1922089 (Refugee)

1922089 (Refugee) [2023] AATA 1346 (23 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1922089

COUNTRY OF REFERENCE: Fiji
MEMBER:Justin Meyer
DATE:23 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 23 February 2023 at 9:02am

CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – family member in the Fijian military – political opinion – adverse political profile – fear of killing – verbal abuse – employment – return visit to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 31 October 2017. The delegate refused to grant the visas on the basis that he did not accept:
-The applicant has received threats or verbal abuse from family and neighbours in Fiji due to her brother being a member of the Fijian military.
-The applicant has an adverse political profile that would be of interest to the Fijian authorities.
-The applicant will experience harm due to her departure from Fiji.
-Australia does not have protection obligations to the applicant as outlined in s36(2)(a) and s36(2)(aa) of the Act.
The first named applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments.
The applicants were invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video via Teams. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by video. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether the applicants have a well-founded fear of being persecuted in Fiji for one or more of the five reasons set out, and, if not, 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 they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicants’ identity is established as [an age]-year-old female, and [an age] year-old female as evidenced by Fijian passports. They are mother and daughter (the second applicant does not make separate claims). Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims and evidence
In their application to the department, the applicants claimed as follows:
·The applicant has received threats or verbal abuse from family and neighbours in Fiji due to her brother being a member of the Fijian military.
·The applicant has an adverse political profile that would be of interest to the Fijian authorities.
·The applicant will experience harm due to her departure from Fiji.
The applicant answered questions in her written application as follows:
Provide reasons why this applicant left that country or those countries:
-My brother who is in the army had advised me to leave my country and seek protection overseas.
-For the welfare of my growing up daughter I believe the best option is to leave my beloved country and seek protection overseas.
-We also learned from my brother that our government being militarized will never ever return to normal again.
Did this applicant experience harm in that country or those countries?
-Yes
Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
-Threat of life, living in danger from the militarised government. We were under threat from our neighbours and other relatives as my brother was in the Army.
Did this applicant seek help within the country or those countries after the harm?
-No
Give details of why this applicant did not try to seek help.
-Culture of silence and also we did not know who we could trust.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
-No
Give details for why this applicant did not try to move to another part of the country or those countries.
-Fiji is too small and accessible
Explain what the applicant thinks will happen to them if they return to that country or those countries:
-Threat of life, verbal abuse, may be persecution due to running away. Vicitm of different political opinion that cannot be expressed and communication is monitored by the governement.(sic)
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
-Yes
Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment
• why they would harm or mistreat this applicant.
-As above
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
-No
Give details about why this applicant thinks the authorities could not, or would
not, protect them.
-Though this is a 'democratically' elected government it is still heavily militarised. Military has placed it personnel in the government and organisations to be their eyes and ears in case there is a resistance.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
-No
Give details about why this applicant is unable to relocate.
-Small country, easily accessible and every knows each other.
The applicant submitted a character references from her employer, her church and another individual.
The applicants’ evidence in the hearing
Only the first named applicant (“the applicant”) elected to give evidence.
The applicant arrived in Australia in 2017. She previously worked in [Country 1] from 2008 to 2017. She said she went back home in 2017. She is the carer of the two children and all were at school. Therefore she needed to work in a [business 1]. In Fiji she has her mother, [and specified family members].
She has a husband and two children. They hold bridging visas. Her husband has his own protection application and her daughter is under her application.
She applied for protection visa because she did not want to return to Fiji because of her life back home. She said she had her family with her in Australia and going back was very hard in terms of looking for work and support for her family. This is why she had earlier lived in [Country 1]. Life was better here than in Fiji. She decided to come for this reason.
I asked the applicant what life would be like for her she returned what her fear would be. She said that life was very hard taking care of her family. You do not know who to trust.
Asked if she could trust her family she replied yes. As for the government she could not say anything about them. She said she wanted something to change. She said political opinion cannot be expressed. Communication is monitored.
I asked if she had any bad experiences with the government. She said unemployment. There was a coup in 2006 and people were not going back to work. She had worked at a [business 2] company making [products 1]. Casual workers had been required to stay at home and she lost her job and she was jobless until 2008. There was no work. She had experienced unemployment.
She had finished school in [year] and looked for a job. She had worked for two companies but in 2006 the military coup took place and everybody had to ‘knock off’ early and go home.
Asked if there is anything else that she feared. She said her brother worked in the military. In 2006 people start talking about her family. They started “threatening us” because her brother was in the military, she said. She referred to the curfew. They were not happy with her brother because of what the military was doing. Her brother was still single then and lived with the family. I asked what rank he was to which he said he was an officer. She said her brother was a family man and in the military. Right now his life was “back to normal” with the military.
I asked whether her brother received criticism from people. She said “not right now”. I asked what she thought of the military government. She said although they are elected, you have to be careful what you say about the government. It was reported to police.
I asked if she said things and whether she talked about politics. She said ‘no’ because she had no right to say anything about the government, she was just looking for a better life.
I asked whether she had ever commented online about the government and politics whether she was afraid to do so. She said she was not afraid but did not want to do so. It is an elected government but run by military and you need to be aware or you will be reported.
The family was not involved in politics. She is not interested in politics. She did not talk about the government. She is only worried about the safety of her family. Right now they are safe because it is a long time since the coup. They have a better life now and go with the flow with the government.
I asked about her husband’s protection claim. His [Relative A] had died during the coup. He had been shot. It was shooting going on and the military were at his home. He was involved in the coup. The [Relative A] was attacked in the home and died. This took place in 2006. She could not remember the name of the killer. The matter of who killed him became a court case. The military killed him because of opposition to the military. Her husband is afraid of being linked with the [Relative A].
I discussed native Fijians. I noted that the couple lived in [Country 1] between 2010 and 2017. I asked whether in 2017 she had a problem upon her return to Fiji. She had no problems on return she said. She said the economy was bad. I asked when she returned Fiji, if she had any fear. She said no as she was only there a couple of days before going to Australia. She said that she was looking for a better life and the reason for coming to Australia was that she was afraid of unemployment.
I discussed DFAT country information[1] as follows.
[1] DFAT Country Information Report, Fiji 20 May 2022
ECONOMIC OVERVIEW
2.7
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
2.8
Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
2.9
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
2.10
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
…
Employment and welfare
2.18
Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.
2.19
The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.
2.20
The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.
2.21
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
2.22
The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, DFAT Country Information Report FIJI May 2022 9 children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministryof Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.
2.23
iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.
…
SECURITY SITUATION
2.34
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police)

The Tribunal raised the rule of the (former) Prime Minister Bainimarama and whether she approved of it. She said that she sometimes disapproved. She said that the indigenous people “don’t get much.” Indian Fijians run businesses and they were favoured. The government does not listen to the indigenous people.
The applicant said that matters were not as dangerous as they were in the past, but it might come up again in the future.
I asked if people might deliberately put her into poverty. She said yes because of unemployment.
I asked if there was any other reason for her fear to which she relied ‘no’.
Evaluation
The applicant has stated that her fears are of unemployment and the economic position of Fiji.
She has stated - and the Tribunal finds - that she has no political involvement. I find that she does not face risk as a result. Her family connection with the military was removed from her day-to-day life and revolved around vague claims that they were “threatening the family” because her brother was in the military. This was connected with the 2006 coup and was not a current or ongoing threat by all appearances. There was little proffered in the way of reasons why it would be a threat now or in the reasonably foreseeable future, despite my attempts to establish the position. Similarly, her remarks about her husband’s situation were not related to her current claims, and I am unable to conceptualise a risk for her on this matter either.
When asked for the reasons for not being able to return to Fiji, her focus was upon her standard of living. It appears that she left Fiji for [Country 1] to her improve her family’s financial position and that moving to Australia was for the same reason. This is a positive motive, and it is reinforced by the character references she provided.
Little was elaborated upon about her husband’s claimed issue and I am unable to conclude that he indeed has issues if returned. In any event whether his purported issues would necessarily be sheeted home to her as well is a speculative matter. Any risk would be far-fetched here.
In terms of the economic claims the Tribunal considers the fact that Fiji is not an advanced economy, and its people face broad economic challenges. This would apply to the applicants, but I am unable to conclude that they would face any more risk of serious harm (or significant harm for the purposes of complementary protection) than other Fijians.
With reference to the relevant country information as outlined above and notwithstanding high unemployment rates in Fiji given the Fijian economy is an upper-middle income country the Tribunal is not satisfied that the applicant would in the reasonably foreseeable future be deprived of the opportunity to obtain employment. The Tribunal finds that the applicant has not been and will not be deprived of the opportunity of employment in Fiji and would, given her employment skills together with her work history, have good prospects of employment if to returned to Fiji.
The Tribunal finds that the applicants’ fears of being deprived of an opportunity of employment are not well-founded.
I have no reason to find that the position of second applicant would mark her out differently in this regard. She has been educated in Australia for the last five or so years.
The Tribunal has considered if there are any substantial reasons to believe the applicants will face a real risk of significant harm arising from the applicants’ overall economic circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b) in the context of s.36(2)(a). The Tribunal has already made a finding that the first applicant has the capacity to find remunerative employment in Fiji and she and the other applicant do not face a real chance of serious harm based on these specific claims. While the Tribunal acknowledges the applicants might face difficulties and challenges arising from finding work to support themselves if removed from Australia, it does not accept the applicants will not be able to access paid employment as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A).
Furthermore, the Tribunal finds there is no intention on the part of the governance of the Fiji economy in combination with market forces, to inflict significant harm, including subjecting the applicants to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicants’ country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicants faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Fiji, based on the applicant’s overall economic circumstances will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
Refugee criterion
The Tribunal having considered all of the applicant’s claims both individually and cumulatively does not accept the applicants’ claims. The Tribunal is not satisfied on the evidence before it that there is a real chance in the reasonably foreseeable future of the applicant suffering serious harm amounting to persecution for any of the reasons outlined in s 5J(1) of the Act if the applicant was to return to Fiji. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act. Therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that the applicants’ claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Justin Meyer
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.
…

[2023] AATA 1346

23 February 2023

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