1903296 (Refugee)

1903296 (Refugee) [2024] AATA 1509 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903296
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Damien Power
DATE:12 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and religion – Indigenous Fijian dismissed from job and replaced with Muslim – deemed to have resigned during annual leave – verbal abuse and death threats – no contest of dismissal or attempt to rejoin previous employer – political opinion – youth advocate for political party, but no formal position – warned by military and questioned by police, but not mistreated – several departures and returns – county information – transition from military rule and recent election and change of government – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 dependants.
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 9 February 2019 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 17 December 2018. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 29 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [Age] years of age from Fiji. He was born in [Town 1] but resided in Suva before departing Fiji.
He is married with [children].
The applicant speaks, reads and writes English and Fijian. He completed high school and has tertiary qualifications in [Subject 1].
Evidence before the Department
Migration History
The applicant has arrived in and departed from Australia a number of times. The applicant last arrived in Australia [in] November 2018 on a visitor visa.
On 17 December 2018, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 9 February 2019, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
The applicant believes that he was unfairly dismissed from his position due to his race (as an Itaukei) and replaced with a Muslim. He received threats and intimidation because he was a more qualified worker.
He was verbally abused every day and received death threats. Returning to Fiji now would only make things worse because he was a SODELPA youth advocate in [Town 1]. He was personally warned by the military not to say anything against the Fiji First party or against Bainimarama and Attorney-General Khaiyum, or to continue advocating for SODELPA youth. Bainimarama and Khaiyum are giving away Itaukei land without proper consultation.
Because SODELPA took the Fiji First party to court, they will face the full brunt of the law. The police and the military are backing the Fiji First led government. Efforts to challenge the 2018 general election results are being thwarted. Fiji may be headed for bloodshed.
Because of the threats the applicant received as a SODELPA youth advocate, he will likely be arrested and taken to a camp for interrogation, torture or possibly worse. The military will take over and there will be martial law. This will allow Bainimarama and Khaiyum to rule for ten or twenty years.
The applicant was a race victim and will face further issues with the military and police because of his role with SODELPA. He tried to hire a lawyer to fight his unfair dismissal case but was told that it was no use.
The applicant fears for his life and the lives of his wife and kids. He did not return to Fiji for his own safety and is seeking Australia’s protection.
Interview with the delegate
The applicant was not offered an interview by the Department. The delegate’s decision was made on the basis of the information contained in the applicant’s protection visa application.
Delegate’s decision
The delegate was not satisfied that the applicant would face harm on return to Fiji. The delegate referenced country information that indicated indigenous Fijians did not suffer significant discrimination and were the beneficiaries of government policies that advantaged them over other ethnic groups. The delegate did not accept that the applicant had a public profile because of his association with or support for SODELPA, or that he would be targeted on that basis on return. The delegate also pointed to the applicant’s ability to obtain a passport and leave and re-enter Fiji multiple times without incident.
Evidence before the Tribunal
Application for review
On 12 February 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant did not provide any further evidence regarding his claims prior to the hearing but did so subsequent to the hearing, as set out below.
The hearing
The applicant attended a hearing on 29 January 2024.
The applicant gave evidence about his background, work history, and his family in Fiji. He also gave evidence regarding his claims to have been dismissed unfairly from [Employer 1] in Fiji and his experiences living in Fiji in the post-coup period.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
Post-hearing submissions
Subsequent to the hearing the applicant provided a number of work references, testimonials and training certificates from his time in Australia. He also forwarded a copy of his deemed resignation letter from [Employer 1] in Fiji, which the applicant had referred to in his evidence at hearing.
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.
Nationality
The applicant provided a copy of the bio-data pages of his Fijian passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is Fiji. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Fiji.
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
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was asked about his schooling and employment history in Fiji.
The applicant completed all of his schooling in Fiji. After initially studying [Subject 2], He decided to switch to [Subject 1] studies. After gaining a Diploma in [Subject 1], the applicant was able to get a job almost immediately working for [Employer 2]. He worked for [Employer 2] for about four years. Sometime around 2014, he was offered a job with [Employer 1] which offered better pay and began working there instead.
He was responsible for [Employer 1]’s [specified equipment]. These [were] housed in same complex as [an] office and in a zone of [offices] that included [other offices. [Employer 1] employed a number of other [people] but the applicant was the only person who looked after [Work function], which included [deleted]. The applicant was involved in implementing a maintaining [Specialised part of work function] for [Employer 1], which [did Work tasks].
The applicant was asked about his experiences in Fiji and why he feared returning there.
The applicant talked about the period of military rule. He said that initially, he had not been concerned when the military took over. However, he grew more concerned as time went on. His concerns were amplified to some extent by the fact that he was employed at [Employer 1] and near the heart of government.
The applicant said that as military rule took hold, stories emerged of people being taken in for questioning by the military. The military had a free hand. The police could not stop them and there was no-one able to hold the military to account. He referred to reports of torture.
In his evidence at hearing, the applicant referred a number of times to people being taken in for questioning during the Bainimarama era. The applicant was asked if he was ever taken in for questioning. The applicant said that it had only happened once and, on that occasion, it was not the military but the police who questioned him. The request for police involvement had come from his own Department.
The applicant was asked why the police had questioned people. The applicant said that there was a case involving the trafficking of cocaine. There were some irregularities with the case and an enquiry was conducted.
The applicant said that he had been interviewed by the police. I asked him if others had also been interviewed and he said that others had also been interviewed. I asked the applicant if he had been mistreated while he was being interrogated. The applicant responded that he had not been mistreated but the atmosphere had been tense.
He said that he was questioned but that all of the [Work] team had also been questioned. He also confirmed that it was routine questioning and that the questioning had only lasted around five minutes. When asked if he was mistreated, the applicant said that he had not been mistreated, although it was an uncomfortable experience.
The applicant was asked if anything else had happened. The applicant referred to the media and said that they had made things worse and were creating a lot of fear. He said that although he did show any fear to his family, he was becoming worried. The military would behave unpredictably, and this added to the tension and the applicant’s anxiety.
I asked the applicant why he left Fiji. He said the situation just kept on getting worse. He again referred in general terms to people being brought in for questioning. He also said things began to feel unsafe in Fiji. He referred to another incident where another member of the [team] had been brought in for questioning and everybody had talked about it.
In his statement of claims to the Department, the applicant claimed that he was a SODELPA youth advocate and had been warned by the military not to speak out against the government.
The applicant was asked at hearing whether he was politically active in Fiji. The applicant said that he was a supporter of SODELPA. He said that he would help them organise rallies and put up posters. He would also [do fundraising activities] to help the movement financially.
At the hearing, the applicant did not claim to have held any formal office in SODELPA, to have represented them publicly or to have any public profile associated with his activities. I asked him if there were issues for him related to his involvement in SODELPA. He said that there were issues going on at the time but that he did not get involved in any of that because he had his own issues to resolve. The applicant did not give any specific examples of any problems relating to his support of SODELPA, nor did he explicitly claim at hearing that he feared returning to Fiji on account of SODELPA. He did not refer to being warned by the military or put forward any instance where he had suffered on account of his SODELPA activities. He did not raise at hearing instances where he had received death threats as outlined in the written claims accompanying his protection visa application.
I accept that the period of military rule was an anxious time for the applicant and that he had concerns for himself and for the direction in which his country was heading. However, while the applicant expressed concern at the general atmosphere in Fiji during the Bainimarama era and alluded to reports of interrogation and even torture, he was not able to articulate any instances where he had been subject to serious harm. On the one occasion he had himself been questioned, it was only briefly and as part of a wider enquiry where other colleagues had also been questioned. The applicant confirmed that he had not been mistreated during that questioning.
I note also that the applicant was able to depart and return to Fiji several times between 2017 and 2018, before departing the country for the final time in November 2018. He did not claim that he come to the adverse attention of the authorities in Fiji or that he had experienced any issues leaving and re-entering the country on the several occasions that he did so.
In any event, there have been significant changes in Fiji since the applicant’s departure. Country information indicates that Fiji successfully transitioned from military rule after elections held in 2018. DFAT reports that observers generally considered those elections to be credible and to broadly reflect the will of the Fijian people[1]. Elections held in December 2022 saw a peaceful transition of power and were again considered to be generally free and fair[2]. The Bainimarama government lost those elections and was replaced by a government that includes the SODELPA as a coalition partner. The applicant stated in his written claims that the military and police take their orders from Mr Bainimarama, and specifically referred to Police Commissioner Sitiveni Qihilo and the (then) Commissioner of the Fijian Corrections Service, Francis Kean. Country information confirms that Mr Qihilo has been suspended and Mr Kean has resigned his position[3].
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
[2] 'Common Claims Fiji December 2023 - Word', Country of Origin Information Services Section (COISS), 11 December 2023, 20231211152543
[3] “Pacific news in brief for 5 December”, Radio New Zealand, 5 December 2023 ( “Suspended FCS Commissioner resigns”, FBC News, Sainiani Boila, 3 March 2023 (>
DFAT has stated that it could not locate any reports of the former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former Bainimarama government since the Rabuka government was elected[4]. Although the applicant was a SODELPA supporter, he did not claim to have been especially active in politics or to have any sort of public profile in Fiji. Country information even at the time the former Bainimarama government was in power suggested that any adverse attention from the then Bainimarama government was generally limited to those with a high profile in the opposition and that low profile opposition supporters were much less likely to be affected[5]. In any case, as noted above, the current Fijian government has now changed and includes SODELPA as a coalition partner[6].
[4] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[5] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
[6] 'Common Claims Fiji December 2023 - Word', Country of Origin Information Services Section (COISS), 11 December 2023, 20231211152543
The applicant’s written statement of claims to the Department state that he was the victim of an unfair dismissal action at [Employer 1] and that he had come into conflict with a Muslim manager there. The applicant was asked what happened with his job. The applicant talked about how many of his friends had begun moving to Australia. He said he was worried about how he would provide for his family if something happened to him.
The applicant was again asked about his job with [Employer 1]. The applicant said he was mentally drained by his experiences there. The applicant said his father told him to come home to the village. The applicant said he had a lot of leave, including annual leave and time in lieu. When he finished his first week of leave, he tried to reapply. But instead, the department had sent him a ‘deemed to resign’ letter. The applicant said he could not do anything, but that once he got the letter, he thought it might be a chance to get away from everything that was going on. He said he knew he could go back and work for [Employer 2]. However, talking with his mates back home had convinced him to stay in Australia.

I asked the applicant to provide more detail as to what led him to quit [Employer 1]. He said he had a manager who was a Muslim. He said at first, his boss was a reasonable manager. However, he claimed that at some point his manager changed. His manager would ‘undermine’ him, and they started having arguments. He said whenever the [offices] or some other area needed [a Work function], they would call the applicant in. Whenever the applicant would put up a proposal for [a function], his manager would always oppose it and find some reason to object and ensure it would not go through. This started to affect the applicant at work. The applicant claimed that his manager was related to [Official], so the applicant was reluctant to complain.
The applicant claimed that he had had to leave [Employer 1] because he had been deemed to resign when he did not return from leave. The applicant claims that after he initially took a week’s leave, he had applied for further leave. However, he claimed that further leave request was not recorded and that he was subsequently deemed to have resigned.
The applicant claimed that his manager had something to do with his leave not being actioned. He stated that his manager had not processed the leave properly, or even that the manager had seen the leave request and deliberately ignored it. The applicant did not provide any evidence that this was the case, and this appeared to be speculation on his part. The applicant did not indicate that he took any steps to address the issue or contact [Employer 1] directly. He did not repeat at hearing his claims to have engaged or consulted a lawyer. Instead, he noted that he saw the dismissal as a potential opportunity to change his circumstances. He did not make any claim that the issues at his employer were systemic or that he was discriminated against more broadly by the government, only that he had a workplace conflict with a single manager.
Subsequent to the hearing, the applicant provided a copy of his ‘deemed to resign’ letter, referred to in his oral evidence at hearing. Although this letter confirms that the applicant was deemed to have resigned from [Employer 1] after an unauthorised absence of work, it does not otherwise provide any information about the circumstances of his departure or, on its face, support the applicant’s claim that his manager failed to approve his leave or actively ignored a leave request.
I do not accept that the applicant was let go from [Employer 1] because of the actions of a disgruntled manager. The applicant did not take any steps to contest his release from [Employer 1]. By his own evidence, he had already contemplated leaving Fiji. The applicant also admitted that he could have reapplied for a job with [Employer 2] if he had wished but did not choose to do so. I find that the applicant took leave from and did not return to [Employer 1] because he had already planned to move to Australia, and not because of any workplace conflict with a manager.
Even if the applicant had an issue with a particular manager at his last employer, those events took place almost six years ago. The applicant had a consistent work history in Fiji from the time he finished his studies. By his own admission, he could have sought employment again at [Employer 2], his former employer. Beyond his personal issues with that one manager, the applicant did not claim that he had previously faced employment issues even at [Employer 1], or that there had previously been any discrimination, systemic or otherwise, directed at him during his time there. The applicant did not indicate that he had ever previously been denied employment in Fiji for any of the reasons set out under s5J(1)(a), or that he would face issues finding employment on return to Fiji.
Country information indicates that indigenous Fijians, as the majority ethnic group in Fiji, have considerable social, economic and political capital. Indigenous Fijians also benefit from policies, such as communal land rights, that advantage them over other ethnic groups in Fiji and provide a level of positive discrimination[7].
[7] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
Although the applicant stated in his written claims that the former Bainimarama government had been ‘giving away’ Itaukei land, he produced no evidence of this, nor did he pursue this claim at his hearing. As set out above, the Bainimarama-led Fiji First party are no longer in government.
By the applicant’s own evidence, all his siblings are currently employed in Fiji. The applicant himself is still relatively young with a consistent work history and tertiary education in the [Work] field. He is currently employed in Australia as [another occupation] with a specialist [Occupation] company and has provided evidence of his accreditation in that field. I consider that the applicant is a resourceful and highly employable individual. I am satisfied that he could obtain employment on return to Fiji.
Given all the above, I am not satisfied that the applicant faces any harm on return to Fiji, either on the basis of the political situation in Fiji, his past employment, his association with SODELPA, or for any other reason. I am not satisfied that he would face any harm related to the current political situation in Fiji. I am also not satisfied that he would be discriminated against in seeking employment in Fiji in the future.
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).
I have considered the applicant’s claims under the complementary protection provisions. For the reasons set out above, I am not satisfied that the applicant faces a risk of any harm on return to Fiji, either on the basis of the political situation there, his past employment, his association with SODELPA, or for any other reason. I am similarly not satisfied that there is a real risk he would suffer significant harm on that account if returned to Fiji.
The applicant has referred to the economic situation in Fiji and made claims that he lost his employment in Fiji because of a manager who was Muslim and connected to a senior figure in his former [employer].
As set out above, I do not accept that his departure from [Employer 1] in Fiji was brought about by his manager. In any event, whatever conflict he may have had with the manager was an isolated occurrence. The applicant has not contended that he was previously discriminated against in seeking employment in Fiji or that there were systemic issues even at his former employer. He did not claim that he would face discrimination in finding a job on return to Fiji. The applicant was able to find employment and work continuously in Fiji from the time he finished his formal studies up until he left Fiji. I also place weight on the applicant’s evidence that he could have sought employment at [Employer 2] but chose not to do so.
The applicant is still relatively young, has a varied work history and a relatively high level of education. The applicant has submitted evidence to the Tribunal that he has retrained as [an Occupation], since coming to Australia. I consider that he is an adaptable and resourceful individual who is well-placed to find work on return to Fiji.
The applicant has not put forward any other claims that would engage the complementary protection criteria.
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damien Power
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.
…

[2024] AATA 1509

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness

Standing