1922087 (Refugee)

1922087 (Refugee) [2023] AATA 2586 (26 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1922087
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wayne Pennell
DATE:26 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 26 June 2023 at 9:58am
CATCHWORDS
REFUGEE – protection visa – Fiji – non-appearance before the Tribunal – unemployment – high cost of living – Cyclone Yasa – COVID-19 pandemic – state protection – delay in seeking protection – speculative nature of claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559
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 a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The Delegate’s decision was provided to the Applicant on 11 July 2019.
The Applicant, who claims to be a citizen of Fiji, applied for a Protection visa.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there was a real risk he would suffer significant harm. The Delegate refused to grant the visa[3] on the basis that the Applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5]
[2]The Applicant’s application was received by the Department of Home Affairs on 5 March 2019.
[3]The Delegate’s refusal was made on 11 July 2019.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[6] The Applicant was not represented through the process of him applying for protection, or his review application. Within a matter of days of filing his review application,[7] the Tribunal wrote to him and advised that it was important that if he changed his contact details, such as his residential address, mailing address, telephone number, fax number or email address, he should immediately tell the Tribunal.
[6]On 9 August 2019
[7]On 12 August 2019,
Over the period of approximately two years following that advice to him, the Applicant did not communicate with the Tribunal until he lodged a letter outlining some circumstances which he said were relevant to his application. His letter was received on 19 July 2021, and it remains the last communication, in any form, that the Tribunal received from him. The particulars of that letter are outlined and discussed later in these reasons.
At a subsequent time, the Tribunal emailed the Applicant and advised him that his file was being prepared for allocation to a member of the Tribunal and this may result in a hearing being scheduled. He was also advised that if he had any additional evidence that was relevant to his application, he should provide that to the Tribunal as soon as possible. That email was sent to the Applicant’s nominated email address, however it could not be delivered and it ‘bounced’ back to the Tribunal.[8]
[8]Email sent on 24 May 2023.
Shortly afterwards, the Tribunal sent a letter to the Applicant and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. He was invited to attend an in-person review hearing scheduled for 26 June 2023.[9] That letter was dispatched to the Applicant’s nominated email address, however, the email again bounced back to the Tribunal.
[9]The Tribunal advised the Applicant on 26 May 2023.
Having regard to the emails bouncing back, the Tribunal dispatched to his nominated residential address the same letter which it had attempted to email him. That letter was sent by registered post and no response has even been received from the Applicant.
On 19 June 2023, the Tribunal sent an automated SMS text message to the Applicant’s nominated mobile telephone number. The purpose of that text message was to remind him of the scheduled hearing on 26 June 2023,[10] and it explained:
Reminder - Your AAT hearing is on 26/06/23. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
[10]SMS hearing reminder sent on 19 June 2023 at 11:00am.
There was no response from the Applicant in regard to that reminder, and the Tribunal received notification that the message failed to send, therefore suggesting that his mobile telephone number is no longer valid or connected.
On 23 June 2023, the Tribunal again sent an automated SMS text message to the nominated mobile telephone number for the Applicant.[11] The purpose of that text message was to again remind him of the scheduled hearing on 26 June 2023. That message was similar to the previous message sent on 19 June 2023. The Tribunal notes that once again there was no response from the Applicant in regard to that reminder, and notification was received that the SMS message failed to send. This again confirmed that the Applicant’s mobile telephone number is no longer valid or connected.
[11]SMS hearing reminder sent on 23 June 2023 at 11:00am.
The hearing of the Applicant’s application was scheduled to commence at 9:00am on 26 June 2023. On the morning of the scheduled hearing, the Applicant did not appear at the time and place of the scheduled hearing. Because he had not attended, the Tribunal telephoned his nominated mobile telephone on two occasions. Those calls were made at 8:47am and 9:00am and on each occasion, the telephone call could not connect to his mobile telephone. When the calls were made, an automated electronic response indicated that his telephone was not receiving calls. The Tribunal notes that the automated response was not suggesting that this was a case whereby his telephone was switched off or not in a mobile telephone service area, it appeared that his mobile telephone number has been disconnected.
Having assessed the communications provided to the Applicant in respect to the scheduled hearing, the Tribunal finds that all reasonable attempts were made to ensure that he was appropriately notified of the hearing, along with being advised of the time, date and location of the scheduled hearing.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[12] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[13] That is, the Applicant 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.
[12]Migration Act 1958 (Cth), s 36.
[13]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[14]
[14]Migration Act1958 (Cth), s 36(2)(a).
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.[15] 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.[16]
[15]Migration Act1958 (Cth), s 5H(1)(a).
[16]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[17] 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 the Act, which are extracted in the attachment to this decision.[18]
[17]Migration Act 1958 (Cth), s 5J(1).
[18]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[19] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[20] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[21]
[19]Migration Act 1958 (Cth), s 36(2)(a).
[20]Migration Act 1958 (Cth), s 36(2)(aa).
[21]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[22]
[22]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[23]
[23]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The Applicant claims to be a citizen of Fiji and he provided a copy of his passport to authenticate this claim.[24] The Tribunal accepts the Applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[25]
[24]Applicant’s passport issued in Fiji [in] 2017.
[25]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[26]
[26]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[27] 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.
[27]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Fiji, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[28]
[28]Migration Act 1958 (Cth), s 36(2).
The mere fact that the Applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the Applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the Applicant’s case for him. It is his responsibility to specify all particulars of his 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.[29] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[30]
[29]Migration Act 1958 (Cth), s 5AAA.
[30]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S BACKGROUND AND CLAIMS
The Applicant is a citizen of Fiji. In an application lodged with the Department on 5 March 2019, he claimed to have a well-founded fear of returning to Fiji. He also claimed that if he returned to Fiji, there is a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm.
The Applicant explained in his application that he did not experience harm in Fiji prior to coming to Australia and he did not consider moving to another part of Fiji for his own protection. He said that where he was living was the only place he called home and he could not financially afford to move.
In respect to what he thought would happen to him if he returned to Fiji, and the reasons he claims to have a well-founded fear of returning to Fiji, the Applicant claimed that he came to Australia to work as a seasonal based worker. He cannot afford to return to Fiji because of what his wife has done to him. He explained that he and his wife have [number] children, and since being in Australia he has been working very hard and sending money back to Fiji to support his family, only to realise that his wife has started a new relationship with another man.
The Applicant claimed that if he returned to Fiji, he will ‘surely threaten or attempt to do something stupid’ to his wife and her new partner. He even suggested that he might also go to prison, meaning that the future of his children is in doubt. Because of those reasons, he has made up his mind to stay in Australia to work hard and support his children.
Notwithstanding those claims just outlined, the Applicant claimed that he will be harmed or mistreated if he returned to Fiji by his wife’s parents and her relatives. He said that they could physically hurt him if he was going to do anything bad to his wife and her new partner.
In regard to whether the Fijian authorities could protect him if he went back to Fiji, the Applicant accepted that they could protect him, but not completely. He makes that claim suggesting that the authorities do not take matters such as his seriously.
Indicated earlier in these reasons was the receipt of a letter from the Applicant on19 July 2021. In that letter he outlined:
Firstly, my sincere apology for failing to response to your letter.
Being a person predominantly living in rural community in Fiji and away from urban centres for almost my entire life; with little knowledge of available options to follow and ultimately I did not take into consideration the consequences of not pursuing instructions as per your letter.
In addition, I was completely absence myself from email communication after totally forgot my password and I did not active my email until I had chance to visit my cousin in [Town 1] where he finally restored my email hence 2 days from expiry of time frame.
Apparently, I decided to stay back simply because I believe I will have to face same challenges back home like unemployment, high cost of living and most important of all, I will be unable to reconstruct my family house which was completely destroyed by TC Yasa.
Apparently, the closure of border due to COVID 19 pandemic has brought about delay in returning to Fiji on my own will and I am glad that Government of Australia has shown self-reproach and humility towards over-stayers like me to implement issuance of COVID 19 visa.
My young family [and] me being the sole bread winner obviously dependent on me for survival. I can imagine the adversity and effort I will clash with if decision is made to return to Fiji.
The unprecedented increase of COVID 19 victims in Fiji today, draws a picture that Fiji is no longer safe to live in and thus returning to Fiji is simply put lives to risk and may subsequently contribute to death.
I fully understand that I am illegally staying in Australia for a period of time however I urge the Immigration department to consider all relevant elements which I have mentioned above and grant me opportunity to remain in Australia under COVID 19 visa.
I sincerely hopeful that my letter will be seriously reasoned and reach your utmost consideration based on the reality, Fiji is experiencing right now.
When carefully assessing the contents of that letter, the Tribunal finds that his comments are directed at difficulties he will experience in Fiji such as unemployment and the high cost of living. He also made comment about Cyclone Yasa which struck Fiji in December 2020, and claimed that his house was destroyed. It is noted by the Tribunal that when he wrote the letter, this was at a time during the height of the COVID pandemic. When analysing those comments, the Tribunal finds that they are not cause for him to have any well-founded fear of returning to Fiji because of the reasons prescribed in the Act.
The Tribunal notes that since lodging his application with the Tribunal to review the Delegate’s decision, the only document provided by the Applicant was the letter as discussed about. He has not provided any information to support the protection claims he has made, and nor has he engaged with the Tribunal in respect to the progression of his application, such as providing evidence, submissions, a statutory declaration, or otherwise engaging in the review process.
Country information

The Applicant claimed that he will be harmed or mistreated if he returned to Fiji by his wife’s parents and her relatives, and even though the Fijian authorities could protect him, they would not take his situation seriously.
In regard to being protected by the Fijian authorities if he went back to Fiji, the Applicant’s application outlines that he accepts that he could be protected if he returned to Fiji, but not completely protected. He makes that claim by suggesting that for matters such as his, the authorities do consider them seriously.
When giving careful consideration to the available credible and reliable country information relating to Fiji, the Tribunal rejects his claims that the Fijian authorities would not take his situation serious if he was harmed within Fiji. The DFAT report provides:
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[31]
[31]The DFAT Country Information Report, Fiji, 20 May 2022, pages 22 to 23, paragraphs 5.6 to 5.10.
In carefully assessing that information and weighing it against his claims that he made, the Tribunal rejects his claim and finds that the police in Fiji are adequately equipped and have the ability to investigate matter, and can protect the Fijian citizens against unlawful behaviour.
Delay
The Department’s travel records for the Applicant show that he was granted a Temporary Work (International Relations) visa on 18 May 2017. That visa was valid for six months and was to cease on 24 November 2017.
The Applicant arrived in Australian [in] May 2017 and remained in Australia well past the expiration time of his visa. This meant that he was an unlawful non-citizen for 16 Months before being granted a Bridging visa after he filed his application for a Protection visa.[32]
[32]Bridging visa was issued on 15 March 2019.
The Tribunal notes that the Applicant’s application for a Protection visa was lodged with the Department on 5 March 2019. This was almost two years after he had arrived in Australia and the Tribunal finds this to be a significant amount of time, of which he was an unlawful non-citizen for a vast majority of that time.
In respect to any consideration by the Tribunal about the delay between the Applicant’s arrival in Australia and his application for a Protection visa, guidance can be found by the judgment in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where it was found that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an Applicant’s fear of persecution.[33] Therefore, the significant delay in the Applicant seeking a Protection visa can support an adverse credibility finding as well as a finding that he does not have a well-founded fear of harm.
[33]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.
Earlier in these reasons it has been outlined the history of the communications and the line of inquiries the Tribunal has undertaken to establish communication with the Applicant. He did not appear at the place, date and time for the scheduled hearing of his application. Therefore, the Tribunal is unable to assess, gauge or determine the veracity or accuracy of any explanation the Applicant may present as to why there was such a substantial delay between his arrival in Australia to when he made his application for a Protection visa.
The Tribunal has carefully assessed all of the available evidence, as well as the Applicant’s significant delay in lodging his application, and the absence of any explanation by him for that delay, and the Tribunal finds that the delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Fiji. The delay in lodging his Protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his current circumstances in respect to having a well-founded fear of returning to Fiji.
Refugee findings
The Tribunal has given careful consideration to the Applicant’s claims specifically outlined in his application which he lodged with the Department. Consideration has also been given to whether, having regard to any foreseeable consequence of him returning to Fiji, there is a real risk that he will suffer significant harm by being imprisoned or harmed. He has that fear because he claims that if he returned to Fiji and did something ‘bad’ or ‘stupid’ to his wife and her new partner, he would be sent to prison or physically harmed.
On the available evidence, the Tribunal finds that his claims are both avoidable on his part, and they are speculative. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear. A fear of persecution is not well founded if it is merely assumed or of it is mere speculation. The High Court went on to find:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the Applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[34]
[34] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.
The speculative nature of the Applicant’s claims, along with the significant delay exercised by him in applying for a Protection visa guides the Tribunal to a finding that any reasonable assessment based on the claims he raises, along with the absence of any evidence to support those claims would conclude that there is not a real chance of him being subjected to persecution in Fiji for any of the reasons provided in section 5J(1)(a) of the Act.
Therefore, the Tribunal does not accept that the Applicant is a refugee as defined in section 5H of the Act, and nor has the Applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.
Complementary protection considerations
The Tribunal has considered the Applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm.
Having already concluded the Applicant does not meet the refugee criterion as provided by the Act,[35] the Tribunal has considered the alternative criterion.[36] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm as it is defined in the Act.[37]
[35]Migration Act 1958 (Cth), s 36(2)(a).
[36]Migration Act 1958 (Cth), s 36(2)(aa).
[37]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the Applicant would suffer significant harm for the reason he claimed if he returned to Fiji. Helpfully, the courts have discussed the test for ‘real risk’ and determined that this risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[38]
[38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered the Applicant’s claims, the Tribunal does not accept that if he returned to Fiji now or in the reasonably foreseeable future, he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji, he will be exposed to a real risk of suffering significant harm.
Overall conclusion
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 section 36(2)(a) of the Act.
Having concluded that the Applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the Applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the Applicant does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Wayne Pennell

Senior Member
Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2586

26 June 2023

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