1903487 (Refugee)

1903487 (Refugee) [2024] AATA 2587 (19 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903487
2401829

COUNTRY OF REFERENCE: Fiji
MEMBER:B. Mericourt
DATE:19 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 April 2024 at 9:13am
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – campaigner for indigenous land rights and strong supporter of previous government – multiple departures and returns over many years – change of government – country information – land system and role of land trust board – members of family unit wife and children – wife’s workplace injury and medical treatment – application for medical treatment visa in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 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 21 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 15 August 2018. The delegate refused to grant the visas on the basis that she was not satisfied the applicants had a well-founded fear of persecution or that there is a real chance they will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if they return to Fiji. Nor was the delegate satisfied that there is any real chance the applicants will suffer significant harm as defined in s36(2A) of the Act if they return to Fiji.
On 2 February 2024 the primary applicant’s wife requested her application for review of the Department’s decision be split from that of her husband. The reasons for this request were recorded as relationship breakdown. At the Tribunal hearings the applicants’ evidence was clear that the primary applicant’s wife did not have claims of her own but had requested the applications be split so that she could apply for a visa for medical treatment. The Tribunal spoke to the applicant’s wife on her own and she confirmed that she only requested the application be split for reasons related to her medical condition. Consequently the application for review has been conducted as originally requested with the applicant’s wife and daughter as members of the family unit of the primary applicant.
The applicants appeared before the Tribunal on 15 March 2024 and 18 April 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Fijian and English languages.
The applicants were not represented at the 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.
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.
Receiving Country
The applicants claim to be citizens of Fiji. They provided copies of the bio data pages of their Fijian passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of Fiji. The Tribunal finds that Fiji is the receiving country for the purpose of assessing their claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have the right to enter and reside in any country other than their country of nationality.
BACKGROUND
The primary applicant (henceforth referred to as the applicant) is a [Age]-year-old married indigenous Fijian man. His wife, aged [Age] years and daughter, aged [Age] years, are secondary applicants.
The applicant’s parents are deceased and at the time of application he had [sisters] and [brothers] residing in Fiji. The applicant’s wife had one sister residing in Fiji and [brothers] and their wives and [nieces and nephews] residing in Australia.
The applicant completed high school and worked as a farmer in Fiji. His wife worked in a [Workplace] in Fiji until 2011.
The applicant first entered Australia [in] October 1998 and has since entered and departed Australia on multiple occasions as the holder of visitor visas from that date until 11 May 2018 when he last entered Australia. His wife has also entered and departed Australia on multiple occasions. She first entered Australia [in] December 2018 as the holder of a visitor visa. Her last entry to Australia was [in] February 2018. The applicant’s daughter last entered Australia [in] August 2018
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have a well-founded fear of persecution if they return to Fiji and if so, do they meet the refugee provisions of the Act? If not, do the applicants meet the protection obligations under the complementary provisions of the Act?
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to the following:
·the applicants’ claims for protection in their application form dated 5 October 2018 and submitted to the Department on 10 October 2018;
·submissions from the applicant provided to the Tribunal on 8 March 2024 which include Facebook pages from the Fiji Native and Tribal Congress with online discussions from January to March 2024; two letters of support – one from the primary applicant’s brother dated 3 March 2024 and one from the primary applicant’s wife dated 8 March 2024; several photographs taken in Sydney, undated; various financial records, school reports and other material related to the applicants’ personal circumstances in Australia;
·Department of Foreign Affairs (DFAT) Country Information Report, Fiji, 20 May 2022;
·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;
·Other relevant country information as referred to below.
The applicant’s claims
The claims the applicant made in his protection application to the Department dated 15 August 2018 related to fearing harm due to his political opinion and his ‘stand against land issues’. The details are as follows;
·the applicant stated he had been assaulted by the Police Department. He had been brutally attacked and suffered injuries on his face and chest;
·the government had not returned their land;
·the applicant stated that he thought he would be persecuted and face imprisonment if he returned to Fiji;
·the applicant did not believe he could be protected by the authorities as they “look after their own”, complaints are futile and land issues are a sensitive matter;
·he could not relocate as Fiji is a small country and the authorities would eventually track him down and continue to persecute him and his family. He did not feel safe anywhere in Fiji. He also had no other livelihood or place to stay.
The secondary applicants had no claims of their own.
The applicants were not interviewed by the Department.
Evidence given at the Tribunal hearings
During the hearing on 19 March 2024 the Tribunal discussed with the applicants their family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicants’ claims and reasons they fear returning to Fiji.
The Tribunal first spoke with the primary applicant on his own about his claims and then spoke to his wife and daughter.
When he was in Fiji the primary applicant was a farmer growing vegetables mostly for their own use. His wife worked in a [Workplace 1] selling [Product]. The applicants had relatives in Australia who helped them financially with airline tickets etc. Some are permanent residents and some are Australian citizens.
The applicant first came to Australia to play [Sport] in 1998 and 1999. He next visited in 2017 and said that was when he decided he wanted to stay permanently. However, he needed to get his daughter a visitor visa so he went back and forth from the end of 2017 through the first half of 2018. When he successfully obtained his daughter’s visitor visa they all stayed.
The applicant said that he is currently living with his family and a cousin in [Suburb]. Since arriving in Australia he has been employed in [Work sectors] and then working as [Occupations 1 and 2]. He is about to start a course to become [an Occupation 3]. His wife was [an Occupation 3] until she became injured at work when she was pushed over and injured her leg. She is in receipt of a workers compensation payment. Their daughter is looking for [work]. They are waiting for her new passport to arrive before she has sufficient identity documents to obtain work. The cousin living with them is employed.
The applicant said the reason he wanted to come to Australia was that he was a strong supporter of the government in power prior to Bainimarama’s coup. The applicant could not remember exact dates but sometime between 2012 and 2015 a leader of the political opposition was arrested and imprisoned. The applicant and his friends protested on the streets after a curfew had been imposed by the government. He and some of his friends were assaulted by the police and he was injured on his face and chest.
The Tribunal discussed with the applicant the change in government since the applicant’s arrival in Australia and asked whether he feared harm now from the current Rabuka coalition government as a result of his political opinions over 10 years ago, or for any other reason. The applicant said he did not fear harm from the current government authorities.
However, the applicant now fears harm in respect of outstanding land issues. The Bainimarama government took some of his family land and now they have very little land to live on and farm as most of the land is still held by the government. The applicant said that last month (February 2024) the government announced they would not be returning the land for 99 years.
The applicant together with some other landholders are currently paying lawyers to recover the land. They are also paying an organisation that is working on behalf of the landowners ([named]) to assist them to recover their land.
The Tribunal discussed with the applicant the role of the i-Taukei Land Trust Board (TLTB) which oversees all ‘native’ leases and is supposed to protect indigenous farmers’ land. It also discussed reports that the current government is taking steps to reverse some of the policies introduced by Bainimarama which had adversely affected indigenous landowners.[1] The Tribunal put to the applicant that some recent reports indicate that the land lease situation was improving. For example, in May 2023, the Fiji Council of Chiefs endorsed the reinstatement of a lease distribution policy with the TLTB.[2]
[1] Fiji Times, ‘Parliament repeals Bill 17’, 7 April 2023
[2] Iliesa Tora & Kelvin Anthony, “Native land lease policy reinstated by Fiji Council of Chiefs’, RNZ Pacific News, 25 May 2023
The applicant said that he believes these policies are all words and no action as no land has actually been restored to the farmers with whom he is involved. He believes the TLTB is corrupt and is selling land for money without telling the owners and without compensating them. This happened to his own land. He said that every year the government and the Council of Chiefs’ policies are not enacted. Every year they say they will distribute the land fairly but it doesn’t happen.
The applicant has provided the Tribunal with a number of copies of Facebook pages dated January to March 2024 within a group calling itself Fiji Native and Tribal Congress. Within this group there is a vigorous discussion of the ineffectiveness of the TLTB to restore land to indigenous farmers, “the TLTB’s breach of trust to its beneficiaries without account”, its failure to apologise to landowners for abuses that occurred under the Bainimarama government, and several other concerns the group has about government policies and the TLTB.
When asked what specific harm the applicant feared if he were to return to Fiji now or in the reasonably foreseeable future, he said he would not be able to live properly as at his age it would be difficult to find work and he had no land to farm. His wife needs medical treatment which she would be unable to obtain in Fiji to the same standard as in Australia. (This is the reason she requested a separate review of the Department’s decision to refuse them protection). She would no longer be able to work in the [Workplace] as she did before, because her recent injury means she cannot do any heavy lifting. They will have enormous financial difficulties if they return to Fiji.
The TLTB is supposed to protect indigenous farmers’ land. However, they are corrupt and sell owners’ land without telling them, including his own. He believes the Council of Chiefs policy has not enacted current policy. He said every year they say they will distribute the land fairly but it doesn’t happen. He claims that he has been and will continue to be denied access to land his family has traditionally farmed or any other land and therefore ‘cannot live a good life’.
The applicant’s wife fears she will not get the same quality of treatment for her current health condition if she returns to Fiji. They will have financial difficulties if they return. For example, they would have difficulty getting work in Fiji. She could not do her previous job as it involves heavy lifting.
At the second hearing on 18 April 2024, the applicant’s wife told the Tribunal she is still married to and living with her husband, the primary applicant. She said she requested the Tribunal split the application for review for reasons related to her need for medical treatment in Australia for a workplace injury she incurred in November 2021. At that time she was working as [an Occupation 3] in a [Workplace 3] for [Specified people]. The workers were invited to celebrate Xmas on a boat by their employer. One of the other staff was very drunk and he pushed her and she fell. She injured her back, left leg and arm. She received workers compensation. She continues to have medical treatment including weekly physiotherapy, fortnightly counselling and pain medication. She has medical appointments every month with her doctor for her medication. Her doctor is planning to give her a scan. She has not been able to work since the injury. She provided the Tribunal with a copy of her application for a medical treatment visa which she has lodged since the previous hearing.
The applicant’s wife confirmed that she had no claims for protection of her own.
Country Information
The Department of Foreign Affairs and Trade (DFAT) reports that there is no official discrimination against indigenous Fijians (i-Taukei). Indigenous Fijians are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital.[3]
[3] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information Political Update’, 2 August 2023, p.12
In Fiji, nothing is more important than land. Fiji has attempted to develop a land system that can meet the conflicting needs of the population that is ethnically divided approximately evenly between i-Taukei (indigenous Fijians) and Indian Fijians. I-Taukei hold 90% of the land in Fiji on inalienable customary title. For them, ownership of land is the core of their cultural identity and a guarantee of indigenous privilege.[4] Of the remaining land, 6% is government-owned and 3% is freehold land.[5] The inability of successive Fijian administrations to fashion a sustainable compromise on land policy has polarised the Fijian people, perpetuated a cycle of political instability and retarded Fiji’s economic development.[6]
[4] Matthew Dodd, 2012, ‘The land use unit: A new leasing regime for customary land in Fiji’, p.21 University of the South Pacific (USP)
[5] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information Political Update’, 2 August 2023, p.9
[6] Matthew Dodd, 2012, ‘The land use unit: A new leasing regime for customary land in Fiji’, p.21 University of the South Pacific
Because i-Taukei land cannot be sold, the solution to the problem of access to land for non-indigenous Fijians has been leasing. As control of i-Taukei land is a sensitive issue, the process for leasing it is heavily regulated. The statutory leasing regime is the i-Taukei Land Trust Board (TLTB) which until 2010 held a monopoly on the power to lease i-Taukei land. In 2010 the Bainimarama government issued a Land Use Decree as part of a program of reform aimed at reducing the role of ethnicity in Fiji’s politics.[7] It gave increased control over deciding the leasing agreement process and the manner in which payments were disbursed such that income from leased land would, in future, be distributed equally among all indigenous Fijian collective landowning clans or tribal units, with no chief or titleholder receiving a larger share than any other member.[8] The Bainimarama government also established the ’Land Bank’ under the 2010 Land Use Decree, administered by the Ministry of Lands for the purpose of leasing land from indigenous landowning units through the TLTB, and subleasing the land to individual tenants for lease periods of up to, but no more than, 99 years.[9]
[7] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information Political Update’, 2 August 2023
[8] Bhim, M. ‘Stifling Opposition: An Analysis of the Approach of the Fiji Government after the 2006 Coup’, ANU School of International, Political and Strategic Studies, June 2011, p.13
[9] Phillips, T. & Keen, M., ‘Sharing the City: Urban Growth and Governance in Suva, Fiji”, ANU, 27 September 2016, p.8; United States Department of State (USDOS), Fiji 2015 Human Rights Report, 13 April 2016, p.22

In 2021, the Bainimarama government sought to amend section 12 of the i-Taukei Land Trust Act (1940), to remove the requirement of obtaining the consent of the i-Taukei Land Trust Board (TLTB) for any mortgage, charge, pledge or caveat on a lease or for any such lease to be dealt with by any court of law or under the process of any court of law. The planned amendment (widely known and referred to as ‘Bill 17’) was reportedly contested vigorously by opposition parties, public figures and by individual citizens, including sparking a debate on social media and an online petition with over 30,000 signatures. Nine politicians who were leaders of the opposition parties and indigenous rights advocates, were taken for questioning by police about the criticisms.[10] However, the only evidence of any individual citizens receiving adverse attention during this controversy involved the arrest of a man from Western Fiji for posting social media posts which police alleged were ‘inciting violence’ after he allegedly posted the message calling on members of the i-Taukei community to arm themselves and fight members of the Muslim communities. DFAT assessed that social media users who criticise the government face a low risk of official discrimination.[11]
[10] Mitchell, J,, ‘Storm in a teacup’, Fiji Times, 25 July 2021; Anthony, M., ‘Fiji's political turmoil: everything you need to know’, The Guardian, 4 August 2021
[11] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Fiji’, 20 May 2022, p. 3.30
Since FijiFirst lost power in the last elections, independent evidence suggests that the current Rabuka-led coalition government is seeking to reverse the policies of the former government and is sympathetic to the concerns of that part of Fiji’s indigenous community who saw the former government’s policies as discriminatory. The 2010 Land Use Decree has been repealed and the Land Bank system is undergoing a process to dismantle it.
In April 2023 Fiji’s Parliament repealed the i-Taukei Land Trust (Budget Amendment) Act known as Bill 17.[12] In March 2023 the Fiji Broadcasting Company (FBC) reported on a transition of those leases under a specially protected lease scheme from the Land Bank to the TLTB so that the Land Bank system can be removed. This will occur “after consultation and debate in Parliament”.[13] In May 2023, RNZ Pacific News reported that ‘Native land lease policy reinstated by Fiji Council of Chiefs” which has endorsed the reinstatement of a lease distribution policy with the TLTB.[14] In January 2024 the FBC reported on the establishment of the i-Taukei Wealth Fund by the TLTB, an “initiative aimed at economic empowerment and sustainable development for landowners associated with the TLTB”.[15] Finally, in February 2024, FBC News reported that the TLTB is in the process of establishing a Land Development Company, with plans for it to be operational within the next three years. The focus of this company will be to assist landowners in developing their land and engage in income generation activities. The Chief Executive of TLTB, Solomoni Nata, is quoted as saying “the goal is to assist landowners to develop their land before it is sold to developers or leased out, ensuring they benefit from the increased value of the land. The Land Development Company will provide the necessary assistance and expertise to ensure that landowners receive maximum returns on their properties”.[16]
[12] Fiji Times, ‘Parliament repeals Bill 17’, 7 April 2023
[13] Litia Cava, “Land bank system in question as Vosarogo initiates consultation”, FBC News, 28 March 2023
[14] Iliesa Tora & Kelvin Anthony, “Native land lease policy reinstated by Fiji Council of Chiefs’, RNZ Pacific News, 25 May 2023
[15] FBC News, 23 January 2024,
[16] FBC News, 5 February 2024
Assessment of the applicant’s claims and findings
Does the applicant meet the refugee criterion under s 36(2)(a) of the Migration Act (1958)?
The Tribunal accepts the applicant’s claims that he was assaulted by police when he participated in a protest about the arrest of an opposition member of Parliament during curfew sometime between 2013 and 2015. The Tribunal accepts that he was injured at that time. The applicant has not claimed to fear any harm now for reasons of his political opposition or political activities or opinions during the previous governments’ terms. Nor has the applicant claimed to fear harm from the current government or government authorities for reasons of his political opinion.
The Tribunal accepts that the applicant, as an indigenous Fijian, had an unfavourable view of Bainimarama’s FijiFirst party, and felt that he was being discriminated against as part of the indigenous Fijian community, and that traditional Fijian values and culture was being suppressed by policies like the Land Use Decree of 2010 and the Land Bank program. The applicant claims that he was deprived of his right to his land (whether as an owner, or by way of being among those ethnic Fijians whose land had been registered into the Land Bank system and who felt discriminated against by the manner in which the lease of their land was negotiated by the Government), or that the government entered a contract to which he was not a party.
The Tribunal accepts that he is sceptical of the changes that have occurred under the Rabuka coalition government since 2023 and sceptical of proposed changes to the TLTB over the next few years. The Tribunal accepts that he has engaged a lawyer and an organisation to assist in having land use restored to landowners including himself. The applicant has not claimed that he suffered any harm as a consequence of his expressed opinions about abuses of land by government authorities, or by his activities in engaging a lawyer and an organisation to oppose current government practice and policy in respect of land-use.
There is no evidence before the Tribunal that the applicant has been threatened with serious or significant harm or suffered serious or significant harm as a consequence of expressing his dissatisfaction with the current government’s land use reforms and the lack of meaningful changes for i-Taukei landowners or for any other reason.
There is no evidence before the Tribunal that the harm the applicant fears harm as a result of not having all his family land restored to him involves systematic and discriminatory conduct for reasons of his race or political opinion or for any other reason.
Consequently, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for reasons of his political opinion, his race or for any other reason as defined in s5J(1)(a) if he were to return Fiji now or in the reasonably foreseeable future and he does not meet the requirements of s 36(2)(a) of the Act.
Does the applicant meet the requirements for Complementary Protection?
The Tribunal accepts the applicants’ evidence that their lifestyle will be of a poorer quality if they return to Fiji and that it is likely that the primary applicant’s wife will not receive the same standard of medical treatment if she returns to Fiji. However, there is no evidence before the Tribunal that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, that there is a real risk they will suffer significant harm as defined in s36(2A) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
B. Mericourt
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 2587

19 April 2024

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