1903827 (Refugee)

[2024] AATA 1238

1903827 (Refugee) [2024] AATA 1238 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903827

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Kylie Allen

DATE:30 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2024 at 11:28am

CATCHWORDS

REFUGEE – protection visa – Fiji – imputed political opinion – opposition to the Bainimarama government – family support for separatist state – race – indigenous Fijian – particular social group – failed asylum seekers – workplace harassment – family violence – change of government in 2022 – employment – return visits to Fiji – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Fiji, applied for protection visas on 28 March 2017. They made a joint application as a family. The family consists of the wife (the first applicant), the husband (the second applicant) and their adult son (the third applicant). The delegate refused to grant the visas on the basis that the applicants were not owed protection.

3. The applicants appeared before the Tribunal on 9 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.

4. The Tribunal decision in relation to the first applicant is in a separate decision record. This is a decision record in relation to the second and third applicants.

   CLAIMS AND EVIDENCE

   Protection visa application

5. The applicants’ combined protection visa application included the following claims made by each of the applicants.

   The first applicant

   ·     She was born in a village near [Town 1] in Fiji in [specified year] and [has specified] siblings. She is an indigenous Fijian and a Christian. She has [qualifications] and worked in [a workplace] in Fiji. She married the second applicant in 2002 and their son was born in [year].

   ·     She was employed in a [industry 1] business. Her boss was a FijiFirst MP who hates indigenous Fijians. He subjected her to bullying, abuse and harassment.

   ·     She was vulnerable to harassment because of her brother’s link to anti-Muslim separatists and their attempt to make a breakaway state in the western part of Viti Levu. He was imprisoned and after being released he died.

   ·     She was issued a passport in 2006 and travelled to Australia with her husband in 2008, 2009, 2010, three times in 2011, 2012 and twice in 2015.

   ·     [In] December 2016 she travelled to Australia on a visitor visa because she did not want to return to Fiji. She wanted to start afresh and give her son and family a safe and secure environment to live a good life and to get away from the heartache of losing her only brother.

   The second applicant

   ·     He was born in the same village as his wife in [year]. [Detail deleted.] He is an indigenous Fijian and a Christian. He has qualifications in [occupation 1] and worked in Fiji [in multiple roles].

   ·     His wife was harassed and abused by her boss.

   ·     He left Fiji in 2016 to seek peace of mind and happiness for his family.

   ·     If they are returned to Fiji his family will be left vulnerable to dirty tactics and victimisation by government officials. They will face bullying and harassment because his brother in law was imprisoned for trying to create a breakaway state on the western part of Viti Levu.

   The third applicant

   ·     He was born in [year] and lived in the same village as his parents.

   ·     He was sad when his uncle died after he got back from prison, they might get him too.

   ·     His grandfather became violent and beat him and his mother. His grandfather asks his mother for money for Kava.

   ·     His mother was bullied by her boss.

   Protection visa decision

6. On 12 February 2019, a delegate of the Minister made a decision to refuse the grant of the visas on the basis that the applicants are not owed protection.

   Review application

7. On 19 February 2019, the applicants sought a review of the decision with the AAT.

8. In January 2020, the applicants provided character references for the family from [Leader A] of [Church 1] and [Pastor A], Pastor of [Church 1].

9. On 20 December 2023 the first applicant made a submission to the AAT. It contained additional details about her claims and supporting documentation including the following:

   ·     Regarding her claim of bullying and intimidation or harassment by her former boss in Fiji, Manager and former MP. He would verbally abuse her like swearing at indigenous Fijians in general. He started to date the young [girl] in the [workplace] and call her to do the girl’s work and cover for her while they went into their little get away together during work hours and would ask her to lie to the main boss. She missed her son's prize giving day because she had to stay in the [workplace] to cover for them. Her boss found out she was coming to Australia for holidays with her son and told her that the current government at that time have a way of finding out people who would want protection and they are put in a blacklist. She knows he was just trying to intimidate her but it was the last straw for her. He also intimidates youths of his political party. She provided supporting documentation in the form of an article [details deleted], it relates to her claim that he abused youth members of the party.

   ·     Regarding her claim that her brother was an anti-Muslim separatist member of a group that was trying to breakaway, he represented the people of Ra because [a relative] was from Ra. [Other relatives] from Ra wanted him to stand up for the people of Ra. She did not like the idea. She provided supporting documentation in the form of a media [update] [in] 2015 by [a named authority] which notes that her late brother was [charged] with [specified charges] who appeared before [Court 1] and were released on bail.

   ·     Her son's claim of harassment or abuse from her father is true and genuine. She faced physical, verbal and emotional abuse ever since she was a little girl growing up and she faced it head on to protect her siblings although her mother faced it the most. They would watch her get beaten with firewood and her dad would scream and shout vulgar words and swear at her and them while beating her. Once he locked them out of the house at night because her mum was late getting back from town. When he could not physically abuse her he would emotionally hurt her by doing things to them this way. Now that she has her family and her son is going through the same things, she could not take it anymore. She was going through an emotional breakdown. The abuse at home and at work was just too much for her. She provided a written statement from her youngest sibling who is now on a student visa here in Australia stating that she witnessed the abuse of the first and third applicants in particular two incidents in 2007 and 2008.

   The hearing            

10. On 9 January 2024, the applicants appeared before the Tribunal to give evidence and present arguments in relation to their claims. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. At hearing the applicants advised of the following changes since they lodged their protection visa application:

    ·     The Fijian government changed in 2022, the first applicant’s former boss has left the company they worked for. He no longer presents a threat to her although she would feel anxious if she saw him.

    ·     The first applicant’s abusive father has now passed away and no longer presents a threat to the first or third applicants as he did in the past.

11. Where relevant, the applicants’ oral evidence at the hearing is referred to in my analysis below.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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

18. The issue in this case is whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and Identity

19. The applicants claim to be indigenous Fijians from a village between [Town 1] and [another town]. At hearing they described their life in Fiji and confirmed that they still have family in their village that they support from Australia. In support of their claimed identities they provided their Fijian passports. I accept that the applicants are nationals of Fiji and that if returned to Fiji they would return to their village near [Town 1].

    Protection claims

20. At hearing, the first applicant advised that her main fear in Fiji was harm from her abusive father. She provided a compelling account of his treatment of her and her mother and the third applicant, her son. She also advised that her father is no longer a threat to her as he passed away. I accept that the first applicant, her mother and the third applicant were subject to physical and verbal by the first applicant’s father. Given that he has passed away, I accept the first applicant’s advice that he is no longer a threat to her and her family.

21. The first applicant also advised that she feared harm in Fiji from her former boss who was abusive because she was a native Fijian. He was an MP for the FijiFirst party and was on record as having a bad temper. At hearing the first applicant advised that since the change of government in 2022, her former boss had left her former workplace and that he no longer presents a threat to her. The company she worked for is still operating but under a different name. She did have some anxiety though because in an attempt to intimidate her in 2016 when she advised that she was going to Australia on a holiday for her son, he said to her that the government has a blacklist for people who seek protection. She said that she knows this is not the case and she no longer fears harm from him. She stated that if she happens to see him she would feel anxious and that she would prefer to avoid him. I accept that the first applicant was subject to verbal abuse and mistreatment by her former boss. I also accept that he is no longer in a position of influence since the change of government in 2022 and that he no longer works for the company. I accept that the first applicant feels anxious about seeing him but it is noted that she has no plans to be in contact with him. I also accept that he may have made remarks about a protection blacklist in an attempt to intimidate her but I also accept the first applicant’s advice that she does not think that he was serious about this matter.

22. The first applicant also raised her heartbreak at losing her only brother who passed away in September 2016 before she came to Australia in December 2016. She advised that he had been charged in relation to his involvement in a separatist group and was released on bail in 2015 before he died. In her protection visa application she stated that she was vulnerable to harassment because of her brother’s link to anti-Muslim separatists and their attempt to make a breakaway state in the western part of Viti Levu. The second applicant stated that they will face bullying and harassment because his brother in law was imprisoned for trying to create a breakaway state on the western part of Viti Levu. The third applicant stated that he was sad when his uncle died after he got back from prison, they might get him too. It was unclear from their application if the applicants actually faced harm as a result of their association with the first applicant’s brother. The applicants were asked about this at hearing. They denied being harmed by association with the first applicant’s brother. They advised that his wives and children were living in the family home in the village and they were supporting them. The third applicant did not indicate that he was wanted by anyone. The applicants advised that they had no issues departing Fiji. The first applicant explained at hearing that really she wanted to escape the stress and sadness of her brother’s passing when she came to Australia. I accept that both the legal process and the loss of the first applicant’s brother were very distressing for the first applicant and I note her advice, and the advice of the other applicants, that they have not been subject to harm due to their political opinion, actual or imputed, as a result of any association with the first applicant’s brother. Apart from the claims in the visa application there is no evidence before me, such as independent evidence, to support that family members of those separatists arrested in 2015 were of interest to the government or military or were imputed with an adverse political opinion or subject to any harm.

23. I have had regard to the first and second applicants’ travel to and from Fiji on approximately 9 occasions between 2008 and 2015 before they travelled to Australia in 2016 and applied for protection at the expiration of their visitor visas. It was put to the applicants at hearing that if they genuinely feared for their life or safety that they would not have returned to Fiji on so many occasions prior to claiming protection. The first applicant responded that she travelled to Australia annually for a church convention held in Australia. She also visited her cousins and her husband’s uncle. Her sisters supported her travel as one was working at a [business] and another was working as [an occupation 2] in Fiji. The second applicant stated that he came to [attend an event] and to visit his brother. The applicants were asked why they applied for protection on the tenth visit in 2016. The first applicant stated that she decided to stay after realising that she is more peaceful in Australia. The second applicant stated that he had travelled to visit his brother but decided to look for work and help his family. They applied for protection because of what happened to his wife and they could not return to Fiji as there is nothing there for them anymore.

24. I accept that the first applicant faced a number of challenges when she lived in Fiji. In particular from her boss and her father and that the third applicant also had problems with his grandfather. I accept that the applicants were saddened by the untimely passing of the first applicant’s only brother after his arrest for political activity. I do not accept that the applicants were genuinely fearful for their lives or held a genuine fear that they faced a real chance of serious harm in Fiji on their arrival in Australia. I consider that if they had those fears that they would not have returned to Fiji 9 times before claiming protection. The applicants do not appear to have ever gone to the police about their problems in Fiji and they do not appear to have considered moving to avoid harm. The first applicant has [qualifications] and a variety of work experience in Fiji and the second applicant has [occupation 1] qualifications and work experience. The fact that the applicants took no action to change their living situation or to seek help in the years prior to their move to Australia does not indicate to me that they feared serious harm when they lived in Fiji. The applicants did not dispute this assessment when it was put to them for comment at hearing.

25. The first applicant was asked if she would face harm in Fiji if she returned now since there has been a change of government and her father has passed away. She responded that she did not think so now the government has changed but she does not want to return to the village. It was put to the applicant that, given her work experience and qualifications she could look for work elsewhere outside of the village. The applicant responded that it would be too difficult to move away as she already has a home in the village, she is responsible for her sister and the cost of living is high. They have nothing in Fiji and would have to start all over again. In Australia she can support all these people (her siblings and her deceased brother’s family) because her pay is higher than in Fiji and in Australia she has no bad memories. It was explained to the applicant that this is not a criteria for a protection visa. She had nothing further to say about that.

26. The second applicant confirmed that he had applied for protection because of his wife and that her former boss has now left the company and her father has passed away. He said he was never harmed in Fiji and that he did not think anything would happen to him on his return. He did say that there is nothing there for them anymore as they left their jobs in Fiji and have made a life in Australia. Similarly, the third applicant also advised that he had applied for protection on the basis of what happened to his mother. He did say he was harmed by his grandfather but that his grandfather has now passed away. He said he has made a life for himself in Australia. He is working and undertaking an apprenticeship, having graduated from high school last year.

1. The Tribunal has considered whether the applicants’ past experiences and country conditions in Fiji would result in them facing a real chance of serious harm on their return to Fiji. The first applicant previously feared harm from her former boss, a FijiFirst MP who hated indigenous Fijians. The second and third applicants supported her in this claim. At hearing she advised that the change of government in Fiji has resulted in the departure of her former boss from her former employment and she no longer fears harm from him. I have had regard to country information[1] which states that in the December 2022 elections, Prime Minister Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power. I have information from DFAT which reports they have not been able to find any credible reports of former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former government, since the Rabuka government was elected. Additionally DFAT reports[2] that the majority of Fijians are still iTaukei or indigenous Fijians. SODELPA who was elected to power in 2022 largely draws its support from iTaukei. Some low-level social discrimination continues, with the use of racist stereotypes common among both Indo-Fijian and iTaukei groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian,’ and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race. Given the first applicant’s individual circumstances and country information about the treatment of iTaukei, I am not satisfied that she faces a real chance of any harm from her former employer, members of the previous government or Indo-Fijians as a result of her ethnicity or for any other reason including her association with her brother.

   [1] “US Department of State Country Reports on Human Rights practices for 2022” – Fiji, 20 March 2023; COISS, “DFAT Cable 20230621135833”, 3 August 2023; Nancy Schneider, “Cautious Optimism for Fiji’s Coalition Government - Australian Institute of International Affairs - Australian Institute of International Affairs,” 8 March 2023

   [2] Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Fiji,” 20 May 2022

2. The first and third applicants previously feared harm from the first applicant’s father who was violent with them. At hearing they both confirmed that he passed away and they no longer fear harm from him.

3. The first applicant indicated that her former boss suggested that people who sought protection in Australia would be placed on a blacklist and presumably have difficulties on their return to Fiji. The applicant acknowledged that she does not think this is actually the case and that he said this to intimidate her. DFAT reports[3] that when passengers arrive at Fiji’s international airport they must present their passport and an arrival card to an immigration officer. Passengers are also subject to customs and quarantine inspections. Corruption is unlikely. The applicants confirmed that they had no issues in the past departing from or returning to the airport in Fiji. DFAT is not aware of any official or societal discrimination against failed asylum seekers. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia (including the applicants), and a return would be unlikely to be seen as unusual or attract attention from authorities. I am not satisfied that the applicants face a real chance of any harm on their return to Fiji on the basis of seeking and being refused protection in Australia.

   [3] Ibid.

4. The applicants claim that it would be difficult to re-establish themselves on their return to Fiji due to the economy. They left their home and jobs in Fiji and established a new life in Australia. DFAT[4] assesses that The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region. Its per capita  gross domestic product (GDP) is much higher than most Pacific neighbours. Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. The applicants advised that the first applicant was previously employed in [a workplace] and [industry 1]. The second applicant was employed in [a government] service and in [industry 1]. The third applicant has completed school and is now working and undertaking an apprenticeship. They have not indicated that they would be prevented from finding work on their return to Fiji for any s 5J reason. They appear to be capable of work with all of the applicants currently working in Australia. Additionally, iTaukei generally have large kinship networks with extended family often providing support when a  family member is in need. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. The Tribunal has considered the applicants’ circumstances on return to Fiji and is satisfied the applicants do not face a real chance of serious harm as instanced in s 5J(5), such as significant economic hardship that threatens their capacity to subsist, denial of access to basic services, where the denial threatens their capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist. Further the Tribunal finds that any economic difficulties the applicants may experience are not for a s 5J(1)(a) reason. The Tribunal finds the applicants do not have a well-founded fear of persecution arising from their economic circumstances.

   [4] Ibid.

   CONCLUSIONS

5. The Tribunal has considered all the applicants’ claims, individually and cumulatively, including their association with the first applicant, an indigenous Fijian woman and a woman who has been subject to harassment and violence and as an indigenous woman with an actual or imputed political opinion as a result of her relationship with a brother who was arrested for separatism and their own profiles including on the basis of their association with the first applicant’s brother and father. The Tribunal finds that there is not a real chance the applicants would suffer harm from anyone in Fiji for reasons of their race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds the applicants do not have a well-founded fear of persecution.

6. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). As set out above, the Tribunal has found that there is not a real chance that the applicants will face any harm on their return to Fiji for reasons of race, religion, nationality, membership of a particular social group or political opinion. Real chance and real risk involve the same standard. On the same factual findings, the Tribunal is similarly not satisfied that the applicants face a real risk of suffering any harm on those grounds, including significant harm, should they be returned to Fiji.

7. In considering whether there would be a real risk that the applicants will suffer significant harm in Fiji for economic reasons, the Tribunal has considered whether there is a real risk that the applicants would be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to torture or cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Fiji. As noted above, the Tribunal is satisfied the applicants have the ability, skills and experience to find work in Fiji and they have the support of family in both Fiji and Australia. While it may take some time for the applicants to establish themselves and they may earn less money than they do in Australia, the Tribunal is satisfied that the applicants will be able to find work and support themselves. Considering all the evidence before it, the Tribunal is satisfied that there is not a real risk the applicants will suffer significant harm as defined at s 36(2)(a) in Fiji arising from their economic circumstances. Accordingly, the Tribunal is satisfied the applicants do not face a real risk of significant harm in Fiji on this basis.

8. For the reasons given above the Tribunal is not satisfied that the applicants are persons 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.

9. The Tribunal has also considered the first applicant’s claims for protection in a separate decision and is not satisfied that she is a person in respect of whom Australia has protection obligations. Therefore none of the applicants 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

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

    Kylie Allen
    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.

    …