1906127 (Refugee)

1906127 (Refugee) [2022] AATA 4806 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Pablo Ramirez
CASE NUMBER: 1906127

COUNTRY OF REFERENCE: Fiji
MEMBER:David James
DATE:22 November 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2022 at 3:53pm
CATCHWORDS
REFUGEE – protection visa – Fiji – religion – Methodist Church member – political opinion – opposition to the government – particular social group – failed asylum seeker – arrest of senior church officials – employment – mental health issues – multiple return visits to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 34
SZLVZ v MIAC [2008] FCA 1816
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 6 March 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 18 September 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
The applicant was represented in relation to the review.
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–5LA, 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (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 review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant, when applying for the visa, stated that the first time she came to Australia was in 2016 as a tourist to visit relatives. She states she was granted a multiple trip visa which she used to travel to and from Australia and Fiji on multiple occasions. She states these trips exposed her to what a democratic country is like and the freedom a person gets in such a country. She further states that while in Australia she was able to openly discuss matters of national concern with others and was able to criticise the government (Fiji) without the fear of someone reporting her to the Fiji government. She states she feels free and safe in this country (Australia). She states as to her claims that:
·She lived all her life in Fiji where there have been a lot of coups. The military coups from 1987 to the latest in 2006 have greatly affected her life since childhood. She was a [child] in 1987 at the time of the first coup and experienced over the following years the evil of racism and discrimination and the negative effects of one coup after another.
·In 2000, whilst in her youth she experienced the worst effect of racism when indigenous Fijian leaders accused the Indo-Fijians and tried to take over the leadership. She was at this time working for the Methodist Church and she could not understand or comprehend the logic of racism among Christians.
·In 2006, the indigenous Fijian political leaders were overthrown by the Military who took over the leadership of the country. The coup leader was not in agreement with the Methodist Church, and this resulted in the cancellation of the annual Methodist Church Conference. This cancellation resulted in budget cuts within the church head office, resulting in workers including the applicant being laid off after she had worked for the church for [number] years.
·The applicant after experiencing a different life in Australia made a decision to stay in Australia and apply for protection as she does not want to be a victim of the political upheavals in Fiji.
·The applicant’s fears are as follows:
olosing her basic human rights if she returned to Fiji as she has experienced having her rights respected in Australia and this has resulted in her becoming healthier mentally and physically;
oshould she return to Fiji she would not be able to discuss her problems as a youth which were due to the Fijian government’s mistreatment;
oshe fears she would not be able to criticise the government and that she would be reprimanded if she did so;
oshe fears that the psychological depression that she has gone through over 10 years in Fiji would return and become worse to the point of her committing suicide as life in Fiji is very depressing and all doors were closing down on her and she does not want that to happen to her;
oshe experienced harm in Fiji in the form of psychological and mental depression and this was caused by different policies put in place by the government. She felt depressed having learned about democracy in school as she could not practise it as the government is dictatorial and does not believe in democracy;
oshe considers the government is responsible for the psychological harm she is suffering.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 6 March 2019 to refuse the protection visa was made on the information before the delegate. The delegate found that although the applicant had experienced various coups during her lifetime and that she feels affected by the current government programs and policies together with certain rights not being fully respected in Fiji, that the history of the coups, current policies and restrictions have not resulted in the applicant being persecuted. Additionally, the delegate found that the Methodist Church is not persecuted in Fiji and there was no indication that the applicant would be persecuted on return to Fiji. The delegate found that the applicant does not have a well-founded fear of persecution. The delegate also found that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being removed to Fiji. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act, and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.
Invitation to attend hearing
On 19 October 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 3 November 2022. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to her application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-hearing submissions to the Tribunal – 16 November 2021
On 16 November 2021 the Tribunal received written submissions with a series of attachments in support of the application and a Statutory declaration under the hand of the applicant dated and sworn on 22 September 2021 by the applicant’s solicitor, Mr Pablo Ramirez of Circuit Legal. The submission briefly outlined the applicant’s relevant personal background, work history and identified the applicant’s primary claims as being:
·the applicant was [a] staff member of the Methodist Church in Fiji;
·the Fijian government led by Frank Bainimarama does not support the Methodist Church;
·the Fijian government has arrested members of the Methodist Church;
·if the applicant were to return to Fiji, she would face a threat to her liberty in the form of restriction of freedom of worship and membership of a church group; and
·the applicant fears that she would be deprived of her basic human rights if she was to return to Fiji.
Later in the submission it is stated that the applicant will be persecuted if she returns to Fiji and her protection claims are identified as being based on:
·religion; and
·political opinion.
It is additionally stated that:
The applicant claims that she is unwilling and unable to return to Fiji because there is a real chance that the applicant will be persecuted due to her religion and political opinion. In the applicant’s case, we submit that religion and political opinion are, to a certain extent intertwined, as the government led by frank Bainimarama has been historically anti-Methodist.
This submission refers to and relies upon the applicant’s Statutory declaration and advances as to the applicant’s political opinion that her religion (Methodist) has a correlation to her political opinion which:
Can be described as being anti-government.
The applicant’s Statutory declaration repeats her claims as outlined above as to her experiencing Fiji’s military coups and the cancellation of the Methodist Church Conference in 2006, which she asserts was the reason for her [long-term] employment with the church having to be terminated. She states (in summary) that the political situation in Fiji since 2006 is unstable and she does not feel confident in securing a good future if she was returned to Fiji. She states that if she was to say something that the government does not like she would be in trouble. She further asserts that the current economic situation in Fiji is not good, and this will result in political unrest, and that she has no hope of survival given the deteriorating relations between the military and the church.
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Health’ at 2.11 to 2.15 noting that at 2.13 to 2.15 under the subheading of ‘Mental health’ it is reported that:
The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
As to ‘Employment and welfare’ at 2.18 to 2.27, at 2.21 the report states that:
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
As to the ‘Political System’ the report at 2.28 to 2.29 states:
Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.
There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.
‘Security Situation’ is outlined at 2.34 of the report and provides that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).
‘Religion’ at 3.11 and 3.12 states:
The 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion and specifically protects against religious discrimination. In practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom.
About 65 per cent of Fijians are Christians, about 25 per cent are Hindu and about 6 to 7 per cent are Muslim. The Methodist Church in Fiji and Rotuma (MCFR) is the largest denomination with over 212,000 members, according to the World Council of Churches. Other Christian denominations include Catholicism, Assemblies of God and Seventh Day Adventist. Religion tends to be divided along ethnic lines; most iTaukei are Methodist and most Indo-Fijians are Hindu or Muslim.
Under the subheading of ‘Methodists’ at 3.13 to 3.14, it is noted that:
Most traditional chiefs, who are influential in Fijian society, are Methodists. Methodism in this context is a shared tradition rather than a single church hierarchy. The MCFR is the largest church organisation, but other Methodist churches also exist.
The MCFR has historically been influential in Fijian politics. There is some overlap between the ethno-nationalism of the main opposition party (SODELPA) and the MCFR, and many ethno-nationalists are members of both organisations. DFAT assesses that there is no official or societal discrimination against members of the Methodist church based on their religion. Methodists worship and gather freely and the Church and its members are influential in Fijian society.
‘Political Opinion (Actual or Imputed)’ at 3.25 to 3.39 states at 3.25 and 3.30 that:
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law (see Media).
In relation to ‘People involved in coups d’état’ at 3.40 and 3.41 it is reported at 3.41 that:
People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in-country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination.
Regarding ‘Women’ at 3.49 and 3.50 it states that:
Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.
The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.
As to ‘Police’ at 5.6 to 5.16 it is reported at 5.6, 5.7 and 5.10 that:
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’.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.
Regarding ‘Conditions for returnees’ at 5.28 it is reported that:
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.

The Tribunal has also taken into consideration Freedom House’s ‘Freedom in the World 2022 Report Fiji’ [1] where it is recorded that:
The repressive climate that followed a 2006 coup has eased since democratic elections were held in 2014 and 2018. However, the ruling party frequently interferes with opposition activities, the judiciary is subject to political influence, and military and police brutality is a significant problem.
As to ‘Religion’ the report provides:
Freedom of religion is generally respected, though in the past there have been many cases of vandalism of Hindu temples. In 2021, there were reports of arson attacks on mosques and Muslim owned shops on the island of Taveuni and in Labasa.
In relation to ‘Freedom of movement’ it is reported that:
Citizens enjoy the freedom to travel, live, work and seek education inside and outside the country. However, the law gives the government broad powers to restrict both internal and foreign travel. Substantial restrictions on movement were imposed in 2021 in response to the COVID-19 pandemic.
[1] Freedom House, ‘Freedom in the World 2022 Fiji’, <>
The Tribunal has also considered that in 2010 it was reported Bainimarama’s conflict with the Methodist Church was political rather than theological and, hitherto, only the Church executive had been targeted for retribution for their activities and disloyalty. Bainimarama has not attempted to prevent Methodist services or other forms of worship. Rather, he has attempted to prevent Methodist gatherings from becoming political forums and sermons straying into politics.[2]
[2] Yakabi, A 2010, ‘Fiji – A year on from the April 2009 Constitutional Crisis’, Citizens’ Constitutional Forum.
Review hearing – 3 November 2022
The Tribunal hearing was conducted at the Brisbane Registry in the English language. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal confirmed that she understood the relevant statutory framework and concepts as to the refugee and complementary protection criteria and this was confirmed by her solicitor who appeared via video link.
The applicant adopted her Statutory declaration of 22 September 2022 confirming her personal background and claims (refer to paragraph 18 above) as outlined in her declaration. The applicant and her solicitor identified her claims in accordance with her application, her declaration of 22 September 2022 and the pre-trial submissions of 16 November 2021 (see paragraph 17 above). Her evidence was (in summary and to the effect) that:
·Prior to her last arrival in Australia and making her application for the visa the applicant lived with her [age]-year-old mother, her [brother] [age] years of age, and two of her [relatives] at her mother’s home in [Village 1], Fiji. The applicant maintains daily contact with her family in Fiji by telephone.
·As to her family the applicant stated that her mother [named] is [age] years of age, is unemployed and a practising Methodist who attends her local church regularly in [Village 1]. Her brother [named], [age] years of age, works as [occupation 1] for a private [company] and is also a practising Methodist who regularly attends his local Methodist Church. [Another relative, named], is [an age]-year-old farmer who operates his farm on leased land where he grows some commercial crops and [has animals]. He also is a practising Methodist and regularly attends his church at [Village 2]. [Another relative, named] is [age] years of age and works for [Agency 1] as an [an occupation 2] for the [Agency].
·In reply to questions from the Tribunal the applicant said that none of her family had been arrested and/or questioned by the Fijian authorities about her political views, church involvement or any other matter recently or ever in the past. The applicant also informed the Tribunal that none of her family had ever been the subject of any harassment, questioning or threats as a result of their religion and regular attendance at Methodist churches in Fiji.
·The applicant explained that as to her fears and psychological harm she has experienced as a result of the Fijian coups, she had been very young ([age] years of age) but she remembers the 1987 Fijian coup and that it was very frightening for her. She recalls being at school and being told to go home after there had been radio announcements telling people to go home and stay at home. She recalled the radio reporting that they (soldiers) were burning towns and as she travelled home on the bus she saw a number of military roadblocks. She became very frightened because of what was happening in the city and the reports on the radio about the violence. She said she was upset about the violence being Fijian against Fijian.
·As to her experiences of racism she explained that in 2006 she was working for the Methodist Church and could not understand or comprehend the logic of racism amongst the Fijian people and this had upset her. Although she did not support the 2006 coup and the use of violence she understood and supported the ideals of the coup insofar as protecting the land rights of indigenous Fijians. She explained that the Indo-Fijians had tried to take over the leadership of the government and were taking the land that was traditionally owned by the indigenous Fijians. She said “they had come and taken our land and taken us away from our safe havens and for them (Indo-Fijians) it was like 5% for us and 10% for them and that was not right as the only thing we Fijians had was our land”.
·Under questioning as to supporting the ideals of the 2006 coup the applicant replied to the effect that she wouldn’t say she supported the coup as what had come from the coup was violence, but she did support having the land kept for the indigenous Fijians.
·The applicant explained that in 2006 she was the [Position 1] at the Methodist Church in Fiji and worked [with leaders] of the Methodist Church. She worked at the church’s headquarters in Suva and had been at the church headquarters during the 2006 coup. Although she did not personally witness the arrest of the President and other senior members of the church, she had been contacted by other senior church officials on the night that the military arrested the senior church members. She recalls being contacted by members of the church who enquired as to the arrests of the senior church officials and asked her to check on other church officials as to their safety. She explained that this had caused her much distress and she often has recurrent recollections of that evening, and the 2006 coup which has resulted in her experiencing psychological harm. The applicant also explained that during the days following the coup in 2006 she recalls an [an international] official [Official A] attending the church and that [Official A] had been ordered by the government of Fiji to leave their country. She had become very concerned that as [Official A] was attending the church during this time this could have resulted in further action against the church and possibly even against herself by way of arrest and this had caused her great stress.
·The applicant in response to the Tribunal explained that in relation to the church officials who had been arrested during the 2006 coup they had all later been released without having been physically harmed.
·Under questioning the applicant agreed that the Fijian authorities – both the military and the police – did not arrest her, question her or detain her at any time during the 2006 coup. She further explained that she has never been the subject of any questioning, arrest and/or detention by the Fijian authorities in relation to her membership of the Methodist Church, her former job with the Methodist Church and/or the leaders of the Methodist Church.
·The applicant explained that after the 2006 coup and the arrest of the church’s leadership, the Methodist Church had been prohibited from running its annual Methodist Church Conference. This conference was a major source of income for the church and as a result of the reduction in church funds she lost her job with the Methodist Church and that caused her much stress as she had been at the time supporting some of her siblings and her elderly mother. She explained jobs were and are very hard to find and she had decided to complete tertiary studies. However, after a year she was unable to pay for her tuition and had to discontinue her studies in [subject 1]. She explained that since 2006 it has been difficult in Fiji and her only other employment had been in [a named] industry at [Employer 1] where she had worked for one year. She stated that she was not confident that if she returned to Fiji that she could obtain employment and be in a position to support herself, although she agreed that she would be able to gain accommodation and financial assistance from her mother and other family members.
·In reply to the Tribunal the applicant explained that she has never sought any medical assistance in relation to her psychological harm including any medical diagnosis, psychiatric assessment and/or treatment, psychological assessment and/or treatment and/or counselling. The applicant explained that she has addressed her psychological trauma and harm through her religion and church attendance but has not shared her concerns and worries with anyone as she keeps it to herself. However, she states that it affects her every day. The applicant agreed that she has at no time sought or received any counselling from the church in relation to her recurring feelings of distress due to her recollections of the 2006 coup and earlier coups in Fiji.
·As to the applicant’s fears of losing her basic human rights if she was to return to Fiji, she explained that she does not believe she has a right to voice her opinion and to have her voice heard as the government of Fiji will not allow her to express herself. She explained she cannot express her views on social media as you do not know who is listening and even whispers are heard by the government. She said that she has been through a lot since the 2006 coup given her role in the church. She explained in reply to questioning that she has not posted any anti-government or other negative comments on social media as to Fiji but on occasion she has ‘liked’ comments made by friends and associates on social media platforms which could be viewed as being critical of the Fijian government. In reply to further questioning the applicant agreed that she has not been the subject of any police or military response in relation to such postings of ‘liking’ other people’s comments as to the Fijian government.
·The Tribunal asked the applicant about her travels to Australia, and she indicated that since 2004 she had visited Australia on 12 occasions. She explained that her first trip was for a [Conference] and paid for by the church, five trips had been to see her grandmother in Australia and paid for by family, and her other trips had also been paid for by family except for two trips which she had funded. In reply to the Tribunal the applicant stated that she had not ever experienced any difficulties in departing or returning to Fiji and she had been able to obtain her passport and renew it without incident in Fiji.
·She explained that since 2006 the only income she had obtained in Fiji has been through a small enterprise with some of her friends whereby they [make food] and sell same at markets and to customers directly. Since her most recent arrival in Australia in 2018 she has been employed as [an occupation 3] with a [specified business] and has been able to support herself and enjoy her life here in Australia. She believes that if she returns to Fiji her psychological trauma and the stress of reliving her experiences of the Fijian coups will return and cause her psychological harm.
·In response to the Tribunal’s discussion of the Country information as outlined above at paragraphs 19 to 21, the applicant made the following comments as to some of those topics:
oAs to ‘Health’ and ‘Mental Health’; that she could have gone to any of them but as a Methodist she went to the Methodist Church;
o‘Employment and welfare’; “Yes, today I think the government has started to introduce the Pacific Islander labour force which provides opportunities for employment in Australia and that also shows that there are no jobs in Fiji and that the price of living is very expensive and the pay available in Fiji is not commensurate with the cost of living.” She agreed in this respect that such issues were faced by all of the Fijian community.
o‘Political System’ and ‘Security Situation’; that “the government will say what they say but our voice can’t be heard, I only wish that they (DFAT report writers) can come and live in Fiji for a few months and see what it is like, we have been trying to have our voice heard but elections have been cancelled and the government won’t listen.”
o‘Religion’; “there’s fear, there is always fear.”
o‘Methodists’; “still they are persecuting us, the conference has only just been opened again and yes there have been discussions, but things are not really getting better. How can we use the power of our numbers when the soldiers have the gun.”
o‘Military’s attitude to the Methodist Church’; “yes, it was 2006 and the next couple of years was hard for us but since then we are still scared.”
The Tribunal at the completion of the applicant’s oral testimony offered the applicant’s solicitor an opportunity to make further oral submissions. Mr Ramirez appearing with and for the applicant relied upon his written submissions of 16 November 2021, see paragraph 17 above. He further submitted that as the Bainimarama government was still in power and that it is a former military dictatorship that had come to power through a coup and that it is common for such governments to install a legitimate government of cronies who have little experience in running their departments this tends to create a culture from their military experience in which they use violence to enforce strict compliance with government directives. He further explained that the fact that there have been democratic elections does not wash away the culture of violence within the police and the military in Fiji. He further submitted that the government in Fiji enforces censorship and is over-sensitive to political opinion that is anti-government and that has resulted in people being targeted as being anti-government for supposedly opposing the current regime. In reply to the Tribunal raising that the applicant had not been active on social media to any extent that she would likely have an anti-government profile, he replied that there was still a real chance of an imputation of an anti-government view being assigned to the applicant because of her Methodist Church employment during the coup and her personal views as to the government which she has expressed on social media. Otherwise, the applicant’s solicitor relied upon the written submissions of 16 November 2021.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji and provided a copy of her passport. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[6] Fox v Percy (2003) 214 CLR 118.
[7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[10] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal found the applicant to be cooperative and generally an honest and reliable witness. In that regard the Tribunal accepts the applicant’s evidence as to her background, her religious beliefs and commitment to her church, the Methodist Church.
Psychological harm

The Tribunal accepts that the applicant as a child of [age] years of age experienced the 1987 Fijian military coup and that her experiences included being sent home from school, seeing military roadblocks in place, and hearing radio reports of the destruction of property and violence towards Fijians by the military was, and is to this day, something that upsets the applicant. It is further accepted that the applicant was at the time of the 2006 Fijian coup employed by the Methodist Church and witnessed although not directly, the arrest of the church’s leadership. Given her [professional connections] with the church and the requests made of her to check on and inform members of the church as to the military’s action against the church leaders, it is accepted that she became worried, stressed and concerned for both the safety of the church leadership and herself. The Tribunal accepts that these matters are often reflected on by the applicant and her recurring recollection of these incidents has and does cause her some anxiety. However, noting that the applicant has never sought a diagnosis, treatment and/or any counselling as to her self-described psychological harm the Tribunal places little weight on the applicant’s evidence as to the significance of this psychological harm. Notwithstanding the applicant’s evidence that she has addressed this harm through her religion, faith and church engagement, she did not provide any details as to how her engagement with her church has enabled her to address, control and treat her self-described psychological harm. Additionally, the applicant’s evidence as to this harm was limited to her own assessment that she feels depressed when thinking of these matters. The Tribunal in this regard, finds the applicant’s evidence as to her ongoing psychological harm and the extent of same to be vague and unconvincing.
Further in relation to this issue and although the Tribunal accepts the applicant’s evidence as to the basis or genesis of her past anxiety and/or psychological stress and harm and notwithstanding such genesis was the 2006 Fijian coup the Tribunal does not accept that her present anxiety and/or psychological stress and harm that she purports to suffer is and would in the reasonably foreseeable future be caused by the Fijian authorities. The applicant’s claim in this regard is that if she was to return to Fiji her psychological health would deteriorate due to her past experiences and belief that she will be persecuted due to her religious beliefs and past employment with the Methodist Church. Given the lack of independent medical and/or allied medical information as to her anxiety, psychiatric and/or psychological health the Tribunal gives little weight to the applicant’s claims relating to her past, present and future psychological state. Additionally, the Tribunal notes that Country information provides that there are treatment options and counselling services available in Fiji that the applicant could engage with and seek assistance from if she returned to Fiji.
The Tribunal finds as to her purported psychological depression which she claims she has endured for over 10 years in Fiji and would return and become worse to the point of her committing suicide if she was returned to Fiji that this fear is not well-founded. The Tribunal finds that the applicant does not face a real chance of serious harm by way of psychological depression in the reasonably foreseeable future if she was to return to Fiji.
Religion – Methodist
Although having found that the applicant was employed at the Methodist Church Headquarters in Fiji at the time of the 2006 coup, and that she experienced anxiety and stress during that period including a fear of arrest because of her position of employment [with] the church leadership, the Tribunal finds that her present fears of persecution arising from her religious faith and engagement with her church are not reasonable and are simply her own subjective view. Given the available Country information as outlined above at paragraphs 19 to 21, which indicates that most traditional Chiefs who are influential in Fijian society are Methodists and that the Methodist Church is the largest church organisation in Fiji, together with information that many of Fiji’s politicians, army officers and police are also Methodists; and the applicant’s evidence that none of her immediate family who are all Methodists have been the subject of any arrests, interrogation and/or detention arising from their commitment and engagement with their church, the Tribunal in this regard accepts that if the applicant was to return to Fiji she would continue to practise her religion and likely attend her church regularly and involve herself in church activities which could include employment with the church. However, the Tribunal does not accept that the applicant would be restricted in any way from practising her religion in Fiji. The Tribunal is not satisfied that the applicant faces in the reasonably foreseeable future a real chance of persecution as a result of her religious views and activities with the Methodist Church. As such the Tribunal finds that the applicant’s fears of persecution arising from her religion are not well-founded.
Political opinion (actual and/or imputed)
As to the applicant’s claims that she is unable to express her political views for fears of reprimand by the Fijian authorities the Tribunal finds her claims and evidence to be vague and unconvincing. The applicant agreed that her only online expressions of criticism of the Fijian government have been her ‘liking’ or otherwise expressing agreement and support for the comments made by friends and associates on social media. The applicant in this regard provided no specific details of these ‘likings’ and agreed that there have been no adverse effects experienced by herself and/or her immediate family in Fiji as a result of her expressing support for the social media comments which she described as being critical of the Fijian government. In this regard the Tribunal notes that the Country information provides that social media users who criticise the government face a low risk of official discrimination. The Tribunal does not accept that the applicant would be restricted from and/or harmed by or censored by the government if she was to return to Fiji and to discuss openly with friends, family and other members of her community her concerns about the Fijian government. The Tribunal in this regard accepts that the applicant has some concerns about her government and accepts that some of these concerns arising from her experiences in the 2006 coup can be categorised as being anti-government. However, the applicant’s views and beliefs as to the Fijian government and her communication of same to other members of her community are not of such a nature that she has or will obtain a significant anti-government profile in Fiji. Further the Tribunal is not satisfied on the evidence before it and the relevant available Country information that the government of Fiji views Methodists as being anti-government. Given the large population of Methodists throughout Fijian society including in the government, police and military this claim is not accepted.
The Tribunal finds that the applicant does not face a real chance of discrimination resulting in serious harm as a result of her political opinion whether actual and/or imputed by way of her support for the comments of others on social media and/or her past and present involvement and engagement with the Methodist Church including her earlier employment with the church leadership. The Tribunal does not accept that the cumulative factors of her religious beliefs and affiliations together with her anti-government political views are such that she has an anti-government profile that would result in persecution. The Tribunal finds that the applicant’s fear of persecution arising from her political opinion whether actual and/or imputed is not well-founded.
Political unrest
The applicant’s claim that she does not want to be a victim of political upheavals and/or unrest in Fiji was vague and relied upon her view that the economic situation in Fiji would be a catalyst for future political unrest in Fiji due to poor employment prospects. This is inconsistent with the Country information as to ‘Employment and welfare’ and ‘Security Situation’ as outlined above at paragraph 19. Given the non-specific and vague nature of the applicant’s evidence and her claim in this regard the Tribunal is not satisfied that the applicant faces a real chance of persecution arising from this claim. The Tribunal finds that the applicant’s fear as to this claim is not well-founded.
Membership of a particular social group – women
Although not specifically claimed the Tribunal has considered the applicant’s position as a single woman in Fiji. Notwithstanding the recent Covid-19 pandemic effects on Fiji’s tourism industry and Fiji’s current limited employment opportunities, the Tribunal notes that the applicant has previously obtained employment in Fiji and has recently obtained employment in Australia. Further the Tribunal notes the applicant’s evidence that if needed she could if she returned to Fiji reside with her mother where she would be financially assisted by her mother and other members of her immediate family. Given the Country information as to employment and welfare and the applicant’s personal circumstances including her work history, the Tribunal finds that the applicant does not face a real chance of persecution arising from her membership of the particular social group of women in Fiji that would result in serious harm nor does the applicant face a real chance of economic harm as claimed. The Tribunal finds that the applicant does not face a real chance of persecution for the reason of membership of this social group and/or of economic harm as claimed in the reasonably foreseeable future. The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Failed asylum seeker
As to the applicant being a failed asylum seeker the Tribunal notes that the applicant has travelled to and from Australia on 12 occasions since 2004 without experiencing any issues with the Fijian authorities. She has also most recently been able to renew her Fijian passport in 2015. When considering her travel history, the renewal of her passport and the relevant Country information the Tribunal finds that the applicant does not face a real chance in the reasonably foreseeable future of being persecuted as a failed asylum seeker. The Tribunal finds that the applicant does not have a well-founded fear in relation to her being persecuted in the reasonably foreseeable future as a failed asylum seeker.
For the reasons above the Tribunal does not accept the applicant’s claims due to the vague nature of the claims, the lack of detail provided, and that they are contrary to the relevant available Country information. As such the Tribunal is not satisfied that the applicant faces a real chance of harm in Fiji for any of the reasons she has claimed or for any other reason.
Refugee criterion
The Tribunal having considered all the applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims and is not satisfied that there is a real chance of serious harm for reasons of her religious beliefs, political opinion whether actual and/or imputed, or membership of a particular social group being women. The Tribunal also does not consider the applicant faces a real chance of economic harm as claimed given that the applicant has previously obtained employment in Fiji and has recently obtained employment in Australia, and that if needed she could if she returned to Fiji reside with her mother where she would be financially assisted by her mother and other members of her immediate family. The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant will suffer serious harm amounting to persecution for any other reason either. The Tribunal finds that the applicant’s fear of persecution is not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also, not satisfied that the applicant meets the complimentary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 4806

22 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice