if he returns he will be further interrogated and taken to task for information he knows concerning the regime. The letter did not say why this would occur so many years later, and in any event the Tribunal notes that there is a new government in place (who has formed a coalition with SODELPA).[3]
[3] >
The Tribunal notes that the applicant has managed, since 2006/2007, to gain an education in Fiji, to work as a [Occupation 1], and as a [Occupation 2] for years. He has not specified that he has suffered harm since 2007.
Further, he has travelled in and out of Australia on numerous occasions since 2007, yet he never attempted to stay in Australia and seek protection at the earliest opportunity (2014); instead he would visit Australia and return to Fiji, passing through Fijian Customs and thus coming to the attention of the Fijian authorities time and again.
Further, after he last arrived in Australia, he sought another visitor visa instead of a protection visa, and when that expired he remained unlawfully, without seeking a protection visa. The Tribunal would expect that if he had feared and suffered harm as claimed, he would have sought protection much earlier than he did.
As set out above, the Tribunal must reach a state of satisfaction that the applicant is a person to whom protection obligations are owed. The Tribunal considers that the applicant has not provided sufficient detail to make out his claims and it is not satisfied on the evidence before it that the applicant had a political opinion as claimed, was involved in any perceived or actual anti-government activity, or political party or movement, nor that he was investigated or detained or arrested or harmed nor does it accept that he has ever experienced adverse attention or otherwise from the Fijian authorities. The Tribunal is not satisfied that there is credible evidence to support that the applicant will face a real chance or real risk of serious or significant harm for reason of actual or imputed political opinion, actions or historical events. It does not accept that the applicant is connected to persons who have been subjected to adverse attention nor does it accept that he would intend to participate in any activity that could be imputed as politically adverse.
The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason if he returns to Fiji.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in the reasonably foreseeable future in Fiji, nor that there is a real chance he would be persecuted for one or more of those reasons anywhere in Fiji. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Fiji, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
Referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Guidelines for when a matter should be referred to the Minister are set out in the Department’s Procedures Advice Manual PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J) (the Guidelines). The Tribunal has considered the applicant’s request in light of those Guidelines. It is submitted that there are compelling and compassionate circumstances warranting Ministerial intervention.
The Tribunal has considered the evidence provided by the representative on behalf of the applicant. It considers that the circumstances fit within Part 4 of the Guidelines, titled Unique or exceptional circumstances. One circumstance referred to in Part 4 is ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen’. The Tribunal notes that there are unusual circumstances in this case. It is informed that the applicant had a relationship with [Ms A], an indigenous Australian citizen, and as a result she is the biological mother of, and the applicant is the biological father of, an Australian citizen child, [Master B], who was born on [date]. The child’s mother is in a current relationship with a different person, and is subject to family violence.
Relevant background of the applicant establishing himself in [Town 2], a remote area in the Northern Territory, was submitted as follows:
·The applicant resides in the Aboriginal community of [Town 2], Northern Territory. The applicant is an integral part of, and has also formed a unique relationship with, the indigenous Australian community.
·The applicant is a qualified, skilled [Occupation 1]. Indeed, he is the only [Occupation 1] in [Town 2]. He has been employed in this role with [Corporation 1] since November 2020.[4]
·The applicant has, in the past, attempted to train/upskill others in the industry however, due to severe crime rates in [Town 2], these trainees/other workers have ceased the role after 7 days or so. The role of [Occupation 1] in [Town 2] cannot be filled locally, nor are there any willing trainees prepared to be upskilled. Should the applicant depart Australia, the community of [Town 2] will be without a skilled [Occupation 1]. Given [Town 2] is [hundreds of km from] Darwin, a lack of [Occupation 1] will have a severe impact on those who rely on the applicant’s skill set.
[4] Evidence of this employment was provided, including his work reference.

Supporting letters were provided attesting to these matters:
·[Mr C], who has been employed by the Northern Territory Government for 9 years, and has resided in [Town 2] for 3 and a half years, states that the applicant has always been a contributing resident, employed as a [Occupation 1] with [Corporation 1], which is the main service provider of the community and surrounding homelands. He is well known and liked by community members and makes a valuable contribution by providing skilled services to [residents]. He is an honest and trustworthy person and [Mr C] believes him to be of good character.
·[Ms D], Aged Care and Community Services manager, states that [Town 2] is a remote Aboriginal [community], and the applicant is the only [Occupation 1] in the [workplace] at [Corporation 1] which provides [Occupation 1 services]. He volunteers for Elders and NDIS clients connecting with trips to their homelands, providing support for [issues] that may arise [out bush] in a remote setting. It is difficult to attract staff to remote Aboriginal communities, and the applicant has consistently demonstrated exceptional dedication, professionalism and compassion in his role. He has provided a safe and culturally safe environment for clients and community members, showing the utmost respect for others’ culture, values and religion. He has a strong work ethic and willingness to go the extra mile which has made him an invaluable asset to the community. Given the ongoing demand for skilled workers in remote Aboriginal settings in Australia and the critical role that the applicant plays within the [Town 2] community, permanent residency status is of utmost importance to ensure the continued provision of services.
Submissions concerning hardship to Australian citizens
Both the mother and the child reside in [Town 2]. Given the family violence by the mother’s current partner, the mother has been reluctant to add the applicant’s name to the child’s birth certificate.[5] The Tribunal was provided with a joint statutory declaration of [Ms A] and the applicant stating that they are the parents of the child and they would like the father’s name added to the birth certificate, and the child’s surname will be [B] ([B] is the applicant’s father’s surname; on some of the applicant’s documents submitted in his protection visa case, his surname is stated to be [B]). It was also submitted that the applicant is prepared to undergo a DNA test in order to demonstrate his relationship with the child.[6]
[5] The Tribunal has not been provided yet with the birth certificate of the child but is prepared to accept the representations.
[6] The Tribunal did not request that this occur.
Other evidence of the applicant’s relationship to the child was provided:
·It was submitted that the applicant is listed as a ‘safe person’ and emergency contact for the child (though this remains unknown to the mother’s partner). In this respect the Tribunal was provided with a letter from [Ms E], Team Leader, [Department of Territory Families, Housing and Communities], the Northern Territory Government, confirming that the applicant is listed on their files as the father of the child, and as a person who could look after the child if this was needed, and as an emergency contact.
·It was stated by the senior counsellor, [Family Service 1], that [Ms A] has been connected with the service for several years and it has always been maintained during her pregnancy and after the birth that the applicant is the father of the child.
Although the Tribunal does not have direct evidence/ identity documents for the mother or child, the Tribunal is prepared to accept on the evidence before it that they are both Australian citizens. It is submitted that the applicant wishes to remain in Australia in order to have a father–child relationship with his son, and that the mother of the child, despite her current relationship, also seeks to have the applicant remain in Australia. The letter from [Ms E] supports that the applicant remain in Australia, noting that having the applicant live in [Town 2] where he currently resides and works would be of benefit to the child. The letter from the senior counsellor, [Family Service 1], provides more details, noting that the mother has consistently talked about the ways she has worked with the applicant to enable him to have a relationship with his son, that she values the importance of their connection and for the child to develop a strong connection to his paternal culture and kin. Further the applicant has expressed a strong desire to stay in [Town 2] to support and develop his relationship with his son. The senior counsellor submits that this is in the best interests of the child.
The evidence suggests that it is also in the best interests of the mother of the child that the applicant remains.
Decision to refer to the Minister
The Tribunal has decided, on the information before it, that there is enough supporting information as to the connection between the child and the applicant and his former partner for the Tribunal to refer this matter to the Minister. Having a supportive family unit is an essential part of a child’s development, especially if the child’s parents are no longer together, and if the mother’s new partner is not a positive role model. The Tribunal has no reason to doubt that the child will receive loving support from his mother, but strong familial bonds to both parents are important for a child’s long-term well-being. The applicant’s removal from Australia may mean that he is separated from his child, and that he may lose any significant connection to the child permanently. The mother supports the development of the relationship between the child and the child’s father, including support for the child to have a connection to his father’s culture. Further, the Tribunal considers that removing the applicant will place additional responsibilities on the Australian citizen mother of the child. The Tribunal considers that continued access to the child’s father is in the child’s best interest and respectfully recommends this matter be brought to the Minister’s attention, for consideration of his discretionary power under s 417 of the Act.
The Tribunal knows of no circumstances in this case that would fall within s 7 of the Guidelines relating to the types of circumstances which do not meet the guidelines for referral and are inappropriate for Ministerial consideration.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in Departmental policy, ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member
ANNEXURE A – 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–5LA, which are extracted below.
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 below.
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.
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.
…

[2023] AATA 4357

22 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction