1917931 (Refugee)

1917931 (Refugee) [2024] AATA 1281 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917931
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Clyde Cosentino
DATE:13 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2024 at 12:22pm
CATCHWORDS
REFUGEE – protection visa – Fiji – general economic conditions – cost of living – access to income and work opportunities – child support payments for daughter from previous marriage – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 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 15 February 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy subsection 36(2) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1]
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
The applicant provided copies of the biodata page of his Fijian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is his receiving country for the purposes of assessing his claims for protection.
Protection visa application
The applicant lodged a valid protection visa application on 15 February 2019. In the application, the applicant provides the following personal details.
The applicant was born in [year]. He undertook primary and secondary schooling in Fiji from [year] to [year].
He arrived in Australia as a visitor [in] February 2019 from Fiji.
He indicated he could speak, read and write both Fijian and English.
The applicant made general claims in his protection visa as follows.
Regarding the reasons why he left Fiji, the applicant stated that he “would really love to work and support [his] family back at home”. Regarding what he thought would happen to him if he returned to Fiji, he stated that the “cost of living is high and not enough of income to support his family.” He indicated he did not experience harm in Fiji. He stated that the Red Cross Society in Fiji did not give him help and support. He stated he did not move to another part of Fiji because he had no income back then. He indicated he will not be harmed if he returned to Fiji. He does not think the authorities could offer him much help. He does not think he will be supported if he moved to another part of Fiji.
Pre-Hearing material
On 19 January 2024, the applicant was sent a hearing invitation by the Tribunal. In that letter, the applicant was asked to return his hearing invitation response by the due date. The applicant returned a completed Hearing Response form. Where it was asked “Do you want to provide any additional documents?”, the applicant ticked yes and provided a “Character Reference” from [Company 1] dated 17 January 2024. No further documents or material was provided.
Tribunal hearing
The applicant appeared before the Tribunal on 12 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
At the start of the hearing, the Tribunal explained to the applicant the meaning of refugee and complimentary protection as it was understood under Australian law.
It then asked whether he had any documents that he would like to provide the Tribunal. The applicant stated that he had asked for a letter from his current employer, [Mr A], but that it had not arrived. The Tribunal asked about the letter he was waiting for from his employer. The applicant replied that it was a letter from his employer to support him with skilled migration. It was a letter to help him in sponsorship for skilled migration. The Tribunal indicated to the applicant that it could only make a decision on his protection visa application and not any skilled visa matters. The applicant acknowledged this. The Tribunal asked if there was anything in the letter that would help him with his protection visa application. The applicant stated that he did not think there was anything in that letter that would help with his protection visa application.
The Tribunal then referred him to his original protection visa application. He stated he recalled the application that was lodged. He stated that a female friend helped him to put the application together. This friend was not a registered migration agent. He signed the application.
The Tribunal then asked whether the claims he made in that application were true and correct. He responded that he trusted this lady to fill out his form truthfully. He was new to Australia. His English at the time was limited. He stated that, in retrospect, some of the things that were written there initially, he would not include now. He said he would not have written information in the application if he knew back then what he knows now. The Tribunal then asked the applicant what was it that was not correctly written in the application. He stated the element of poverty. The Tribunal asked whether he did not agree with this anymore. The applicant responded that the Fijian economy is lower compared to the Australian economy. He was not originally trying to portray Fiji as a poor economy. He stated that Fiji struggles when it is compared to richer countries like Australia. Fiji is worse off in comparison to Australia.
The Tribunal asked why he was seeking protection in Australia. The applicant responded that the main reason for lodging a protection visa application was because, when he came to Australia and saw the standard of earnings in Australia compared to the standard of earnings in Fiji, he realised just how much of a contrast there was. As a result of his earnings in Australia, he was able to assist his family back in Fiji. He had work back in Fiji before arriving in Australia. When he came to Australia, he saw that the standard of earnings in Australia was much higher than Fiji. He was able to assist his family financially back home in Fiji. When asked by the Tribunal if this was the main reason for his applying for protection in Australia, he said yes. The Tribunal asked whether this was his main claim now and into the future and he said yes.
The Tribunal asked why he did not want to return to Fiji now or in the future. He stated that that Fijians struggle economically in Fiji. They do not earn enough to survive. He stated that, while there has been a change of government, there has been no change to the economy and hardships there.
The Tribunal asked what work he had done before coming to Australia. He stated he worked for [Employer 1]. He was asked how much he earned there. He stated he earnt $200 (Fijian) per week and, if he worked overtime, could earn up to $300 (Fijian) per week.
He stated that he was still supporting his family back in Fiji. He was supporting his wife and one child. They are both in Fiji. His wife was working in Fiji in [location]. She works in the [specified] industry and is earning $100 to $200 (Fijian) per week.
The Tribunal asked why he cannot return to Fiji. He stated that he has come to Australia and has witnessed the prosperity of Australia. He can work in Australia. This is why he cannot return.
The Tribunal then asked if he believed that he might be harmed if returned to Fiji. The applicant stated that he feared his wife would threaten legal action against him. The Tribunal asked what legal action he was referring to. He stated that she might report him to the authorities. The Tribunal asked why she would report him to the authorities. He responded because of his daughter who is still living in Fiji with her mother. The Tribunal then asked why his wife would report him to the authorities in Fiji about his daughter. He stated that she might report him for missing payments for the child. The Tribunal asked if he and his wife in Fiji were separated. He confirmed this to be the case. He confirmed that there was no formal court order in place but that he had signed the divorce papers and returned them to her. He stated that he had been paying money to support the child who was living with her mother. He had been paying child support for his daughter who lived with his wife in the amount of $500 (Australian) every fortnight. He has been paying this amount for three years. He has proof of payments as he has been sending these payments through a secure platform called “[Platform 1]”. He has paid child support to the daughter through her grandfather.
The Tribunal asked if there was any area he could not go back to in Fiji. He stated that he cannot go and live in [City 1] where his former wife’s family lives.
The Tribunal indicated to the applicant that, on his own evidence, it might appear unlikely that his wife would make a valid complaint against him or that he would have problems in any area if he returned given that he has been paying a substantial amount of money for three years (every fortnight) consistently for his daughter who is living with his wife. The applicant stated that he has the problem that his ex-wife does not allow him to speak to his daughter. The Tribunal indicated to the applicant that this family matter may not fit within the refugee or complimentary definitions explained to him at the start of the hearing. The applicant indicated he had no comment on this.
The Tribunal referred the applicant to the claims he made in his original application. He stated that he wished to resile from the original claim that Red Cross did not help and support him when he sought it. He stated that he wished to continue with his claim that the cost of living in Fiji was exorbitant and that his income was insufficient to support his family while he was living there. He also stated that he wished to continue with his claim that he wanted to work in Australia to support his family back in Fiji.
The Tribunal referred him to the reference letter he sent in from [Company 1]. The Tribunal asked whether there was anything in that letter that he felt was relevant to his claims for protection. He stated that he was well managed now. He was a leader and was productive at his work now. This is why he feels this is relevant to his claims for protection.
The Tribunal asked whether there was anything else he wanted to add in support of his claims. He stated that, since arriving in Australia, he has had two children born in Australia. His children are not Australian citizens. Their mother is also Fijian. The Tribunal indicated to the applicant that it could not make any findings on the children or on anyone else who were not part of the protection visa application. The applicant acknowledged this. The Tribunal indicated he was the only person on the application seeking protection and that the Tribunal could only make a decision based on his claims.
The Tribunal indicated to the applicant that it wanted to raise some matters for his comments. It indicated again that it might appear that he has been providing substantial amount of money to his wife and child back in Fiji and, as a result, there would be no harm to him if he was to return. He responded that he could not return to Fiji.
The Tribunal indicated that Fiji is one of the most developed and connected economies in the Pacific Islands region. Fiji is defined by the World Bank as an upper-middle income country. Tourism dominates employment there. The Tribunal indicated that he gave evidence that he had worked in the tourism industry ([Employer 1]). It indicated that he might not have any difficulty finding work if he returned. He responded that the situation on the ground was different. People were struggling. This is obvious because many Fijians are coming to Australia to work here. He stated that the good news about Fiji has been created by the leaders of the country and the reality is not mentioned publicly.
The Tribunal indicated that most Fijians work in the informal sector. Unemployment in the formal workforce remains stable. In 2022, the overall unemployment rate was 4.3 per cent. The applicant responded that the facts are that there are a lot of Fijians coming to Australia for economic gain because of what is happening back in Fiji.
The Tribunal asked about the applicant’s family. The applicant stated his father, brother and sister are still alive. He provided evidence that he is in close contact with all of them.
The Tribunal indicated that many people rely on large kinship networks with extended family during times of need. This form of support (known as veiwekani) is an important part of traditional Fijian culture. It indicated to the applicant that he would have the same experience if he returned. The applicant responded that things have changed due to economic challenges and the fact that people now are only looking after their own interests.
The Tribunal indicated that general economic conditions in Fiji which may result in economic disadvantage might not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant stated that he could foresee that it would be difficult to re-establish himself in Fiji after having lived in Australia.
The Tribunal indicated that complementary protection obligations are concerned with intentional acts or omissions by third persons. The risk to the applicant, as a result of the poor state of the Fijian economy or economic disadvantage, would appear to be one faced by the population of the country generally and not faced by him personally. These conditions faced by him would apply to all citizens in Fiji.The applicant responded that the opportunity to come to Australia and establish himself here makes it more prosperous for him and this was better than if he went back home.
The Tribunal indicated that he might not suffer serious or significant harm if he returned to Fiji. The applicant did not make a comment on this.
The Tribunal asked if there was anything else he wanted to say in support of his claims. He stated that it was difficult for him to return when he has established here in Australia.
Consideration of the evidence and findings
The Tribunal has read all the material before it and heard and assessed the oral evidence presented by the applicant to the Tribunal. It accepts his evidence that he trusted a person to complete his application for a protection visa correctly and truthfully, given that he had arrived from Fiji only 9 days before and that he did not have a particular understanding of the English language at the time. It accepts that this person may not have accurately portrayed all of his claims.
As a result of evidence provided at the hearing by the applicant, the Tribunal accepts that the applicant has resiled his claim that he accessed Red Cross assistance and support who were not much help to him. Given the applicant’s oral evidence at the hearing, the Tribunal finds that the claims in his original application have been reduced to two claims, namely, that the cost of living in Fiji is exorbitant and that his income is insufficient to support his family, and that he wants to work in Australia to support his family back in Fiji.
The Tribunal accepts the applicant’s evidence at the hearing that his claims were not about poverty and that he was not trying to portray Fiji as a poor economy – only that Fiji is worse off when compared to Australia’s economy. It accepts his evidence that his main reason for applying for a protection visa is because he saw the standard of earnings in Australia as being much more than the standard of earnings in Fiji and, as a result, he is able to support his family financially back in Fiji.

The Tribunal accepts the applicant’s oral evidence at the hearing that he is in close contact with his father, brother and sister back in Fiji.
The Tribunal accepts the applicant’s oral evidence at the hearing that he worked for [Employer 1] prior to coming to Australia and was earning $200 (Fijian) per week and upwards of $300 (Fijian) per week with overtime work.
The Tribunal does not accept the applicant’s claims that he cannot return to Fiji because Fijians struggle economically and do not earn enough to survive notwithstanding the change of government. While country information below suggests that employment for many Fijians is difficult, the applicant provided evidence that he was working for [Employer 1] in Fiji before coming to Australia and that he was earning anywhere between $200 and $300 (Fijian dollars) per week. DFAT Country Information Report (20 May 2022) reports as follows:
Employment and welfare
2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.
2.19 The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.
Country information indicates that Fiji is one of the most developed and connected economies in the Pacific Islands region. Fiji is defined by the World Bank as an upper-middle income country.[2] Tourism dominates, representing 40 per cent of the pre-COVID economy.[3] Country information also indicates that unemployment in the formal workforce remains stable. In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021).[4] The latest official statistics estimate that in 2019-2020, 24 per cent[5] of Fijians lived under the Basic Needs Poverty Line of FDJ 41.19 ($27 AUD) per adult per week.[6]
[2] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7
[3] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7
[4] ‘Unemployment, total (% of total labor force)’, The World Bank, undated, accessed 9 June 2023 by DFAT COISS (11 December 2023)
[5] This figure was previously reported as 30 per cent of the population; however, the World Bank has issued a correction stating the correct figure was 24 per cent. See: World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, undated, accessed 9 June 2023 by DFAT COISS (11 December 2023)
[6] '2019-20 Household Income and Expenditure Survey', Fiji Bureau of Statistics, August 2021 [document last modified 8/09/2021], pp.IX & 8 (details at 9-17), 20210916140700; 'FY2021-FY2024 Country Partnership Framework for Republic of Fiji', World Bank Group, 17 December 2020, p.18 paragraph 27 & Figure 1, 20220131073347; ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and
Expenditure Survey’, The World Bank, undated, accessed 9 June 2023 by DFAT COISS (11 December 2023)
When comparing the country information above which provides statistics of Basic Needs Poverty Line at $41.19 (Fijian) per week and unemployment percentages in 2022 as 4.3 per cent, the applicant was earning a weekly wage between 5 -7 times above Basic Needs Poverty Line for an established national [employer], namely [Employer 1]. There is no country information to suggest that the new government is causing a detrimental downturn on the economy as suggested by the applicant. There is no evidence before it to suggest that the applicant will not find work in the tourism industry again or back with the [employer] that he left prior to coming to Australia. The applicant has shown that he can still work extensively as is evident from him working in Australia and supporting both his new family in Australia and his former wife and daughter back in Fiji.
On the evidence before it, the Tribunal does not find that the applicant will struggle economically or will not earn enough to survive if he returns to Fiji. The Tribunal does not find on the country information and on the applicant’s own work history both here in Australia and back in Fiji that he will not be able to find employment in Fiji. It finds that he will be supported by his family back in Fiji given his close contact with his father, brother and sister back in Fiji. It does not accept that economic conditions have changed the veiwekani. The applicant spoke generally about how this traditional family assistance was changing. However, he did not provide evidence that his own family would not assist him if he was to return. The Tribunal therefore finds that he will not suffer serious harm or significant harm because of higher living costs or because of unemployment or higher than normal living costs or because he will not be able to support his daughter and family in Fiji.
The Tribunal does not accept the applicant’s claims that he is afraid to go to [City 1] where his former wife’s relatives are. His evidence in his original application and at the hearing is that he needs to financially support his family back in Fiji. He does not mention any fear of his wife or wife’s family members. He has not raised any claims of being harmed by them. He raised this claim briefly when the Tribunal asked where he could not go to if he returned to Fiji. When the Tribunal put to the applicant that there would be no cause of concern for him back in Fiji, given that he has been providing significant amount of money to his wife and daughter every fortnight for three years, the applicant had no comment for this. There has been no evidence given by the applicant that he has been threatened or harmed in the past. The Tribunal finds on the evidence of his financially supporting his wife and daughter in Fiji over a significant period of time, that there will not be a real chance that he will be seriously harmed by his wife or by his wife’s relatives were he to return to Fiji.
The Tribunal has considered the letter of support from [Company 1]. The Tribunal finds that the letter is not relevant to the applicant’s protection visa application. The applicant provided evidence that he agreed that it was not relevant to his protection visa application and was only to assist in his skilled migration. The applicant also agreed that the letter he was waiting for from his current employer (which has never been presented to the Tribunal) was also not relevant to his protection visa application. The Tribunal therefore places no weight on either letter of support (one that he has provided and the other that he is waiting for) given that they are not relevant to his protection visa applications.
As discussed with the applicant at the hearing, general economic conditions in Fiji which may result in economic disadvantage do not amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[7] The economic conditions faced by the applicant would apply to all citizens in Fiji.
[7] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
The Tribunal finds that the harm feared by the applicant, namely that he will not be able to earn a similar income or access similar work opportunities in Fiji compared to Australia, and that he will not be able to financially support his family back in Fiji in the same way he is able to while residing in Australia, to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) - that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct - are not satisfied.
Further, the Tribunal finds that the harm feared by the applicant does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied. While serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[8] The Tribunal finds that the applicant’s ability to earn less money in Fiji would not amount to serious economic hardship that would threaten his capacity to subsist.
[8] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
For the above reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Fiji and is therefore not a refugee.
As the Tribunal has found the applicant to not be a refugee, it has considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, he will suffer significant harm. The Tribunal notes that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

60. The Tribunal finds that the harm feared by the applicant, namely that he will be unable to earn a similar income or have access to similar work opportunities in Fiji compared to Australia, and that he will not be able to financially support his family back in Fiji in the same way he is able to while residing in Australia, to not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[9] Any economic disadvantage that the applicant may experience due to general economic conditions in Fiji, and the concern in not being able to financially support his family back in Fiji in the same way he is able to while residing in Australia, would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
Conclusion
[9] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

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) or 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.
Clyde Cosentino
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 1281

13 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction