1919548 (Refugee)

1919548 (Refugee) [2024] AATA 1793 (19 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Danny Narayan
CASE NUMBER:  1919548
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Samira Kamandi
DATE:19 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 February 2024 at 8:14am
CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions and quality of life – work history – full-time work, mortgage and family expenses in home country – work, church and community activities in Australia, and responsibility for family – no political activity or adverse profile – multiple arrivals and departures – applied for protection visa as cheapest, without understanding purpose – forthcoming and credible evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Fiji. He is an indigenous Fijian of Catholic faith. The applicant applied for a protection visa on 12 March 2019 and his protection visa application indicates that he departed Fiji, via Nadi Airport, [in] March 2019 and arrived in Australia on the same date.
The applicant’s protection visa application was refused on 4 July 2019. He applied for a review of that decision on 18 July 2019. The applicant was represented in relation to his review application.
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 (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.
CLAIMS AND EVIDENCE
Protection visa application
In his protection visa application, the applicant claims that he left Fiji because of the high costs of living, his income was not enough for his family’s ‘needs and wants’, and that the cost of medication was high. The applicant claims that if returned to Fiji, life will be difficult due to high costs of living. He indicates that he has never sought any assistance from the authorities or organisations in Fiji because they ‘were not of great help’. The applicant further claims that if returned to Fiji, he will get the same amount of money which would not be much and that he would go to Suva where there is employment.
The delegate’s decision
The applicant was not interviewed by the delegate in relation to his claims. He provided the Tribunal with a copy of the delegate’s decision.
The delegate considered country information about the situation of the economy, employment, and social security in Fiji. Given the applicant’s past employment history, the delegate found that there was nothing to prevent him from pursuing employment opportunities if returned to Fiji. The delegate also noted that the applicant could avail himself of welfare measures to support his family. The delegate was not satisfied that the applicant faced a real chance of persecution or was at a real risk of significant harm, if returned to Fiji.
Review application
The applicant lodged a review application with the Tribunal on 18 July 2019.
The applicant was invited to attend a hearing on 9 February 2024. In his response to the hearing invitation, the applicant’s representative indicated that the applicant would not require an interpreter and that his representative will not be attending the hearing.
Prior to the hearing, the applicant’s representative provided the Tribunal with a written submission and a statement from the applicant dated 31 January 2024.
The written submission provided to the Tribunal includes the following information:
·The applicant is a native Fijian (iTaukei) and was born in [Town 1] on the island of Viti Levu, Fiji.
·The applicant attended [Primary School] in [Village], between [Year] and [Year]. He then finished his secondary education at [High School] from [Year] to [Year]. Following that, he studied for an Advanced Diploma in [Subject] at [University] between [Year] and [Year].
·The applicant is married and has [children] ([Ages and genders]) who remain with his wife in Fiji.
·The applicant has been to Australia on multiple occasions since [Year] and his most recent entry into Australia was on a visitor visa [in] March 2019. He subsequently lodged his protection visa application on 12 March 2019.
·The applicant accepts and acknowledges the decision to refuse his protection visa application but believes that it is critical to provide additional context about his situation in Fiji and feels compelled to share his challenges and the potential consequences of returning to Fiji.
·After completing his tertiary education, the applicant worked for [Employer 1] at [Workplace] as [an Occupation 1] from [Year] to 2019, earning FJD11,400 per year. During this time, he purchased a home and took out a loan of FJD290,000 with fortnightly repayments of FJD900. He struggled to meet basic expenses like food, water, phone bills and children’s education, having also previously paid FJD600 per month in rent before purchasing his own home.
·Prior to the applicant’s birth in [Year], his father, [an Occupation 2] by trade, left Fiji to pursue a [Sport 1] career with a Victorian [Sport 1] club in Australia and became estranged from the applicant’s mother and stopped supporting the applicant and his mother. The applicant’s father remarried and settled in Australia with another person, repeatedly promising to sponsor the applicant for permanent residency to join him and his new family, but these promises were never fulfilled.
·The applicant claims that he was motivated by desperation to seek better opportunities in Australia to improve his family’s financial situation and his own life in response to the challenges faced in Fiji. He recognises the presence of a few organisations such as Fiji Life Foundation and Habitat for Humanity, which provide critical support to Fiji’s vulnerable communities. However, he believes that their efforts are insufficient, or the organisations are inadequately equipped to meet the urgent needs of those in desperate situations in the country.
·The applicant has been working as [an Occupation 3] at [Employer 2], a [company] in Western Australia, for the past 3 years. His unwavering commitment is demonstrated by his consistent tax contributions, which benefit the Australian economy.
·The applicant actively participates in various church activities at [Church] and has made significant contributions to the Australian-Fijian community in Perth, fostering strong community bonds. He also volunteers at [Local government], which operates under [Local group], in his local community. His unwavering commitment to positively impacting the Australian community is demonstrated by his active participation in various aspects of Australian society.
·The applicant fully understands and accepts the decision of the delegate that there may not be satisfactory grounds to believe that his removal to Fiji would result in significant harm, but he is appealing on compassionate and humanitarian grounds, driven by heartfelt emotion and a deep sense of responsibility for his family.
·The applicant seeks protection in Australia because it offers the possibility of greater economic opportunities, access to better quality education and efficient health care, broader social support, guaranteed legal protections, and wider cultural integration that Fiji may not adequately provide.
The applicant’s statement to the Tribunal reiterates the information about his employment and community engagement in Australia and that he has genuine concerns about the financial difficulties that he and his family are experiencing and the quality of life in Fiji.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant’s representative was not in attendance and the applicant gave evidence in English. The applicant was proficient in English and was able to understand and respond clearly to questions asked and confirmed that he understood my concerns about his claims for protection.
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Fiji for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Fiji there is a real risk that he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
FINDINGS AND REASONS
Applicant’s identity and country of reference
The applicant has provided copies of the bio-data page of his Fijian passport and his Fijian birth certificate. The delegate did not refer to nor identify any issues regarding the applicant’s identity or nationality. I accept that the applicant is a national of Fiji, and that Fiji is the receiving country for the purposes of this review.
Background information
The applicant claims, and I accept, that he is an indigenous Fijian and of Catholic faith. He was born in [Year] in [Town 1], Fiji.
The applicant’s protection visa application indicates that he resided in [Town 1] from birth until his departure for Australia in March 2019. The applicant confirmed this at the hearing.
Regarding his education, the information provided to the Tribunal indicates that the applicant went to primary school between [Year] and [Year] and that he attended high school from [Year] to [Year]. After completion of high school, the applicant obtained an Advanced Diploma in [Subject] at [University] which he completed in [Year]. The applicant confirmed this information at the hearing.
The applicant’s protection visa application indicates that he worked in [Work sector 1] between [Year] and [Year], and that he obtained employment as [an Occupation 1] with [Employer 1] in [Year], which he continued until January 2019. At the hearing the applicant stated that he resigned from this position when he received his visa to travel to Australia and that everyone knew that he was coming to Australia due to the financial difficulties he was facing at the time.
At the hearing, the applicant stated that before he was born, his father who worked as [an Occupation 2] and a professional [Sport 1] player, got an opportunity to come to Australia to play with the [Sport 1] Club. His father became estranged from his mother and did not support his mother to raise him. His father married in Australia and has [children] (applicant’s step [siblings]) who are Australian citizens.
The applicant’s mother married her current husband when the applicant was about 5 years old, and the applicant has stepsiblings in Fiji. The applicant explained that his mother was unemployed and that he grew up in a poor household. Once his mother had the 3 children with her husband, the applicant was not supported by her, and he grew up not having the support of his parents. When asked if his mother ever worked, the applicant stated that she did work in [Job task] at [Workplaces] but is no longer working and that he provides his mother and stepsiblings with financial support from Australia. He stated that one of his stepsisters works in [Job task] at a [Workplace], the other does not work but her husband works in a [Workplace], and that his stepbrother works in [Work sector 2].
The applicant confirmed that he met his wife in [Year] and that they got married in [Year]. He stated that his wife completed high school and had a Diploma in [Subjects]. When asked if his wife ever worked in those industries, the applicant stated that she did, but they were only casual jobs. He said that more recently, his wife has obtained a job with [Work sector 1] and this job has the prospect of becoming permanent.
Regarding his children in Fiji, the applicant stated that his wife had a [Child] when they met and that the applicant and his wife had [more children]. The applicant confirmed that he resided in [Town 1] the entire time he was in Fiji. While he lived with his mother and her family growing up, when he met his wife in [Year], he left home and rented a house in [Town 1] with his wife. They rented several homes in [Town 1] until the applicant was able to secure a home loan and purchased a house and land package in [Year]. He then resided in his family home with his wife and children where his wife and children continue to reside.
Regarding his children, the applicant stated that their eldest daughter studies at [a boarding school] in [Town 2], and that his younger children are also at [a private school] in [Town 1]. He confirmed that he pays for their school fees and that working in Australia has enabled him to pay for his children’s schooling in Fiji.
At the hearing, the applicant confirmed that he is in regular contact with his mother, stepsiblings, wife and children in Fiji. He also confirmed that he has never been involved in politics in Fiji or Australia and that he has never come to the attention of the authorities in Fiji for any reason.
The applicant presented his evidence regarding his childhood and experiences in Fiji in a forthcoming and credible manner. I accept the applicant’s evidence as set out in the paragraphs above.
While in Australia, the applicant stated that he commenced working as soon as he had work rights. He stated that he also undertook vocational training at TAFE and obtained permits to work in [Work sector 3] and that he travelled to Northern Territory, Melbourne, Sydney, and South Australia to work with various companies. As indicated in the submission to the Tribunal, the applicant confirmed that he has been working as [an Occupation 3] at [Employer], a [company] in Western Australia, for the past 3 years. He also stated that he is studying to complete a Certificate IV in [Subject]. I accept the applicant’s evidence in this regard.
Applicant’s travel history
The submission to the Tribunal indicates that the applicant has been to Australia on multiple occasions since [Year] and that his most recent entry into Australia was on a visitor visa [in] March 2019, following which he lodged his application for a protection visa on 12 March 2019.
At the hearing, the applicant stated that in [Year], when he was about 13 years old, he was told that he was coming to Australia for Christmas to visit his father. He said that his aunt convinced his father to allow the applicant to visit him and his step[siblings]. The applicant described his visit as ‘eye opening’ and that when he experienced the life that his step[siblings] and father were living in Australia, he felt that the life he had in Fiji was unfair.
When asked if he came to Australia on any other occasions, the applicant confirmed the information in the delegate’s decision that he visited Australia in [Year] to play professional [Sport 2], and that he also visited Australia on a further 3 occasions in [Year] to play sport and to spend Christmas in Australia.
The applicant stated that after his visit in [Year], he begged his father to sponsor him so he could come to Australia and that while his father promised to sponsor him, he never took steps to assist the applicant in this regard. The applicant also stated that his father’s brother and his children are also in Australia and are Australian citizens and that he is the only person from his father’s family who was left in Fiji.
When asked why he did not take any steps to stay in Australia on his prior visits when he was young, the applicant stated that his father kept promising to assist him, but he never did anything and that he finally decided to come to Australia in 2019 out of desperation for a better life for his family.
I accept that the applicant visited Australia in [Year] and [Year] for the claimed reasons and that he has been seeking his father’s assistance to migrate to Australia. I accept that the applicant’s father did not follow through with his promises to assist the applicant in this regard and that the applicant, as he states, took the matter in his own hands and came to Australia in 2019 in search of a better life.
Protection visa application/claims for protection

At the hearing, the applicant explained that when he came to Australia, he had AUD50. He could not afford to engage and pay a lawyer. He Googled visas in Australia and learnt that he could apply for a protection visa for AUD35. He was not aware of the Australian laws and regulations and applied for the cheapest visa that he could. He expressed that if his father assisted him to get a lawyer, he would have obtained better advice and maybe applied for a more appropriate visa, such as a student or skilled visa. The applicant also stated that he applied for a protection visa without understanding the consequences of applying for a visa that he does not meet the criteria.
As indicated in his protection visa application, the applicant confirmed that the only reason he came to Australia and applied for a protection visa was because he was facing financial difficulties in Fiji and was unable to meet all his financial obligations. I noted that in his protection visa application he referred to high costs of living and high costs of medication and asked what he meant with his reference to medication. The applicant explained that when his children got sick, he found it difficult to pay for their medication because of all the expenses he had to pay for. The applicant did not claim that his wife or children suffer from any chronic conditions or that they were undergoing medical treatment or required medication. At the hearing, the applicant also confirmed that he is not suffering from any health conditions, nor has he been diagnosed with any medical conditions. I accept the applicant’s evidence in this regard.
As outlined in the submission the applicant’s financial difficulties in Fiji related to having obtained a loan of FJD290,000 to purchase his family home in [Year]. The applicant explained that he was only earning FJD11,400 per year and it was not enough to service the loan. When asked if he has paid the loan since coming to Australia, the applicant said that he has and that the loan is now reduced to about FJD170,000. He explained that he is only able to pay the loan principal if he continues to work in Australia and that in Fiji, he was only able to repay the interest. When I observed that given that the loan is substantially reduced than when he was in Fiji, the interest payments will not be as high, the applicant stated that he would still find it difficult to repay the loan and risks losing his family home which he does not want to lose.
With reference to his submission that there are organisations in Fiji that provide crucial support to vulnerable communities, the applicant was asked if he had approached any organisations for assistance when he was facing financial difficulties in Fiji. The applicant responded in the negative and said that those organisations only assisted poor people in the villages and that even if he had approached them, they would not have assisted him. I noted that he did have a secure job at the time. The applicant stated that he did but he never got a pay rise and was unable to meet his financial obligations.
During the hearing, the applicant, on several occasions, indicated that he was aware that he did not meet the criteria to obtain a protection visa. He also confirmed that his lawyer explained to him that he did not meet the criteria and that he accepted this. He stated that he wanted to appear before the Tribunal to explain his situation and to make a compassionate appeal for his case.
When asked if apart from financial difficulties that he referred to which led him to come to Australia, was there any other reason that he did not wish to return to Fiji, the applicant stated that he wanted a better life for his children and that he promised them that he would bring them to Australia. The applicant then referred to the part of the submission to the Tribunal which indicates that he is seeking protection in Australia because it offers greater economic opportunities, access to better quality education and efficient health care, and broader social support and guaranteed legal protection. When asked if there was anyone in Fiji who he feared or was at risk of any harm, the applicant responded in the negative.
I accept that the applicant departed Fiji in 2019 because he was facing difficulties meeting his financial obligations, in particular meeting the repayment requirement for the loan that he took to build his home in [Year]. I accept that the applicant, who was working and had a secure job, did not seek any assistance from organisations who assisted vulnerable communities and that he may not have been eligible for such assistance given his circumstances. I accept that the applicant came to Australia to work to provide a better life for his family and children who remain in Fiji.
At the hearing, I acknowledge the information in the submission and the applicant’s statement to the Tribunal, that he has been a contributing member of the Australian community, in that he has worked, paid taxes, furthered his skills and qualifications, and undertaken volunteer work. I explained, and the applicant acknowledges his understanding, that these matters do not assist me in assessing whether he faces a real chance of serious harm or is at a real risk of significant harm if returned to Fiji.
I also indicated that I accept that the applicant’s father did not support him when he was growing up in Fiji, and that he did not assist the applicant to migrate to Australia. As discussed with the applicant at the hearing, these issues also do not assist me in assessing whether he faces serious or significant harm in Fiji. The applicant agreed with my observation.
The applicant was referred to the country information[1] about Fiji’s health care system, in that it has a subsidised health care system available to all Fijians who need it and that the quality of health care is better in urban areas and may be basic in rural areas, noting that the applicant is from [Town 1] and does not face issues such as accessibility issues that are faced by communities in rural areas. I also explained that specialist health care is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals.
[1] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
Regarding the education system in Fiji, I noted that country information[2] indicates that education is compulsory and that the government provides free education, and that tertiary education and vocational education is also available, noting that the applicant’s children are all at school and that he and his wife availed themselves of engaging with tertiary education which the applicant was able to access even though he grew up in a poor family without his father’s assistance.
[2] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
I also noted that country information indicates that Fiji has a national police force that covers the whole country and is seen as professional by international observers and that there is a functioning judicial system in Fiji.
I observed that while the quality of these services may not be the same as in Australia, the information indicates that these services are available to Fijians and that there is no information to indicate that the applicant or his family will be denied access to any services based on their ethnicity or any other reasons outlined in s 5J(1) of the Act. The applicant acknowledged and agreed with my observations.
In light of the discussion above, I am not satisfied that the applicant will face a real chance of serious harm in accessing services in Fiji or that he would be denied access to services, such as health care, employment, or education, for any reason, including for reasons under s 5J(1) of the Act.
In addition, I discussed with the applicant that given his past educational and employment history in Fiji, considered with the fact that he has obtained further qualifications and skills and experience in Australia, it did not appear to me that he would not be able to secure employment in Fiji. The applicant referred to the low wages and that he will not be able to meet his financial obligation. He also stated that it would be harder to find a job now and that the costs of living have increased in Fiji. I referred to the applicant’s evidence that his wife has recently obtained employment which he states may have the prospect of becoming permanent. I also acknowledge that the applicant may face some challenges in obtaining employment that he considers suitable, and any such challenges that he may face initially on return, did not appear to me to amount to serious harm or significant harm. The applicant reiterated that he was aware that he did not meet the criteria for a protection visa but wanted to appear before the Tribunal to discuss his issues and be truthful about his situation.
I accept that the applicant wishes to remain in Australia where he is better able to meet his financial obligations, and that it may be the case that he will not be able to earn as much as he does in Australia. Given the applicant’s qualifications and work experience in Fiji and Australia, I am not satisfied that the applicant will not be able to secure employment, or that he would be subject to significant economic hardship of a level that would threaten his capacity to subsist or that he would be denied the opportunity to earn a livelihood of any kind that would threaten his capacity to subsist.
Refugee assessment
Considering the applicant’s overall circumstances and profile, in the context of country information cited above, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
The Federal Court[3] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. For the same reasons cited above, I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm in accessing any of the services, including education or health care services, that is available to all Fijians.
[3] MIAC v SZQRB (2013) 210 FCR 505.
I find that any challenges that the applicant may face in securing employment or any economic disadvantage the applicant may experience in the form of disparity in wages in Fiji do not amount to significant harm as defined in ss 36(2A) and 5(1) of the Act. I am not satisfied that he will face a real risk of being arbitrarily deprived of his life or be subject to the death penalty or tortured. I am also not satisfied that there is an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, severe pain or suffering or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
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 1793

19 February 2024

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Immigration

Administrative Law

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