1933997 (Refugee)

1933997 (Refugee) [2022] AATA 4978 (1 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1933997
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Haag
DATE:1 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 December 2022 at 5:31pm
CATCHWORDS
REFUGEE – protection visa – Fiji – failed to repay money borrowed from a government department – standard of living and life in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), rr 2.08, 4.31A; Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 6 September 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 6 December 2018, with [the fourth-named applicant]’s application being made on 25 February 2019 and combined with the earlier application as a child born after that application was made but prior to a decision being made on the application[1]. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and the secondary applicants (the second, third and fourth named applicants) (partner, daughter and son applicants) are not members[2] of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who hold a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
[1] Regulation 2.08 of the Regulations, and as per delegate’s decision record dated 21 October 2020 with respect to [the fourth-named applicant]’s protection visa application.
[2] Member of the family unit for the purposes of s 5 of the Act is defined in reg 1.12 of the Regulations and includes spouse or de facto partner or child (reg 1.12(2)).
The applicants appeared before the Tribunal on 28 November 2022 to give evidence and present arguments. The Tribunal received oral evidence from [the first-named applicant] and [the third-named applicant]. The partner applicant asked to be referred to in the hearing as [the second-named applicant].
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 (DFAT), 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.
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The application for a protection visa[3] set out the following information in relation to the applicants, who claimed to be Fijian citizens:
·[The first-named applicant] (the applicant) was born on [date];
·[The second-named applicant] (partner applicant) was born on [date];
·[The third-named applicant] (daughter applicant) was born on [date]; and
·[the fourth-named applicant] (son applicant) was born on [date] (as noted in paragraph 2, this applicant’s application was made on 25 February 2019 and combined with the earlier application).
[3] Unless otherwise indicated, all following information is contained in Departmental file [number].
The applicant identified as being of the Methodist religion, and stated that he could speak, read and write in Fijian and in English. The partner applicant stated the same.
As to education the following information was provided:
·The applicant attended primary education [at location] from January 2001 to December 2008 and went on to complete his secondary education in [City 1] from January 2009 to December 2012.
·The partner applicant attended primary education from 2001 to 2008 and went on to complete her secondary education from 2009 to 2012 with her education being undertaken in Fiji.
Previous travel to other countries in the last 30 years was not something any of the applicants had undertaken.
In terms of employment, the applicant said he had provided labour to a farmer from October 2015 to October 2018 in [Town 1], Australia, and had not worked since then. The applicant indicated his partner had never worked.
As to places of residence, the applicant indicated that he had lived in [City 1], Fiji from June 1995 until October 2015. In Australia he had lived in [Town 1] from October 2015 to October 2018, and from October 2018 to the date of application he had lived in Sydney, Australia. The partner applicant had lived at the same residences in Australia, and in Fiji had lived in [City 2] from 1998 to 2016. The application for review lists a [Town 1] address.
The applicant did not provide any details of other family members in Australia or overseas who were not included in the protection visa application. The partner applicant stated that her mother was in Fiji. According to the evidence at hearing, [the second-named applicant]’s parents reside in [Town 2], and they have been granted Australian protection visas on a different basis to that which was relied on by the applicants in this review.
According to the evidence at hearing the second, third and fourth named applicants do not make separate claims for protection; rather they rely on the success of [the first-named applicant]’s application for a protection visa and being members of the same family unit as [the first-named applicant].
The applicant provided the following documents to the Department concerning his identity and the identities of his family:
·Copy of his passport.
·Copy of his birth certificate.
·Copy of his daughter’s birth certificate.
·Copy of his partner’s passport.
·Although not on the electronic copy of the Departmental file received by the Tribunal, a reference is made to a copy of the birth certificate of the son applicant having been provided to the Department in the delegate’s decision[4].
[4] See delegate’s decision of 21 October 2020 which was provided to the Tribunal and refers to a copy of a VIC Birth Deaths and Marriages Birth Certificate having been issued in the son applicant’s name.
The documents provided by the applicant are consistent with the evidence provided to the Tribunal. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that he is a citizen of Fiji, and as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Sydney, Australia [in] October 2015 after departing Nadi Airport in Fiji [in] October 2015, with the partner applicant arriving in Sydney from Nadi in 2016.
The applicant submitted a valid protection visa (XA-866) application to the Department on 6 December 2018. No separate claims for protection were made for the partner, daughter and son applicants respectively.
The applicant’s protection visa application was refused by the Department on 6 September 2019, with the partner and daughter applicants having their applications refused on the same day and in the same decision. The son applicant, having made a later application on 25 February 2019[5], had his application refused on 21 October 2020.
[5] Combined under reg 2.08 of the Regulations with the earlier application of his father, the applicant.
The applicant applied to the Tribunal on 3 December 2019 for review of the refusal decision dated 6 September 2019. A review application was received for the son applicant on 25 November 2020 and under reg 4.31A of the Regulations could be combined with the applicant’s review application.
Claims for protection and other supporting documents
The applicant submitted his claims for protection when he lodged his protection visa application with the Department on 6 December 2018. The applicant’s claims are as follows:
75 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for).
I am seeking protection in Australia so that I do not have to return to Fiji.
76 Why did you leave that country/those countries? Provide specific details
I came with a group from Fiji with a short stay working visa. This visa allow us to work. Along our group was [a government office holder], and the agreement was made for the Tourism Department to pay for our fare. While we came and work then we will payed it back. But when we arrived we were informed that we will be going to work in the farm and the contractor will get hold of our passport.
77 What do you think will happen to you if you return to that country/those countries?
I was one of those that I was not able to pay what I owe because we only have 2 weeks visa and I can’t fullfill to pay on time.
If I will go back they will take me task and harmed me.
I am scare of going home.
78 Did you experience harm in that country/those countries?
Yes
Yes I do, I have seen people and my family got bullied and harm by police and military officer
I am scare of going home.
79 Did you seek help within that country/those countries after the harm?
No      Give reasons for why you did not try to seek help
No I didn’t because I was came with working visa, but if I will return definitely I will face consequences.
80 Did you move, or try to move, to another part of that country/those countries to seek safety?
No      Give reasons for why you did not try to move to another part of that country/those countries
No I don’t, But if will return I will get into trouble.
81 Do you think you will be harmed or mistreated if you return to that country/those countries?
Yes    Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
Yes I will be harmed and mistreted if I will return to Fiji
I am scared of going home.
82 Do you think the authorities of that country/those countries can and will protect you if you go back?
No      Give details about why you think the authorities could not, or would not, protect you
No they will never help, Fiji is the country that we are the citizen face so much harm from police, gang and military
83 Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
No      Give details about why you are unable to relocate
No, If I will relocate they still manage to find me because it is a small country and I will get harmed.
The Departmental file shows that the applicant provided the documents listed above in [19] to the Department[6]. The Departmental file does not show that there was any supporting material provided with respect to the claims made in the application for the visa, as stated above in [25].
[6] With the exception of the son applicant’s birth certificate, which is referenced in the delegate’s decision of 21 October 2020 for the son applicant.
The applicant provided a copy of the record of the delegate’s decision to the Tribunal and the Tribunal has read that decision. This was the only document the applicant provided to the Tribunal.
The applicant unequivocally informed the Tribunal that the claims he made in his application for the protection visa were false and that he did not owe money to anyone in Fiji. In making this admission to the Tribunal the applicant negated the primary reason upon which he had claimed protection.
According to the initial application for a visa, the applicant’s essential reason for claiming he was at risk of being harmed by agents of the state was that he borrowed money from a government department in Fiji to pay for his airfares and he was unable to repay that money. Consequently, members of his family in Fiji have been bullied and harassed by police and members of the military. For that reason, he is afraid he will be treated the same way if he returns to Fiji.
The applicant also claims that if he is returned to Fiji, he will be harmed by members of the military, police and members of gangs because he failed to repay money he still owes to a government department in Fiji.
The Tribunal will now relevantly summarise the applicant’s oral evidence. The applicant intended to apply for an Australian tourist visa. He intended to pay his own airfare. He did not do so. Instead, he acted on the advice of his uncle, [Mr A], a travel agent in [City 1]. The applicant said his uncle’s travel agency was located on the [specified] floor of a building located in [City 1], near [location]. [Mr A] arranged for the applicant and other Fijians comprising a group of 30 people to travel to Australia with [a government office holder] for them to participate in a celebration in [Sydney]. The government department paid for the applicant’s travel to Australia. The applicant does not owe any money in Fiji to anyone in respect of his travel to Australia.
The applicant arrived in Australia on a short stay visa that expired two weeks after his arrival, [in] October 2015. The applicant’s uncle planned, through a person named [Mr B], for the applicant and the other members of the group to be accommodated together in Sydney. Two days after the welcome ceremony for [the government office holder], [Mr B] arranged for the applicant and the other members of the group to travel to and work on several farms. [Mr B] and the applicant’s uncle both told the applicant, and the other members of the group, that [Mr B] would arrange work visas for them to stay and work in Australia.
First, the group travelled from Sydney by bus to [Town 3] in Queensland where the group immediately began harvesting onions. [Mr B] took the applicant’s pay and gave him $100 for the week and kept the remainder of his pay as his fee. The groups stayed in [a named] motel in [Town 3] for a week. Thereafter, [Mr B] arranged for the group to travel to [Town 4] to a farm where they picked [produce]. The applicant spoke to his uncle, [Mr A], and [Mr B] about the progress of the work visa arrangements, and was reassured that all the necessary arrangements had been made. When the visas did not arrive, around the time the short stay visas expired, some members of the group returned to Fiji. The applicant chose to remain in Australia.
According to the applicant’s evidence, he chose to remain in Australia because he was looking for a better life in Australia than the life he had in Fiji. The applicant agreed with the Tribunal that he decided to stay in Australia for the purpose of improving his economic circumstances.
[Mr B] flew the applicant to Melbourne and arranged for him to travel by bus to [Town 1], where the applicant was introduced to a male person he knew as [Mr C]. He never saw [Mr B] again. The applicant does not know [Mr B]’s surname or his contact details. About this time, the remaining members of the group went their separate ways. The applicant travelled from farm to farm where he harvested various fruits and vegetables.
By December 2016 the applicant had broken away from [Mr C], and he no longer knows how to contact him or his full name, according to his oral evidence.
The applicant moved to [Town 5], where he met [the second-named applicant], who was working on the same farm as the applicant. They now have two children, the third and fourth named applicants in this review.
According to the applicant’s evidence, they decided to apply for a protection visa for the purpose of extending their stay in Australia. With the agreement of [the second-named applicant], the applicant travelled to Sydney, where he met a person in [location]. The applicant said her name was [Ms D], and he paid her $900 for the purpose of her preparing and submitting an application for a protection visa. The applicant claimed he was unaware of the details of the claims she included in the application, but he agreed that he provided her with personal details such as the information about his travel to Australia as a member of a group who travelled to Australia with [a government office holder] of Fiji. According to the evidence, the applicant paid the person he met in Sydney to prepare and submit the application for a protection visa; he travelled to Sydney for that purpose, and he did so with the knowledge and consent of [the second-named applicant].

The Tribunal is satisfied the applicant was aware, at the time the visa application was lodged with the Department, that the application was lodged for the purpose of extending his stay in Australia and for the purpose of gaining a higher standard of living in Australia relative to the standard of living he would be able to achieve in Fiji. Additionally, the Tribunal is satisfied the applicant was aware at the time he paid a person in Sydney to prepare his application for a protection visa that he had no proper basis upon which to apply for a protection visa and that the person he paid would prepare and lodge a protection visa application According to the contents of the Department file and the Tribunal file the applicant made no attempt to withdraw the protection visa application at prior to the hearing, or at the hearing. The applicant was aware at hearing that the Tribunal would proceed to a decision on the merits of the protection visa application.
The application for a protection visa was lodged with the Department on 6 December 2018. It is useful to recall here that both the applicant and the second named applicant, his [partner], separately conceded in their evidence that the claims made in the visa application are false.
On balance, the evidence demonstrates the applicant and the second named applicant are seeking to remain in Australia because they do not want to return to Fiji as their standard of living and life in Australia is preferable to the standard of living and life they would have in Fiji if they were removed to Fiji now or in the reasonably foreseeable future.
Upon considering the applicant’s protection claims, individually and cumulatively, as well as his admissions in evidence that his protection claims are false, and the evidence as a whole, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would suffer serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Fiji now or in the reasonably foreseeable future. Consequently, the Tribunal is not satisfied the applicant meets any of the grounds for the grant of a protection visa specified in s 5J(1)(a) of the Act.
For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Fiji now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
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) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 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) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
Membership of the same family unit
The Tribunal is satisfied that the second, third and fourth named applicants live together in a settled and ongoing family unit, and they are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their applications depends on the outcome of the applicant’s application. It follows that the second, third and fourth named applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
I have found that the applicant, [the first-named applicant], is not a person in respect of whom Australia has protection obligations. As a result, the second, third and fourth named applicants are not members of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this visa application and who engages Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, the second, third and fourth named applicants are ineligible for a protection visa.
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Haag
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.
…

[2022] AATA 4978

1 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction