1905913 (Refugee)

1905913 (Refugee) [2024] AATA 1683 (15 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905913
HOME AFFAIRS REFERENCE(S):          BCC2018/5036070
MEMBER:Dr Greg Weeks
DATE:15 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 February 2024 at 11:51am
CATCHWORDS
REFUGEE – protection visa – Fiji – political and economic conditions – fear of coup and related violence – discrimination and threats by Indigenous Fijians and theft of work tools – financial security and quality of life in Australia – children remain living in home country despite applicants’ claimed fears – country information – recent election and change of government – low level of societal discrimination and generally peaceful coexistence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 9 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicants are a [Age woman] and a [Age-year-old man]. Both applicants are citizens of Fiji. [The first applicant] resided in [Town 1], a town near Suva. [The second applicant] was born in [Town 2] and moved to Suva in 2007. The applicants have lived together as a couple since 2012 and married in 2015. They have a [child] who was born in [Year]. [The first applicant] has a [child] from a previous marriage who was born in [Year]. Both children currently reside in Fiji in the care of [the first applicant]’s parents.
[The second applicant] is [an Occupation 1] and has worked in that profession both in Fiji and Australia. In Fiji, he supplemented his income by attending to [specified people in specified circumstances]. [The first applicant] most recently worked as [an Occupation 2] in Fiji and before that in [Work sector] and as [an Occupation 3]. Since coming to Australia, she has completed further study which has allowed her to work as [an Occupation 4] in [a Workplace].
The applicants obtained tourist visas to enter Australia on 6 September 2018 and arrived in Sydney [in] October 2018.
The Tribunal has been provided with a copy of the applicants’ applications for protection visas dated 12 November 2018 (PV applications). The claims raised in the PV applications were identical in all but minor respects.
Procedural history
The applicants did not attend an interview with the delegate, who refused to grant the applicants protection visas on the basis that they did not face a real chance of persecution or a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed to Fiji.
The hearing
The applicants appeared before the Tribunal on 5 February 2024 to give evidence and present arguments. The applicants were not represented in relation to the review.
The applicants had not made additional submissions prior to the hearing. However, at the hearing they submitted an undated and unsigned document which they believed had been submitted to the Tribunal by their previous advisors in 2019. A search of the Tribunal records indicated that this document had not been received. I invited the applicants to provide evidence that the document had in fact been submitted to the Tribunal in 2019.
Post-hearing submissions
The applicants stated in a subsequent email that they had thought that the document containing additional submissions had been sent in response to a letter from the Tribunal dated 15 March 2019. However, while they believed that their former advisors had submitted that document, they could now find no evidence that such was the case. This was characterised as a misunderstanding and I accept that the applicants believed that the document containing additional submissions had been sent to the Tribunal in 2019.
The applicants submitted by attachment to their email what appears to be a final copy of the document containing additional submissions that was handed up at the hearing. The draft version submitted at the hearing contains handwritten notations indicating that the document was still in the process of being edited at the time that it was printed. The version that was subsequently submitted by email contains some of the changes noted on the draft version. While still unsigned and undated, the email version contains the applicants’ AAT case number and other biographical detail and appears to be a final, edited version of the document submitted at the hearing (additional submissions). I accept that the applicants intended in 2019 to make the additional submissions and believed that they had. I have considered the additional submissions on that basis. I have drawn no adverse inference as a result of their late submission.
Claims for protection
In the PV applications, the applicants claimed that they came to Australia for a greater degree of protection and safety than they might enjoy in Fiji “if a coup takes place as a result of the upcoming [2018] election”. They claimed that “coups in Fiji result in daylight robbery, homes are set on fire, stones are thrown in our homes, sometimes we are forced to leave our homes and assets”. They claimed that “Indo-Fijians are more likely to be the victim of violence as resulted in the past” and that “killing also takes place”. They claimed that the results of a coup “can be unpredictable as authorities cannot reach all citizens of Fiji at the same time as violence will be everywhere” and that their lives are at risk because the “authorities cannot be trusted”, noting that “the last coup was itself done by Fiji military”.
They claimed to be “facing unemployment” and stated that the “cost of living and price of basic food items is very high therefore we cannot afford decent and affordable housing”. The applicants claimed that the “high rate of unemployment results in a high level of crime in Fiji” and that they also face a “poor state of medical services and medical facilities”. The PV application completed by [the second applicant] contained additional concerns that, in the company he was working in, “staffs were getting laid off and the wage rate wasn’t increasing” and that he might “get laid off from work if a coup takes place”.
The additional submissions contain further specific claims. First, the applicants claimed that they were threatened by indigenous Fijians causing them to move out of the house they were renting in [Town 1]. The applicants were informed that the “agreement between the house owner and the native land owner [had] expired” and that they were “to move out of the house as soon as possible” or the people threatening them would “burn the house either we inside or outside of the house”. The applicants attempted to report this incident to the police but did not make a statement or feel that they were believed. The applicants and their family moved out of the property. They further claimed that, prior to this, “the natives used to come around our house and consume alcohol and get rowdy and when [their] alcohol finishes, they would come to us to buy them more alcohol”.
Secondly, after the applicants moved to a new property, they were burgled and [the second applicant]’s expensive tools were stolen. The loss of his tools meant that, while he was able to maintain his main source of employment, [the second applicant] was unable to work as [an Occupation 2], which caused a significant reduction in income for his household. At that time, he was supporting his [brothers] and [the first applicant] was not working because she was looking after the applicants’ children. The police attended the scene but did not apprehend the thief or recover the tools. The applicants could no longer afford to pay the rent on that property and the six members of that household moved to a new place where they all lived in a “small open bedroom” until 2015.
Thirdly, when the applicants could no longer afford the rent at their new residence, [the second applicant]’s brothers moved back home to [Town 2] and the applicants and their children spent the next two and a half years living with [the applicant]’s parents. The applicants claim that “the situation wasn’t getting any better and also recession came into the picture as election was approaching and we were afraid that we will get discriminated again and that’s when we decided to come to Australia and seek protection and live without fear and build our career here. We could live a normal life. We used all our saving on our air fares and came to Australia.”
Finally, the additional submissions state that all the applicants “want is that our life is safe and secured and we and our kids can once again live a normal life”. They stated that they “have always faced discrimination on our country by the natives and there are no such community where we can get a full-time protection and care. Not even the police are fair on us. … [We] cannot trust any authorities as the last coup was itself done by the military officers. We fear and deeply feel that our life will be unpredictable if we go back to Fiji”.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the claims made by the applicants disclose a real chance of persecution or a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being removed to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Risk of another coup
The applicants’ claims for protection focused on the possibility of Fiji enduring a fifth coup, following those in 1987, 2000 (twice) and 2006. [The first applicant] lived through each of those coups and [the second applicant] the latter three. Their memories of the coups are vivid. [The first applicant] recounted that stones were thrown at her house during the 1987 coup, that the store next to her family’s house was burned down and that she and her family fled into the jungle, where they remained overnight. [The second applicant] stated that the western part of Fiji, where he lived as a child, was safer but that his family had remained inside during a coup.
I accept the applicants’ claims that coups in Fiji may “result in daylight robbery”, that homes have been set on fire and have had stones thrown at them and that “sometimes we are forced to leave our homes and assets”. I accept that the results of a coup “can be unpredictable” and that “authorities cannot reach all citizens of Fiji at the same time” during the violence of a coup. I accept that coups in Fiji have been instigated by the military and that this has affected the applicants’ trust in the authorities. My acceptance of these claims is based on the applicants’ evidence about previous coups in Fiji.
While no documentary or oral evidence was offered in support of the claims in the PV applications that “Indo-Fijians are more likely to be [victims] of violence” and that “killing also takes place” in coups, I accept that both of those things may have happened in previous coups. The possibility of another coup occurring, the reasons given to justify such a coup, the identities of its perpetrators and the acts done as part of such a coup are mere speculation at this time. Therefore, I do not accept that Indo-Fijians would necessarily be “more likely to be [victims] of violence” or that killing would also take place in a future coup.
The applicants’ claims specified that they feared that a coup would take place as a result of the 2018 election. It did not. I therefore do not accept the applicants’ claim that their safety would be at risk in Fiji “if a coup takes place as a result of the upcoming [2018] election”.
Following the 2018 election, the FijiFirst party continued in government under Prime Minister Josaia Voreqe “Frank” Bainimarama, who had instigated the 2006 coup. After the 2022 election, Bainimarama lost power after 16 years and a new three-party coalition government was formed with a slim majority under Prime Minister Sitiveni Rabuka, who had instigated the 1987 coup. Bainimarama has now resigned from Parliament but remains the leader of the opposition party.
I put country information to the applicants that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022 in an election which international observers assessed as having been free and fair overall. The transition of power was peaceful and the military did not become involved. Military leaders have stated clearly and publicly that a coup will not occur. Reports in August 2023 caused DFAT to state that there was no credible evidence that the new government has mistreated supporters of the previous government.
I accept [the second applicant]’s concern that he might “get laid off from work if a coup takes place”. However, that concern is merely speculative, as are the applicants’ fears that the events of previous coups will be repeated in the future. In the absence of country information indicating political unrest in Fiji, I do not accept that the applicants face a real chance of persecution if returned to Fiji as the result of a coup taking place. The applicants’ fear that their lives “will be unpredictable if [they] go back to Fiji” is apparently genuine but it does not follow, and I do not accept, that they face a real chance of persecution if they return to Fiji for that reason. For the same reasons, I do not accept that there is a real risk that they will suffer significant harm in a coup as a necessary and foreseeable consequence of being removed to Fiji.
Discrimination and crime
[The first applicant] stated in the hearing, in relation to discrimination against Indo-Fijians, that “human rights don’t count in Fiji”. The applicants also claimed that they “have always faced discrimination on our country by the natives” and that they came to Australia to seek protection from discrimination as Indo-Fijians.
Those claims are at odds with country information which I put to the applicants that there is little official discrimination against Indo-Fijians, who are well represented in the civil service and the police force. Indo-Fijians hold 13 positions in the cabinet of the coalition government elected in December 2022 and six of the 10 assistant minister positions. Indo-Fijians face a low level of societal discrimination and generally coexist peacefully with indigenous Fijians. Indo-Fijians are less likely to live in poverty than the Fijian population generally. The 2013 Constitution prohibits discrimination based on race or ethnicity and incitement of racial violence is prohibited by statute. The applicants did not respond to that information other than to say that they were discriminated against before and might be again.
The applicants’ claim to have left Fiji to escape discrimination was followed by the statement that they then decided to “seek protection and live without fear and build our career” in Australia, where they “could live a normal life”. As I explain below, I accept that these were strong motivating factors behind the applicants’ decision to leave Fiji.
The applicants did not specify examples of discrimination against them on the basis of their Indo-Fijian race. Their claims that Indo-Fijians are the victims of systemic discrimination is inconsistent with country information put to the applicants and which they did not challenge. I do not accept that the applicants were victims of discrimination amounting to persecution when they lived in Fiji. I do not accept that there is a real chance that they will suffer persecution on this basis if they return to Fiji or that there is a real risk that they will suffer significant harm as a result of discriminatory conduct as a necessary and foreseeable consequence of being removed to Fiji.
The applicants claimed that there is a high level of crime in Fiji and I accept that the applicants have been victims of crime when living in Fiji. In particular, I accept the applicants’ account of [the second applicant]’s tools being stolen and that their loss caused the applicants and their family to change their residential accommodation.
I further accept the applicants’ claim that they were forced to move out of a house they had rented when indigenous Fijians connected to the owner of the land on which the house was built threat). [The first applicant] described this incident as traumatic and I accept that it was. The evidence regarding the applicants’ proprietary rights was inconclusive, in part because it appears that their arrangement to rent the house from its owner was informal. It may be true that the house owner’s leasehold over the land had expired and that the applicants’ right to remain was affected by that fact. The legal circumstances of the applicants’ occupation of the house does not alter the effect of the violent threat made against them.

The claim that “the natives used to come around” when the applicants lived at that house, that they would “consume alcohol and get rowdy and when [their] alcohol finishes, they would come to us to buy them more alcohol” amounts to evidence of another threat, albeit implied and of a lower order of magnitude (the implied threat). The threat was essentially that a failure to assist the “natives” in question to buy more alcohol would lead to repercussions of an unstated nature. The applicants gave evidence that the “natives” in question were effectively taking advantage of the fact that [the applicant] had a car. They did not claim to have reported this conduct to the police or to have been sufficiently concerned by it that they wished to do so.
The applicants claimed that their attempt to report to the police the express threat to burn down their house was fruitless: they did not make a formal statement or feel that the police believed their story. However, the applicants reported that they called the police on another occasion, when [the second applicant]’s tools were stolen, and that the police attended the scene and investigated (including by dusting for fingerprints). On the evidence before the Tribunal, I do not accept the claim, expressed as generally as it was, that the Fijian police treated the applicants unfairly.
I do not accept that either the express threat or the implied threat was discriminatory in a sense amounting to persecution under the Act. The express threat appears on the evidence to have been made because the applicants were on land that its owners wished to reclaim. The implied threat took advantage of [the second applicant]’s capacity to drive its makers to obtain more alcohol. Neither threat was the product of systemic discrimination in response to the applicants’ race, religion, nationality, membership of a particular social group or political opinion. Specifically, neither threat appears on the evidence before the Tribunal to have been motivated by the applicants’ race, notwithstanding that they are Indo-Fijian and both threats were made by indigenous Fijians. Each of the threats was a response, albeit unpleasant and at least potentially criminal, to the particular circumstances confronting those who made it, only for the reason of obtaining a particular outcome. I do not accept that either threat amounts to persecution.
Both the express threat and the implied threat arose in specific circumstances that the applicants did not claim would be repeated if they return to Fiji. The purpose of the express threat was to cause the applicants to leave the house which they had rented. After it succeeded in that aim, there was no reason for the people who made the threat to make further contact with the applicants. The applicants did not claim to have had further contact with the makers of the express threat after leaving the house. I do not accept that the people who made the express threat will continue to pose a threat to the applicants if they return to Fiji.
Similarly, the implied threat was based entirely on the proximity of the applicants to the “natives” in question and to the fact that [the second applicant] had the capacity to drive them to a place where they could buy more alcohol. Once the applicants moved to a place where they were no longer in proximity to the people who made the threat, there was no reason for those people to make further contact with the applicants. The applicants did not claim to have had further contact with the makers of the implied threat after leaving the house. I do not accept that the people who made the implied threat will continue to pose a threat to the applicants if they return to Fiji.
I do not accept that there is a real chance that the makers of the express threat or the makers of the implied threat will threaten the applicants again, or that there is a real chance that either the express threat or the implied threat would be carried out, if the applicants return to Fiji.
Financial and lifestyle concerns
The applicants have been frank, in their PV applications, the additional submissions and the hearing, that financial security and quality of life considerations were important reasons for coming to Australia. They were “not well off” in Fiji, despite being employed and taking on additional paid work from time to time to support themselves and their family.
Notwithstanding [the second applicant]’s inability to continue earning extra money [doing a job task] after his tools were stolen, both he and [the first applicant] were regularly employed while living in Fiji. Neither gave evidence that they had endured periods of unemployment. After the theft of his tools, [the second applicant] continued to work at his employer’s place of business using tools available there. [The first applicant] did not work when the applicants’ [child] was young so that she could care for [her/him] but had held several jobs before that. Both the applicants have undertaken further study while living in Australia. While I accept that there are fewer opportunities to work in [Work sector 2] in Fiji than in Australia, [the first applicant] has developed skills since leaving Fiji that do not make it less likely that she would be able to find work if she were to return. [The second applicant] is now qualified to work as [an Occupation 1] without being supervised. Given their history of employment in both Fiji and Australia, I find that both applicants would be able to obtain work if they return to Fiji. I do not accept that the applicants would be “facing unemployment” or would be at particular risk of “getting laid off” if they return to Fiji.
The applicants claimed that the cost of living and the price of basic food items are high and the wage rate is stagnant in Fiji. I do not accept that these issues affect the applicants specifically or that they amount to persecution under the provisions of the Act. The Fijian economy being at risk of recession is also an issue that does not affect the applicants specifically. Furthermore, speculation about the Fijian economy being likely to move into recession after the 2018 election does not match the current information about the Fijian economy from the Reserve Bank of Fiji.[1] I do not accept that the state of the Fijian economy affects the applicants in a way that it does not affect the Fijian populace generally or that it amounts to persecution of the applicants under the provisions of the Act.
[1] See >
The applicants claimed that access to “decent and affordable housing” is limited in Fiji. I do not accept that it follows that the applicants would be unable to find accommodation if they return to Fiji. I have found above that both applicants will be able to obtain employment in Fiji, which gives them scope to pay rent. They have also shown themselves willing in the past to live with other members of their families, as their children currently do. If returned to Fiji, it is reasonable to expect that the applicants would again live with [the first applicant]’s parents or other members of the applicants’ families if they were unable to find or afford alternative accommodation. I do not accept that the applicants would not have access to or be able to afford housing if they return to Fiji.
The applicants did not expand on what is meant by “decent” housing. They did not claim specifically, nor do I accept, that housing must be absolutely secure from the risk of robbery to be “decent”. I consider that any housing that provides shelter and a reasonable degree of security is “decent” in the context of the applicants’ claims. The applicants would either find accommodation of their own or would live with family members, as I have found above. The applicants have previously lived with members of their families and did not suggest that that accommodation was not “decent” in the sense in which I have understood their claim. I do not accept that the applicants will not have access to decent housing if they return to Fiji.
I do not accept that the applicants face a real risk of significant harm on their return to Fiji for any of the reasons considered in the paragraphs above.
The general advantages of living in Australia were known to the applicants before they came. The applicants gave evidence in the hearing that they have family who live in Australia, including [the first applicant]’s [brother] and his [children]. [The second applicant] had not travelled outside Fiji before coming to Australia in 2018 but [the first applicant] had twice before visited Australia for a number of weeks. The applicants lived with [the first applicant]’s sister-in-law for the first six months they were in Australia. They have stable jobs, have had the chance to undertake further education and have friends and family around them in Sydney. They have occupied the same residence in Sydney for almost five years and do not have to share their home with others.
When I asked what had made the applicants want to come to Australia, [the first applicant] replied that the “life and opportunities” here and the fact that her brother lives in Sydney were important factors. The Tribunal heard evidence that her [brother] had lived in Australia for some years by the time the applicants arrived and was “living a good life”. He recommended to [the first applicant] that the applicants come to Australia and assisted them to find out about obtaining protection visas before they came. The applicants were motivated by the desire to have a “bright future with [their] children” that was not open to them in Fiji. [The first applicant] summed up their decision to move with the rhetorical question “who doesn’t want a good life?”.
While the applicants have claimed that they need protection from danger in the event of another coup, they have left their children in Fiji. I put to the applicants that that fact might cause me to doubt the credibility of their claims to fear persecution in Fiji. [The first applicant] responded that the applicants had not been aware when they left Fiji that their children would need to be in Australia to be included in their applications for protection visas. The applicants came with the intention of finding jobs and getting “settled” before bringing their children to Australia. They were concerned that nobody would be able to look after their children while the applicants went to work. I accept that those responses reflect the applicants’ real concerns at the time that they came to Australia. However, it follows that I also accept that the applicants’ reason for coming to Australia had more to do with maximising their earning capacity than with a genuine fear that a coup was imminent in Fiji.
I asked the applicants at the hearing to comment on my concern that their claims for protection appear to be based on concerns about economic hardship and a lack of access to social services rather than a fear of persecution on the basis of their race, religion, nationality, membership of a particular social group or political opinion. I asked the applicants to comment on the possibility that I might not find their claims to be supported by evidence before the Tribunal. [The first applicant] responded that they have “seen hardship” and that the economic “situation in Fiji is not good” after the COVID-19 pandemic.[2] She stated that Australia needs workers in the applicants’ industries and that, if returned to Fiji, she would be “starting from scratch”. She stated that it “feels like home” in Australia and that the applicants feel safer her than in the “unpredictable” neighbourhood in which they had resided in Fiji.
[2] As to the claim about the post-pandemic economic situation, I note the Reserve Bank’s statement that the domestic economy has returned to pre-pandemic levels: >
That response did not directly refute or otherwise address my concern that the applicants’ claims are not based on fearing persecution for one of the reasons in the Act. I have not accepted, for the reasons given above, the applicants’ claims that a coup is imminent in Fiji, that they face a real chance of serious harm or discrimination as a result of their race or that they would be unable to find employment or housing on their return to Fiji. Given those findings, the applicants’ remaining claims relate only to their better quality of life and better financial prospects in Australia than in Fiji. I do not accept that those claims relate to any expressed fear of persecution if the applicants return to Fiji.
Conclusions
I do not accept that the applicants face a real chance of persecution on the basis of their race, religion, nationality, membership of a particular social group or political opinion in the reasonably foreseeable future if they return to Fiji. For the same reasons, I do not accept that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being returned to Fiji.
For the reasons given above, I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Dr Greg Weeks
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 1683

15 February 2024

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Immigration

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