1930591 (Refugee)

[2023] AATA 2529

1930591 (Refugee) [2023] AATA 2529 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930591

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Paul Windsor

DATE:19 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2023 at 2:07 pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion and religion – discrimination and corruption in education and employment, estrangement from family, religion and political/economic/social conditions – forced to farm marginal land by family – Pentecostal Christian in Methodist family and community – late claim of assault and threat at church – low-level protest activity in Australia – country information – recent election and change of government – constitutional freedom of religion and availability of relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Fiji, applied for the visa on 15 November 2018.

3. In his Protection visa application the applicant indicated he was born in [Town 1], Fiji on [Date].  He stated he is ethnic Fijian, a Christian and has never married.  He stated that he departed Fiji legally [in] August 2018 and arrived in Australia on the same day, entering on a visitor visa.[1]

   [1] See the Departmental file.

4. In his application, the applicant indicated he left Fiji because he experienced hardship there trying to achieve a better level of life intellectually, financially and materially, due to financial constraints, nepotism, low wages, opposition to his Christian beliefs and the unstable social and economic situation due to military coups and natural disasters.[2]

   [2] See the Departmental file.

5. The delegate refused to grant the visa finding that, on the available evidence, she was not satisfied that any harm the applicant might face in the future in Fiji due to his Christian beliefs and/or political opinion regarding real or perceived corruption would amount to serious harm.  In relation to the complementary protection criterion, while the delegate accepted that the applicant might suffer some hardship, including economic hardship, if returned to Fiji, she did not consider this would amount to significant harm as defined in s 5(1) of the Act.

6. The applicant sought review of this decision on 28 October 2019.  He provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

7. The applicant appeared before the Tribunal on 14 June 2023 to give evidence and present arguments. While the applicant indicated in his response to the hearing invitation that he would like his brother, [Mr A], to give evidence on his behalf by phone from Fiji, he indicated during the preliminaries to the hearing and confirmed at the hearing that his brother was not available to give evidence.  An undated letter of support from his brother had been submitted to the Tribunal on 2 January 2020 and the Tribunal took this into consideration.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Claims

14. The applicant’s claims, as set out in his protection visa application, are summarised as follows:[4]

    [4] See the Departmental file.

    ·He left Fiji because for the last 25 years he has experienced and endured a lot of hardships trying to achieve a better level of life intellectually, financially and materially in Fiji.  These caused him a lot of psychological and emotional problems.

    ·He could not complete his tertiary education because of financial constraints and due to favouritism and nepotism by the authority in the granting of sponsorships.

    ·He could not secure a permanent job because of favouritism in work places and wages in rural areas are low so he had to resort back to farming to earn a living.

    ·His Christian beliefs and volunteering to carry out its responsibilities was met with a lot of opposition from people in his village and his relations who did not agree with his decision.

    ·He faced unstable and unfavourable social and economic conditions in Fiji.

    ·He felt uneasy and anxious living in Fiji because of military coups and due to recurring natural disasters (cyclones, flooding).

    ·He suffered lack of financial resources, alienation from his relatives and suppression of his gifts, talents and skills because of the ignorance, indifference and jealousy of the authorities and his relatives.

    ·He did not seek help due to fear of being victimised and segregated, fear of being seen as a weakling and lack of trust in the authorities.  In small countries like Fiji, issues like his are not considered important/seen as a waste of time, there is a lack of resources to cater for it and there is favouritism and nepotism in places of authority.

    ·He did not seek to move to another part of Fiji due to financial constraints, his responsibility to care for his elderly parents at home and fear of being victimised.

15. The applicant submitted a number of documents in support of his application including  copies of educational certificates, work references and a number of articles regarding Fiji, including in relation to governance, accusations of nepotism and corruption, and military and police brutality.[5]

    [5] See the Departmental file.

16. The applicant submitted a statement dated 31 October 2019 in support of the review application as well as a document entitled ‘PROTEST’ which included photographs, including some of the applicant holding a placard or banner.[6]  The applicant indicated this related to him taking part in a protest during a visit by the then Fiji Prime Minister, Frank Bainimarama, to the Fiji Day celebrations in [Sydney] on [Date].  He commented that, in Australia, they can openly show their opposition to the corrupt ruling Fiji government whereas back in Fiji such demonstrations are disallowed and those involved or suspected of involvement are dealt with harshly or brutally and in many cases not publicly.  He added that he fears if he returns to Fiji during the present government regime he will be victimised or something worse will might be done to him.

    [6] See the Tribunal file.

17. Relevant additional matters raised in the applicant’s statement of 31 October 2019 are summarised as follows:

    ·He wishes to provide additional material and new information which he neglected to provide previously as he was busy working.

    ·In Fiji there are more people graduating from the school system than jobs available so for him and undergraduates there is little opportunity to secure a decent job.  To secure a good job you need the ‘ex-scholar’, ‘family ties’ or ‘racial group’ networks.  There is nepotism and bribery and corruption at work.

    ·He managed to get a Grant-in aid [Occupation 1] post for four years through a relative of his but it was in a rural outer island area and conditions were harsh.  After four years he was made redundant because there was an increase in graduates waiting for postings.

    ·The only alternative for him was farming land allocated to him by his family.  He had about 3 acres but it was hilly and rocky.  He did not have the capital or advanced farming equipment necessary to develop or cultivate the land so it required toil and hardship.  He had no irrigation so had to rely on favourable weather conditions for food crops, fruit trees and some vegetables to produce a good harvest.  Adverse weather events such as cyclones added to the pressures on him.

    ·His earnings were insufficient to meet his expenses and family, communal and church obligations.  His water and electricity were cut off because he could not pay his bills and he was frustrated when his siblings did not pay off what they owed him once they got their own source of electricity.

    ·His eldest brother has also taken over part of his land and told his other brother, who was looking after it in the applicant’s absence, not to touch it.

    ·He needs protection from these kinds of abuse from his siblings and family.  The problems are compounded by traditional Fijian cultural expectations including around respecting their elders and expectations around participating in traditional events.  Failing to do so usually results in one being questioned, ridiculed or even alienated or expelled and denied the right to previously enjoyed privileges.

    ·He is privileged to have secured full-time employment in Australia with [Employer] in [Town 2] NSW.

    ·When he changed from being a Methodist Christian to become a Pentecostal Christian he encountered a lot of resistance from his own people.  He was ridiculed, made fun of and even sworn at by village elders and peers who accused him of being disrespectful and not honouring traditional Fijian culture and traditions.  He faced strict resistance from his father who treated him like a slave because he disagreed with his new faith practices.  He became depressed and lost a lot of weight because of the hard toil, often involving hard farm work, that he was forced to carry out if he wished to stay living at home.

    ·He also encountered resistance to his attempts to share the gospel in other places, especially Fijian villages.  Sometimes he was told or threatened to leave immediately and in one case was threatened and warned not to return by a man wielding a knife.  He found this terrifying and disheartening.

    ·In 2015 he was assaulted by a man in their church during a Sunday morning service.  The man was dragged outside by church elders but threatened to assault him wherever they met.  This was a constant source of fear and anxiety for him.

    ·He does not like the coup led governments and is against the Bainimarama government.  He is a silent rather than vocal opposition and advocate against the present and past coup leaders because of his fear of being abused and bullied by them and the army/special forces.  There have been a lot of cases, most of which are not publicly known, where those who oppose the government have been abused and tortured.

    ·He also supports the idea of forming a Christian state in Western Fiji because the Bainimarama government has taken away and compromised their Christian rights and privileges.  He does not agree with the decision to change the state to become a secular state when it is rightfully a Christian state, or abolishing the use of the name Jesus in parliament and allowing other religions to pray together with Christians.  The government jailed the leaders of the movement and they feared that they, as supporters of the movement, would also be hunted down.

18. The applicant also submitted a range of other documents in support of the review application including copies of further news articles regarding accusations of nepotism and corruption in the Bainimarama government; calls by Chiefs in Fiji’s west for a fourth confederacy; sedition charges against people seeking to establish a Christian state in Fiji; government actions against union protesters; retrenchments at Fiji water; a government crackdown on dissidents; governance issues including public debt; Fijian traditions; the impact of natural disasters; and military and police torture/brutality.[7]

    [7] See the Tribunal file.

19. The applicant also submitted an employment reference from [Employer]; copies of payslips and bank records; and letters of support from his brother and a senior pastor in Fiji.[8] 

    [8] See the Tribunal file.

20. The applicant’s brother indicates he wrote the letter in support of the applicant’s claims of persecution due to his Christian faith.  He indicates the applicant is the youngest of [Number] siblings and has [brothers] and [sisters].  He indicates that after the applicant converted to become ‘a true born again believer’, he suffered a lot of persecution from their dad and from fellow villagers and others outside since his faith required him to forsake many traditional Fijian beliefs and rituals.  He indicated their father assigned the applicant all the difficult and heavy work and denied him food many times.  He supported the applicant’s claims that their elder brother forcefully took over part of the applicant’s farm land; that the applicant suffered ridicule, verbal abuse and threats when he went to share his faith; and that the applicant was assaulted and threatened in church in June 2015.

21. [Pastor B] of [Church] also comments that the claim that the applicant was physically assaulted and threatened in June 2015 is true and that since that incident he was anxious regarding his safety in Fiji.

22. On 8 June 2023, prior to the hearing, the applicant submitted letters of support from the President of [Organisation] and [Mr C], [Job title], [Town 2], [Employer], where the applicant is currently employed; and further copies of 7 articles submitted previously (in 2019).

23. In her letter of 29 April 2020, [Ms D], President of [Organisation], indicates that the applicant has become an active member of the Fijian community in [City] since arriving there in 2018.  She comments that they fully understand and sympathise with his personal traumas with his family and relations because of his faith and because of the social and economic conditions of Fiji.

24. In his letter of 6 June 2023, [Mr C], [Job title] at [Town 2], [Employer], indicates that the applicant has been a full-time employee with them since 22 July 2019 and he is in support of a current sponsorship application the applicant is undertaking to continue his employment with [Employer].

    Evidence from the hearing

25. At the hearing the applicant indicated that his parents are both deceased, his mother having passed away in around 2010 and his father having passed away in 2013.

26. He confirmed that he has [brothers] and [sisters].  He indicated that they live in his home village ([Village]) near [Town 3] in the province of Nadroga-Navosa.  He indicated his village is located about [Number] minutes’ drive from [Town 1].  He indicated all his siblings are married and that his [brothers] are subsistence farmers.  He confirmed that he has never married.  He indicated that his father was [an Occupation 2] in [Town 1].

27. When asked, the applicant said his family has ‘not more than 10 acres’ of land but commented that it is mostly rocky so less than that is arable land.  He said they grow some root crops (cassava and yams) and some fruit trees.

28. When asked about his education, contrary to the advice in his application, which indicated that he ‘Completed (Passed)’ a Bachelor of [Subject 1] degree in [Year], the applicant said he did not complete the degree because his scholarship was revoked.  When asked why this was the case, he said he did not pass the minimum course units required.  When queried how he was subsequently able to obtain employment for 4 years as a ‘Grant in Aid [Occupation 1]’, the applicant said they hired undergraduates at the time ([Years]) because of a shortage of [Occupation 1] staff.  He indicated he managed to get a spot in the rural areas of outer islands.  When asked why that employment ended, the applicant said they did not renew his contract.  When queried that he had submitted a positive reference in relation to his work at [Workplace 1] (dated [Date]), the applicant indicated the reference was from the [Job title] whereas contracts were given by the [Government department].

29. The Tribunal also asked the applicant about the reference in his application to having worked at [Workplace 2].   He said it was a holiday job for three months after he finished at university and before he went [to do Occupation 1].

30. The applicant indicated that, after he finished [doing Occupation 1] (in Late [Year]), he did not do any further paid work.  He said he just did voluntary work for his church.  When asked how he supported himself from that time, the applicant said it was through selling stuff from the farm.  He added, however, that it was mostly subsistence farming.

1. The Tribunal asked the applicant about the Diploma in [Subject 2] which he indicated in his application he completed at the [Institute] in Suva in 2004. He said this was one year full-time course which he was nominated to do by his church so he could ‘minister’ to people as a lay volunteer.

2. When asked what he has been doing since he arrived in Australia in August 2018, the applicant said he initially went to [Town 4] in regional Victoria where he helped the pastor in the church there.  He said he then went to [City] where there is also a church and obtained work with [Employer] in [Town 2] NSW which is about a 50 minute drive away.  He commented that he was made a permanent employee with [Employer] in July 2019 after he had been working there for six months, after he got work rights.  He indicated that he decided to remain in [City] and commute to work each day because of his commitment to the church, where he does voluntary work, and because of the Fijian community in [City].

3. The Tribunal asked the applicant when and why he converted from Methodist to Pentecostal Christian.  He said he was brought up in the Methodist church and all his immediate family and relatives were Methodist but converted to Pentecostal in [Year].  He indicated that his decision to convert was not well received.  When asked why he made the decision to convert, the applicant said he was attracted to the Pentecostal style of Christian teaching.  He said he loves the teachings and finds it is more open-minded.  When asked how he became aware of the Pentecostal church, the applicant said he started listening to their broadcasts and then mission workers visited them at their home in the village and invited them to come over.  When asked if others in the village converted, the applicant indicated that the only other convert was his brother, [Mr A], who provided the letter of support.

4. When asked, the applicant indicated there is not a Pentecostal church in his village so he went to services in a town about six kilometres away from the village.

5. The Tribunal asked the applicant if he raised with his parents or others that he was thinking of converting before he did.  He said he did not.  He acknowledged he was a little concerned regarding how they might react but said he did not speak with his father about it because he considered it to be a personal decision.

6. The applicant indicated that the Pentecostal church he was involved with in Fiji was the [Church].  He indicated that the church he is involved with in [City] is affiliated with this church. 

7. The Tribunal observed that the current DFAT Country Information Report indicates about 65 per cent of Fiji’s population of approximately 940,000 people are Christian, while about 25 per cent are Hindus and 6-7 per cent are Muslim.[9] The 2013 Constitution established Fiji as a secular state, guaranteeing freedom of religion and specifically protecting against religious discrimination and the Government and people generally respect religious freedom. The report indicates that the Methodist Church in Fiji and Rotuma is the largest denomination with over 212,000 members (almost 23 per cent of the population) while other Christian denominations include Catholicism, Assemblies of God and Seventh Day Adventist. The report notes that most traditional chiefs, who are influential in Fijian society, are Methodists and that Methodism in this context is a shared tradition rather than a single church hierarchy.

   [9] DFAT Country Information report, Fiji, 20 May 2022, sections 2.5 and 3.11-3.14.

8. When asked, the applicant estimated that approximately 50,000 people in Fiji are Pentecostal and that [his church], has between [Numbers] members.  When asked if he had any comments on the country information, the applicant said his experience when he started doing mission work and taking the gospel to the people, especially in rural areas and villages where Fijian traditions remain strong, was that there was a lot of opposition.  He said in some villagers they were told to leave/sent away forcefully.  He commented that in his village he had to stop calling people to village meetings of his church because he was summoned by the village elders and Methodist Ministers and told to stop his activities sharing the Pentecostal movement.  He said they considered Pentecostal practices to be disrespectful because they have music and are noisy, which did not align with traditional Fijian culture.

9. The Tribunal asked the applicant how he dealt with that.  He said they have to leave and go to other places where they were accepted.

10. The Tribunal asked the applicant about his claim to have been assaulted and threatened by a man in church in June 2015, observing that this claim raises issues under s 423A of the Act because it was not raised before the delegate made his decision on 3 October 2018.  The applicant commented that he did not raise it earlier because it was an embarrassing situation that led to the assault.  He indicated that it occurred at a Pentecostal church he was attending at the time which was located about a half hour drive from where he lived.  He said the man accused him of having an affair with his wife.  When asked, the applicant acknowledged that he was having an affair with this man’s wife at the time. 

11. The applicant said the man punched him a few times before other men from the church dragged him outside.  The Tribunal asked the applicant if he experienced any other problems with this man over the three years he remained in Fiji before he came to Australia in August 2018.  He indicated he did not, commenting that he stayed away and just avoided this man and had no further encounters with him.  When asked, the applicant said he stopped seeing this man’s wife.

12. The Tribunal asked the applicant about the economic hardship he claims to have faced.  The applicant indicated that the family land of not more than 10 acres is shared between three brothers and there is not much they can get out of the land.  The Tribunal asked whether he had looked for other employment, observing that the DFAT Country Information Report indicates that Tourism accounted for 40 per cent of the Fijian economy pre-COVID-19.[10]  The Tribunal also noted that he had worked previously at [Workplace 2] and that his father had worked as [an Occupation 1].  The applicant commented that he had not looked for work in the tourism industry because there are a lot of people seeking work and there is less work available.  the Tribunal suggested that the industry would be recovering now that COVID-19 related restrictions have been lifted and that he is well educated and has skills such as good English language skills (the hearing was mostly conducted in English) that might make him attractive to employers.  The applicant commented that the wage rate on offer, which is between 2-3 Fiji dollars an hour, is pathetic.

    [10] DFAT Country Information report, Fiji, 20 May 2022, sections 2.7-2.10 and 2.18-2.23.

13. The Tribunal observed that the DFAT Country Information Report indicates that the World Bank defines Fiji as an upper-middle income country, that Fiji is one of the largest economies in the Pacific region, and its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.  As well as indicating that Tourism accounted for about 40 per cent of the economy pre-COVID-19, the report indicates that agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.

14. The report indicates that, according to World Bank data, about 30 per cent of the population was living in poverty in 2019 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.

15. The report also states that 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.

16. The report confirms that the minimum wage is currently 2.68 Fiji dollars (about AUD1.75) per hour.  Employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that had not been implemented at the time of the report.

17. When invited to comment on the country information, the applicant said that the information may be correct but the cost of living is not on par with what they earn.  In relation to corruption, the applicant commented that the previous Bainimarama government was corrupt, practising nepotism and favouritism.  He added that there were news reports regarding the employment of family members which he forwarded to the Tribunal.  The Tribunal acknowledged that it had seen the reports he had submitted.

18. The Tribunal asked the applicant how corruption in the previous government affected him personally.  He said it was very difficult for him to find work in the civil service.  The Tribunal observed that he indicated he was able to get [Occupation 1] work for 4 years with the assistance of one of his family members.  The applicant acknowledged this was the case but added that when this person went away he was replaced, so it was hard for him.

19. The Tribunal discussed with the applicant the issues he raised with his family and relatives, including his father and his eldest brother.  The Tribunal noted he wrote that his father treated him like a slave. The applicant commented that this was after he converted to the Pentecostal faith.  He said his father was one of the village elders and was concerned about what the village people would say about him converting.  He reiterated the comments in his written statement about being given hard physical labouring tasks to do every day except Sunday, having to return to farm work after lunch, and having to look for his own food if he came home late from visits related to his faith.  The applicant commented that he had to work really hard in order to stay at home.  When asked, he said his brother who also converted to the Pentecostal faith did not experience the same treatment, as he had his own house.

20. The Tribunal asked the applicant about his experiences after his father passed away in 2013.  He acknowledged that things improved for him after that but said he still experienced problems with relatives and villagers who looked down on him and treated him with indifference.  The Tribunal asked the applicant if he thought about leaving home and going somewhere else to live.  He said he did not, commenting that he did not know what to do.  The Tribunal queried whether he might have gone to the capital Suva or the tourist city Nadi and look for work there.  The applicant said he wanted to stay close to his church.  When queried whether there were branches of his church in Suva and Nadi, the applicant indicated there are but commented that he did not know them well.

21. When asked about his eldest brother, the applicant indicated he has not spoken with his brother about taking over some of his land but has just let him take it.  When asked what his relationship with his eldest brother is like, the applicant said they do not talk much.  He indicated he has a good relationship with his other brother and talks with him.  He indicated that he does not talk much with his three sisters, who are all married.

22. The Tribunal asked the applicant why he did not mention in his written statement dated 31 October 2019 that he attended a protest against then Prime Minister Bainimarama in Sydney on 26 October 2019.  The Tribunal observed that he wrote in his statement that, while he is against the Bainimarama government he is not vocal but is a silent opposition.  The applicant said that comment applies to his activities in Fiji where he considers it unsafe to be vocal but he felt it was safe for him to protest in Australia.

23. The Tribunal queried the applicant regarding the copies of photographs he provided because they did not show a group of protesters of give a clear indication of where the protest was held.  The applicant said the event was held in a park in [Sydney] and they were at a gate which Bainimarama was supposed to pass through.  He said there were about 20 protesters there.  When asked, he said no police attended. The Tribunal observed that it could not discern any road or gate in the pictures submitted and is surprised that no police would be in attendance when there was a protest at an event attended by a foreign Prime Minister.  The applicant commented that he was informed that there were no bodyguards or police presence.  The Tribunal reiterated that this seems very unusual.

24. When asked, the applicant indicated that the last two photos are of members of the organising committee for the protest.  He said he was not part of the organising committee but attended the protest with one other person from [City].

25. The Tribunal observed that, since 2013, the Fiji constitution has stated that Fiji is a secular state and asked the applicant why he disagrees with that, why he supports the creation of a designated Christian state in the Western Division of Fiji and what that would mean.  The applicant indicated there was a push to form a separate state.  When asked what that would mean for Muslims and Hindus in Fiji, the applicant said they have good relations with the other races/religions, noting that most of the Muslims and Hindus in Fiji are in the Western Division and they live together harmoniously.  He said the only problem is the politicians at the top.

26. The Tribunal observed that the Bainimarama government was defeated at the December 2022 election and that Sitiveni Rabuka now leads a coalition government comprising the Social Democratic Liberal Party (SODELPA), the National Federation Party (NFP) and his own People’s Alliance Party (PAP).[11]  The Tribunal observed that this peaceful transfer of power after the 2022 election follows the 2018 election, where the Bainimarama government had been returned in an election that was described as orderly and free from violence.[12]  The Tribunal asked the applicant what concerns he has if he had to return to Fiji now.  The applicant commented that he does not know, adding that he still has issues with his family regarding his religious beliefs.  He commented that, in relation to the economy, while the previously government is no longer in power, the economy is still recovering.

    [11] ‘Under New Leadership, What’s Next for Fiji?’, The Diplomat, 10 January 2023, Under New Leadership, What’s Next for Fiji? – The Diplomat

    [12] DFAT Country Information report, Fiji, 20 May 2022, sections 2.4 and 2.34.

27. The Tribunal asked the applicant if he still has concerns, as raised in his submission regarding the protest he attended in October 2019, that he will be victimised or something worse might happen to him because he participated in that protest. The applicant commented that he is not sure. The Tribunal suggested that it does not seem likely that he would experience any problems as a consequence given the change in government and the nature of the protest and his involvement in it. The applicant commented that he hope’s so but reiterated that he is not sure.

28. When asked if there were any other matters he wished to raise, the applicant commented that [Employer] is in the process of sponsoring some people for skilled visas but he needs to undertake an English language test, which he is looking to book as soon as possible.  He requested the Tribunal take into consideration that he has been in Australia since August 2018, has become a member of the Fijian community and his local church community in [City], and is now part of the workforce in Australia, is a taxpayer and has been a law abiding member of Australian society.  The Tribunal acknowledged those factors but reminded the applicant that, as outlined at the beginning of the hearing, its role in this review is to consider whether he meets either the refugee criterion or the complementary protection criterion for the grant of a Protection visa.

    Findings and reasons

    Identity

29. On the basis of the copy of his passport submitted to the Department,[13] the Tribunal accepts that the applicant is a citizen of Fiji and that his identity is as claimed.  The Tribunal accepts that Fiji is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [13] See the Departmental file.

30. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Fiji, there is a real risk he will suffer significant harm.

31. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

32. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

33. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

34. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

35. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

36. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Assessment of claims

    Claim to fear harm due to his religious beliefs

37. The Tribunal accepts the applicant converted from the Methodist Christian faith to the Pentecostal Christian faith in [Year].  While the Tribunal notes he indicates that a brother also converted at the same time, the Tribunal accepts that other family members, particularly the applicant’s father, did not approve of his decision to change faiths.  The Tribunal also accepts that some relatives and community members may have disapproved of his decision and shown indifference or even some hostility to the applicant as a consequence.

1. The Tribunal accepts that the applicant’s father may have treated the applicant harshly after his decision to convert to the Pentecostal faith, by requiring him to work long hours doing hard physical labour on their land and being indifferent to his other needs and interests.  The Tribunal notes, however, that the applicant did not leave the family home, an option that would seem to have been available to him if the situation was intolerable.  He indicated that he did not think about leaving home to look for work in the major centres of Nadi and Suva because he wanted to be close to his church, even though he acknowledged there are branches of his church in those centres.

2. The Tribunal also notes that the applicant’s father passed away in 2013, five years before the applicant came to Australia.  The applicant indicated at the hearing that things improved after this time, although his relatives and the villagers still treated him with suspicion and indifference.  The Tribunal notes that the applicant’s brother, [Mr A], who also converted to the Pentecostal Christian faith, continues to live in the village and the applicant has not indicated that he suffers serious harm due to his faith.  While the Tribunal acknowledges that being treated with suspicion and indifference would be unpleasant for the applicant, the Tribunal does not consider it amounts to serious or significant harm.

3. The Tribunal accepts that the applicant’s ministering and/or proselytising activities may have met with resistance and on occasions, the applicant being counselled, warned or threatened to cease his activities in some areas.  When asked how he dealt with that, however, the applicant simply said they had to leave and go to other places where they were accepted.  The Tribunal considers that this is the nature of such activities, that some people will not be open to hearing about the new ideas, and those proposing the ideas will need to look elsewhere for receptive minds.  The Tribunal finds that the applicant did not suffer treatment amounting to serious or significant harm as a consequence of his ministering and/or proselytising activities.

4. The Tribunal also gives weight to the country information and the applicant’s evidence at the hearing which indicates that, while a significant proportion of Fiji’s large Christian population is Methodist, there is a sizeable Pentecostal community. As noted above, DFAT indicates that the 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion, specifically protects against religious discrimination and that freedom of religion is well established in Fiji and the Government and people generally respect that freedom.

5. Accordingly, the Tribunal finds that the applicant does not face a real risk of suffering persecution involving serious harm due to his Pentecostal Christian faith, should he return to Fiji, now or in the reasonably foreseeable future.

   Claim to have been assaulted in June 2015

6. The Tribunal accepts that the applicant was assaulted by a man in a church in June 2015.  The Tribunal finds, however, that this was not because of the applicant’s faith or his religious activities, but was because the applicant was having an affair with this man’s wife.  While the applicant stated that this man threatened he would assault him if he saw him again, the applicant indicated at the hearing that he never had any further contact with this man in the three years he remained in Fiji before coming to Australia in August 2018.  He also indicated that he stopped seeing the man’s wife.  The Tribunal considers this was a one-off incident.  There is no evidence to indicate or suggest this man was actively pursuing the applicant post the June 2015 incident.  The Tribunal considers there is not a real chance/risk of the applicant suffering serious or significant harm from this man should he return to Fiji now or in the reasonably foreseeable future.

   Claim to support a Christian state in Fiji

7. While the applicant indicated in his written statement of 31 October 2019 that he supports the push by some high chiefs for the establishment of a Christian state in Western Fiji and does not agree with Fiji becoming a secular country, at the hearing he had difficulty articulating the reasons for his claimed support.  When asked what that would mean, including for people of other religious denominations, the applicant simply commented that all the various ethnicities and religious groups in Fiji live together harmoniously and the only problem is among the politicians at the top. 

8. As noted above, the 2013 Fiji Constitution established Fiji as a secular state. While the Tribunal accepts that material submitted by the applicant indicates that the Fiji government has taken legal action against some senior figures actively promoting the establishment of a Christian state in Fiji, in contravention of the Constitution, the Tribunal finds there is nothing in the applicant’s evidence to indicate or suggest he is of any interest to the Fijian authorities because he supports a proposal for a separate Christian state or states.

   Claim to fear harm due to his opposition to the government

9. The applicant indicated in his written statement that he does not like coup led governments and is against ‘the present’ Bainimarama government.  He indicated that, in Fiji, he was silent in his opposition for fear of being abused/bullied by the army/special forces but participated in a protest against Bainimarama in Sydney in 2019, and fears he could be victimised or worse if he returned to Fiji.

10. DFAT advises that Fiji has had four coups d’état in recent history; two in 1987, both instigated by Colonel Sitiveni Rabuka, who later served as Prime Minister and Leader of the Opposition; one in 2000, led by George Speight, who is in prison; and most recently in 2006, led by Commodore Josaia Voreqe (Frank) Bainimarama who, at the time of the most recent DFAT report, was Prime Minister.[14]  As noted above, Sitiveni Rabuka is now (again) Prime Minister, having led a three party coalition to government in a peaceful transition of power from Bainimarama in the December 2022 election. 

    [14] DFAT Country Information Report, Fiji, 20 May 2022, sections 2.2-2.4 and 3.40.

11. The last coup d’état in Fiji was in 2006 and DFAT indicates that the 2014 and 2018 elections, both won by Bainimarama’s FijiFirst party were both judged to be credible by the Multinational Observer Group led by Australia.  DFAT states that politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.  DFAT also comments that Fiji is generally stable and secure. The 2018 elections were orderly and free from violence, and crime rates, especially for violent and organised crime, are generally low.[15]

    [15] DFAT Country Information Report, Fiji, 20 May 2022, sections 2.4, 2.34 and 3.32.

12. Considering the various news and other articles submitted by the applicant, the Tribunal accepts that there were allegations of nepotism and corruption against the Bainimarama government.  The Tribunal accepts that the applicant was not a supporter of that government.  However, as the applicant indicated in his written statement, he was never active in protesting against the Bainimarama government while he was in Fiji.  As Bainimarama is no longer in office the applicant would have no cause to protest against the Bainimarama government should he return to Fiji.

13. The applicant indicated he was involved in a protest against the Bainimarama government at the Fiji Day celebration in [Sydney] on [Date], which the then Prime Minister attended.  From the photographs that the applicant has provided, the Tribunal considers, however, that this was a very small, low key protest which does not appear to have been near a road or gate that Bainimarama would have travelled on/through.  No other people/crowds are shown in the photographs.  The applicant indicated that no police were in attendance, which would seem to indicate that security authorities determined that there was no prospect of the protest disrupting proceedings.  There is nothing, such as copies of press reporting, to indicate or suggest that Bainimarama was aware of the presence of any protesters, let alone the applicant, who indicated he was not among the organisers of the protest.

14. DFAT indicates that it has not observed a strong pattern of interference against low-level attendees of protests in Fiji (protest leaders are more likely to be charged) and, on that basis assesses that protesters face a low risk of official discrimination (while noting that such discrimination is not impossible).  DFAT comments that protesters face a moderate risk of violence in the form of police brutality.[16]

    [16] DFAT Country Information Report, Fiji, 20 May 2022, section 3.27.

15. The Tribunal has considered the recent change in government in Fiji, the very low level nature of the protest the applicant participated in in Australia, his lack of any organisational role in the protest, the lack of any history of the applicant being politically active in Fiji, and the relevant country information cited above.  Given these factors, the Tribunal concludes that there is not a real risk the applicant would face persecution involving serious harm due to his actual or perceived political views, should he return to Fiji now or in the reasonably foreseeable future.

    Economic hardship

16. The Tribunal accepts that the applicant suffered some economic hardship while living in Fiji.  Although the country information discussed with the applicant is reasonably positive regarding the Fijian economy, the Tribunal accepts that farming, which the applicant did for much of his time in Fiji, is vulnerable to extreme weather events such as cyclones. 

17. The Tribunal considers, however, that the applicant has exaggerated the impact of factors such as corruption and nepotism on his personal circumstances.  In this regard, the applicant claimed in his written statement that he could not complete his tertiary education because of financial constraints and due to favouritism and nepotism by the authority in the granting of sponsorships. At the hearing, however, he indicated his sponsorship was revoked and he did not complete his Bachelor of [Subject 1] degree because he did not pass the necessary minimum required course units, not as a result of favouritism or nepotism.

18. As discussed with the applicant at hearing, he presents as a well-educated and well-spoken man who has good English language skills.  He also appears to have chosen to remain in his village farming the family land rather than seeking paid employment in the major towns of Nadi and Suva because of his commitment to his local church and his volunteer ministering activities, even though his [Church] has churches in those towns.  Noting that his father previously worked in [Town 1] as [an Occupation 2] and the applicant himself had a period of employment at the [Workplace 2] in [Town 3], it would seem the applicant could seek employment in the Tourism sector, which is a major part of the Fiji economy.

19. The Tribunal also notes DFAT’s advice that, while World Bank data indicates about 30 per cent of the population was living in poverty in 2019, the International Labour Organisation (ILO) indicates that subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.  While the applicant suggested in his written statements that he had been alienated by family members who showed indifference to him, at the hearing he indicated he remains in contact with and is close to his brother, [Mr A], who also converted to the Pentecostal faith and remains living in the village.  The Tribunal considers that the applicant could likely derive some kin-based support from his brother if necessary. 

20. The applicant has indicated that his eldest brother has taken over cultivation of some of his land, which he had asked [Mr A] to look after in his absence.  When queried about this at the hearing the applicant indicated that he had not pursued the matter with his elder brother, suggesting he was not overly concerned about this development.

21. The Tribunal also finds the applicant has demonstrated initiative and resilience in coming to Australia, a country with a different culture and language, and was able to quickly establish himself here with the support of the Fijian community and local Pentecostal church, and find work to support himself. 

22. The Tribunal accepts that the applicant has a strong desire to remain in Australia and that his economic circumstances would likely be significantly better in Australia, where wages are much higher than in Fiji. 

23. Noting the applicant’s close relationship with his brother, [Mr A], the Fijian kinship system, and the applicant’s close ties with his Pentecostal church, however, the Tribunal does not accept that the applicant will become homeless and/or be without food or other basic needs if he returned to Fiji. The Tribunal does not accept that any hardship and stress the applicant might suffer due to experiencing reduced economic circumstances on return to Fiji would amount to serious harm.  The Tribunal finds there is nothing to indicate or suggest there is a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion), should he return to Fiji.

    Does the applicant have a well-founded fear of persecution if he returned to Fiji?

24. Having carefully considered the applicant’s claims both individually and cumulatively, for the reasons given above, the Tribunal finds there is not a real chance that he will suffer persecution involving serious harm from the Fijian government and/or its authorities, including the police and military; non-Pentecostal Christian family members, relatives or community members; employers; or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if he was to return to Fiji, now or in the foreseeable future.

25. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

26. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

27. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17]

    [17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

28. Significant harm is exhaustively defined in s.36(2A): s.5(1). 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.

29. 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.

30. Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from the Fijian government and/or its authorities, including the police and military; non-Pentecostal Christian family members, relatives or community members; employers; or any other authority, organisation, person or group.

31. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

32. In reaching this conclusion, the Tribunal also finds that any economic hardship the applicant might experience if removed to Fiji, including feelings of emotional distress and/or humiliation due to his reduced economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.

    Member of the same family unit

100.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

DECISION

101.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Paul Windsor
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.

…