1906922 (Refugee)

1906922 (Refugee) [2024] AATA 2500 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906922
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Xanthe Emery
DATE:27 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 June 2024 at 1:22pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – experienced family violence from ex-husband – has had no contact from ex-husband – Minister for Immigration intervene – Australian citizen child – referral to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,417, 499
Migration Regulations 1994, 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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Fiji, applied for the visas on 2 November 2018. On 4 March 2019 the delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
The applicants applied for review of the delegate’s decision on 24 March 2019.
The first-named review [applicant] (‘the applicant’) appeared before the Tribunal on 19 March 2024 to give evidence and present arguments. The second-named review applicant, [name deleted], is the first-named review applicant’s son and a minor child and did not attend 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
In her visa application and in oral evidence to the Tribunal, the applicant gave the following information. She was born in [year] in Suva, Fiji. Her parents and four brothers continue to reside in Suva, Fiji. She has one other brother who has passed away. She is in touch with her parents everyday via phone calls and [social media]. She was married to her ex-husband, [Mr B], on [date] August 2016 in Fiji, and they were divorced on [date] December 2022. [Mr B] is a permanent resident of Australia. Her current partner is Mr [C]. [Mr C] holds a bridging visa and has also applied for a protection visa in Australia. The applicant told the Tribunal she was unsure about the status of his visa application. He works in construction in Australia.
The applicant has three children. Her son [Master D], who is [age] years old and is the second-named review applicant, and her daughter [Miss E], who is [age] years old and is an Australian citizen, are children of the relationship with [Mr B]. [Master D] was born in Fiji, whereas [Miss E] was born in Victoria, Australia. The applicant’s son [Master F] is [age] years old and is a child of her relationship with [Mr C]. [Master F] was born in NSW, Australia. The applicant said [Master F] held no visa and has not applied for any visa.
The applicant has an aunt and cousins who reside in Adelaide.
The applicant completed high school in Fiji and started a [course] in Fiji but did not complete it. In Australia she has completed a [qualification] and is currently studying a [another one] to become [an occupation] in a [workplace].
She resided at the same address [in] Suva for the entire time she lived in Fiji. Her family in Fiji continue to reside here. She has lived in several places in Sydney, Adelaide and regional Victoria since arriving in Australia. She has been employed in Australia since about April 2019, working as a [occupation], and currently works at [a workplace].
The applicants first travelled to Australia on [date] December 2016 on Visitor (Subclass 600) visas. They travelled in and out of Australia on several occasions on that visa. They last arrived in Australia on [date] August 2018.
Evidence before the Department of Home Affairs
The applicants applied for Protection (Subclass 866) visas on 2 November 2018. Together with the visa application form, the applicants provided copies of the biodata pages of their Fijian passports, copies of the visa grant notice for their Visitor visas, and a copy of the second-named applicant’s birth certificate.
In summary, the applicant claimed that she was scared to return to Fiji because of the upcoming election (which was held in November 2018). She was concerned about the chaos associated with an election and that there would be a coup, and that her and her son would be separated from her husband who remained in Australia, and that they would have no one to support them.
No separate or additional claims were made for the second-named review applicant.
The applicants were not invited to an interview with the delegate, and no further documents or evidence were provided to the Department in support of their claims for protection. On 4 March 2019 the delegate refused to grant the applicants protection visas. The delegate considered the circumstances in Fiji at the time (March 2019), noting that the election of 2018 had passed without any major incident or a coup, and found that the applicant’s fear of persecution was not well-founded. The delegate also found that there was no real risk the applicant would suffer significant harm, for the purposes of complementary protection.
Evidence before the Tribunal
The applicants applied for review on 24 March 2019 and provided the Tribunal a copy of the delegate’s decision record.
On 28 March 2023 the applicant emailed the Tribunal a statutory declaration, dated 23 March 2023, which included new claims for protection. In summary, the applicant claimed that she had experienced family violence from her husband, [Mr B], while in Australia and she feared he would harm her if she returns to Fiji, where he would be able to locate her easily and where the police would not provide protection.
The applicant has also provided to the Tribunal the following documents and evidence in support of her review application and her claims for protection:
a.A copy of her expired Fijian passport issued [date] 2013 and expiring on [date] 2023.
b.A copy of the applicant’s new Fijian passport issued [date] 2024.
c.A copy of her son, [Master F]’s birth certificate.
d.A copy of the Australian citizenship certificate and birth certificate for her daughter, [Miss E].
e.A copy of an Interim Intervention Order from South Australia dated [March] 2019, which identifies [Mr B] as the defendant and the applicant and her children [Master D] and [Miss E] as protected persons. The Order indicates that the defendant was required to attend the Magistrates Court of South Australia on [date] March 2019.
f.A copy of the Divorce Order between the applicant and [Mr B], dated [November] 2022, with the divorce taking effect [in] December 2022.
g.A letter from South Australia Police, dated [May] 2024, refusing the applicant’s request for access to a police report under freedom of information (‘FOI’). This letter states that the ‘matter is still considered before the courts’, and refused access to the document because disclosure could reasonably be expected to prejudice the fair trial of a person or the impartial adjudication of a case.
h.A letter from Victoria Police, dated [May] 2024, acknowledging the applicant’s FOI request and advising of a delay of more than 36 weeks in finalising FOI requests.
At the hearing on 19 March 2024, I discussed with the applicant her travel history, family, education, employment history, the places she has lived in Fiji and Australia, and her claims for protection. Her oral evidence is discussed further below.
At the conclusion of the hearing, I provided the applicant until 26 March 2024 to provide further evidence in support of her claims for protection. In particular, I requested evidence of any police reports or other records from the police, a final apprehended violence or intervention order, her divorce from [Mr B], and evidence of her daughter [Miss E]’s birth and Australian citizenship. That time has been extended since then given the applicant’s attempts to obtain evidence from South Australian and Victorian police. On 19 June 2024 the Tribunal wrote to the applicant to advise that I proposed to make a decision in her review application and inviting her to provide any further documents in support of her case by 26 June 2024. No further evidence has been provided by the applicant. As is evident from my findings below, I accept the applicant experienced family violence from [Mr B] and that the police have records relating to incidents they attended. Accordingly, I did not consider it necessary to continue to adjourn the review to await the outcome of the FOI request with Victoria Police, given their advice that a decision on the FOI request was likely to be finalised more than 36 weeks from the date of the request on 2 May 2024.
Analysis, reasons, and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations because they are refugees or owed complementary protection. I found the applicant to be a truthful and sincere witness, whose evidence was broadly consistent with the evidence she gave in her statutory declaration of 23 March 2023. However, for the following reasons, I have concluded that the decision under review should be affirmed.
Family violence and fear of harm from ex-husband
In her statutory declaration of 23 March 2023 and in oral evidence to the Tribunal, the applicant gave the following information about her relationship with [Mr B] .
[Mr B] is Fijian and a permanent resident of Australia, and migrated to Australia in about 2012 with his mother, who married an Australian.
The applicant and [Mr B] met online towards the end of 2014 or the beginning of 2015. They first met in person at the end of 2015. There are some inconsistencies between the applicant’s oral evidence and that in her statutory declaration regarding the early part of her relationship with [Mr B], including when he travelled to Fiji to meet her in person and their engagement ceremony. However, the consistent evidence before me is that they married on [date] August 2016 in Fiji, and that they have two children together – [Master D] born in Fiji on [date], and [Miss E] born in Australia on [date].
After the marriage, the applicants travelled to Australia on many occasions to stay with [Mr B]. Their plan was to apply for a Partner visa for the applicants, sponsored by [Mr B], and they saw a lawyer for advice about this. However, no Partner visa application was ever made, and [Mr B] threatened not to sponsor them and accused the applicant of marrying him “for the papers”.
The applicant and her children lived at various places in Adelaide, South Australia and [Town 1], Victoria during her relationship with [Mr B]. The applicant has provided a relatively detailed narrative of events in Australia when [Mr B] was abusive and where the police had been contacted, including details of sexual assault perpetrated against her. The applicant said she went to the police in Australia more than three times. On two occasions [Mr B] was removed from their home and held in custody overnight. The applicant understands that on one occasion he was fined and received a good behaviour bond, but she had no documentation of this.
The applicant also gave evidence that two days after her last arrival in Australia, detectives came to her house in [Town 1] to speak with her. They told her they had been tracking [Mr B]’s [specified activities]. They assisted her to take the children and go to Adelaide where she stayed with her aunt. After two weeks, [Mr B] came to Adelaide and apologised and took them back to Victoria. The applicant thought he would change and things would settle. She thought he was supposed to go to court regarding the [charges] but he didn’t and told her it had all been sorted out. She had no other involvement in this matter and does not know what happened with this case.
The last time the police were called was in March 2019. The applicant and [Mr B] were visiting [Mr B]’s family in Adelaide and had a barbeque [in] March 2019. [Mr B] was drinking. The applicant put their children to bed. [Mr B] came into the room where the children were sleeping and accused her of talking to another man. He physically assaulted her. She ran to a nearby park with her eldest child and hid there. The police attended the house, and she told them she wanted to leave with the children. She made a statement at the police station and then a friend of her aunt picked her up and took her to her aunt’s home [in] Adelaide. She has an interim intervention order from this event. She understands that [Mr B] was charged but she does not know if he was convicted. She did not have to attend court. She does not know if a final intervention order was made, and understood the interim order was still valid.
The applicant’s evidence is that [Mr B] was not abusive at any time in Fiji.
The relationship with [Mr B] ended [in] March 2019. This is the date she last had any kind of contact with [Mr B]. She has not seen him or heard from him since then. He has not contacted her by text, email or via social media, nor has he attempted to contact her in any way. [Mr B] has also made no contact with, or attempted contact with, their children. He does not pay any child support. [Mr B]’s family in Australia have not contacted the applicant or her children, or the applicant’s family in Fiji and Australia. She does not know where he currently lives or whether he has re-partnered. She is aware [Mr B] has his grandmother, uncles, and aunts in Fiji. They live in Suva but the applicant does not know where in Suva. She has not heard from [Mr B]’s family in Fiji since their relationship ended. The applicant’s family in Fiji has also not had any contact with [Mr B]’s family in Fiji since the end of their relationship. The applicant does not know if [Mr B] has been to Fiji since his last visit there in June 2018. [Mr B] himself has not contacted her family in Fiji.
The applicant’s family in Fiji were aware of the abuse in the relationship with [Mr B] and know that the relationship ended. The applicant said she would call them and cry, and they were supportive of her and told her not to give up on life. When the relationship ended, they did not encourage her to reconcile or to stay in the relationship. On one occasion her mother had a verbal argument with [Mr B]’s mother over the phone. The applicant’s mother called [Mr B]’s mother and asked why she was allowing the violence to occur, and they had a verbal fight about the situation.
The applicant had assistance from a lawyer in Sydney to apply for divorce. The lawyer did all the paperwork and attended a telephone hearing before the court. They tried to contact [Mr B] in several ways regarding the divorce proceedings but they never heard from him. He did not attend the divorce hearing. No parenting orders or orders for child support were made. The divorce was granted [in] November 2022 and took effect [in] December 2022.
On the applicant’s last arrival in Australia, she was questioned at the airport in relation to her history of travelling to Australia frequently on a tourist visa, despite her partner relationship and two children. The applicant was told that if she did not apply for a permanent visa her visitor visa would be cancelled. [Mr B] refused to sponsor her for the Partner visa and so she applied for a Protection visa by herself, despite them being in an ongoing relationship at the time.
The applicant is currently in a de facto relationship with Mr [C]. They have been in a relationship for almost three years. [Mr C] is from Fiji. He has applied for a Protection visa and holds a Bridging visa. The applicant is unsure about the details of his application and his claims for protection. His parents and four brothers are in Lautoka, Fiji.
The applicant is afraid she will be harmed or killed by her ex-husband [Mr B] if she returns to Fiji. She also fears he will take their children from her. On the last occasion she saw him when he abused her and she called the police, he threatened to kill her the next time he saw her. The justice system in Fiji won’t protect her from him or his family.
The applicant gave evidence that if she returned to Fiji she would go to live with her parents at their house in Suva.
I accept that the applicant was in a married relationship with [Mr B] . I find they married on [date] August 2016 in Fiji, and were divorced in Australia [in] December 2022. I find they have two children from this relationship – [Master D], the second-named review applicant, and [Miss E], an Australian citizen. These findings are directly supported by the birth certificates of both of their children and the divorce order of the Federal Circuit and Family Court of Australia.

I also accept this relationship was violent and abusive, given the applicant’s written and oral evidence about this, the interim intervention order she provided from the South Australian Police, and the letters from both South Australia and Victoria Police regarding the FOI requests she has made to those two organisations. While the applicant has not been able to produce any police reports, or evidence of a final intervention order, or any evidence that [Mr B] was convicted of offences against her, I accept that the letter from South Australia Police in particular, supports the applicant’s claim that police attended a domestic violence incident [in] March 2019 and that a police report from this event exists.
I also accept the applicant’s evidence that the relationship with [Mr B] ended [in] March 2019 when the applicant and children left the home they were staying at, and that she has not had any contact with him since.
Although I have no evidence of [Mr B]’s Fijian citizenship or Australian permanent residency, I am prepared to accept the applicant’s assertions on these matters, particularly in the absence of any evidence to the contrary. I note that the second-named review applicant’s birth certificate indicates [Mr B] was born in Fiji.
I have considered the country information on gender-based violence and family/domestic violence in Fiji. Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched.[1] Fiji has one of the highest rates of violence against women and girls globally.[2] The Fiji Women’s Crisis Centre (‘FWCC’) reports that 64 per cent of women have experienced physical or sexual violence, with the prevalence of domestic violence increasing during the COVID-19 pandemic.[3] Domestic violence is a specific offence in Fiji, and spousal rape is a crime. Fiji Police have a ‘no drop’ policy for domestic violence, meaning that cases cannot be dropped by police or victims and must be investigated. However, this policy is not followed consistently, and reports indicate enforcement of domestic violence laws is lax or inconsistent.[4] Women may be pressured or encouraged to reconcile with their husbands or partners rather than seek justice through the formal legal system.[5] This is because of the patriarchal culture where domestic violence is seen as almost a social norm.[6] NGOs such as the FWCC, lawyers, and counsellors provide some services to women and girls who are subject to violence, and victims may receive more assistance from these groups or organisations than the police.[7] DFAT reports that family members may be relied upon for protection.[8] I acknowledge DFAT’s assessment that women who experience domestic violence are, by definition, at a high risk of violence and a moderate risk of discrimination in the form of lack of access to protection.[9]
[1] See DFAT Country Information Report Fiji, 20 May 2022 at 3.49 (‘2022 DFAT Report’).
[2] 2022 DFAT Report at 3.51.
[3] 2022 DFAT Report at 3.51; Aljazeera, ‘Crisis within a crisis: Violence against women surges in Fiji’, 24 February 2021:
[4] 2022 DFAT Report at 3.53 and 3.55; United States Department of State, ‘2023 Country Reports on Human Rights Practices: Fiji’, at Section 6: (‘USDOS 2023 Report’).
[5] 2022 DFAT Report at 3.55; USDOS 2023 Report at Section 6; Office of the Auditor General Republic of Fiji, ‘Report of the Auditor General of the Republic of Fiji: Coordination of Actions on Elimination of Violence Against Women’, 2019 at 3.1.1.2.2.1: (‘2019 Auditor General Report’).
[6] 2019 Auditor General Report at 3.1.1.2.2.1.
[7] 2022 DFAT Report at 3.53 and 3.56; USDOS 2023 Report at Section 6.
[8] 2022 DFAT Report at 3.57.
[9] Ibid.
Despite the high rates of violence against women in Fiji, perpetrated particularly by intimate male partners, the male-dominated society, and the poor level of protection from the authorities, I am not satisfied in the applicant’s particular circumstances that she or her children are at risk of harm from [Mr B] in the reasonably foreseeable future if they were to return to Fiji.
The applicant’s evidence, set out above at [35] and [37], is that she has had no contact from [Mr B] whatsoever, since their relationship ended [in] March 2019. Nor has [Mr B] contacted or sought contact with their children. [Mr B] did not respond to the applicant’s divorce application. Neither his family in Australia or Fiji have contacted or threatened the applicant, the applicant’s family in Australia, or the applicant’s family in Fiji. The applicant and her children have resided in Australia throughout this time, as has [Mr B] as far as the applicant is aware.
The applicant was not aware of whether [Mr B] has travelled to Fiji since June 2018. The evidence before me is that [Mr B] is a permanent resident of Australia and continues to reside here. This weighs against the prospect of him returning to Fiji to harm the applicant or the children or take the children from her. The applicant’s parents, her four brothers, and her current partner’s family all reside in Fiji.
In these circumstances I do not accept that [Mr B] or his family are motivated to harm the applicant in any way in Australia or Fiji in the future. I do not accept [Mr B] or his family are motivated to harm their children or take the children from the applicant. I also find that the applicants would have the support and protection of a large family network in Fiji, and that the applicant would not be pressured to reconcile her relationship with [Mr B] in circumstances where she has divorced him and has re-partnered.
I am therefore not satisfied that there is a real chance the applicant, or her children would be persecuted, or a real risk the applicant or her children will suffer significant harm, on return to Fiji in the reasonably foreseeable future for the reasons she has claimed.
