1905329 (Refugee)

1905329 (Refugee) [2024] AATA 1297 (4 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905329
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Joshua Le Vay
DATE:4 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2024 at 11:04am

CATCHWORDS
REFUGEE – Protection Visa – Fiji – Christian – race – Itaukei ethnic group – fears that land will be taken from him by the government – any economic disadvantage to him on return to Fiji would not amount to serious or significant harm – applicant is not at risk of having his land expropriated or taken from him unlawfully by the government – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91,499
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 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 19 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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 (Department), 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.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information:
·     He was born in [Town 1], [a] province, Fiji in [year].
·     He belongs to the Itaukei ethnic group and is a Christian.
·     His occupation is as a [Occupation 1].
·     He is married and has [number of children]. He did not indicate any other family members.
·     He gave no information about his employment history or education.
The applicant was not assisted in relation to the application.
Evidence before the Department
Protection visa application
The applicant’s written claims for protection are contained in his protection visa application form as well as in a signed letter from him dated 14 November 2018. His claims in the form are summarised as follows:
·     The government brings fear and instability and demoralises the Fijian communal way of life.
·     The top government posts and the CEO role at the iTaukei Land Trust Board have been taken by Muslims.
·     He fears that his land will be taken by the government.
·     The government is ‘giving us a hard time in regards to our land’.
·     He fears for his future and that of his family because the ‘cloud of uncertainty triggers our life everyday’.
·     The government takes the law into its own hands and makes decrees that suits it.
·     It is not easy to relocate because land is owned by tribes and clans.
In his letter the applicant provides similar claims. He states that the government leadership is unstable, biased, and dictatorial, and has implemented decrees that are contrary to the rights of indigenous landowners. He again expresses his fear that his land will be taken from him by the government.
The applicant provided to the Department a copy of his complete passport as well as copies of the birth certificates of his wife and children.
The applicant also provided a letter from his cousin in Australia dated 13 November 2018 who provided some background about the applicant; stated that he was looking after the applicant’s welfare in Australia and sending money to the applicant’s family in Fiji; and requested that the applicant be given permission to work.
He additionally provided a lease offer from the iTaukei Land Trust Board dated [June] 2018 addressed to the applicant relating to land of just over four hectares at an annual rent of $910 for a period of 30 years from 1 July 2018, and a land receipt dated 21 September 2018 naming the applicant as the tenant, as well as a receipt dated 2 November 2016 for the lease application fee.
The applicant was not invited to attend an interview by the Department or requested to provide further information.
The delegate’s decision
On 19 February 2019, the delegate made his decision. The delegate was not satisfied that the applicant would face a real chance of persecution on the basis of his ethnic background if he returns to Fiji, according to country information, or for any real or perceived political opinion.
Evidence before the Tribunal
Application for review
On 7 March 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
The applicant also provided to the Tribunal a copy of a new Fijian passport issued in [2023], and various documents relating to his employment in Australia (including four statements of attainment, a statement of completion, a letter confirming the applicant’s employment [in] Sydney since September 2022, a licence to perform [work], [an] industry identity card, a [employment] induction card, and a card confirming his completion of a unit in [a work area]).
He also provided further documents relating to his land ownership in Fiji: a letter from his brother dated 25 January 2024 addressed to the Tribunal, a land receipt from the iTaukei Land Trust Board dated [May] 2022 showing payments from the applicant as the tenant, and photographs.
The applicant was not represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave the following additional evidence in the hearing.
In Australia he has been working casually for an agency since May 2022, [doing specified job]. Before that he worked casually in various other roles, including [deleted].
He is divorced from his wife who has since remarried. Three of his children are still at school. One has recently finished school and the other works as a subsistence farmer on the land that the applicant leases. They live together in [Village 1] village, [Town 1], with the applicant’s half-brother: his father’s son from a previous marriage.
He has a deceased brother, whose wife is also deceased. Their two children live with the applicant’s other brother, who is single, in [Village 1]. His brother also farms the land that the applicant leases. The applicant’s sister, whose husband is deceased, and her foster child also live with their brother. He has [other] sisters who are married. His parents are deceased. He has no family in Australia.
In Fiji he lived in [Village 1]. He left school in 2006 and then farmed on common land in the village. He also worked casually for a cumulative period of four years in Suva as a [Occupation 1], travelling between the village and Suva.
In 2018 he leased his own land in the village. The Tribunal discussed with the applicant the evidence that he had provided to the Department and the Tribunal in relation to the land. The applicant said that the photographs are of his family members in the village, livestock on the land, and of the construction of a house he is having built in the village where he intends for his children and sister to live. The Tribunal also discussed the letter addressed to the Tribunal from the applicant’s brother, who is in Fiji. The applicant said that his brother was available to be contacted by telephone, if the Tribunal wanted to speak to him. The Tribunal gave its view that it was not necessary to do this since it had no questions in relation to his letter, unless the applicant considered that his brother had additional evidence to give. The applicant said that his brother did not. The Tribunal therefore assessed that it was not necessary to call his brother.
The applicant told the Tribunal that he came to Australia as a [visitor]. At that time, he had no intention of staying in Australia and there were no other reasons for coming to Australia. However, while he was in Australia on the visit visa, he decided to stay in order to work, because earnings are higher here than in Fiji, and so he could better support his family in Fiji. He said that it was for this reason only that he lodged the protection visa application.
The Tribunal asked the applicant how he initially intended to pay the rent on the land, since the lease commenced shortly before he came to Australia and according to his testimony he did not intend to work in Australia when he left. He said he was looking for opportunities and an opportunity arose in Australia once he was here. He continues to lease the land in the village, which he pays for from his work in Australia. He also said that the leased land is low-lying and is subject to flooding and that it may disappear as a result of erosion. He sends money every fortnight to his family in [Village 1], who have no other source of income.
The Tribunal put to the applicant the claims contained in his protection visa application and noted with him that these had not been raised by him at the hearing. The Tribunal sought to clarify these claims and to identify whether the applicant maintained them.
In relation to the applicant’s claims against the government that were set out in the application, the Tribunal discussed the fact that in December 2022 a new government came into power in Fiji. The applicant said that he had no concerns about the new government.
In relation to the written claim that he feared that the previous government would take his land, the applicant told the Tribunal that what he meant by this is that he has the land for the term of the lease (30 years) and that he cannot be sure whether a government would renew the lease on its expiry. He said that no one can take his land during the term of the lease and confirmed that he was not claiming that the government would take it from him. The Tribunal pointed out that the applicant had leased the land about six years ago and that it had not been taken from him in that time by the previous government or the new one. Later in the hearing the applicant told the Tribunal that the previous government could do anything, including offering money so that it could give the land to someone else, but that he had no information about the new government. The Tribunal indicated that it had no information before it to suggest that the applicant would be adversely affected by the new government. The applicant replied that he had approached the new government to install new water pipes to his land over a year ago but that this still had not been done. The Tribunal also discussed with the applicant information that indicates that 90 per cent of land in Fiji is owned by traditional owners and that a tenant can be removed only if they are in breach of the lease. The applicant made no comment.
In relation to his claim that Muslims are in top government posts, the applicant said that the previous government employed many Muslims, and that when he sought a government service, such as improving drainage, they asked for a deposit of a third of the cost which at the time he found hard to pay. The Tribunal sought clarification of the claim. The applicant said that it was because many Muslims were employed by the government that he had to have contact with them when dealing with the government. The Tribunal later asked the applicant whether he was claiming to suffer discrimination on the basis of his ethnicity. He then said that Muslims treated him differently because he is not a Muslim. He said that he had not raised this expressly in the hearing until prompted by the Tribunal because he did not know if this was still the case under the new government. He said that he did not know what treatment he would receive from the new government, and that he believes the same people are employed by the new government. The Tribunal discussed information with the applicant that indicates that iTaukei enjoy significant social, economic and political capital and that there is no official discrimination against indigenous Fijians. The applicant maintained that there is discrimination.
The applicant confirmed that he wished to remain in Australia where he can enjoy higher earnings than in Fiji and so better support his family there. The Tribunal indicated that it may find that any economic disadvantage to him on return to Fiji would not amount to serious or significant harm and so would not engage Australia’s protection obligations. The Tribunal discussed the definition of a refugee and the meaning of complementary protection. The applicant emphasised that he wishes to remain in Australia because salaries are higher here.
Assessment of claims
Nationality and identity
The applicant provided a copy of his Republic of the Fiji Islands passport to the Department. Based on this information the delegate was satisfied of the applicant’s identity and citizenship. The applicant produced to the Tribunal his original passport issued in Australia. He also provided to the Tribunal a copy of his New South Wales photocard. In the absence of evidence to the contrary, the Tribunal is also satisfied that the applicant is using his own identity and that his receiving country for the purposes of assessing his claims for protection is Fiji.
Claim against the government
The applicant’s written claims in relation to the Fijian government relate to the former government, which he named as Bainimarama’s government in his letter. Bainimarama was the former Prime Minister and led the FijiFirst Party. As discussed with the applicant this government, which was in place since 2006, was replaced in the election of December 2022.[1] The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three-party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[2]
[1] 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for
[2] ‘Fiji - In brief', Economist Intelligence Unit, n.d.,
The applicant has not raised any claims in relation to the new government. The Tribunal in in any case assesses that the change in government does not give rise to conditions that would affect the applicant adversely. There has been no significant political unrest or deterioration of government functions since the formation of the new government, and the transition of power has been reported as peaceful, with the military refusing to intervene.[3]
[3] East Asia Forum, Can Fiji keep its democracy in 2023, 3 February 2023, Australian Strategic Policy Institute, The number behind Fiji’s coup culture, 1 February 2023,
The applicant mentioned that the new government had failed to install new water pipes to his land. Even if the Tribunal were to accept that this is the case, it does not accept that this amounts to harm, much less serious harm.
Land claim
The Tribunal accepts, in light of the applicant’s evidence and supporting documentation, that he has been leasing land in the village since July 2018, that the lease is for a term of 30 years, that he continues to pay the rent from his earnings in Australia, and that his family in Fiji benefits from the land. The applicant’s brother in his letter confirms that the applicant pays the rent on the land and that he farms the land for the benefit of the family.
The applicant’s claim in relation to the land was somewhat confused. In his written application he claimed that he feared that the government would take the land. He made no such claim in the hearing until prompted by the Tribunal. He then said that his rights over the land were secure for the 30-year term and that he did not fear that the government would take it from him. Later he said that the previous government could do anything and that he had no information about the new government. The Tribunal understands that according to the applicant, he is no longer claiming that the government will take his land from him. In any case, as discussed with the applicant, his land has not in fact been taken by the former or current government since he leased it in 2018. There is no information to indicate that the current government would take the applicant’s land. Moreover, as discussed with the applicant, according to the Department of Foreign Affairs and Trade (DFAT), about 90 per cent of land in Fiji is owned by traditional owners, Taukei owners often lease land to others through a government-coordinated leasing system, land is usually leased for 30 years, and a tenant can be removed from land only if it is not maintained or used for its intended purposes which involves a breach of lease and a court process that can lead to eviction.[4] In light of the above the Tribunal assesses that the applicant is not at risk of having his land expropriated or taken from him unlawfully by the government.
Discrimination against iTaukei
[4] DFAT Country Information Report, 20 May 2022, paras 2.25 and 2.26

The applicant’s evidence in relation to discrimination against indigenous Fijians was also somewhat confused. In his written application he claimed that top government posts have been taken by Muslims. He again made no such claim in the hearing until prompted by the Tribunal. He then appeared to suggest that the issue was that he had to have contact with Muslims when he dealt with the government because many Muslims are employed by the government, and later indicated that he was treated differently by these officials because he is not a Muslim. He said that he does not have any information about the current government but seemed to think that the same people are employed.
The Tribunal assesses that if the applicant had a subjective fear of harm arising from official discrimination, then he would have raised it in the hearing prior to being prompted. The Tribunal in any case assesses that there is not a real chance of the applicant suffering serious harm on return to Fiji as an indigenous Fijian in light of country information. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei.[5] Other information indicates that ethnic Fijians comprised approximately 58 percent of the population.[6] As discussed with the applicant, according to DFAT, ‘[s]ome iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups…iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.’[7] The Social Democratic Liberal Party (SODELPA), which is part of the current coalition government, largely draws its support from iTaukei.[8]
[5] DFAT Country Information Report, 20 May 2022, para. 3.1
[6] US Department of State, Fiji 2022 Human Rights Report
[7] DFAT Country Information Report, 20 May 2022, paras 3.9 and 3.10
[8] DFAT Country Information Report, 20 May 2022, para. 2.7
The Tribunal is prepared to accept that the applicant has made payments to government officials when seeking services. He has not though expressly stated that these were irregular payments or not. The Tribunal recognises information from DFAT that 5 per cent of Fijians reported paying a bribe to obtain a service in the year preceding its May 2022 report. There is no information however to indicate that there is a discriminatory element to these payments. Moreover, DFAT assesses that overall, the day-to-day risk of corruption is low.[9]
[9] DFAT Country Information Report, 20 May 2022, para. 2.10
The Tribunal does not accept that any delay in installing water pipes to the applicant’s property, without evidence, has arisen as a result of discrimination. The applicant himself has not claimed that the failure to install water pipes has resulted from official discrimination.
The applicant has not claimed to have suffered any other instances of discrimination.
In light of the above the Tribunal finds that there is not a real chance of the applicant suffering serious harm on return to Fiji as a result of discrimination or official corruption.
Employment
The Tribunal accepts that the applicant does not wish to return to Fiji because wages are lower there than in Australia and that as a result, he would find it harder to support his family. The Tribunal also accepts that the applicant has been supporting his family in Fiji from his employment in Australia. However, the Tribunal finds that any economic disadvantage to the applicant on return to Fiji would not amount to serious harm and therefore the requirement in s 5J(4)(b) of the Act is not satisfied. The Tribunal specifically finds that there is not a real chance that the applicant will suffer economic hardship or will be denied the capacity to earn a livelihood, that threatens his capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[10] The Tribunal is not aware of any personal attributes which make the applicant particularly vulnerable. The Tribunal also notes that the applicant is working and has worked in Australia. He has also worked in Fiji. Fiji is one of the most developed and connected economies in the Pacific Islands region and is defined by the World Bank as an upper-middle income country.[11] In 2022, the overall unemployment rate was 4.3 per cent.[12]
[10] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
[11] DFAT Country Information Report, 20 May 2022, para. 2.7
[12] ‘Unemployment, total (% of total labor force)’, The World Bank, undated,
Moreover, the courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[13] The economic conditions faced by the applicant would apply to all citizens in Fiji. There is no information to indicate, as considered above, that indigenous Fijians are subject to discrimination, other than some low-level societal discrimination, that would impact the applicant’s ability to work in Fiji.
[13] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
Does the applicant meet the refugee criterion?
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
For the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion, ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
In relation to the applicant’s claim that he will be unable to earn a similar income in Fiji compared to Australia, the Tribunal finds specifically that this does not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[14] Any economic disadvantage that the applicant may experience due to general economic conditions in Fiji would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
[14] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
The applicant stated that his land is subject to flooding and that it may disappear as a result of erosion. It is not clear if this was a comment or a claim. In any case he has presented evidence that his family is presently farming the land. Moreover, the Tribunal assesses that any deterioration of the land from environmental factors is not harm that falls within the scope of ‘significant harm’.
The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion for a protection visa under s 36(2)(b) or s 36(2)(c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joshua Le Vay
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.
…

International Policy), 14 February 2023,

[2024] AATA 1297

4 March 2024

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