1911725 (Refugee)

1911725 (Refugee) [2024] AATA 2287 (25 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1911725

COUNTRY OF REFERENCE: Fiji
MEMBER:Sophie Manera
DATE:25 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 March 2024 at 4:13pm

CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – advocating for indigenous rights – social media posts – opposition to corruption and violence – land dispute – divorced pastor – mental health issues – state protection – change of government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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

The applicant is [an age]-year-old man and a Fijian national.
[In] May 2018 the applicant arrived in Australia on a valid FA-visitor visa.
On 15 June 2018 the applicant applied for a protection visa.
On 29 April 2019 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant made a valid application for review on 10 May 2019. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted in English. An interpreter in the Fijian and English languages was present during the hearing and the applicant was informed that he could use the assistance of the interpreter at any time. However, the applicant was proficient in speaking English and did not require the assistance of the interpreter.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because the applicant is a refugee or is a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Fiji, born in [specified year] in [Town 1 variant].
The applicant provided a certified copy of a Republic of Fiji passport in support of his protection visa application.
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. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Fiji, and as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Application for a protection visa
The applicant made the following claims in his protection visa application form which are summarised below.
·He was badly affected by changes by the Bainimarama government. In Fiji he did not have freedom or basic human rights;
·he left Fiji because he was depressed. His children were suffering. He has been aggressive towards his family. His cultural values have been taken away and he does not have a voice. He has been psychologically harmed in Fiji. He was warned not to speak out against the government. He was afraid of everyone around him because they could report him. The government has taken away his identity as an indigenous Fijian;
·the applicant can get help and relieve his psychological pressure at church;
·in Fiji there is a land rights problem, which is forbidden to talk about;
·in Australia he is seeking treatment for mental health;
·he fears the authorities will target him because he is vocal on [social media].
The applicant was not invited to attend a protection visa interview.
Application for review
Oral evidence given at the hearing
A summary of the evidence given by the applicant at the hearing is as follows.
·The applicant was born in [Town 1], Fiji;
·he first travelled to Australia for a holiday in 1980. He travelled to Australia for the second time in 1988 and spent 6 months in Australia;
·the applicant has [number] children, [number] of whom are adults. He is separated from his most recent partner. He supports his younger children financially;
·between approximately 2017 and 2018 the applicant had a de facto partner who was an Australian citizen. She asked him to move to Australia. The applicant travelled to Australia in February 2018 to be with his Australian partner. He was in Australia for approximately four weeks when his partner ended the relationship. He returned to Fiji. His Australian partner contacted him later in 2018 asking to reconcile. She bought him a plane ticket to Australia and the applicant last entered Australia [in] May 2018;
·the applicant has siblings in Australia and Fiji;
·the applicant does not have any assets in Fiji;
·the applicant has worked on his late father’s [farm], has worked as [an occupation 1] in [industry 1], and has worked as a church pastor;
·in Australia he uses [social media] to communicate with his children and friends and post Christian messages. Before the last Fijian election he would view [social media] posts about corruption and violence from the previous government and would comment on those posts.
The applicant told the Tribunal that he came to Australia in 2018 to make a life with his Australian citizen partner. He had hoped to settle down with her. After his relationship breakdown, the applicant sought another way to stay in Australia on a permanent basis. He was told to see a lady who could help him apply for protection. The applicant said that many things had happened in Fiji and so he was looking for an opportunity to stay in Australia.
The applicant was asked why he feared returning to Fiji. The applicant responded that he did not fear returning to Fiji, however he was concerned about the political situation in Fiji. He said that he had seen previous Fijian governments run smoothly, and then all of a sudden be subject to coup and mutiny. The applicant said that one never knows if the coup culture will continue. The applicant has lived through 4 coups and does not trust the current political leaders as Rabuka started the first coup. The applicant said that he had spoken to relatives in Fiji, who told him that things were not established there. He said he was concerned about future instability. The Tribunal put it to the applicant that this was a risk that affects everyone in Fiji, and the applicant agreed.
The applicant said he had been denied the opportunity to lease land in Fiji and start his own farming business. The applicant had hoped to lease a plot of land in [Town 1], which was within his clan or mataqali. The majority of the clan allowed him to lease the land, however a distant relative who the applicant called ‘uncle’ prevented the applicant from leasing it. The uncle went to the iTaukei Land Trust Board and managed to stop the applicant from leasing land. He started to build on the land that the applicant wanted. The applicant had an argument with the uncle on the telephone. The applicant said he could have been assaulted, but he was in his home in [Town 1] and the uncle was in his own village, so he was not harmed. The applicant had wanted to lease this land in his name, with his brother to manage it. He said that on one occasion, his brother was nearly assaulted over the land, but there was a large group of people present including his brother’s relatives, and so his brother was unharmed. The applicant said that his brother had now given up pursuing the land.
The applicant was asked whether he could rent another piece of land. The applicant said it is difficult to lease land from outside one’s mataqali, as the owners use the land themselves.
The applicant was asked whether he thought he would be harmed if returned to Fiji. The applicant responded that he couldn’t say. He said that things could happen, you never know. He has seen things happen to people. He had been assaulted on 2 occasions before he came to Australia but the police took no action. On one occasion, one of his ex-wives, named [Ms A], threw a big stone at him which hit him in the back. On another occasion, [Ms A’s] new partner and some friends assaulted him and accused him of not being able to take care of his son. He reported these incidents to the police, but they did nothing. The perpetrators were not charged. The applicant withdrew his complaint against his ex-wife’s partner.
The applicant said that he had experienced persecution when he was in the church. He said this came in the form of verbal abuse, belittlement and humiliation. He said that some people did not like that he was a divorced pastor and they looked down on him for his failed marriages. Others did not like him preaching Christianity. On one occasion in about 1993 or 1994 he was nearly assaulted by some villagers while undertaking Christian outreach as they saw his preaching as a threat to their culture.
Summary of the applicant’s claims for protection
The Tribunal sought to clarify the applicant’s claims, noting to the applicant that the claims he had raised during the hearing were different to the claims in his protection visa application form. The applicant said that his fear lies in the risk of future political instability, uprising and violence. He said that he had lived through the past 4 coups. Each time there was a change of government people rejoiced, but then a coup would follow. He had no trust in politicians. The applicant was asked whether any of his family members had been harmed in Fiji, and applicant responded no.
The applicant was asked whether he could live in a different part of Fiji to avoid harm. The applicant said that the only place he could stay is [Town 1], where his family is. If he was to stay elsewhere it would be expensive. He would need to rent a house. In [Town 1] the family has land they can access, whereas in other parts he is not sure.
The applicant was asked whether any of the current government’s policies would impact him as an indigenous Fijian. The applicant responded that he hasn’t thought about that as he has been distracted since the breakup of his last relationship and he has been busy working to pay off a debt he has acquired in Australia. He works long hours and is not currently concerned with the political situation in Fiji.
The applicant was asked why he didn’t come to Australia and apply for protection sooner. The applicant responded that he had wanted to come to Australia for a long time, but his first wife did not want to come here.
Issues raised with the applicant
The Tribunal put several issues to the applicant for his comment during the hearing.
The Tribunal informed the applicant that it needed to assess whether he would face a real chance of serious harm or a real risk of significant harm if returned to Fiji. The Tribunal stated these terms have specific definitions, for example that he would be denied access to basic services or denied the capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The Tribunal informed the applicant that he hadn’t specified what harm he would face in Fiji, or who, specifically, the harm would come from. The applicant commented that he had not really been into politics recently, but what has happened in the past could happen again. He said that in the past things were going all right, and then events happened that shook the nation. As a result, he doesn’t trust Fijian political leaders anymore. He said that he had been denied his land rights, but the law is powerless and cannot help with his land problems.
The applicant was also informed that being denied the ability to rent a particular piece of land in Fiji may not fit the definition of serious harm or significant harm. The applicant responded that his brother could have been assaulted by the uncle, however many relatives were around so the uncle could not do any harm.
The applicant was also informed that country information reports that the police are generally effective in Fiji. The applicant said that the police in Fiji are generally good and can control and prevent crime, but in the past they have not been helpful to him. He had reported incidents to the police on a couple of occasions and the police did not assist.
The applicant was also informed that the risk of a future coup, political instability or violence were risks that affected the whole country. It was not systematic and discriminatory conduct directed towards him specifically. The applicant had no comment.
The applicant was also informed that during the hearing he had not specifically raised any claims of harm from being active on social media. The Tribunal asked the applicant whether he feared any repercussions from commenting on [social media] posts about the previous government. The applicant had no comment.
The applicant was also informed that his protection visa application form raised claims relating to psychological harm in Fiji. The applicant responded that he had suffered mental health problems when he separated from one of his ex-partners. He said that the church in Australia had been helpful and he prays a lot, which helps him with the trauma of his relationship breakdown. However, he is still affected when he sees [social media] posts by his ex-partner, so he now avoids [social media].
The applicant said that he could get help for mental health in Fiji, but he is concerned about his physical health. He has [medical condition 1] and had to have [surgery 1]. He said medical care in Fiji is not of the same standard as in Australia. The Tribunal put to the applicant that while the standard of healthcare may not be as good in Fiji as Australia, this was something that affected all Fijians. The applicant agreed.
Analysis, findings and reasons
The applicant’s claim of future political instability, coup, and violence
The Tribunal acknowledges that Fiji has a history of coups d’état, and the applicant has lived in Fiji during various occasions of political upheaval, coups, military takeovers, and political feuds. The last coup d’état took place in 2006. The applicant did not claim involvement in any of the coups. The Tribunal accepts that many civilians suffered during these times of political turmoil and that the applicant may be apprehensive about the future of Fiji based on the tumultuous events that have taken place during his lifetime.
However, the applicant’s claim that another coup may happen in Fiji is speculation only. Under s 5J(1)(b), the Tribunal must be satisfied that there is a real chance that, if returned to Fiji, the applicant would be persecuted for one or more of the refugee protection reasons in s 5J(1)(a). The Tribunal does not accept that there is a real chance the applicant would suffer serious harm in Fiji due to political instability or a future coup. 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. In Chan the concept of real chance was considered by the High Court as somewhat synonymous with other terms such as ‘reasonable degree of likelihood’, a ‘real and substantial risk’ and a ‘reasonable possibility’. On the applicant’s evidence at hearing, he acknowledged that he does not know what could happen. He could not specify who would harm him and what harm he would face. He also acknowledged on several occasions in the hearing that he had not been following politics in Fiji recently. While there have been 4 coups in Fiji in the past 37 years, the current government has been in power since December 2022. According to the Freedom House Freedom in the World 2023 report on Fiji, the repressive climate that followed the 2006 coup has eased, with democratic elections held in 2014 and 2018, and a peaceful transfer of power following the 2022 elections[1]. The December 2022 elections demonstrated that there is a realistic opportunity for an opposition political party to gain power through elections, rather than through a coup. The Tribunal refers to the following extract from the Freedom in the World 2023 Report on Fiji, which states as follows:
For many years, the dominance of FijiFirst in Parliament left little space for opposition forces to assert themselves politically. The victory of the opposition in the December 2022 polls demonstrates that, despite all the advantages of incumbency, the electoral framework allowed the rise of an opposition that could defeat the FijiFirst government. Bainimarama stepped aside and became the leader of the opposition, despite having said in the past that he would not allow opposition parties to assume office in the event that FijiFirst was defeated. The military commander, Major General Jone Logavatu Kalouniwai, has promised to abide by the election result.[2]
[1] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023.
[2] Ibid.

Furthermore, the latest DFAT Country Information Report Fiji states ‘DFAT understands from in-country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination’.[3]
[3] DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, at 3.41.
Based on the applicant’s oral evidence, the length of time that has passed since the last coup in Fiji, and the country information above which indicates that Fiji is no longer characterised by the unrest of the past, the Tribunal is not satisfied the applicant faces a real chance of serious harm from a future coup in Fiji.
Consideration of implied claims
On several occasions during the hearing the applicant stated that his main fear of returning to Fiji was due to the risk of political instability, coups, and violence arising. When the Tribunal informed the applicant that it was seeking to clarify his claims for protection, the applicant again stated that his fear related to the risk of a political coup. The applicant did not raise claims in relation to his social media activity, the land leasing dispute, the assaults from his ex-wife and her new partner, and his occupation as a Christian pastor.
However, for the sake of completeness, the Tribunal has also considered whether there is a real chance that the applicant will suffer serious harm arising from the abovementioned reasons.
The applicant’s social media activity
On his protection visa application form, the applicant stated that he feared the authorities would target him because he is vocal on [social media]. During the hearing, the applicant provided more detail about his activities on [social media]. He stated that he viewed [social media] posts by [News Site 1] and commented on the posts. The applicant said that he last commented prior to the last election. He now avoids [social media] except for posting about Christianity, as he does not want to see posts about his former partner. The Tribunal accepts the applicant may have commented on posts from media news outlets. However, on the applicant’s evidence, he did not post online criticism of the former government, he simply commented on posts published by [News Site 1], a media organisation that has [a large number] of followers, makes many posts, and attracts comments every day. The applicant did not provide details of the contents of his comments, and did not specifically raise his social media activity as one of the reasons for which he fears returning to Fiji. On his evidence, he has not faced any repercussions for his online comments, and he could not say whether he feared any repercussions upon return to Fiji.
Based on the applicant’s failure to specifically mention any harm in relation to his commenting and the fact that he did not engage in creating posts, the Tribunal finds that the applicant would have, at best, a low profile as an online critic of the former government.
The applicant also acknowledges that the government has changed, and the applicant has not been commenting on political posts on [social media] since the election in 2022. Since the election, country information reports indicate that critics of the former government have been able to return to Fiji without harm from former Prime Minister Bainimarama or those loyal to him or his party.[4]
[4] Nancy Schneider, Cautious Optimism for Fiji’s Coalition Government, Australian Institute of International Affairs, 8 March 2023,
Based on the applicant’s low online profile, the change in government, and the fact that the applicant did not express a fear of harm upon return to Fiji for this reason during the hearing, the Tribunal is not satisfied the applicant faces a real chance of serious harm from his [social media] activity.
The land leasing dispute
The applicant expressed frustration that his attempts to lease land and build a home have been thwarted by a distant relative. The Tribunal accepts that the applicant has a personal dispute with members of his mataqali.
However, the Tribunal does not accept there is a real chance of serious harm to the applicant arising from this land dispute. On the applicant’s evidence, neither he nor his brother, who were both pursuing this land, have suffered physical harm arising from this dispute. The applicant has argued with his uncle in Fiji, but was not harmed as he was in a different location to his uncle. The uncle did not seek the applicant out for harm. The applicant’s brother has lived in [Town 1] and has not suffered harm since the applicant last arrived in Australia, nearly 6 years ago. While the applicant’s brother was threatened with harm on one occasion, he was unharmed as the uncle did not wish to attack him in front of others. The Tribunal finds that while the applicant may have had arguments with the uncle, the uncle is unwilling to escalate the matter into physical violence.
The Tribunal has also considered whether the applicant’s inability to lease land would deny him the capacity to earn a living of any kind, where the denial threatens his capacity to subsist. The Tribunal does not accept that the applicant’s inability to lease land constitutes serious harm for purposes of s 5J(5)(f). The applicant has previously earned a living in Fiji working as a pastor and [occupation 1]. The Tribunal is satisfied the applicant could return to Fiji and find employment commensurate with his skills and experience.
Assaults from ex-wife and partner
The Tribunal notes that the applicant has not raised any specific claims in relation to future harm from his ex-wife or her new partner. The Tribunal notes that the applicant separated from this wife many years ago, and that during the years that he lived in Fiji, his ex-wife and her partner only assaulted him on one occasion each. The Tribunal accepts that the applicant may have been assaulted by his ex-wife and her new partner. On his evidence, this took place shortly after he suffered a [medical condition] in 2014. However, considering the applicant’s ex-wife and new partner were never charged with any offence, the length of time that has passed since the applicant was assaulted by them, and the fact that this only occurred once, the Tribunal is not satisfied the applicant faces a real chance of serious harm from his ex-wife or her new partner.
Previous employment as a pastor
The applicant has also not raised any specific claims in relation to harm arising from his previous employment as a pastor. The Tribunal notes that the applicant has not previously suffered serious harm due to his employment, however on one occasion in 1993 or 1994 he was nearly assaulted by villagers who disagreed with his preaching. He managed to escape unharmed. The Tribunal accepts that on one occasion the applicant may have been the target of harm in a village for preaching Christianity. However, on the applicant’s evidence, this was a one-off occurrence, he managed to avoid being harmed, and he did not preach in that village again. Considering the applicant worked as a pastor in Fiji for some years without suffering harm, and he only came across a hostile village on one occasion, the Tribunal is not satisfied there is a real chance he will suffer serious harm if he returns to Fiji. Furthermore, considering the applicant has worked in farming and as [an occupation 1] in Fiji, the Tribunal finds it is reasonable for the applicant to find work other than as a pastor to avoid harm. The Tribunal finds this is not an unreasonable modification of his behaviour as it is not a modification that alters or conceals his religious belief, and there are likely to be other employment opportunities available to him.
Availability and quality of healthcare in Fiji
The applicant did not make any specific claims for protection in relation to his health, however he said that he suffers from [medical condition 1] and had [surgery 1]. He said that the quality of healthcare is better in Australia than Fiji. The applicant did not provide any medical evidence to the Tribunal, however the Tribunal is prepared to accept the applicant suffers from [medical condition 1] and had [surgery 1]. The applicant has not claimed that he requires medical treatment at present or in the near future, or that he would be denied medical treatment in Fiji. The applicant has not claimed that his [medical condition 1] would worsen if he were returned to Fiji.
Furthermore, the latest DFAT country information report states as follows:
2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.[5]
[5] DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, at 2.11.
Based on the above country information, and considering the applicant has not raised any specific claims about being unable to access medical treatment in Fiji, just that the quality may be lower, in these circumstances the Tribunal is not satisfied the applicant faces a real chance of serious harm due to his health condition.
Conclusion on the refugee criterion
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of removing the applicant to Fiji there is a real risk he will suffer significant harm due to:
·future coups d’état;
·his social media activity;
·the land leasing dispute;
·his ex-wife or her new partner;
·employment as a pastor; or
·his health.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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.
Sophie Manera
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 2287

25 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal