1911416 (Refugee)

1911416 (Refugee) [2023] AATA 2463 (14 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1911416

COUNTRY OF REFERENCE: Fiji
MEMBER:Wendy Banfield
DATE:14 June 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2023 at 2:39pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – leaving military career – detention – torture – change of government in Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 30 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji applied for the visa on 3 December 2018. The delegate refused to grant the visa 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 applicant appeared before the Tribunal on 15 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Employer 1], the applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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 (the Department), 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.
Applicant’s identity and country of reference
The applicant stated in his application for a protection visa that he was born on [date] in Fiji. The applicant provided a copy of his Fijian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
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 document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Fiji and as such his protection claim will be assessed against Fiji as the country of reference and 'receiving country' respectively.
Migration History
The applicant was granted a [Visitor visa] on 21 November 2017. According to Department records, he travelled to Australia and departed on multiple occasions while holding the visa. His last date of arrival was [in] September 2018.
Claims for protection and supporting documentation
The applicant submitted claims for protection in a statement at the time of application that was set out in the Department decision record dated 30 April 2019. The Tribunal is satisfied it is an accurate summary of the claims:
·He is an [officer] of the Fiji Military Forces, and he faces persistent threat to his life by military officers since he decided to leave his military career.
·On several occasions, almost on a daily basis, military personnel will come around and forcefully take him away in front of his family.
·Few times he was taken to and detained at the military headquarters camp, followed by vigorous torture on his body and mind.
·If he were to return to Fiji, the exact same thing will happen again to him and his family.
·He felt this is life threatening and not safe for his family. They also promised to organise thugs against his family if he does not return to the military career.
·This has deeply affected his life, as he is a changed person and a dedicated Christian. He has committed himself in carrying out the teachings as a true Christian. What is going on in the military is really against their human and Christian belief.
·The military is in charge of everything in Fiji. He feels insecure for himself and his family.
The applicant submitted evidence in support of his claims to the Department:
·     Letter purporting to be written by the applicant’s spouse, [named] dated 2 November 2018.
·     Letter purporting to be issued by the Republic of Fiji Military Forces attesting to the applicant’s service dated [in] August 2018.
·     News articles related to the military coup in Fiji in 2000.
·     Response to natural justice letter dated 14 March 2014.
·     Letter from [Employer 2] dated 12 March 2019.
The applicant submitted additional evidence to the Tribunal prior to the hearing:
·     Department notification and decision record dated 30 April 2019.
·     Applicant’s written statement.
·     Media reports related to the Fiji police and military.
·     Copies of letters submitted to the Department.
·     Employment verification letter from [Employer 3].
·     Letter of support from [Church 1], New South Wales.
·     Letter of support from [Church 2], New South Wales.
·     Payslips from [Employer 4], New South Wales.
·     Employment verification letter from [Employer 4], New South Wales dated 27 February 2023.
·     Letter of support from [Ms A] dated 28 February 2023.
·     Applicant’s photo card identification.
Country Information - Fiji
Security situation
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence.[1] 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.
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 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.
Upon expiry of their original enlistment period, RFMF members are transferred to the Reserve until age 55. They can be recalled to service by the President until that age in cases of ‘invasion, war or danger … or by reason of any internal emergency’. DFAT is not aware of any recent examples of this occurring.
In the unlikely event that a reservist is called up for service, absence from Fiji at the time of being called up would be a reasonable excuse for non-attendance according to section 20 of the Republic of Fiji Military Forces Act 1949. The penalty for refusing service without a reasonable excuse (noting that absence from Fiji is a reasonable excuse) is up to 12 months’ imprisonment or a fine not exceeding FJD 100. DFAT is not aware of any cases of a reservist being imprisoned for being absent for the purposes of making an asylum application outside Fiji or any other absence reason.
[1] The latest Fijian general election was held on 14 December 2022, Sitiveni Rabuka became the 12th Prime Minister.
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.
Evidence to the Department
In his evidence to the Department the applicant claimed that he was an [officer] and served in the Fiji Military Forces between [specified years]. He claimed that during his time of services with the Fiji Military Forces, he undertook military deployments overseas and was deployed to [a named region] in [year] and [year], to [Country 1] in [year] and [year], and to [Country 2] in [year] and [year]. The applicant claimed the military started to mistreat him and his family after he decided to leave his military career. The applicant did not provide a plausible explanation as to why he would be detained and tortured by the [armed forces], apart from his decision to end his career with the military.
The applicant provided a letter of service confirmation, purportedly issued by the Fiji Military Forces dated [in] August 2018. It indicates the applicant was then a serving member of the Military Forces in Fiji. However, according to departmental records, the applicant spent most of the last year in Australia as the holder of a tourist visa.
The delegate found it unlikely the military would have provided him with a letter of services confirmation while he was being actively pursued by them. I also note that the applicant was able to use his Fijian passport to travel freely in and out of his country last year on multiple occasions, which indicates the applicant was not a person of adverse interest to the Fiji military or the government. The delegate found there was no credible country information that supported the applicant’s claim that a military officer, or former military officer would be subject to detention, torture or other form of mistreatment, purely because they decided to leave the military forces for personal reasons.
According to the Department, the applicant was granted a [Visitor] visa in which he declared he was an acting supervisor with the [Employer 2] and had been employed by the company for 11 years. However, in his declared employment for the Protection visa application, the applicant stated that he had been a career [officer] with Fiji Military Forces for 27 years and only left the military prior to his departure for Australia in September 2018.
In response to a natural justice letter dated 26 February 2019, the applicant admitted that he was employed by the [Employer 2]. However, he claimed he was also a member of the Fiji Military Forces. In this regard the applicant provided a letter dated 12 March 2019 purportedly issued by the [Employer 2] in support of the applicant’s claim that he served in [a specified unit] of the Royal Fiji Military while at the same time being employed by the company. This evidence contradicted his earlier claims supported by a letter of services purportedly issued by the Fiji Military forces, that the applicant was an [officer] with [Unit 1] of the Fiji Military. The Department found that as an active [officer], rather than a reservist, it was not credible that he was serving in the Military as an [officer] while at the same time holding a fulltime supervisory job at a private company. The delegate was not persuaded that if the applicant spent most of his time outside the [armed forces] over many years and only answered the calls for duties when needed, the military would have gone to extreme lengths to pursue and punish him for wanting to leave the military, in ways as alleged by the applicant.
The Department delegate concluded that it was not plausible Fiji military personnel had attended the applicant’s family home harassing him and his family, or that he was detained and tortured by the military. The delegate considered that the applicant fabricated his story in order to strengthen his case for protection and did not assess the claim further as to whether the applicant would face a real chance of harm if he were to return to Fiji.
Claims made to the Tribunal
In his evidence to the Tribunal, the applicant stated he is a citizen of Fiji, he is married with one daughter, and he arrived in Australia holding a tourist visa. Regarding his circumstances in Fiji, the applicant claimed he had worked for [Employer 2] but had been “chosen” to work there. When asked to explain, the applicant said he was a member of the military and had been forced to work at a private company with five others as a spy during Frank Bainimarama’s presidency. He claimed he was required to gather intelligence and pass on information about the obtaining of money from a private enterprise. The applicant claimed he worked at [Employer 2] in this capacity from 2013 to 2017.
The applicant claimed that he began to realise there was corruption involved and he delayed relaying information from the company. When asked when he began to encounter problems with the military, the applicant was evasive and did not answer the question directly. The Tribunal asked if he suffered any harm and the applicant claimed he was taken to a military camp and detained for approximately one month, during which he was made to lay on the floor and was walked over with boots which caused an injury to his [body part]. When asked about the amount of time he claims to have been in the military, the applicant said it was more than 10 years and referred to [year] or [year]. When it was put to him that those dates were more than 30 years ago, the applicant replied, “something like that”.
The applicant stated he had feared harm from the Bainimarama regime and was glad he was no longer in office. However, the applicant indicated he would eventually like to return to Fiji and hoped he would be granted a visa so he could do so. The applicant said he would like to stay in Australia and have his family join him. Although the applicant claimed he is still fearful, he said he understood things may have changed.
The applicant was asked about the Department’s reasons for decision. He stood by his claims made and reiterated he had been a reservist in the military but was employed fulltime “on assignment”. He was asked why he did not disclose his claims of having worked at [Employer 2] as part of a military operation when the Department wrote to him about inconsistent evidence. The applicant claimed he had decided to open up and advise the Tribunal about the circumstances in which he was detained and tortured.
In the applicant’s written statement to the Tribunal the applicant claimed he had worked for [Employer 2] for 11 years but was on standby with the military. He wrote:
The military indeed threats my families and I am always taken in to military camp for questioning and blaming me to be involved with leakage of confidential information outside [Unit 1]. I am harassed, detained and tortured in the military camp in order for them to obtain confession even though I am an innocent victim.
Assessment
In assessing the application for review, the Tribunal considered the overall consistency and coherence of the applicant’s account of his circumstances in Fiji. The Tribunal did not find the applicant to be a witness of truth and found his claims of having been a reservist in the military while also working for a private company to be unpersuasive. The Tribunal assessed the applicant’s claims to the Department which were, initially, that he had been a serving member of the Fiji military for many years, but when confronted with the evidence from his visitor visa application where he declared he was the manager of a [private] company, changed to him having been a reservist and an employee of a private company at the same time. The Tribunal agrees with the findings of the delegate that the applicant’s evidence was inconsistent and not credible. The Tribunal also agrees that it is unlikely the applicant would have been free to travel in and out of Australia on a regular Fiji passport if the Fijian military were an actual threat to him. For the same reason, it is not credible the applicant would be able to obtain a letter of service from the Fiji military outlining his apparent years of service and deployment.
The Tribunal further assessed the applicant’s explanation for having provided inconsistent evidence made at the Tribunal hearing. This was that he had actually worked for [Employer 2], a private company, as part of a military information gathering exercise. It included the claim that he had been detained and tortured by the military because of his reluctance to hand over information that he was meant to gather about corruption involving a private company. This is not consistent with the applicant’s written statement in which he claimed to have been tortured because he was blamed for leaking confidential information.

The Tribunal found the applicant’s evidence at the hearing to be vague, improbable and an attempt to regularise the conflict in his claims to the Department. It was not consistent with his written statement to the Tribunal before the hearing. It is not plausible that the applicant would be engaged in a covert military information gathering exercise that involved posing as a private employee for more than four years based on his claim of having done so between 2013 and 2017. The Tribunal is not satisfied the applicant’s evidence about having been a military reservist who was chosen to pose as a private employee to gain information to be truthful and was likely concocted to be able to claim protection in Australia.
The Tribunal did not find the applicant’s supporting evidence to be credible and gives no weight to the letter purporting to be from the applicant’s spouse, the Fiji military, or [Employer 2]. In addition, the new reports related to the 2000 coup submitted to the Department have no apparent connection to the applicant and concern political events in the past. The applicant agreed that the situation in Fiji has changed, and he and his family are happy the former president is no longer in office. Regarding the evidence provided to the Tribunal about instances of human rights abuses in Fiji involving the police and security forces, the Tribunal is not satisfied these reports support the applicant’s claims of fearing harm due to his membership of the Fiji military.
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 is not satisfied the applicant has suffered any harm or persecution in the past either by military personnel or anyone else in Fiji, or that he holds a fear of being persecuted if he returns to his home country. The applicant stated he would like to eventually return to Fiji and would do so if granted a visa that allowed him to stay in Australia. This further indicates the applicant does not hold a subjective fear of persecution.
The Tribunal notes that based on his employment and personal references, the applicant is well regarded in Australia. However, the writers of the letters supporting the applicant’s character have no direct knowledge of the applicant’s circumstances in Fiji or his protection claims, and the Tribunal places no weight on them in assessing the application for review.
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.
The Tribunal assessed the applicant’s claims individually and cumulatively and is not satisfied the applicant has been truthful about his circumstances in Fiji. The Tribunal did not find the applicant’s written and oral claims, or his supporting evidence to be credible. He also indicated to the Tribunal a desire to stay in Australia but also a wish to be able to return to his home country in future which indicates the applicant does not fear harm. For these reasons, the Tribunal does not believe that there is a real risk the applicant will suffer significant harm if he is removed from Australia and returns to Fiji.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 2463

14 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Remedies