2005581 (Refugee) - [2024] ARTA 652

2005581 (REFUGEE) [2024] ARTA 652 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Muhammad Iqbal Chaudhry
Respondent:Minister for Home Affairs

Tribunal Number: 2005581
Tribunal:General Member J Cabarrús
Date:11 November 2024

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 11 November 2024 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Fiji – close association with relatives who have been granted protection visas – relatives’ and applicants’ support for Indigenous rights – one wrote and published documents and another held public positions – first applicant father’s harassment, accusations, questionings and threats by colleagues or superiors – stress and psychological harm – one relative’s return visit with no harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF 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 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are nationals of Fiji as shown on their passports, applied for the visas on 18 January 2017. The delegate refused to grant the visas on the basis that they did not meet the refugee or complementary protection criteria.
The issue in this case is whether any of the applicants meets the refugee criterion, and if not, whether they meet the complementary protection criterion. These criteria broadly require the applicants to face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
BACKGROUND
[The first two applicants] are husband and wife. They were born in Fiji in [Year] and [Year] respectively. They met in 2004 and married several years later. They have four children, aged between [Age] and [Age] years old, who are the third, fourth, fifth and sixth applicants.
All six applicants came to Australia on visitor visas in December 2016. They applied for the protection visas in January 2017. The delegate refused to grant the visas in June 2017 and notified the applicants of that decision in March 2020 (it appears an earlier attempted notification was defective). The applicants applied to the Tribunal for a review of the decision in March 2020. They gave the Tribunal a written submission on 22 October 2024 (‘the October submission’).
Three of the applicants attended a hearing of the Tribunal on 23 October 2024, [the first, second and sixth named applicants]. The second and fifth named applicants confirmed that: they were present only to observe the hearing and support the first named applicant; they would be relying on the first named applicant’s claims and evidence; and they did not want to make any separate claims or provide their own oral evidence to the Tribunal. For brevity, I will refer to the first named applicant as ‘the applicant’ and the second named applicant as ‘the applicant’s wife’.
The Tribunal also received oral evidence from [Ms A], who is the applicant’s wife’s [relative 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicants were represented in relation to the review and their representative Ms Shazia Qamal attended the hearing (in the absence of their listed representative Mr Chaudhry).
Following the hearing, the applicants gave the Tribunal a further written submission on 2 November 2024 (‘the November submission’), as well as a copy of [Ms A]’s curriculum vitae.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims
Broadly, the applicants claimed that they would face harm in Fiji because they are related to [Ms A], who is the applicant’s wife’s [relative 1], and also to [Mr B], who is the applicant’s wife’s [relative 2]. They claimed that:
a.[Ms A] has researched and written or co-written [documents] on a range of issues in Fiji; these [documents] have been published; she has also worked as [a work role] to [Organisation 1]; [Ms A]’s [relative 3] and her [relative 4] were held by Fijian authorities when they returned to Fiji in the past and were only released due to [Organisation 1] pressure; [Ms A] and her family were granted protection visas in Australia due to persecution they faced in Fiji;
b.[Mr B] was a [public position] from [Year] to [Year]; he served as [Specific position 1] and [Specific position 2]; he was charged with [offences related to his position] in [Year], but was acquitted of the charges; he was also granted a protection visa in Australia; [Mr B] is very vocal in his stand for indigenous rights in Fiji;
c.the applicant worked as [an occupation 1] for the Fijian [employer], holding [job level 1] while he was [working] in Fiji between [Year] and 2016; in around 2015 or 2016, the applicant had some troubles with [employer] colleagues arising out of the relationships to [Ms A] and [Mr B] and his opposition to the Fijian Land Bank policy;
d.since coming to Australia they have been [associating] much more closely with [Ms A] and [Mr B], which would further increase the risks to their safety.
Reasons and findings concerning the claims
Applicant’s claims and oral evidence about issues in Fiji
In the visa application, the applicant claimed that the [employer] had accused him of being influenced by his in-laws in encouraging fellow villagers not to put their land in the land bank, that he had been stressed and psychologically harmed by [employer] supervisors and other [related] staff when he encouraged fellow villagers not to give their land to the land bank; and that he feared being taken to task by the [employer], being beaten up to try to get information about his in-laws, being deprived opportunities, or that his wife and children would be tortured or reprimanded by the authorities to try and get information from them.
The October submission stated that the Fijian [employer] had interviewed the applicant on many occasions; that his superiors told him that they knew that his wife was related to [Mr B] and [Ms A]; that they started forcing him for details about them; that they made verbal threats of disciplinary action and criminal charges against the applicant and his wife if he didn’t cooperate with them; and that they also threatened him with termination of his employment.
At the hearing, the applicant said that [Mr B] and [Ms A] called them and told them to leave Fiji, and that they left Fiji because of threats targeted against his wife’s family. He told me that when he was working at the [employer premises], stories and rumours went around the [premises], talking about his wife’s family and saying that if they came back to Fiji they’d be detained; and that this happened between 2010 and 2014 during Bainimarama’s term as Prime Minister. I asked him why threats about detaining [Mr B] and [Ms A] made him fear for his own safety. He replied that he would be involved because it’s his responsibility to look after his wife and children. I asked if there was anything else that he could remember them saying, and he said that his [relative 3] and his [relative 4] were detained when they came to Fiji.
I asked the applicant what happened to make him feel that he might be harmed. He replied that it bothered him that it was happening to his wife’s family, and if it happens to his wife it hurts him, which meant they had to get away. I asked him whether there was anything that made him feel that people wanted to harm them. He replied that there was nothing specifically directed at him, but his wife was involved and if she had to leave he had to as well. I asked him what made him think that his wife might have to leave, and he replied that he was concerned that she was the only one left in Fiji from her family, and that if anything should happen, she would have to leave and he would be left in Fiji on his own.
I asked the applicant if anything else happened that made him concerned about their safety, because he hadn’t yet mentioned several things that were referred to in the documents provided to the Department and to the Tribunal. He replied that there was nothing specifically targeted at him. I asked if he was ever threatened directly, and he told me he was not. I asked whether threats were made to him about his wife or children or whether they were ever threatened directly. He replied that the only threat he was aware of was the threat that he had told me about earlier, concerning [Mr B] and [Ms A] being detained.
I asked the applicant whether he was ever mistreated in his workplace by colleagues or superiors. He said he was not physically mistreated, but using words, jokes were made about being married to a family that’s been threatened and who would be detained if they went back to Fiji; and that while this was done in a joking way, it hurt the applicant because they were talking about his wife and her family.
I put to the applicant that he had not yet told me anything about his political views concerning the Land Bank policy, and asked him whether this was because that was not an important aspect of his claims. He replied that those things came out of an article by [Ms A] criticising the land banking program, but he couldn’t remember the year or the date. He then told me that she wrote the article before they left Fiji and it stirred up a hornet’s nest and the threats that they’d be detained, and added fuel to the fire.
I asked the applicant if he wanted to tell me anything else about his political views concerning the Land Bank policy. He replied that there were changes in Fiji and the government moved to establish a Land Bank which gives the government a lot more power to deal with native lands and fishing rights, and they took it away from Fijians and took control of the power to give leases to anybody who wants them in fishing areas. I asked the applicant what it was about that issue that made him or his family feel that they might be harmed in Fiji. He replied that in [Ms A]’s article, she wrote all about Land Bank and fishing rights issues and the government trying to take control.
After an adjournment of the hearing, I asked the applicant if there was anything else he wanted to tell me about his claims. He told me that in 2015, he was approached by [an employer superior] who asked him about why his [relative 1] was still threatening Fiji with an [article] about the Land Bank policy. I asked if he could remember the [superior]’s name, and he told me he couldn’t remember his name because he belonged to a different [section], but he was a [job level 2]. He then told me that the [superior] threatened him that if he didn’t want to give the [superior] information about their return to Fiji, he’d be [terminated] from the [employer].
