1906936 (Refugee)

1906936 (Refugee) [2023] AATA 2469 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michele Ann Clayton (MARN: 0957773)
CASE NUMBER:  1906936
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wendy Banfield
DATE:29 June 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visas.

Statement made on 29 June 2023 at 7:47pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – campaigner for opposition party and relative of person granted protection visa in Australia – assaulted by soldiers in workplace – no evidence of hospitalisation or injuries, continued work in same workplace and delay in departing – pregnancy and physical health condition – no formal diagnosis of mental health condition – country information – change of government and anti-corruption measures – member of family unit – secondary applicant a young child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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 4 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 10 August 2018. The delegate refused to grant the visas on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicants appeared before the Tribunal on 31 March 2023 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 represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection
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.
Applicants’ identity and country of reference
[The first applicant] stated in her application for a protection visa that she was born on [Date] in Fiji. [The second applicant] was also born in Fiji, on [Date]. The applicants provided copies of their Fijian passports to the Department. There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the identity of the applicants.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds that they are citizens of Fiji and as such the protection claims will be assessed against Fiji as the country of reference and 'receiving country' respectively.
Migration History
The applicants arrived in Australia [in] May 2018 and lodged an application for a Protection visa on 10 August 2018. They have remained onshore since then.
Claims for protection and supporting documentation
[The first applicant] submitted claims for protection at the time of application that were set out in the Department decision record dated 4 March 2019. The Tribunal is satisfied it is an accurate summary of the claims:
·The applicant is a Fijian national. She was a woman alone in Fiji as her parents have settled in Australia. Her [Relative] sought asylum in Australia as he was one of the former Prime Minister’s [staff] and he was suspected of being connected with a person who smuggled anti-Bainimarama [materials] into Fiji. The applicant believes that Frank Bainimarama still hates her [Relative] and therefore it would be dangerous for her to remain in Fiji.
·The military soldiers tortured the applicant while she was at work in a [workplace] in [Town] called [Employer]. The soldiers came in and one of them took a gun and pointed it at her head. The soldiers suddenly took over the [workplace] one night and they ordered the staff to lie down and their legs were tied. The applicant fell unconscious.
·The applicant explained that the incident at the [workplace] happened before the 2014 election. She was working as [Occupations 1 and 2] at the [workplace]. She also ran the SODELPA youth campaign in the [workplace]. Her family had been supporters of the SDL government before her [Relative] came to Australia.
·The applicant was the leader campaigning about the SODELPA youth at the [workplace]. She formed a group of about 30 to 40 young people in the [workplace]. They were all her workmates. One night before the election, four soldiers came in the [workplace], asked for her name and then pointed a gun at her. She was asked why she was doing the campaign at the [workplace]. She was injured and ever since she had headaches.
·During the last election (November 2018), SODELPA lost but this was because the election was rigged.
·The applicant fears that she will be placed in danger should she return to Fiji. She fears for her and her son’s safety. She believes that the authorities are aware of her [Relative]’s supposed involvement in the distribution of [materials] and her role in the campaign for SODELPA. The authorities would know that she continued to campaign for the SODELPA even after the election of 2014.
Country Information - Fiji
Political overview
The head of government is Prime Minister Sitiveni Ligamamada Rabuka, leader of the People’s Alliance Party, who was elected Prime Minister by the Parliament with support from the National Federation Party (NFP), led by Professor Biman Prasad, and the Social Democratic Liberal Party (SODELPA), led by Viliame Gavoka, following Fiji’s 14 December 2022 election. Fiji's head of state, who is appointed by parliament, is President Ratu Wiliame Maivalili Katonivere. Former Prime Minister, Josaia Voreqe 'Frank' Bainimarama, head of the FijiFirst party, is Leader of the Opposition in parliament.[1]
[1] DFAT Fiji Country Brief.
Security situation
Fiji is generally stable and secure... 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. Accusations of police violence are commonly reported and regularly investigated.[2]
[2] DFAT Country Information Report Fiji – 20 May 2022.
Military
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and [former] Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.[3]
Opposition parties
Commenting on the harassment of political opposition parties in Fiji during 2017, DFAT concluded that senior party members were at a low risk of harassment by the security forces and senior party leaders at moderate risk of harassment:
Overall, DFAT assesses senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.[4]
Commenting on whether individuals in Fiji were free to express their personal views on political or other sensitive topics without fear of surveillance or retribution, Freedom House found that:
There were no confirmed reports of government restrictions on private discussion on political matters or other sensitive topics in 2017. However, the government places constraints on free speech, such as a law banning the burning of the national flag.[5]
[3] DFAT Country Information Report Fiji – 20 May 2022
[4] DFAT Country Information Report Fiji – 27 September 2017
[5] Freedom House 2018, Freedom in the World 2017: Fiji, 16 January< Accessed 22 October 2018
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[The first applicant] did not provide evidence to the Department to support her claims, but the delegate found them to be plausible. The delegate accepted that [the first applicant] used to campaign for the SODELPA when she worked at a [workplace] in [Town]. It was also accepted that [the first applicant] was harassed by soldiers prior to the 2014 election; that her [Relative] was suspected aof being anti-Bainimarama and that he was granted Protection Visa in Australia.
However, the Department found the applicant did not face a real chance of being persecuted should she return to Fiji.
Evidence to the Tribunal
[The first applicant] confirmed she came to Australia on 27 May 2018 with her son. Her parents reside in Australia, and she also has [sisters] and a brother. Prior to travelling to Australia, the applicant worked as [an Occupation 1] at [Employer 1] in [Town]. Currently the applicant is employed in [Work sector] and works at [Employer 2] in Canberra.
Regarding her fears about returning to Fiji, [the first applicant] stated they are based on what soldiers did to her while she lived there. She said she had been a youth leader and organiser, along with other workers for SODELPA. It was claimed that she and other workers would meet in their lunch hour and after work to discuss ideas. [The first applicant] claimed that prior to 2014, soldiers came to her workplace and assaulted her. They demanded to know why she was organising other youth at the [workplace] and wanted her to stop. She claimed she had a gun pointed at her and was kicked and badly injured. [The first applicant] explained she came from a SODELPA family and that she was fearful because of events that had occurred involving her [Relative]. She said after the soldiers assaulted her at her workplace, she and other youth activists had to meet in private.
The applicant claimed she still fears being harmed by the military. She said she was brought up in Suva where her siblings still live, but she had been living in [Town] which is a tourist town. The applicant claimed she did not want to return to Suva because jobs are difficult to get, and she needed to keep her employment after her son was born in [Year]. [The first applicant] said she was fearful of losing her job and being homeless. She also claimed she could be taken to a military camp if she returned to Suva.
[The first applicant] was asked why she had remained in Fiji and at the same workplace after the events she described. She said after [the second applicant] was born, she had to look after him, and she needed him to be stronger. Also, she did not feel able to travel by plane due to the assault which included being hit on the head.
When the Tribunal discussed country information with [the first applicant], including tolerance of political parties in Fiji, she said authorities there were hiding many of their activities, including torturing people. She said her [Relative] was a strong SODELPA supporter and she was always interested. [The first applicant] claimed the government in Fiji is still not stable and she continues to be fearful. It was claimed if she returned to Fiji, she would continue to form groups and will not be “laying down”. [The first applicant] claimed former Prime Minister Bainimarama continues to try and destabilise the government and provided further information about her [Relative]’s activities in Fiji. [The first applicant] said while in Australia, she used to meet with other SODELPA supporters and keep in contact with youth leaders in Fiji.
The Tribunal asked about any other reasons [the first applicant] has to fear returning to Fiji. She said she had been to a GP through [Organisation] in Canberra because of headaches. It was claimed she had scans due to her fibroids and received treatment.
Post hearing submission
After the Tribunal hearing, [the first applicant] submitted a report by [Dr A] of [Organisation] dated 3 April 2023. The report addresses the reasons [the first applicant] gave for the delay from being assaulted in 2014 and coming to Australia in 2018.
The report sets out the following information:
·     Details of the assault the applicant has claimed occurred at her workplace prior to the 2014 elections in Fiji.
·     The birth of her son [the second applicant] on [Date] during which time [the first applicant] was preoccupied with being a parent as well as suffering depression and being in a state of fear.
·     When she came to Australia, her son was just under [Age] and old enough to be taken to another country. Previously [the first applicant] had been caring for him mostly by herself.
·     While in Fiji, during and after her pregnancy, [the first applicant] suffered uterine fibroids that caused pain and discomfort and reminded her of the assault. She also developed pre-eclampsia during pregnancy and would not have been able to fly.
·     [The first applicant] continues to suffer from fibroids and has post-traumatic stress disorder related to the assault and anxiety.
·     The delay of nearly four years in [the first applicant] coming to Australia since the assault was due to her being newly pregnant, having uterine fibroids, her fears, and the need to care for her young child.
Assessment
The applicant is claiming protection in Australia based on her political opinion that was expressed as support for, and organisation of, activities for the then opposition SODELPA party. She claims she was tortured in an attempt to prevent her from organising the youth in her workplace in support of SODELPA. The applicant stated she fears being harmed in future because of hers and her [Relative]’s political past and she is also fearful for the safety of her minor son.
In her claims to the Department at the time of application, [the first applicant] stated that prior to the 2014 Fiji elections, she was tortured by the military while she was at work at [Employer] in [Town]. She claimed that she ran the SODELPA youth campaign in the [workplace] and that her family were supporters of the SDL government before her [Relative] came to Australia. She claimed four soldiers came in the [workplace], pointed a gun at her and physically assaulted her. At the Tribunal hearing, [the first applicant] gave an account of the incident that was consistent with her evidence to the Department, though notably without much detail despite being asked for particulars of the harm she says she suffered.
In support of her claims to the Tribunal, [the first applicant] submitted a report by [Dr A]. [Dr A] writes that according to the applicant, “a gun was held to her head, and she fell down, hitting the front of her head… she was kicked in the right side of her abdomen, and on her right shoulder and head. She was afraid that she would be killed. She was told by the soldiers that this was to stop her working for SODELPA”. The Tribunal has considered the information outlined in the report by [Dr A]. It contains some detail about the assault that the applicant says she suffered but differs from the account provided to the Department. In particular, the applicant did not make any claims of having been hit or kicked in either the head, shoulder, or abdomen when she provided her claims for protection at the time of application.

The Tribunal accepts the applicant’s claims that she was an organiser for SODELPA in her workplace in [Town], Fiji. Despite the lack of details provided to the Department about physical harm she claims to have suffered when soldiers allegedly came to her workplace in Fiji, the Tribunal is prepared to accept an incident of some kind occurred because of her political organising. However, the Tribunal is not satisfied the applicant was seriously injured as she claimed. She did not provide any independent or verifiable evidence to support her claims of serious injury, despite stating she had been hospitalised as a result. She remained in [Town] and continued to work for the same employer for four more years before coming to Australia which indicates she was not significantly traumatised by what had occurred.
[The first applicant] did not claim to have experienced any other harassment, threats, or harm while in Fiji, after the alleged incidence prior to the 2014 election. The report by [Dr A] claims the applicant remained in Fiji for nearly four years because she became pregnant and gave birth to her son in [Year] following which she was preoccupied with being a parent and was suffering depression as well as being in a state of fear. It was claimed that during and after pregnancy she had medical conditions and could not travel. When she did come to Australia, her son was old enough to be taken to another country. The Tribunal accepts the evidence about the applicant’s pregnancy and medical conditions but is not satisfied this meant she could not leave the country until 2018. While [Dr A] states [the first applicant] is suffering from post-traumatic stress due to the assault she suffered in Fiji, there is no evidence she has been examined or formally diagnosed with a mental health condition. The Tribunal finds the amount of time [the first applicant] remained in Fiji after the incident in 2014 weighs against her in the Tribunal’s assessment of her application for protection in Australia.
[The first applicant] claimed she would be placed in danger if she returned to Fiji and she fears for her and her son’s safety. She said she believes that the authorities are aware of her [Relative]’s supposed involvement in the distribution of [materials] and her role in the campaign for SODELPA and the authorities would know that she continued to campaign for SODELPA even after the election of 2014. [The first applicant] stated she believes Frank Bainimarama still hates her [Relative] and therefore it would be dangerous for her to remain in Fiji.
The Tribunal notes former Prime Minister Bainimarama is no longer the head of government in Fiji following elections in 2022. SODELPA is now part of the coalition government with the People’s Alliance and the National Federation Party.[6] Frank Bainimarama’s FijiFirst party is in opposition. Prime Minister Rabuka, the leader of the 1987 coup, promised in his inauguration speech that he is a leader for all Fijians, noting that regardless of ethnic or cultural identity, “we all belong here.” The new government is working hard to weed out corruption, increase transparency, and ensure political appointees and community leaders are chosen on merit rather than their connections to elected officials. People who were deported, threatened, or forced to leave Fiji for speaking out against the previous government are being granted permission to return, and they are doing so.[7]
[6] N. Schneider, Cautious Optimism for Fiji’s Coalition Government, Australian Outlook, Australian Institute of International Affairs, 8 March 2023. ibid.
The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal considered the applicant’s claims and evidence as well as relevant country information about Fiji. The party the applicant claims to have organised young people in support of, SODELPA, is now part of the coalition government. The Tribunal does not accept [the first applicant]’s claims that the government in Fiji is currently unstable or that the former Prime Minister is trying to destabilise the country. In addition, the Tribunal is not satisfied the applicant had, or continues to have, a profile as a political activist that would have made her of interest to the former government. Similarly, the Tribunal is not satisfied Frank Bainimarama has any interest in her due to alleged activities by her [Relative] when he was in Fiji. The Tribunal is not satisfied the applicant holds a fear of persecution if she returns to Fiji, or that there is a real chance she will be persecuted due to her former political organising, her [Relative]’s activities or for any other reason.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
[The first applicant] claimed she was subjected to torture prior to the 2014 Fiji election when she was assaulted by soldiers at her workplace. She gave an account of what she said occurred which the Tribunal found, in the circumstances, to be brief and without the level of detail that would be expected. It was claimed the applicant was hospitalised due to the assault, but she did not give details about the type of injuries, or the nature and duration of treatment she received except to say she suffered ongoing headaches. The Tribunal is not satisfied the applicant suffered an assault that amounted to significant harm in the form of torture. In addition, for the reasons outlined in the assessment of [the first applicant]’s refugee claims, the Tribunal finds she is not at risk of torture in future.
The Tribunal is not satisfied that there is a real risk of [the first applicant] or her son [the second applicant] suffering significant harm in Fiji on account of her support for SODELPA and her [Relative]’s suspected activities while he was in Fiji.
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.
Wendy Banfield
Member

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

[2023] AATA 2469

29 June 2023

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