1906078 (Refugee)

1906078 (Refugee) [2023] AATA 1995 (22 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rajendra Chaudhry (MARN: 1571586)
CASE NUMBER:  1906078
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Sheridan Lee
DATE:22 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 March 2023 at 4:13pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – persecuted in Fiji as an indigenous Fijian – could not fully develop talents and abilities in Fiji – would not receive the same level of care from extended family – could not support themselves and the state would not support them – susceptible to assault and abuse – would not be free to express identity – 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 11 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant [is] an [age]-year-old indigenous Fijian. The second and third named applicants[are] his younger siblings. The three siblings first arrived in Australia [in] November 2008 on Subclass 676 Tourist visas with their [parents]. The children returned to Fiji in 2008 until their most recent arrival in Australia [in] January 2017.
[The first named applicant] applied for protection on 27 July 2017 on the basis that he would be persecuted in Fiji as an indigenous Fijian. [The second and third applicants] applied on the basis that they are members of the same family unit. No independent claims for protection were put forward by or on behalf of [the second and third applicants].
The children’s father[first] arrived in Australia on a Subclass 676 Tourist visa [in] January 2002. He has departed and returned to Australia five times since that date. At the time the children applied for protection visas, [the father] was in Australia and held a Subclass 020 Bridging visa while he awaited the outcome of an unsuccessful application for a student visa.
The children’s mother[first] arrived in Australia with the children in 2008. [The mother] has departed and returned to Australia three times since that date. [The parents] made a combined application for protection visas on 4 May 2018. The applications for protection were refused on 11 March 2019 and [the parents] applied to the Tribunal for merits review of that decision. On 21 February 2023, the Tribunal affirmed the decision not to grant [the parents] protection visas.
I accept that the applicants are citizens of Fiji and will assess their claims against Fiji as the country of reference for the purposes of s 5H(1)(a) of the Act and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
Claims and evidence
At the time of application, all three children were [minors]. [The father] was listed as the authorised recipient on the application for protection form and his details were listed as the person that assisted with the completion of the form.
[The first named applicant]’s claims for protection were outlined on the application form as follows:
·The applicant could not fully develop his talents and abilities in Fiji. The number of students per class in Fijian schools is too high and teachers are under pressure.
·The applicant missed his dad, who was in Australia. This impacted the applicant’s performance at school.
·The family live as a nuclear family and rely on their parents rather than extended family. If the children returned to Fiji without their parents, they would not receive the same level of care from their extended family.
The applicant listed his religion as Christian, Church [name].
As outlined above, no independent claims for protection were put forward by or on behalf of [the second and third applicants].
Copies of school reports, certificates and photos from [named school] for [the first named applicant] and [the second applicant] were provided to the Department. A certificate for [the second applicant] issued by [a sporting] Club was also provided.
The applicants were not invited to participate in an interview with the delegate. On 11 March 2019, the delegate found that the applicants were not people to whom Australia has protection obligations. The delegate’s decision noted that Fijians are not discriminated against in Fiji and there were no identifiable reasons the applicant would be persecuted.
On 14 March 2019, the applicant applied to the Tribunal for merits review of the delegate’s decision. A copy of the decision record was provided to the Tribunal with the application for review. The applicants were represented by migration agent Mr Rajendra Chaudhry in relation to the review.
The applicants were invited to appear before the Tribunal at a hearing to take place on 7 September 2022. On 17 August 2022, the Tribunal received a request for the hearing to be moved to a date after 30 October 2022 on account of the representative being outside Australia without a visa that allowed for his return. The representative advised that he applied for a Resident Return Visa on 4 June 2022, however he was yet to receive a response from the Department.
On 18 August 2022, the Tribunal advised the applicant that it would not adjourn a hearing date unless there were good reasons to justify the adjournment. As stated in paragraph 4.38 of the General Practice Direction, the unavailability of counsel is generally not a sufficient reason for adjournment. As such, the applicant was advised that I had considered the request carefully but decided not to postpone the hearing.
It was noted that the applicant’s representative was awaiting the outcome of a visa application before he could return to Australia. The Tribunal cannot presume the outcome of a mater before the Department, and I was not inclined to adjourn the hearing of this matter indefinitely while the representative awaited his visa approval. The applicant’s representative was instead invited to attend the hearing by phone.
Prior to the hearing, a statutory declaration signed by [the first named applicant] on 30 August 2022 was submitted to the Tribunal. The document outlines that [the first named applicant] was authorised to make the statutory declaration on behalf of his siblings, [the second and third applicants]. The statement seeks to clarify the claims previously put forward by the applicant.
In summary, the statement claims that the applicant would be discriminated against as an indigenous Fijian by the laws and policies of the Bainimarama government. The applicant claimed that at the time he applied for protection, he was unfamiliar with the requirements for the grant of a protection visa due to his young age. Since the refusal of his application by the delegate, his father sought legal advice and they are now clear on the requirements and how his claim for protection can be sustained. The statutory declaration sets out 17 decrees that were made between 2009 and 2014 that the applicant claimed impacted indigenous Fijians wholly. The majority related to the official role of the Great Council of Chiefs and the management of native lands and waters.
The applicant also claimed that he and his siblings would be subject to cruel and degrading treatment in Fiji because:
·they could not support themselves and the state would not support them.
·they would not have accommodation and extended family have told them they don’t want them to stay.
·as young people they would be susceptible to assault and abuse and the state could not protect them.
·he would not be free to express his identity as a Fijian freely because he would feel constrained by the repressive laws of the Bainimarama regime.
Annexed to the statement was:
·a copy of the delegate’s decision
·A news article titled ‘Chaudhry: No future for graduates’ by Serafina Silaitoga, published on 22 April 2022 in The Fiji Times. The article reports criticism of the impact of large student debts by Mahendra Chaudhry
·A news article titled ‘SODELPA wants FAB scholarship back’ by Apisalome Coka, published on 9 March 2014 on FBC News. The article reports that Social Democratic Party leader Ro Teimumu Kepa committed to reinstate the Fijian Affairs Board scholarship scheme and the Multi-Ethnic Affairs scholarship if they won the election.
·Draft concluding observations of the Committee on the Elimination of Racial Discrimination published on 31 August 2012 in respect of Fiji
·A copy of the Department of Foreign Affairs and Trade Country Information Report Fiji, 20 May 2022.
The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. [The second and third applicants] attended the hearing but elected not to give evidence. The applicants’ parents attended the hearing in support of their children. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages however the applicant communicated confidently in English without using the interpreting service.
At the date of the Tribunal hearing [the first named applicant] was [age], [the second applicant] was [age] and [the third applicant] was [age] years of age.
In addition to the evidence already provided, [the first named applicant] gave evidence that he completed year [grade] in Australia, followed by Certificates I and II in [a course]. On the date of the Tribunal hearing, he was working as [an occupation].
Before moving to Australia, the applicant lived in [a location] with his grandmother, mother and siblings. On the date of the hearing, he lived in Melbourne with his immediate family.
In summary, the applicant expressed concern that the laws of Fiji would negatively impact his life. He was concerned that he would not obtain any further education and the chances of a good career would be limited in Fiji. The applicant’s remaining evidence at the Tribunal hearing will be discussed below where relevant.
Following the hearing, the applicants’ representative made submissions dated 17 October 2022. The cover letter simply stated that the representative was submitting post hearing documentation at the request of the clients. Attached were two news articles. The first article was titled ‘Vote fear out in upcoming election: Narube’, published on 14 October 2022 on Fijilive. The article outlines that Unity Fiji leaver Savenaca Narube supported calls by the Archbishop of the Catholic Church in Fiji to vote out the Government of the day. The second article is by Vijay Narayan titled ‘Archbishop Chong says he has been threatened for speaking out. He says Fijians live in uncertain times, live in fear and it is dangerous to speak your mind for truth and justice’. It was published on 11 October 2022 on fijivillage. The article provides a summary of recent commentary made by Archbishop Chong in a separate article.
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.
analysis and findings
Refugee criteria
The applicant claimed that he would be at risk of harm in Fiji because of his ethnicity as an indigenous Fijian. In particular, he was concerned that he would not have access to the same quality of education or employment in Fiji as he would in Australia. He was also concerned about access to accommodation and state support.
Under ss 5J(4)(b) and 91R(1)(b) of the Act, persecution must involve ‘serious harm’ to the person. Sections 5J(5) and s 91R(2) set out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in ss 5J(4)(b) and 91R(1)(b) by way of an aid to their application.[1]
[1] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
The following are listed as instances of ‘serious harm’:
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.
The Department of Foreign Affairs and Trade (DFAT) reports that the two main ethnic groups in Fiji are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei.[2]
[2] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022.
iTaukei 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.[3]
[3] Ibid.
As discussed with the applicant at the hearing, the majority of people in Fiji are iTaukei and Christian. The country also has a representational government, that was elected by those people. DFAT assesses that there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.
I accept that the Fijian government has passed a variety of laws designed to maintain law and order in that country. I further accept that some of those laws impact and restrict the use of traditional and tribal lands. I understand that the applicant and his father consider many of the laws of Fiji to be unjust and overall excessive in number. While there may be some restrictions on the use of land, there was no evidence put forward to suggest that the applicant or his family would be killed or physically harmed due to the land decrees or detained by authorities in the reasonably foreseeable future. Nevertheless, I do not accept that the potential harm faced by the applicant in Fiji would amount to serious harm for the purposes of the legislation.
I note that the applicants did not experience discrimination in the past, such that it prevented them from securing education or accommodation. Their parents were not prevented from securing employment. The country information and the applicants lived experience do not support the contention that the applicants’ ethnicity or religion would result in discriminatory treatment in the eyes of the law or prevent them from completing education, finding employment or accommodation. Whilst it is possible that [the first named applicant], and later his siblings, may struggle to find employment on return due to general economic circumstances, I do not accept that they would be denied access to basic services or deprived of the capacity to earn a livelihood of any kind due to systematic and discriminatory conduct on return to Fiji. I therefore find that any hardship they might experience on return to Fiji cannot satisfy the definition of persecution in s 5J.
I am not satisfied that the DFAT report or the information and evidence given by the applicants as a whole establish that they, as indigenous Fijians and Christians, face a real chance of being subjected to harm of any kind because of their ethnicity or religion.
Complementary protection
The real risk contemplated by s 36(2)(aa) is ‘…a real risk that the non-citizen will suffer significant harm’. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A) of the Act. Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

In his application for protection form, the applicant raised concern that he would not receive the same quality of care if he were living with extended family in Fiji as he would if he were living with his parents. In his statement of 30 August 2022, the applicant noted that the standard of care he received while living with extended family in the past caused him to miss school and negatively impacted his performance. However, the statement also outlined that his extended family have since said they would no longer want the applicant and his siblings to stay with them if they returned to Fiji. The applicant also raised general concerns about the safety of young people in Fiji.
I note that since submitting his claim for protection, [the first named applicant] is no longer a minor. He has completed TAFE qualifications and was working as [an occupation] on the date of the Tribunal hearing. In the circumstances, it would be open to the applicant to live independently if he returned to Fiji. I accept that the applicant’s siblings are younger [and] would likely require support. However, the applicants’ parents were found not to be persons to whom Australia has protection obligations. There is no obstacle to the family living together if they return to Fiji, just as they do in Melbourne. I do not accept that the children would be solely reliant on extended family or the state for their care in the reasonably foreseeable future.
I accept that the applicant does not wish to rely on kinship networks with extended family, as is often done amongst indigenous Fijians. I also accept that wages are lower in Fiji and the standard of health care and education may not be of the same standard as those provided in Australia. However, I do not accept that the applicants would face economic hardship, denial of basic services or the denial of the capacity to earn a living of any kind such that it would threaten their capacity to subsist.
As highlighted by the delegate in their decision and outlined in the DFAT report provided to the Tribunal by the applicant, the Fiji police force is considered as professional, social welfare is available and high school education is free in Fiji. I accept that tertiary education is not free in Fiji. However, I do not accept that failure to complete further education would result in significant harm to the applicants.
I have considered the possible hardships which the applicants may face on return to Fiji – namely financial hardship, difficulty finding employment and accommodation, and cultural and language adjustment difficulties after spending a significant time in Australia. I am not satisfied that such hardships or difficulties (if experienced) are such that they would cause any of the applicants to face a real risk of significant harm as that term is defined in s.36(2A), even when considered cumulatively.
Furthermore, section 36(2B)(c) sets out that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally.’ The socio-economic situation and law and order in Fiji are situations faced by the population of Fiji generally as opposed to the applicants personally. A risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country or shared by that population group in general.[4]
[4] SZTES v MIBP [2014] FCCA 1765 at [23]–[24], citing SZSRY v MIBP [2013] FCCA 1284. In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719.
The Court’s reasoning in SZSPT v MIBP[5] suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace. This approach has also been taken in relation to the risk of harm from inadequate medical treatment and could equally apply to the risk of harm from corruption, bribery, government bureaucracy, lack of social security.[6]
[5] [2014] FCA 1245.
[6] MZAAJ v MIBP [2015] FCA 478 at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
Whilst it is possible that the applicant may struggle to find employment on return, I consider this is speculation only and based on his perception of the prevailing and general country conditions. I do not accept that there is evidence provided by the applicant (or the country information as a whole) which supports a finding that he would be deprived of employment opportunity and the capacity to earn an income needed to support himself due to systematic and discriminatory conduct on return to Fiji. Similarly, I do not consider that he or his siblings would be denied access to education or state support due to systematic and discriminatory conduct. I find that any hardship caused by their return to Fiji cannot satisfy the definition of persecution in s.91R.
I have considered the applicants’ claims individually and cumulatively. I conclude that there are not substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of them being returned to Fiji.
While distinct claims for protection were not put forward by the applicant’s siblings, I accept that they share the same characteristics as their older brother. As such, for the sake of clarity, I have assessed the risk of harm in Fiji for all three applicants.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
On 23 February 2023, the Tribunal invited the applicants to comment on or respond to information in accordance with s 424A of the Act. The particulars of the information were:
·On 14 March 2019, [the parents] applied to the Tribunal for merits review of the decision to refuse their protection visa applications.
·On 21 February 2023, the Tribunal affirmed the decision not to grant [the parents] protection visas.
The letter advised that subsections 36(2)(b) and (c) of the Act provide for the grant of a protection visa to a non-citizen who is a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
The applicants were advised that the information is relevant to the review because it suggests that they could not meet s.36(2) on the basis of being members of the same family unit as their parents. The letter advised that if the Tribunal were to rely on the information in making its decision it would affirm the decision under review.
The applicants were invited to comment on or respond to the information by 9 March 2023. On 8 March 2023, the Tribunal received a request for an extension of time to comment on or respond to the information. The extension was granted and on 16 March 2023, the Tribunal received a response from the applicants’ representative.
The letter advised that while the children were members of the same family unit, their claims are different and raise different considerations.
I can confirm that the claims and evidence put forward by [the first named applicant], [the second and third applicants] were assessed on their merits. As outlined, it was determined that the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Sheridan Lee
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.
…

[2023] AATA 1995

22 March 2023

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