1906013 (Refugee)

1906013 (Refugee) [2022] AATA 4784 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Parish (MARN: 9791199)
CASE NUMBER:  1906013
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nora Lamont
DATE:24 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2022 at 8:10am
CATCHWORDS
REFUGEE – protection visa – Fiji – murder of uncle by military – abused by children of military – came to Australia for better life and education – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 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 11 December 2018.
The applicant appeared before the Tribunal on 21 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review however, the Representative did not appear before the Tribunal.
The applicant presented his passport to the Department but did not present it before the tribunal. However, based on copies of the passport and his written and oral evidence, and in the absence of any evidence to the contrary, I accept that the applicant is a national of Fiji and I have assessed his claims against that country in relation to s. 36(2)(a) and s.36(2)(aa) of the Migration Act.
There is no evidence before me that the applicant has the right to enter or reside in any safe third country for purposes of s.36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
Delegates Decision
Whilst the delegate found the applicant was related to his murdered uncle, and that he may have been bullied from time to time by other children at school they did not consider it to be persecution. The delegate was not satisfied that the applicant would face a real chance of persecution if he was to return to Fiji. Further the delegate found there was no real risk that the applicant would face significant harm for any reason in the foreseeable future.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant’s claims can be summarised as follows: [1]
[1] AAT Folio & –[departmental file number]
·His Uncle was murdered by the military in 2007.
·The applicant’s name is connected to his uncles and the Fijian authorities will not allow him to pursue education or work.
·He left Fiji to find an education and a better life in Australia.
·When he was younger kids at his school who were children of military personnel verbally abused him.
·He told the principal and teachers, but they couldn’t help him.
·There is nothing that the police can do to help with the verbal abuse he suffers in society.
·His parents’ house is the only safe place.
·The murder of his uncle and the family’s pursuit of justice is well known throughout Fiji as it is a small community.
·He will be the victim of the community wherever he goes.
Before the Tribunal are the following submissions and documents: [2]
·AAT Folio including letters and documents.
·Departmental file.
·Letter from the Representative and associated newspaper articles.
·Newspaper articles from Fiji in relation to the police and the military.
[2] AAT Folio
Tribunal Hearing
The applicant is [an age]-year-old who lives in [location] and works [for] a [company]. His parents [and siblings] remain living in Fiji. He presented honestly, openly, and credibly throughout the hearing.
The applicant did not ask for an interpreter prior to the hearing and when he arrived, he requested one. We were able to accommodate his request and had a phone interpreter to assist us with the language.
The applicant said that he was [age] years old when he first arrived in Australia, and he originally lived with his uncle who was already in Australia, but once he got a job he moved into his own place. In terms of his education the applicant stated he only completed one term of form [grade] and then left.
I asked him why he came to Australia. He said when he was in the village, he found out that Australia provides protection and that was the reason he came. I asked him what he needed protection from. He said he knew there as an undercurrent with the village next to his about land ownership and because of his uncle’s murder in 2007.
He said he was [a young child] when his uncle was murdered and that he was staying with his uncle the day he was taken away by the military. He said his father and family was away teaching and as he was the oldest, he stayed in the village with his uncle. I asked who was in the house the day his uncle was murdered, and he said that he remembers his cousin [was] there, she now lives in Sydney with her mother. I asked him after his uncle was murdered if his father came back to the village and he said yes, he did come back.
The applicant said after the murder and leading up to the trial the military was stalking the village. He said when they went to court, the murderers were released. He said because he is named after his murdered uncle, he was taunted by other children whose parents were in the military.
I asked if his family had anymore dealings with the military after the murder and trial and he said they left it up to the law. He said that because he was named after his murdered uncle, children of the military would abuse him. I said it sounded odd that the children of the military who murdered his uncle would abuse him. He said it was because there was rivalry within the villages. I asked if he told his parents what was going on and he said he didn’t want to bother them with it and he then left and went to another school.
He said he told his parents about how he wanted a better life on the eve of his departure to Australia. The rest of his family is now living on an island where his father is a teacher. He sends money to them. He said he also got verbal abuse from the public and I asked him why. He said it was if he was near the neighbouring village. I asked him why he didn’t move to another part of Fiji where he wasn’t known. He said he was looking for ways to leave the country. He said a person came and said they could get visas to New Zealand, but he wanted to come to Australia. He said it was better to just come somewhere that he could get protection. He said that Fiji is a small country, and everyone is related to each other.
The applicant stated he couldn’t get an education in Fiji, and I asked him if he went to school while he was in Australia. He said he did [courses], but they wanted him to do an apprenticeship and he couldn’t afford to do it, so he got his job doing [his current] work.
I asked him what if anything happened to his family as they have lived there for fifteen years after the murder of his uncle. He said that his father took jobs teaching on islands for nine years. He said he did years one through seven on islands with his family. I asked him why he said he was picked on if he wasn’t in the village? He responded that they moved around a lot.
I asked him what he thought would happen to him if he was returned to Fiji. He said that the situation in Fiji hasn’t really changed, and he has his uncle’s name. He also said he has proven himself and going back to Fiji would be regressive. The applicant said almost all his relatives live in Australia it is only his father’s family that are still in Fiji.
Country Information
Country information on Fiji by Department of Foreign Affairs and Trade (DFAT) (May 2022) provides the following information which has been considered by the Tribunal for this review application. [3]
[3] DFAT Country Information Report Fiji May 2022
Military
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup. 3 DFAT Country Information Report Fiji May 2022 Case Number 1716830 Page 8 of 15 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role.
Fijian police are unarmed and, in cases where weapons are required, the military may assist police. Although the military is an active and visible presence in Fiji, they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
Police
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.
According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported. Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses.
In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident. A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was of 15 sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest. With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube.
Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.
Judiciary and access to law
Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial.
Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021. The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters. Judicial independence is disputed.
Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts, it is not common. The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000).
The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party.
The quality of legal services provided by legal aid is variable. Treatment of returnees DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia.
These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities. Police
The Fiji Police Force is generally seen as capable and impartial but has been involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organization. It is generally seen to be impartial and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible. However, there have been credible allegations of police involvement in beatings and assaults and impunity is a problem in cases with political implications. DFAT reported in 2017 that credible contacts had also made allegations to it that the Police Intelligence Bureau was routinely involved in monitoring and occasional harassment of opposition activists.
Judiciary
The judiciary in Fiji is not fully independent and, as a result, it does not provide protection to high-profile opponents of the government. DFAT reported in 2017 that the government retains influence over judicial appointments, and the judiciary appears to display partiality in the exercise of its authority. In low-level civil and criminal cases, the courts generally appear competent and even-handed, but partiality may emerge in politically sensitive cases. A shortage of prosecutors and judges has resulted in the slow processing of cases. The judicial system has been assessed as not being capable of providing protection to high profile opponents of the government. For low-profile and non-political matters, however, it is generally capable of providing effective state protection.
Treatment of returnees
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities. Police
The Fiji Police Force is generally seen as capable and impartial but has been involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organization. It is generally seen to be impartial and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible.
However, there have been credible allegations of police involvement in beatings and assaults and impunity is a problem in cases with political implications. DFAT reported in 2017 that credible contacts had also made allegations to it that the Police Intelligence Bureau was routinely involved in monitoring and occasional harassment of opposition activists.
Findings

I accept the following claims made by the applicant:
·That his uncle was murdered by the military.
·That at some points growing up he was abused by other children in and around the village.
·That he has his uncle’s name.
·He left Fiji to find an education and a better life in Australia.
·The murder of his uncle is well known throughout Fiji.
For the following reasons I do not accept that the applicant cannot pursue an education or work, that he will be targeted by the military or police, that as a failed asylum seeker he will be targeted by the government or that he will be targeted wherever he goes.
Firstly, the applicant stated he was abused by children whose family were in the military. Whilst I accept that he may have been picked on at times by children from other villages he told me that he went to various schools growing up and that he moved around as his father was a teacher. There was no evidence that the applicant stayed at his village school or nearby and that there was ongoing abuse. He did not tell his parents which leads me to consider that it was not related to his uncle’s murder. When questioned about if he told the teachers and principal, he said he did but they couldn’t do anything about it. However, I consider he did not tell the teachers or the principal as he didn’t tell his parents, and this would most likely be something that a teacher or a principal would tell his parents especially given that his father was also a teacher.
In relation to the claim that the government will target asylum seekers on return to Fiji there is no country information to support this notion. DFAT reports that they are unaware of any issues with returnees. [4]
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
[4] Ibid page 25
In relation to his claim that he will be denied an education and work I note that the applicant did one term of form [grade] in Fiji and then came to Australia. There is nothing before me to indicate the applicant was denied an education, indeed his father is a teacher. As for work I note that the applicant is working in Australia and enjoys his employment and sends money back to his family. I have considered that there are more opportunities in Australia for the applicant both in education and employment, but this does not mean that the applicant would be denied access to education or work upon return to Fiji. DFAT notes the following on the education system in Fiji: [5]
School education is compulsory until age 15. The Government provides free education but costs such as uniforms are usually not covered. Enrolment is universal, even in outer islands (though some students will move and stay with extended family to pursue secondary or tertiary education). Literacy is almost universal. Schools are mostly provided by religious organisations but receive government subsidies and teach a government curriculum. In-country sources told DFAT teacher quality is high overall, but services for students with specific needs (such as those with learning disabilities, or advanced students) are less available than in Australia.
Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.
[5] Ibid page 8
I do not accept that the military would harass, harm or otherwise deny the applicant or his family basic rights upon return to Fiji. I note his family has remained in Fiji for the past fifteen years since his uncle’s murder. DFAT notes the following in relation to the military: [6]
Although the military is an active and visible presence in Fiji, they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
[6] Ibid page 22
As for the applicant’s claims that the police cannot assist him with the verbal abuse he suffers. As above, I do not accept that the applicant has suffered verbal abuse from the public as he told me he moved around a lot [in] school and there is no evidence to suggest that the applicant or his family had any long term negative effects after the murder of his uncle.
Conclusion
For the reasons above I am not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to Fiji for any reason. I am not satisfied that the applicant has a well-founded fear of persecution for one or more of the five reasons mentioned in s.5J(1)(a) of the Migration Act on return to Fiji.
Having regard to my findings of fact above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk they will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion as set out in s.36(2)(a) I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicants are persons to whom Australia has protection obligations under 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 in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
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.
…

[2022] AATA 4784

24 October 2022

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