1906787 (Refugee)

1906787 (Refugee) [2024] AATA 2391 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906787
COUNTRY OF REFERENCE:                   Fiji
MEMBER:B. Mericourt
DATE:21 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 March 2024 at 11:13am
CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from members or ex-members of the military forces – witnesses to violence and murder of friend – psychological trauma – medical condition – access to health care – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 9 October 2018. The delegate refused to grant the visas on the basis that she was not satisfied the applicants had a well-founded fear of persecution or that there is a real chance they will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if they return to Fiji. Nor was the delegate satisfied that there is any real chance the applicants will suffer significant harm as defined in s36(2A) of the Act if they return to Fiji.
The applicants appeared before the Tribunal on March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicants were not represented at the hearing.
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.
Receiving Country
The applicants claim to be citizens of Fiji. They provided copies of the bio data pages of their Fijian passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of Fiji. The Tribunal finds that Fiji is the receiving country for the purpose of assessing their claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have the right to enter and reside in any country other than their country of nationality.
BACKGROUND
The primary applicant is a [age]-year-old man originally from [named island], Fiji. He is an indigenous Fijian and his religion is Christianity. He is married and has [number] daughters and a son. His wife and youngest daughter are secondary applicants. The primary applicant’s [number] older daughters, younger brother and [number] younger sisters reside in Fiji. He has a number of cousins living in Australia.
The primary applicant retired in 2018. His former occupation was as a [Occupation 1 completing specified tasks in his role].
The primary applicant’s wife is [age] years old. She has [number] sisters and [number] brothers residing in Fiji. She had worked in [Occupation 2] and as a [Occupation 3] in Fiji between 1988 and 2013.
The primary applicant’s youngest daughter is [age] years old. At the time of the application she stated she had never married, had completed a Certificate III in [Discipline 1] at [named education provider] and she had worked for one year since leaving school in 2015 as a [Occupation 4] and [Occupation 5].
The applicants were granted visitor visas on 26 February 2018 and entered Australia [in] May 2018.
On 9 October 2018 the applicants applied for protection visas. The Department notified the applicants that their visas were refused on 12 March 2019 and on 22 March 2019 the applicants lodged an application for review of the Department’s decision to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicants have a well-founded fear of persecution if they return to Fiji and if so, do they meet the refugee provisions of the Act? If not, do the applicants meet the protection obligations under the complementary provisions of the Act?
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to the following:
·the applicants’ claims for protection in their application form dated 5 October 2018 and submitted to the Department on 10 October 2018;
·Department of Foreign Affairs (DFAT) Country Information Report, Fiji, 20 May 2022;
·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;
·A medical discharge summary from [Hospital 1] dated 19 July 2018 stating that the primary applicant was admitted to hospital [in] July 2018 after being found comatose and that he was under the care of the renal team. He had had his [Body Part 1] amputated in 2015 (in Fiji), his [Body Part 2] amputated in June 2018 and an ulcer diagnosed in 2013. He also had asymptomatic [Medical Condition 1];
·Other relevant country information as referred to below.
The applicants’ claims
The claims the applicants made in their protection application to the Department related to fearing harm from the military due to the primary applicant’s witnessing of the death of his friend at the hands of military personnel. Details were as follows;
·The primary applicant (henceforth referred to as the applicant) stated that he left Fiji and came to Australia with his wife and daughter as he feared for the safety and security of himself and his family due to intimidation and threats to his life by the military and current members of the (Bainimarama) government;
·the applicant witnessed the death of his friend, [Mr A], a member of the [specified unit] by the military [in] November 2000 and the aftermath followed. His death affected his life completely and impacted heavily on his health when [Mr A] was killed in the presence of the applicant and the applicant could not do anything to save his life;
·despite requests from families and friends, the police failed to carry out a proper investigation of those in the military who were responsible to bring them to justice and this also created fear for the applicant;
·the applicant has no trust in police or the judiciary as both institutions are controlled by the current regime headed by the former Army Commander and Prime Minister Bainimarama;
·the applicant and his family had been subjected to severe stress and trauma after this incident at the military camp as the deceased was a close family friend who had served together in the military with the applicant both locally and abroad;
·the applicant’s family had also witnessed assaults in all forms of torture of innocent people by the military as most of these occurred in an open space within the military compound in full view of military families and their children. This has affected the applicant’s children both physically and psychologically;
·the applicant stated it had taken him a while to leave Fiji because he was waiting for the right time and opportunity, and that opportunity occurred when he [retired] and came to Australia as a normal citizen without anyone knowing what his plan was which was not to return to Fiji;
·the applicant stated that he strongly believes if he returned to Fiji he would be arrested, detained and put through vigorous questioning for revealing to those who are very close to him here in Australia and to the Immigration Department what the military did to [Mr A] that caused his death a day after the mutiny. According to reliable sources in Fiji, (unidentified) the military intelligence unit is aware of what the applicant revealed to his friends and the Immigration department and this has created fear in his life in Australia;
·the applicant also has a health condition and believes he would not be able to return to work in Fiji;
·the applicant did not try to move to another part of the country as there are military bases all over Fiji;
·the applicant does not believe the authorities would protect him as the only institution responsible for protection of life in Fiji is the police force and all commissioners who were appointed after the sacking of the Australian Police Commissioner in 2006 are serving military officers including the current Police Commissioner.
Evidence given at the Tribunal hearing
During the hearing the Tribunal discussed with the applicants their family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicants’ claims and reasons they fear returning to Fiji.
The Tribunal first spoke with the applicant on his own about his claims and then spoke to his wife and daughter.
The applicant said that he and his family moved to Suva for his children’s education and his own work. He started [working] in 1984 and they lived [in specified accommodation] in Suva when he was not [away for work]. His family lived [in specified accommodation] in his absence. He retired in 2017 at the age of [age] years.
The applicant receives [a] pension now he has retired. He still has a farm in Fiji and his father’s brothers’ sons farm food crops on his land. The applicant is in poor health now and is having dialysis three times a week for kidney failure which was diagnosed in Australia just before his planned return to Fiji in July 2018. He provided the Tribunal with a medical report from [Hospital 1] dated 19 July 2018 indicating he had been admitted [in] July 2018 after being found in a comatose state. This occurred the day before they were due to get on the plane to return to Fiji. The applicant acknowledged this was part of the reason he had lodged his application for protection in October 2018. He has also been diagnosed with a heart condition and has had a pacemaker put in in 2019. His wife and daughter are well. He and his wife live in [City 1].
The applicant’s daughter (the secondary applicant) is living and working in [City2]. His younger son is married, living in Australia, and has applied for a partner visa. He is not included on the applicant’s protection application. The applicant has [number] married daughters still in Fiji and each one has one son. He speaks to them every day. They have not experienced any problems in Fiji although they all witnessed the events in 2000. They have not had any problems from members of the military or government authorities, although they were very uncomfortable in 2018 when the applicants departed. They are keeping a low profile and not socialising too much.
The applicant said that in 2000 at the time of the coup he witnessed members of the [specified unit] shooting people and they killed 6 men with whom he worked. This was quite traumatic for him and his family. He and other members of the army challenged the [specified unit] officers and they managed to arrest them. They were [detained] for about two months and then went to court, where they were found guilty and sentenced to between 6 and 30 years in prison. The applicant was quite distressed talking about these events.
The applicant said that he feared returning to Fiji now because when he [was] prohibited from coming overseas in case he told others what had happened in 2000. He agreed that there was already some public awareness about this event.
The Tribunal put country information to the applicant (see below) that since Rabuka’s party had come to power in 2022 circumstances had changed in Fiji which would suggest he was no longer at risk of harm from members or ex-members of the military forces.
The applicant said the Bainimarama and Rabuka governments were the same and he would still be at risk of harm. Rabuka had been a commander in the military and his state of mind is still the same as that of Bainimarama. He has ‘the coup culture’. As a soldier he was kept under surveillance by other soldiers in Fiji, for example, at the airport. The applicant acknowledged he was not harmed by members of the military while he was in Fiji.
The applicant said his daughter was tortured by the soldiers during the events of 2000. She was hit by their fists and harassed. When his wife and children entered the military camp they were assaulted by members of the [specified unit].
The Tribunal asked what harm he specifically fears if he returns. He fears “the unknown of what might happen”. He does not know what the authorities have in their minds. Many of his former colleagues have stayed on their farms and many have gone overseas. He did not think any of those who stayed had suffered harm from the military. He did not claim to have engaged in any political activism in Australia.
The applicant acknowledged that his intention had been to return to Fiji when he arrived in Australia and he only lodged an application for protection when he was unable to board the flight returning to Fiji in July 2018 due to his health crisis at the time.
Applicant’s wife’s evidence
The applicant’s wife said that at the time of the coup in 2000 she had her youngest child with her and she had gone to her father’s house. When there she received news of the [shooting]. (The other children were at school). She then went straight back to [home] as she was concerned about the 3 children returning from school. On her way back she saw there was a roadblock and no public access. Only families who lived there were allowed to return to their homes accompanied by police. She saw soldiers lying on the ground. Another soldier escorted her to her house. They stayed indoors and kept the lights off on the road side of the house as the shooting was still going on. They could hear the thundering of military boots going past the house. She said these events were very traumatic for the whole family.
In 2006 a traumatic event occurred when citizens started being tortured. On the path they usually went to church was where the torture was happening. This caused a lot fear for the applicant’s wife and her family. The only harm that they experienced themselves was the result of division within the community. Those with military personnel in the family were ostracised. She agreed that largely members of the peace keeping forces were highly regarded in Fiji, but during this period they were discriminated against.
The Tribunal asked her about the last few years in Fiji. She said [her] husband was a pastor in the [church] and the Minister passed away. The military asked her husband to arrange the burial and farewell. The rest of the congregation did not take this well and they were ostracised by the rest of the congregation. This has caused a lot of stress and distress in the family. The Tribunal noted that later when the applicant’s daughter was giving evidence that this appears to be the same event as that described as occurring in 2013.
The applicant’s wife agreed that they had intended to return to Fiji but her husband fell ill the day before they were due to leave and could not fly on [date] July 2018. They chose to apply for a protection visa because his illness was caused by the stressful events in 2000, 2006 and 2014. At that time (2014) her husband had had surgery on his [body part] (an amputation of the [body part] is described as occurring in 2015 in the medical report provided to the Tribunal). [Details redacted]. Conditions were bad and he became more unwell. They stayed there four years before coming to Australia.
The applicant’s wife thinks if they return to Fiji now the main harm she fears is “the falling out of relationships in the community and within the family”. She believes they are treated as traitors to their own family and community. The Tribunal asked why they would be considered to be traitors. She said they would be asking why they are seeking protection. When asked how people would know they were seeking protection she said there are questions being asked about how they are remaining in Australia.
Applicant’s daughter’s evidence
The applicant’s daughter said people want to kill her father. The Tribunal asked why she thought this and who wanted to kill him. She said her father got sick around 2013. He had always strongly supported the church in its activities but none of the church members supported him in his illness. He was transferred as a result of his illness [at which] he was expected to build up the church so it would not be closed due to lack of numbers in the congregation. The family supported him to do that but not members of his previous church. Then a higher ranked person in the church they had left announced her father had passed away and had a funeral parade for him. When the applicant’s cousins visited them they were shocked to find the applicant was still alive. The Tribunal asked the applicant’s daughter to clarify how this led her to the conclusion that someone was trying to kill him. She said that justice is not served in Fiji.

When the Tribunal asked the primary applicant if he thought someone was trying to kill him he said no - it was just very distressing that his death was announced when it was not true. He doesn’t think that would happen if he returned to Fiji now.
The Tribunal asked the applicant’s daughter if she fears harm for herself if she returns to Fiji. She said yes she thinks she will be seriously harmed as she has been asking witnesses to come forward about the events in 2013. Her cousin has told her to stop doing this which she took to be a warning that people would harm her. She acknowledged she has never received any threats of harm herself as a result of her “digging” for evidence.
As the applicants were unrepresented ta the hearing, the Tribunal again read to them the definitions of serious and significant harm and asked them to comment or respond if they thought the harm they feared met these definitions. They said they did not fear deprivation of life or physical harm. It is more harm to their mental health, especially that of the primary applicant whose mental health has been significantly affected by the past events in Fiji. His wife said she believed he may not survive due to the stress he would experience if he returns to Fiji now that his health is so poor. When asked, the primary applicant said he has not sought mental health treatment in Australia.
Country information
In the December 2022 elections, Prime Minister Voreque (Frank ) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power. The new prime minister, Sitiveni Rabuka of the People’s Alliance (PA), leads a three-party coalition that includes the Social Democratic Liberal Party (SOLDEPA) and the National Federation Party (NFP). There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[1]
[1] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information - Political Update’, 2 August 2023
The transition of power has been peaceful. The head of Fiji’s military, Commander Major General Ro Jone Kalouniwai, refused to support calls from the (now former) Police Commissioner, Sitveni Qihilo to send troops into the streets after the election result was announced.[2] In mid-January 2023, Commander Kalouniwai issued a critical statement that the government was going too far, too fast. He was rebuked and has since publicly expressed support for the new government.[3] in June 2023, an unsourced document circulated on social media calling for a military takeover. FijiFirst denied responsibility for the document and Commander Kalouniwai dismissed rumours the military would intervene to overthrow the government. In July 2023, he reiterated that a coup would not occur.[4]
[2] East Asia Forum, ‘Can Fiji keep its democracy in 2023?’, 3 February 2023
[3] Australian Strategic Policy Institute, ‘The number behind Fiji's coup culture’, 1 February 2023
[4] Pacific News Service, ‘Fiji Military true to its role: Commander Kalouniwai’, 3 July 2023; FBC News, ’No coup says RFMF Commander’, 20 July 2023
As at August 2023, DFAT stated that it was not aware of any credible reports that the new government has harassed or ill treated any supporters of the former Baianimarama government.[5] The Rabuka government has suspended and is investigating several high-profile public officeholders who are perceived as having strong links to, or were appointed by, the former government. These include Fiji’s Police Commissioner Sitiveni Qiliho and in October 2023 he was found not guilty of abuse of office.[6]
[5] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information - Political Update’, 2 August 2023
[6] Radio Three Asia, ‘Former Fiji Prime Minister not guilty in abuse of power case’, 12 October 2023
The Rabuka government has taken some steps to facilitate the return of several critics of the former Bainimarama government to Fiji. In March 2023, the Australian Institute of International Affairs (AIIA) stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former FijiFirst government are being granted permission to return, and are doing so.[7]
[7] Australian Institute of International Affairs (AIIA), ‘Cautious Optimism for Fiji's Coalition Government’, 8 March 2023
No independent country information was located by the Tribunal relating to former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former government, since the Rabuka government was elected. In August 2023, DFAT stated that it was not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing Fijian nationals who publicly opposed him or his party since the change of government in December 2022. DFAT also noted that it was not aware of any reports of the Fijian Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[8]
[8] Department of Foreign Affairs and Trade (DFAT), ‘Fiji - Country Information - Political Update’, 2 August 2023
DFAT reports that health care is free and generally available for those who need it in Fiji. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Specialist healthcare is generally available particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities are sometimes lacking. Staff-to-patient ratios can be poor.[9]
[9] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report – Fiji’, p.7
In March 2021, the Fiji Times reported the opening of the Fiji National Kidney Centre, in Nadera, Nasinu in addition to the acute dialysis services offered at the Colonial War Memorial Hospital and Lautoka Hospital. These services are subsidised by the Fijian government.[10]
[10] Dialysis centre opens - The Fiji Times, 19 March 2021
The law in Fiji provides for public mental health care but, in practice, it may not be available. A public psychiatric hospital, St Giles, is located in Suva. Although there may be an inadequate number of mental health professionals to meet demand, telephone counselling, mental health services and online resources from Australia and New Zealand might be used by Fijians.[11]
[11] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report – Fiji’, p.7
There is no independent country information before the Tribunal that indicates that there are any systematic and discriminatory reasons for withholding any of the above health services from any particular members of the population in Fiji.
Assessment of the applicants’ claims and findings
The Tribunal accepts the applicant’s evidence that in 2000 and 2006 he witnessed the coups in Fiji and ensuing violence including the murder of his friend, [Mr A], in the military compound. The Tribunal accepts that his family members also witnessed assaults by members of the [military]. The Tribunal accepts that these events were traumatic and stressful for all members of the family and that the effects of these stresses and trauma continue to have an effect on the mental well-being of the primary applicant.
The Tribunal accepts that [the primary applicant], were under surveillance in Fiji whilst Bainimarama was in power.
The Tribunal accepts the applicants’ evidence that sometime between 2013 and 2015 the primary applicant was demoted after suffering health problems and he was then given another posting at which he was expected to rebuild the church congregation in that community. The Tribunal accepts that in his former community he was pronounced deceased and a funeral parade was held for him and that this was extremely stressful for the applicant and his family.
The Tribunal is satisfied, based on all the applicants’ evidence, that they did not suffer serious or significant harm from members of the military or government authorities or any other person during the time they lived in Fiji, with the exception of the psychological trauma they suffered in 2000 and 2006 as witnesses to violence. This stress and distress was compounded by the events that occurred when the primary applicant was falsely declared dead at some time between 2013 and 2015.
Based on the country information above, and the applicant’s evidence, the Tribunal does not accept that Fijians who opposed the former government or who spoke out about the abuses of the former government either in Fiji or in Australia are at risk of serious or significant harm from Fijian authorities, the military or the current government.
The Tribunal does not accept the applicant’s daughter’s evidence that anyone is attempting to kill her father, particularly as her father did not agree with this assessment of the situation. Nor does the Tribunal accept that the applicant’s daughter is at risk of any harm as a result of her attempts to “dig for evidence” related to the false announcement of her father’s death, as the applicant’s daughter’s own evidence was that she had not personally received any direct or indirect threats of harm.
Based on the medical evidence provided, the Tribunal accepts the applicants’ evidence that their intention was to return to Fiji when their visitor visas ceased but that the primary applicant’s acute health problems (related to his renal condition and diabetes) at the time prevented them from doing so, and they lodged applications for protection partly for reasons regarding the treatment he could receive for his poor health in Australia. The Tribunal accepts that the primary applicant currently has dialysis treatment for his renal condition and has had a pacemaker provided for his heart condition.
Based on the independent country information before it, the Tribunal finds that the applicant would have access to appropriate treatments for his current medical conditions, and he would have some, albeit limited, access to mental health treatment if he wished.
The Tribunal accepts the primary applicant’s evidence that he continues to feel stressed and fearful about his quality of life and psychological well-being if he were to return to Fiji. However, based on the evidence as outlined above, the Tribunal is not satisfied that the primary applicant has a well-founded fear of persecution for a reasons of race, religion, nationality, political opinion or membership of a particular social group if he returns to Fiji now or in the reasonably foreseeable future. The Tribunal is also not satisfied that there is a real chance any of the applicants will suffer serious harm as defined in s 36(2)(a) of the Act if they return to Fiji now or in the reasonably foreseeable future.
Based on the applicants’ evidence and the independent country information above, the Tribunal is not satisfied that there is a real risk the applicants will suffer significant harm as defined in s36(2A) of the Act if they are removed from Australia to Fiji now or in the reasonably foreseeable future.
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. 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.
B. Mericourt
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2391

21 March 2024

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Immigration

Administrative Law

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Statutory Construction

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