I have also considered the applicant’s evidence that [Mr B] was the subject of an investigation relating to [a crime]. The evidence before me about this is limited and the applicant herself had only a very vague understanding of this issue. She did not articulate any particular fear of harm in connection with [Mr B] having been investigated or charged or convicted of any [offences]. On the limited evidence before me, I am not satisfied that the applicants face a real chance of persecution, or a real risk of significant harm, arising from [Mr B] and the claimed [offences] he may have committed or any criminal investigation or prosecution into this.
Additional claims at hearing
At hearing, the applicant also claimed that she was concerned about returning to Fiji with her children because people in Fiji will look down on them for having returned from overseas. This will affect her mind, thinking that they are looking down on her and her kids and that she is a burden on her parents.
She also claimed it would be hard to find a job in Fiji and support her children.
I accept the applicants may face a degree of hardship in returning to Fiji after having resided in Australia since August 2018. I accept there may be a period of adjustment for the applicant and her children. I accept the applicant may experience some shame in returning to Fiji, and that questions or interest may arise in her community in Fiji about the reasons for her return from Australia.
I accept the applicant’s oral evidence that she would return to live with her parents in their home in Suva and there is no evidence before me that she would not have their support in doing so. Country information indicates Fijians have large kinship networks with extended family often providing support when a family member is in need.[10] There is no information before me to suggest that the applicant would not also have the support of her current partner and his family in Fiji (although I acknowledge that [Mr C] may currently have an ongoing protection visa application in Australia). I am not satisfied that the applicant would be unable to find work given her work experience in Fiji and Australia.
[10] 2022 DFAT Report at 2.23.
As I discussed with the applicant at hearing, in order to be a refugee or owed complementary protection, the applicants must be at risk of serious or significant harm in Fiji. On the evidence before me, I am not satisfied that any hardship, or financial difficulty, or challenges in working and supporting the children that the applicants face, on return to Fiji in the reasonably foreseeable future, would amount to serious or significant harm. Nor am I satisfied that the community looking down on the applicant and her children, and any impact this would have on the applicant’s mind, amounts to serious harm as required by s 5J(4)(b) and non-exhaustively defined in s 5J(5), or significant harm as defined in s 36(2A).
Claims in the visa application
At hearing I discussed with the applicant the claims in her visa application regarding the election in Fiji in 2018, her concerns there would be a coup or violence associated with that election, and that she would be in Fiji separated from, and without support from her husband (at that time, [Mr B]). The applicant gave evidence that she had no concerns about that situation anymore.
I also briefly discussed with her country information that the election in 2018 had taken place and there had been no coup, and that there had been a further election in 2022 where a new government had been elected and there was no coup following that election either.[11]
[11] See DFAT Country Information Report Fiji, 20 May 2022 at 2.4 and 2.34; The Interpreter, ‘Fiji’s new politics’, 17 January 2023: East Asia Forum, ‘Can Fiji keep its democracy in 2023?’, 3 February 2023: >
Based on the applicant’s evidence that she has no concerns about those claims anymore, and the country information discussed with her, I am not satisfied there is a real chance she will be persecuted in Fiji in connection with a future election. Nor am I satisfied that there is a real risk she will suffer significant harm in the reasonably foreseeable future in Fiji in connection with a future election.
The applicant’s current circumstances
I am sympathetic to the difficult situation the applicant and her children find themselves in. Had the applicant made a Partner visa application sponsored by [Mr B] (as I accept was at least their initial intention) and despite the breakdown of that relationship, the applicant may have been entitled to a permanent Partner visa in accordance with cl 820.221(3) or cl 801.221(6) of Schedule 2 to the Migration Regulations 1994, because there are children of the relationship and/or because she had suffered family violence perpetrated by her sponsor. However, no such application was made, and I accept that was in part due to [Mr B] refusing to sponsor her as part of a pattern of abuse or control.
The applicant now has one child who is an Australian citizen and two children who are not. Second-named review applicant has been in Australia since he was [age] years old, and [Miss E] and [Master F] have known only Australia as their home. It remains open to the applicant to request the Minister for Immigration intervene in her case in accordance with s 417 of the Act if the Minister considers it is in the public interest to do so.
Conclusion
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. There is no evidence before me that either of the applicants would meet s 36(2)(b) or (c) as a member of the same family unit as a person who meets s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not meet s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Xanthe Emery
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 2500

27 June 2024

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