I asked the applicant what he said in response, and he replied that he didn’t say anything, he had nothing to say because he wasn’t involved. I asked the applicant if he was telling me that he said nothing in reply to this [superior]. He said that the [superior]’s tone of voice was threatening, it wasn’t just a conversation, the [superior] wanted to know if his in-laws were coming back. I put to the applicant that it sounded unusual that he did not respond at all and remained silent in response to this questioning and threat from this [superior]. The applicant then told me that the [superior] asked him about when his in-laws were expected to return, and the applicant told him that he wasn’t aware of any plans they had to return to Fiji. I asked the applicant what the [superior] said in response, and he replied that that was all that the [superior] said.
I asked the applicant if the [superior] ever approached him again, and he said that there were no further exchanges, but he could feel that the [superior] had more than just a question, by the look on his face when they passed each other. The applicant told me that he saw the [superior] often after that time because they worked in the same [premises], but he didn’t know his name.
I asked the applicant if he reported the incident to anybody and he said he didn’t. I asked why he wouldn’t report a matter of this kind, involving a threat of dishonourable discharge, and he replied that the [superior] was superior in [job level], and it wasn’t his position to question or say anything about a [superior]; and that he was frightened that if he said something involving his in-laws, it would exaggerate the hatred that others have.
Concerns about claimed threat from [superior]
I put to the applicant that I was concerned that:
a.he didn’t tell me about the incident involving being threatened with dishonourable discharge earlier in the hearing when I was questioning him about his claims, and only told me about it after we had a break; and
b.that he did not know the name of the [superior], as it would be reasonable to expect that he would find this out given the serious threat that he claimed was made against him.
He replied that the interaction happened during the weekend [session], and the [superior] sounded as if he was joking, but it was threatening to the applicant because it involved his in-laws and what had been going around. He also said that he asked but didn’t get an answer regarding who the [superior] was, but he thinks he must have been one of the temporary bosses that only came in for weekend [session].
These responses do not adequately address my concerns with the applicant’s account about this claimed event. In earlier questioning, I asked the applicant in several different ways what had happened to make him feel unsafe or threatened, and in response to those questions the applicant told me that there was nothing specifically directed or targeted at him, and he was not ever threatened directly and the only threat he was aware of was the threat about detaining [Mr B] and [Ms A]. I had also asked the applicant whether he was ever mistreated in his workplace, and he had told me that he was not physically mistreated, but jokes were made about his wife’s family. It is reasonable to expect that if the applicant had been threatened as he later claimed, he would have referred to that in the course of the earlier questioning and not explicitly stated that he had never been threatened.
The applicant’s response concerning the name of the [superior] does not adequately explain why he did not make further enquiries to find out the man’s name, in circumstances where a threat of [termination] was made, and by the applicant’s own evidence he saw the [superior] often after that time because they worked in the same [premises].
Accordingly, I do not accept that this event occurred, or that the applicant was ever threatened with being dishonourably discharged.
Concerns about other claims made in documents provided
Claims were made in the applicant’s visa application that he was encouraging fellow villagers not to put their lands in the Land Bank; and claims were made in the October submissions that his superiors started forcing him for details about Mr and [Ms A], and that they made verbal threats of disciplinary action and criminal charges against him and his wife if he didn’t cooperate with them. I put to the applicant that I might not accept that these things happened, because he had not told me about them during the hearing (apart from the claim that the [superior] threatened him with dishonourable discharge if he did not give information about Mr and [Ms A]’s return to Fiji), and when I questioned him about the land banking issue, he didn’t tell me about his personal views on the issue or any interactions with other persons, he referred instead to [Ms A]’s article on the subject.
The applicant replied that: the documents were written back in 2017 and he didn’t get the chance to review them; in his work they were deployed all over Fiji, and when they were sitting around together drinking kava they would talk about what’s going on, and maybe he was encouraging people not to consent to the government’s proposal to establish the land bank; during tours around the country as [an occupation 1], they’d sit down in the evening and talk about many things, and he’d tell them it was something they didn’t have to accept, and they must not accept the government’s proposal to establish the land bank; he said those things in passing only among other [occupation 1]s, and kept a low profile because they might have opposing political views.
These responses do not adequately address my concerns about the written claims. While I appreciate the visa application was written more than 7 years ago and the events referred to in it happened before that time, if the applicant had been harmed as a result of encouraging people not to accept the Land Bank policy as claimed in the visa application, it is reasonable to expect that he would have told me about this activity in earlier questioning. It is also reasonable to expect that the applicant would have referred to his efforts in encouraging people not to accept the policy when I asked him about why that issue made him feel that he might face harm in Fiji, rather than simply referring to [Ms A]’s article.
The November submission stated that the applicant confirms his statement in the October submission regarding the threats made to him, and that he seemed a bit confused about remembering the dates of events in order; that he was confused and thought that a question about the [superior] who threatened him might link to a statement he had made about threats he faced because of [Ms A] who wrote an article; and that the applicant’s superiors informed him that they knew his wife was related to Mr and [Ms A], and questioned him on many occasions. These submissions also do not address my concerns about the written claims, as the specific dates and order of events were not significant; I do not consider that there was any ambiguity in the way I questioned the applicant about the threats from the [superior]; and the applicant did not tell me about being questioned on many occasions by [superiors].
The November submission also indicated that the applicant felt confused during the hearing, and that the interpreter was unable to convey his responses accurately. I have no reason to believe that the standard of the interpreting was inadequate, and I note that despite a number of adjournments during the course of the hearing which would have given the applicant and his legal representative a chance to confer, no issue was raised during the hearing by the applicant or the representative about the standard of interpreting.
Considering the evidence as a whole, and given the applicant has not adequately addressed the concerns I put to him about these claims, I do not accept that:
a.the applicant encouraged any fellow villagers or [employer] colleagues not to put their lands in the Land Bank; or
b.that the applicant’s superiors started forcing him for details about Mr and [Ms A]; or
c.that the applicant was questioned on many occasions by [superiors]
d.that the applicant’s superiors made verbal threats of disciplinary action and criminal charges against the applicant and his wife if he didn’t cooperate with them.

I therefore do not accept the related claims stated vaguely in the visa application, that the applicant was psychologically harmed by [employer] supervisors and [related] staff when he encouraged fellow villagers not to give their land to the Land Bank, or that he was accused of being influenced by his in-laws in encouraging people not to give their land to the Land Bank; or the related claim stated in the October submission that the applicant was threatened with termination of his employment.
Evidence from [Ms A]
[Ms A] gave evidence as a witness in which she told me that:
a.the applicant is her son-in-law and the applicant’s wife is her daughter;
b.she was [an occupation 2] in Fiji and did [work task] for [Organisation 1], [Organisation 2], governments and other organisations, including writing [documents];
c.she did research for [an institution] in relation to the Land Bank policy, including a case study in around [Year], and has published or co-authored [documents] on the subject;
d.she also did training for [specified people];
e.when her [relative 3] returned to Fiji in [Year], he was detained at the airport;
f.the government took things including her computers from her home while she was in Australia;
g.her postal box in Australia was tapped into and she received phone calls requesting documents, including data she had received from the Fijian anticorruption commission;
h.she and her family were granted protection in [Year] because of how they were treated;
i.she was sad that she couldn’t go home for 12 years, but she visited Fiji in 2023 after she felt safe;
j.she felt her family was not safe and even up till today she is a little reluctant to go back home.
I put to the applicant that although on the one hand [Ms A] said that she still feels unsafe and reluctant to go to Fiji, she also said that she returned there in 2023 after she felt safe, and that this may suggest that the reasons why she or her family members might be at risk of harm in Fiji are no longer present or as serious as they were in the past, as a result of which I might find that there is no real chance that the applicant or his family would be harmed either, given that their claims rely in part on the association with [Ms A]. The applicant replied that he agreed that [Ms A] had been to Fiji and come back, but his main concern was not about himself, it was about his children, and that their future was more important to him than anything else, but they didn’t have a chance in Fiji, in terms of their education or work, and it would take a long time before Fiji returns to being a place that he can trust his children to grow up in. The November submission stated that the applicant still feels threatened and that the witness’s evidence doesn’t negate that.
Ultimately, I consider that the fact that [Ms A] felt safe enough to return to Fiji in 2023 supports that she is no longer at risk of harm there.
Findings on the claims
For the reasons explained above, I have not accepted that:
a.the applicant was approached or questioned by a [superior] about Mr or [Ms A]’s plans to return to Fiji, or threatened with [termination] if he did not reveal this information; or
b.the applicant encouraged any fellow villagers or [employer] colleagues not to put their lands in the Land Bank; or
c.the applicant was psychologically harmed by [employer] supervisors and [related] staff when he encouraged fellow villagers not to give their land to the Land Bank; or
d.the applicant was accused of being influenced by his in-laws in encouraging people not to give their land to the Land Bank; or
e.the applicant’s superiors started forcing him for details about Mr and [Ms A]; or
f.the applicant’s superiors made verbal threats of disciplinary action and criminal charges against the applicant and his wife if he didn’t cooperate with them; or
g.the applicant was threatened with termination of his employment.
The applicant did not refer to any other claimed incidents of harassment, threats or harm directed at him or his immediate family in the past in Fiji.
The applicant relies primarily on his relationship with Mr and [Ms A] to support his protection claims, and for the purposes of this decision, I am prepared to accept that:
a.the applicant’s wife is [Ms A]’s daughter and [Mr B]’s [relative 5];
b.[Mr B] was [a public position] in Fiji, who was charged with [offences related to his position] in [Year] (and was acquitted of the charges), and who fled Fiji some 15-20 years ago (after the 2006 coup) and was granted protection in Australia;
c.[Ms A] has published [articles] and done [a work task] for government and non-government organisations, including articles and work that has been critical of government policies in Fiji; and that she was granted protection in Australia in [Year], following an incident in which her [relative 3] was detained at a Fijian airport in [Year];
d.both Mr and [Ms A] were seen by former Prime Minister Bainaimarama as critics or opponents of the Bainimarama regime;
e.sometime between 2010 and 2014, a threat was made that Mr or [Ms A] would be detained if they returned to Fiji.
However, the applicant has not referred to any recent incidents involving Mr or [Ms A] being threatened or targeted, with the last incident being over 10 years ago. Furthermore, the fact that [Ms A] returned to Fiji 2023 supports that she is no longer at risk of harm there. The incidents involving threats to Mr and [Ms A]’s safety happened at an earlier time when the political situation in Fiji was very different from how it is today.
I put to the applicant that the political circumstances in Fiji had changed from the time when they had left Fiji, including as a result of the 2022 elections which ended former Prime Minister Bainimarama’s 16 years of rule in Fiji; and that recent country information shows that the political situation in Fiji is stable, there has been no significant political unrest, and there have been no credible reports of former Prime Minister Bainimarama or his supporters pursuing Fijian nationals who publicly opposed him or his party.[1] The applicant replied that that may be true now, but in those days there were a lot of things happening that affected the life of people in the [employer], because they lived and worked together and had differences. I accept the country information to which I have referred accurately represents the current situation in Fiji.
[1] See Department of Foreign Affairs and Trade, ‘DFAT Country Inofrmation Report Fiji’, 20 May 2022; Department of Home Affairs, COISS County Information Request Report no.20230621135833 (source:DFAT) ‘Fiji Country Information – Political Update’ 03 Aug 2023, response paras 1, 3-4 and 8.
In light of that country information, and taking into account that I have found that the applicants have not experienced any threats or harm directed at them in the past in Fiji as claimed, I am not satisfied that the applicants face a real chance of persecution or a real risk of significant harm in Fiji in the reasonably foreseeable future for any of the reasons claimed.
Conclusions
For the reasons given above, I am 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 criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
ATTACHMENT
Criteria for 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 below.
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 below.
Extracts from the 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.
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36     Protection visas – criteria provided for by this Act
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(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.
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