1918556 (Refugee)

1918556 (Refugee) [2024] AATA 1406 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simar Hermis (MARN: 1464902)
CASE NUMBER: 1918556

COUNTRY OF REFERENCE: Fiji
MEMBER:Paul White
DATE:12 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 March 2024 at 8:28am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – advocating indigenous rights – land rights – physical assault – Village Committee leadership – change of government – mental health issues – referral for Ministerial Intervention – 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] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first applicant [named] (hereafter the applicant) was born on [date]. He last arrived in Australia [in] October 2017.
The second applicant is his wife [named] who was born on [date]. She last arrived in Australia [in] March 2018.
The third applicant is their daughter [named] born on [date]. She last arrived in Australia [in] May 2018.
The fourth applicant is [name] who was born on [date]. She last arrived in Australia [in] March 2018.
The fourth applicant is [age] years of age. She is under the legal guardianship of the first and second applicants. The applicant provided a Statutory Declaration from [name], the mother of [the fourth applicant] who is in Fiji, indicating that the first and second applicants are her daughter’s legal guardians. A letter with some background information about the relationship from [Pastor A] was provided to the delegate on 17 September 2018.
The applicants are all citizens of Fiji. They applied for protection visas on 7 August 2018. The delegate refused to grant the visas on the basis that the applicant did not face a real chance of persecution in respect of the claims around being of indigenous Fijian ethnicity; membership of his village committee; having opinions concerning indigenous rights; having concerns about family safety in Fiji; his religion; or experiencing poor mental health in Fiji. After considering all the claims both individually and cumulatively the delegate found there is no real chance that the applicant will suffer serious harm for any reason if he returns to Fiji in the foreseeable future. The other applicants did not present separate claims for the delegate to consider.
All the applicants appeared before the Tribunal on 14 December 2023. The applicants were represented in relation to the review. The applicant gave evidence about their background, immigration history and claims. Each of the other applicants was given the opportunity to give evidence, comment or respond to the applicant’s evidence.
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). 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.
Section 5LA sets out circumstances where ‘effective protection measures’ are available for the purpose of s 5J(2), in effect providing a presumption of protection in certain circumstances. Section 5LA(1) provides that effective protection measures are available to a 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. This is complemented by s 5LA(2) which provides that a relevant state, party or organisation is taken to be able to offer protection against persecution where: (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.
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
Claims to Immigration
The applicant’s claims for protection were submitted to the delegate in writing on 27 August 2018 and at interview on 7 May 2019. The claims were that:
·Fiji's current political life is unstable, volatile, and full of tensions.
·A very high threat of political/civil unrest and violence is present in Fiji and there is uncertainty around Fiji's election.
·Many ordinary Fijians, particularly indigenous Fijians face an increasing number of oppressive decrees and laws, high inflation, job insecurity, an increased crime rate, and a very insecure border.
·Politicians that dared to speak out publicly against injustice, lack of transparency and who were pro-democratic governance, including elected opposition parliament members and other political figures, have been suspended from parliament, imprisoned for minor offences, or have criminal charges pending against them in court.
·Fiji military personnel are covered through the immunity clause in the constitution which essentially gives them the freedom to do as they wish with no legal consequences. The Fiji Police are allowed under the constitution to conduct searches without a warrant. Pro-indigenous politicians are jailed and charged to prevent them from contesting the elections and fighting for indigenous rights.
·The government continues to segregate and suppress indigenous Fijians with plans to implement the village by-laws.
·Sexual crimes, rape, and violence against women and children are at an all-time high.
·The land of indigenous Fijians is under threat of being taken over by the government's Land Bank.
The applicant claims he experienced physical, emotional, and psychological harm in Fiji since the military coup in 2000. He was physically assaulted in a Fijian village whilst carrying out his duties as a Pastor in November 2000. One main fear is based on the discovery of bullets and ammunition which has created fear and insecurity for him and in his village and concerns about whether his family and himself are safe returning to Fiji. The applicant says he longs to experience equality, safety, and security with his family in Australia where he does not have to constantly worry that his wife and daughters are at risk daily.
The delegate summarised substantial claims in her decision.
From [specified year] until 2017, the applicant was a pastor at [Church 1] in [a named village in] Fiji. Since 2017, he has been serving in [Church 2] in Sydney. In November 2000, men from another village assaulted him while conducting a church service. He did not report this incident to police, because he was afraid that there might be military personnel amongst those who assaulted him.
In 2011, [Officer 1] of [Agency 1] threatened and intimidated him due to his leadership of his Village Committee on the [Town 1] development project. He faced discrimination in Fiji because he is indigenous Fijian. He fears of political/civil unrest and violence in Fiji, including a possibility of a coup in Fiji before or after the general election. He fears his wife and daughters would be subjected to violent crime, including violence against women and abduction in Fiji. Since the military coup in 2000, he has experienced emotional and psychological harm in Fiji.
Claims to the Tribunal
Prior to hearing the applicant’s advisor submitted that the applicant does not dispute the summary of his claims as set out in the delegate’s decision record. And that
The delegate at the time of their decision noted the following:
1. I accept that the applicant is indigenous Fijian and that he has genuine fear of harm due to the high level of crime and violence in Fiji.
2. With regards to the applicant’s claim that he was verbally insulted by [Officer 1] of [Agency 1], I accept that the applicant was a [leader] of the village committee.
3. While I accept that the applicant was the [leader] of the village committee, I do not accept that he would be targeted by [Officer 1] of [Agency 1] or any other Fijian authorities due to his involvement in the [Town 1] development project.
The advisor said that the applicant maintains that the narrative he provided in his original application and the interview is accurate and correct. The applicant is unable to obtain any further evidence to support those claims. The applicant understands that a considerable amount of time has now passed since the assault which occurred in November 2000 and the threat received in 2011.
Tribunal Hearing
The applicant confirmed that he does not have any further claims to raise regarding any incidents relating to him or his family outside of those noted in his application and dealt with by the delegate. The applicant still holds concerns regarding the potential harm that may be suffered by his family, especially his daughters regarding the current political, economic and security situation in Fiji. He understands that these concerns would apply to a significant part of the population.
I put to the applicant for his comment and response various aspects of recent country information provided by DFAT including DFAT Country Information Report Fiji 20 May 2022 and Country Information Request Report No. 20230621135833 DFAT Fiji Country Information – Political update CIR Preparation Date 03 August 2023 and from general sources.
In relation to indigenous Fijians, I put that I had read in Fijian newspapers that the Great Council of Chiefs was in the process of being reinstated. The applicant said he had not had dealings with that group, but he also heard it was being reinstated. He said he hoped for the best with the new government.
I asked what difficulties he may encounter if he went back. He said he and his family have been here many years have moved on and are happy with life and work in Australia. He said that it will be hard to start over again, especially for his younger daughter. The applicant said he has siblings in his village in Fiji, and he is in touch them once or twice a month.
I asked about the 2011 incident and what implications it may have today. He said in 2011 he was [leader] of the village. The village elders made a submission to government. [Officer 1] of [Agency 1] came to visit with a military commander. The village wanted to develop [Town 1]. The military threatened him and told him not to continue with the plan. It was freehold land, yet they did not want the village to develop it. The village wanted a partnership – [Officer 1] with military support did not allow this to develop. The elders in the village wanted to go into partnership with developers but military did not want that. The applicant was last in the village in February 2018 after his return from Australia. From then until now he had no idea what is going on with the plan, yet nothing has been done on that land. The Military said it is government land. The Village could not do anything. There has been no action taken under the new government. The applicant does not know why. The land is in the same village in which his family live. The land belongs to the village, yet they were not allowed to develop it or use the good land for sport, cultivation, or cattle.
DFAT provided an update on the political situation and conditions in Fiji following the 14 December 2022 election. I put to the applicant that since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable. He said he had heard that, and the coalition government has court cases going on. I put information from DFAT about cases that DFAT is aware of where legal processes against critics of the former Government which commenced prior to the 2022 election have been discontinued or dismissed since the change of government. The applicant said he had heard about these developments. He was also aware as DFAT reported that it is the new government that has brought legal proceedings against former Prime Minister Bainimarama and several individuals closely associated with him and his party. These cases remain with the courts and the new government appears to be using the law positively. The applicant said he had no new insights into this.
The applicant said that after all he has been through, he wants to forget everything and help his family build a safe life. In relation to safety in Fiji he has concerns for his daughter and his family. His family, especially the girls, are afraid of rape and other crimes.
All other applicants were present during the applicant’s evidence. Each said they did not wish to add to the applicant’s evidence.
Analysis, findings, and reasons
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal found the applicant to be a credible witness about what happened to him in Fiji. He provided more detail to the Tribunal than he did in his protection visa application form and in the interview with the delegate. The Tribunal considers that his evidence about events that occurred to him in Fiji was consistent and accurate. I accept the applicant’s evidence in relation to the incidents in 2000 and 2011. The question for the Tribunal is whether either of these events now gives rise to a well-founded fear of persecution for a reason as defined by s 5J (1).
The criterion in s 5J(1)(a) 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.
At the hearing the applicant said that since 2018 he was not aware of any development on the land over which he encountered difficulty in 2011. He is not aware of any plan to develop the land and as far as he is aware nothing has been done on that land. He makes no claim that he has encountered ongoing difficulty with the people who assaulted him in 2000. I am satisfied that should the applicant return to Fiji and continue his work as a pastor and a leader in his community or be involved in his community there is no real chance of serious harm to the applicants because of the incidents in 2000 or 2011. The events of which he complains are distant in time, the applicant has encountered no significant difficulty since that time or upon his previous return to Fiji from Australia in 2017.
The applicant claims he is at risk should he return to Fiji because of his indigenous ethnicity and having opinions concerning indigenous rights. I note DFAT indicate some indigenous Fijians feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups. iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic, and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other. I do not accept the applicants face a real chance of serious harm for reason of their ethnicity or for having opinions concerning indigenous rights. For the same reason I do not accept the applicants face a real risk of significant harm should they return to Fiji.
The applicant has concerns about family safety and about sexual crimes, rape, abduction and violence against women and children. The security forces, including the police and the military, are well-resourced and maintain effective control of the country. Crime rates are moderate. While rates of petty theft, robbery and murder are higher than in Australia, they are consistent with regional averages. In July 2023, the Fijian police force reported that the overall crime rate had decreased by 13 per cent in the first six months of 2023. Most crimes are opportunistic and while some criminals operate in larger groups, these lack an organisational hierarchy and generally operate on an ad-hoc basis. Most assaults and robberies occur at night around popular restaurants and nightclubs. I am satisfied that any risk facing the applicants relating to family safety sexual crimes, rape, abduction and violence against women and children is a risk faced by the population of the country generally and not one faced by the applicants personally. Based on the information provided by DFAT and the lack of specific detail relating to the applicants I find that any risk faced by the applicants is a risk faced by the population of the country generally. This does not give rise to a real chance of face serious harm for the applicants. For the same reason I do not accept the applicants face a real risk of significant harm should they return to Fiji.

The applicant claims the land of indigenous Fijians is under threat of being taken over by the government's Land Bank. DFAT note that land rights are controversial in Fiji as they are in Australia. About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years, but land is usually leased for 30 years. Residential leases are longer, and leases can be bought and sold. Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. The applicants have not provided information that would indicate matters relating to land give rise to a real chance of serious harm for them nor do they give rise to a real risk of significant harm should the applicants return to Fiji.
The applicants made no specific claims about their religion. However, for completeness the delegate considered whether the applicant faced any real risk of significant harm arising from his religion and service as a pastor. I note the 2013 Constitution establishes Fiji as a secular state. The Constitution guarantees freedom of religion and specifically protects against religious discrimination. DFAT indicate freedom of religion is well established in Fiji. The Government and the people generally respect that freedom. I do not accept that involvement of any of the applicants with his religion gives rise to any real chance of serious harm. I do not accept the applicants face a real risk of significant harm should they return to Fiji.
The applicant claims he experienced emotional and psychological harm in Fiji following the military coup of 2000. The applicant has not identified specific mental health problems in recent times, nor has he provided evidence of his engagement with mental health practitioners in Fiji or Australia. I do not accept that the applicant’s mental health issues give rise to a real chance of serious harm for the applicant should he return to Fiji. I do not accept the applicants face a real risk of significant harm should they return to Fiji for reasons of mental health.
The applicant claims there is a threat of political or civil unrest and violence and uncertainty around Fiji's election. His initial claim related to elections in 2018. These elections passed without political or civil unrest and violence and uncertainty. At the time DFAT stated “Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence.” Since then, another election has taken place. DFAT reported after the December 2022 elections that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. Fiji is generally stable and secure according to DFAT. Given this information the threat of political or civil unrest does not give rise to a real chance of serious harm for the applicants nor does it give rise to a real risk of significant harm should they return to Fiji.
The applicant claims he has concerns also about the economy, generalised violence, and a very insecure border. As mentioned above the Fiji Police Force is generally seen as capable and impartial. The security forces, including the police and the military, maintain effective control of the country. Fiji has a police-to-population ratio comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific. The Fiji Police Force is generally considered a professional, albeit under-resourced, law enforcement organisation. It is generally seen to be impartial and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible. In light of this DFAT information, I do not accept that any of the applicants face a real chance of serious harm for reason of generalised violence or an insecure border or because of the Fiji economy.
The applicant claimed politicians are jailed and charged to prevent them contesting elections and fighting for indigenous rights. The applicant makes no claim in relation to himself or other applicants that he or any of them will face jail or charges for contesting elections or fighting for indigenous rights. The Tribunal has considered this general reference and others made in the evidence of the applicant and given on behalf of the other applicants throughout the process relating to living conditions, high inflation, job insecurity, lack of adequate medical care, the financial issues, political instability, and other things in Fiji. However, there is no persuasive information before the Tribunal to suggest, and the Tribunal does not accept, that any of these conditions, the generalised insecurity, and the hardship which prevails in Fiji would expose the applicants to a real chance of persecution for any of the reasons in s 5J(1)(a).
Under s.36(2B)(c) of the Act there is taken not to be a real risk that applicants will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicants personally. The Tribunal is satisfied that the generalised insecurity, the living conditions, and related hardship referred to above are faced by the population generally and not by the applicants personally. The Tribunal finds that there is no real risk that the applicants will suffer significant harm in Fiji because of generalised insecurity, difficult financial and related living conditions, and any consequential hardship.
Further the applicants claim they will have difficulties starting over, especially in relation to the fourth applicant. DFAT is not aware of any official or societal discrimination against failed asylum seekers. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities. The fourth applicant has not made specific claims or provided evidence – either directly or through her guardians – that indicates she faces a real chance of serious harm should she return to Fiji. I do not accept that any of the applicants face a real chance of serious harm because they have resided in Australia for some time. I do not accept their time or presence in Australia gives rise to a real risk of significant harm should they return to Fiji.
I am not satisfied the applicant faces a real chance of serious harm should he return to Fiji. I am not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether they meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa). The complementary protection criterion requires that 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 the applicants will suffer significant harm: s 36(2)(aa). As set out above, the Tribunal has found that if any of the applicants returned to Fiji in the foreseeable future, they would not face a real chance of serious harm. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm.
[1] MIAC v SZQRB [2013] FCAFC 33
Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that they will suffer significant harm in these circumstances. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Ministerial intervention
The applicants’ advisor submitted prior to the hearing
that in the event the Tribunal is not satisfied that the applicants satisfy the definition of a refugee as defined by s5H(1) of the Migration Act 1958, that they consider making a referral to the Minister for an intervention request based on the past and present circumstances of the family unit. We submit that the families circumstances fall within the unique or exceptional circumstances as set out by the Minister including:
a) Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
b) Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.
And the advisor provided the following bundle of evidence to support the family’s request for referral:
1.Support Letter – [Ms A]
2.Support Letter – [Ms B]
3.Support Letter – [Pastor B], Senior Pastor of [Church 2] in Australia
4.Support Letter – [Pastor C], Pastor [in Town 2]
5.Two documents from [Agency 1] relating to donations.
6.Statement of Service for [Applicant 3]
7.Confirmation of employment letter [Applicant 3]
8.Enterprise agreement [the applicant]
And later provided documents from
9.[Local Government Official A]
10.[Manager A], [Employer 1]
And later a
11.Support letter - [Mr A] [Town 3 church]
The Minister has issued guidelines explaining the circumstances in which he or she may wish to consider exercising his or her public interest powers under s 351 and the circumstances where he does not wish to consider exercising his powers.
It is further contended that the applicant and his family (the other applicants) are an integral and important part of the local community, where they have lived for some years.
I discussed some issues surrounding a Ministerial intervention referral with the applicant and his advisor. The advisor submitted that the unique or exceptional circumstances refer to the hardship that would be faced by the Australian citizen/[clients] of organisations such as [two named employers] where the secondary applicants, [Applicant 3] and [Applicant 2] are currently employed as [two roles] respectively. And that given their employment in rural Australia where the demand for skilled workers is very high due to shortages and based on the information contained in the support letters issued by their employers, they were relying on the impact to the clients of these centre’s when referencing the hardship that would be faced by Australians.
The applicant is heavily involved in church activities in and around [Town 2]. This includes community work, visiting and feeding homeless people in the city, visiting aged care homes, engaging in fellowship with members of the church and pacific community especially migrant workers, community singing, counselling (particularly with islanders from Fiji Tonga and Samoa and especially of those who come to Australia alone and have families back home, Sunday services at the Church, general spiritual care, conferences in the [Region 1] area with islanders, Australia and some indigenous Australians. He is also involved with some evangelism of those wishing to make a commitment to change their lives and live a life free of crime.
The applicant through his adviser requested the Tribunal to refer a case to the Department for Ministerial intervention based on the past and present circumstances of the family. I will refer the matter to the Department for consideration for Ministerial Intervention. Further documents and submissions addressing this matter should be directed to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
Paul White
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 1406

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction