1935617 (Refugee)

1935617 (Refugee) [2023] AATA 1623 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935617
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:5 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 April 2023 at 2:44pm

CATCHWORDS
REFUGEE – protection visa – Fiji – emotional harm as single mother at times of coups and political uncertainty – at hearing, no fear of harm claimed – study and work in Australia – country information – change of government – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 411
Migration Regulations 1994 (Cth), Schedule 2

CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 19 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Republic of Fiji (Fiji), applied for the visa on 23 January 2019.
On 19 November 2019, a delegate of the Minister refused to grant the visa.
On 17 December 2019, the applicant applied for a review of that decision. She provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 24 January 2023, the applicant wrote to inform the Tribunal of her activities since she arrived in Australia, including her achievements, work experience and voluntary activities.
On 16 March 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 April 2023 and to provide all documents that she intended to rely upon to support her case by 27 March 2023.
The applicant appeared before the Tribunal on 3 April 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on her behalf.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or she is owed complementary protection, or she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in her application for protection. She is [Age] years old and was born in [Town], Fiji. At the time she made her application, she stated that she had never married, that she had a now [Age]-year-old daughter and that she worked as a part-time [Occupation]. She listed her qualifications as a certificate III in [Subject 1], a certificate in the fundamentals of [Related subject] and a certificate in [Subject 2].
The applicant provided details about her daughter, her [sisters] and [brothers] in Fiji, her Australian-citizen brother and sister-in-law in Australia and her late father.
The applicant arrived in Australia in July 2018 on a student visa, which ceased on 14 January 2019.
Country of reference
The applicant claims that she was born in [Town], Fiji and is a citizen of Fiji. She provided a copy of the biodata page of her Fijian passport.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for a protection visa.
She claimed that she left Fiji for better opportunities and due to some traumatic incidents that she experienced. She was looking for better opportunities overseas.
She claimed that she had been going through a long period of fear of the unknown, anxiety and always asking where her future is.
She claimed that she had experienced harm from the traumatic situations in Fiji from 2001 until today (2019) and that many lives were physically and emotionally affected during these periods. She claimed that many lives were taken away during 2001 and that was just the beginning of the many dreadful experiences that she has experienced in Fiji.
She claimed that she had [brothers] in [Employer 1] and one in [Employer 2] during the situation in 2001 and she did not share critical issues or her feelings and thoughts with them due to the nature of their work.
She claimed that she did not experience any physical harm but she was emotionally broken down, confined and disordered. She claimed that watching the news and reading the newspapers only contributes more on her anxious situations.
She claimed the feeling of being unsafe and at risk in expressing her views and thoughts grew bigger and bigger and that she was always trying to find an exit to run away from it.
She claimed that similar situations occurred in 2006 that involved the government and the military. She claimed it created more hopelessness in her. She claimed she asked as a single mother, how can she raise her daughter in this hopeless situation.
She claimed that since 2006 she has experienced the denial of human rights, labour rights and breaches of democratic freedom. She claimed that labourers do not have a say.
She claimed that people are not able to express their views with the media.
She claimed people were dragged off to the military base for punishment and returned with broken bodies or not at all.
She claimed that the 14 November 2018 election was an opportunity to vote for a new government but due to a professional foul, the current government once again have the power to rule.
She claimed that she did not seek help because she did not want to waste her time because she knew it would not be dealt with fairly.
She claimed that sometimes the cost of seeking medical assistance is just a burden due to lack of finance because of the unavailability of work in her current role as [an Occupation].
She claimed that she did not move because of money and, even if she relocated she would be hunted down if something wrong happened.
She claimed that she believes her situation will get worse and there is nothing for her back home, that the problem is getting jobs and the study opportunities will not be the same as in Australia.
She claimed that she will be emotionally harmed because of the situation in Fiji. She said it is who you know, not what you know and the rich are getting richer and the poor are getting poorer and she does not want to go back to that situation.
She claimed that the authorities can and will protect her but what she has experienced in Australia is nowhere near what she will experience in Fiji and it will being more stress and anxiety.
She claimed that she could not relocate as they have their family house and it is the only place she knows she will be safe in.
The applicant provided the following documents to support her protection claims:
·an Australian Council of Trade Unions article about protecting Fijian workers’ rights (undated)
·her curriculum vitae
·an ABC news article, ‘Fiji to hold pivotal national election as it attempts to shake off reputation as a “coup-prone state”’, 11 November 2018
·an ABC Radio Australia article by Catherine Graue, ‘Turmoil in Fiji’s main opposition SODELPA party, less than a month out from the poll’, 17 October 2018
·an RNZ article, ‘Fiji opposition leader Rabuka says court’s election petition decision “deeply disappointing”’, 21 December 2018
·a letter from [Mr A], the applicant’s brother, dated 18 January 2019 advising of his support for his sister’s application and that ‘due to our family’s situation back home and our current government status, I have advised [the applicant] to remain in the country until applying for legal arrangements’. In support of her application he said that he had been the victim of numerous coups back home that have caused some physical and psychological wounds. He [worked for] [Employer 2] from 1995 to 2001, before joining [Employer 3] in June 2001 and [working] for 13 and a half years, before joining [Employer 4] [in] March 2015.
·a book chapter by Brij V. Lal, ‘Anxiety, uncertainty and fear in our land’: Fiji’s road to military coup, 2006’ from The 2006 Military Takeover in Fiji: A Coup To End All Coups?
·photos of the applicant’s brother
·an application for a Bridging Visa C and emails about the applicant’s finances in Australia
·a certificate from [Employer 2] advising that the applicant’s brother had completed [a] course on 30 July 1999, and
·an article from ABC News, ‘Fiji’s future far from certain, even with election’, 27 March 2014.
On 17 December 2019, with her application for a review of the protection visa decision, the applicant provided a ‘protection visa appeal statement’. The applicant claimed that her protection claims are based on the various traumatic crises that Fiji is currently experiencing that have caused her and other citizens to move out of the country looking for a better life, good opportunities, fair leadership and freedom of living. She claimed that there were current ongoing manipulations, corruption and political threat in the current government. The applicant addressed political expression, health services and the economy.
She also provided:
·a copy of the notification and decision record from the Department
·an RNZ article, ‘Call for summit to rescue Fijian economy’, 15 October 2019
·Truth for Fiji posts from October 2019, November 2019 and December 2019, and
·a PSI (Public Services International) article, ‘PSI statement following the detention of trade unionists in Fiji while ADB watches on’, 5 May 2019.
In the applicant’s 25 January 2023 submission to inform the Tribunal of her activities since she arrived in Australia, she advised that she had decided to stay back in Australia for her future betterment. She had continued to study but could not support herself financially. She joined her brother’s [business], which gave her the opportunity to practice what she had learnt and work in [work sector]. The applicant provided the following evidence of her training:
[Deleted].
Assessment of claims and evidence
At the hearing, the applicant said that she did not want to go back home. She wants to study and work in Australia and support her only daughter. She said that is her one goal, she just wants to achieve because of her daughter in Fiji. When asked if there was any reason she feared returning to Fiji, she replied, ‘not at all, to be honest’. She said that ‘there won’t be any harm, to be honest, but I won’t have any more chances like this.’
Job and study opportunities
The applicant is currently studying a diploma of [Subject 4]. She said that the employment and study opportunities in Australia are better. She claimed that she would not have the same education opportunities in Fiji as she is not well-educated and she finished school at the end of Year [Number]. She claimed that you need to complete Year 13 of your schooling to be entitled to continue with studies at a higher level. This would affect her earning capacity as she would not be able to upskill and would be working as [an Occupation].
As discussed at the hearing, while the range of vocational skills training in Fiji is smaller than in Australia, tertiary and vocational education are available.
Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.[1]
[1] DFAT Country Information Report – Fiji, 20 May 2022, 8.
At the hearing, the applicant that she said she had tertiary qualifications from Fiji, having completed [Subject 2] studies at a [Subject 2] school and a certificate III in [Subject 1] at [University in Fiji]. The applicant did not provide any evidence that she would be denied access to education. Based on the information before it, including her previous studies, the Tribunal finds that the applicant is not uneducated and would not be denied access to education in Fiji.
The applicant was asked about her concerns about getting jobs and the Fijian economy. She said that she had been concerned under the previous government when the economy was not very good, but she had not followed what had happened since the new government started. As discussed at the hearing, the International Monetary Fund visited Fiji in March 2023 and reported that the economy is continuing to grow:
Fiji is experiencing a strong economic recovery from the pandemic. Real GDP growth rebounded by an estimated 16.0 percent in 2022 driven by the strong revival in tourist inflows. Supported by the strong economic recovery, fiscal deficits are falling from 12.2 percent of GDP in FY2022 to a projected 7.7 for FY2023.[2]
[2] Media Release ‘IMF Staff Completes 2023 Article IV Mission to Fiji’, 21 March 2023 IMF Staff Completes 2023 Article IV Mission to Fiji.
The applicant said that the only barrier she faced returning to Fiji was financial. She would have to start life again, having spent four years and nine months in Australia. The applicant’s work history in Fiji as a part-time [Occupation] was discussed. She said that the [Work] sector was not as developed as in Australia and her work had been casual. The Tribunal does not accept that the applicant would be unable to obtain the same or similar employment on her return to Fiji. Based on the applicant’s training and work experience in Fiji and Australia, the Tribunal finds that the applicant will not be denied the opportunity to work in Fiji.
Single mother
At the hearing, the applicant said that before her [Age]-year-old daughter was born, she had experienced criticism and social censure for being a Christian, pregnant and single. She said that she did not experience physical harm but it was a shock getting pregnant and people were saying negative words about her, which made her anxious. The applicant said that the behaviour stopped when she moved from her oldest brother’s house to Suva in 2007 and started doing training. She said that she moved back to her brother’s house when her daughter started [grade] in 2010 and lived there until she came to Australia. Her daughter still lives with her brother, his wife and their grandchildren. At the hearing, the applicant said that, if she goes back to Fiji, she will live with her brother because her daughter is with him. Later in the hearing, the applicant said that she wanted to support her daughter and live in a house on their own, rather than rely on her siblings, but that she would initially stay with her brother.
The applicant said that she applied for social welfare when her daughter was born and it took ages for them to get back to her. She said that she did not get support from social welfare, just from her family. She said that she had no idea why she did not get support, that it was just the people you know. She said that she did not raise the lack of payment with her brothers because of a cultural taboo. She said one of her sisters was encouraging her and advising her. The applicant also said that she was assessed, and they decided that she was not in need and not eligible because she was living with her brother and he was supporting her.
The applicant said that single mothers are left behind. She said that they have the interest in going further and want the chance to be educated but they were not given the opportunity. She said that she went to the Women’s Crisis Centre because that was the only place she thought would back her up, but whenever she and other single mothers expressed their feelings about their lack of opportunities, their concerns were heard but no action was taken.

The applicant said that now there are a lot of women in parliament who are really changing Fiji. She said that ‘they can be our voice of women and single mothers, hopefully’. The Tribunal finds that the applicant would have a home and family support if she returned to Fiji now or in the foreseeable future. The Tribunal does not accept that the applicant would experience harm because she is a single mother.
Anxiety, mental health and cost of medical assistance
At the hearing, when asked what made her anxious, the applicant said the coups in 2001 and 2006 and that single mothers’ voices were not heard.
The applicant said that she did not talk to a doctor about feeling anxious in Fiji because she did not want to expose herself. When asked if she had seen a doctor in Australia, the applicant explained that she has a lipoma removed. When asked if she had consulted a doctor about her mental health, she said she told her GP in Darwin about the stress of studying and working at the same time. She said that all her observations were OK so the GP advised rest. She said that she had not been prescribed any medication.
The applicant was asked about her claims about the affordability of medical assistance. She said that Fiji is a third world country and, if she wanted to have better treatment, she would have to pay private doctors. Otherwise she would have to go to the government hospital and spend hours and hours waiting, but she did not have a choice as she could not afford to pay for private doctors. The applicant was asked if anyone had denied her medical treatment and she said no. The Tribunal finds that the applicant would not be denied access to medical assistance for any reason. The Tribunal finds that waiting for medical treatment at a government hospital does not constitute serious harm or significant harm.
Expressing views, human rights, media freedom and labour laws
At the hearing, the applicant said that the protection that she needed was from the previous government and how people were treated emotionally. She said they really just wanted to have a new government who can hear us.
The applicant was asked about her concerns of sharing her views with her brothers. At the hearing, she said it was about what her brothers had gone through with the coups and it was not an issue now.
The applicant said that, at the time when she was back at home, women were never heard. She was asked about whether it would be unsafe to express her views now. She said that she did not believe it was the same as before. She was asked about her claim that her human rights were denied. She said that this was the right to speak up and have freedom of speech in public. She said that there is now freedom of speech and democracy and people have the right to speak up, including labourers, following the change in government.
The applicant was asked about her claim that she would be hunted down. She said that if they spoke out on their rights, they would have been hunted down by the previous government, and it had not happened because she had not spoken out. She said that she believes the new government is exercising democracy and ‘everything will be OK’. When asked if she could go and speak to the police if something went wrong, the applicant said yes.
The recent BBC Fiji Media Guide was discussed, that reported ‘Freedom House says that the repressive climate that followed the 2006 coup has eased since democratic elections were held.’[3] The applicant was asked about her concerns about media freedom. She said that, because of the current government, she does not have concerns. The Tribunal accepts that the applicant ’s concerns about expressing her views, human rights, media freedom and labour laws have been resolved with the election of the new government.
Traumatic incidents
[3] BBC, Fiji Media Guide, 20 January 2023 Fiji media guide - BBC News.
At the hearing, the applicant was asked what traumatic incidents she was referring to in her application. She said that she thought it was just the coup of 2001.
Material submitted to Department and Tribunal
The Tribunal notes the letter from the applicant’s brother, photos of him and his certificate from [Employer 2] that the applicant submitted to the Department and Tribunal. The Tribunal finds that these documents are not relevant to the applicant’s claims.
The Tribunal notes the news articles and book chapter that the applicant submitted to the Department and Tribunal about historic events in Fiji. The Tribunal finds that these documents do not contain claims specific to the applicant. The Tribunal gives these documents no weight in support of the applicant’s claims of what may happen to her in Fiji in the future.
Will the applicant face harm?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
At the hearing, the applicant said that she did not fear returning to Fiji and that she will not be harmed. As the applicant does not fear returning to Fiji, the Tribunal finds that the applicant does not have a subjective fear of persecution.
The Tribunal also considered whether there was a real chance of persecution if the applicant returned to Fiji now or in the foreseeable future. Based on the evidence before it, the Tribunal finds that there is no real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution because she does not have a subjective fear of persecution and there is no real chance that she will be persecuted. As the applicant does not have a well-founded fear of persecution, the Tribunal finds that the applicant is not a refugee within the meaning of s 5H.
Having concluded that the applicant is not a refugee, the Tribunal has considered whether there is a real risk that the applicant will suffer significant harm. At the hearing, the exhaustive definition of significant harm was discussed. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of torture in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). 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) 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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior Member

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

[2023] AATA 1623

5 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction