2007398 (Refugee)

2007398 (Refugee) [2024] AATA 1050 (14 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007398

COUNTRY OF REFERENCE: Fiji
MEMBER:Adrienne Anderson
DATE:14 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 February 2024 at 10:47am
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – opposition to the previous government – change in government – employment – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 dependants.
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 3 April 2020 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 Fiji, applied for the visa on 12 September 2019.
The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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, they are 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant is [an age]-year-old man from Suva, Fiji. He is married with [number] children. His wife resides in Australia with the applicant. Their oldest child has passed away, and of the remaining [children], [all but one] reside in Fiji and one in Australia. Of the applicant’s [siblings], [number] are alive and reside in Fiji.
The applicant completed primary school and [number] years of secondary school in Fiji. For more than [number] years he worked for [a foreign] company based in Fiji, [Employer 1], which sold [products 1]. The applicant’s job at the company was to [process products 1]. He was required to retire from this job when he turned [age], as a matter of company policy. He has also held casual jobs, including as [an occupation 1].
The applicant arrived in Australia on a visitor (subclass 600) visa in August 2017 and applied for protection in September 2019. He had previously travelled to Australia for six weeks in May 2017.
The Tribunal accepts the above matters to be true.
Applicant’s claims for protection
Before the Department
In his protection visa application form, the applicant stated that he left Fiji to improve his life and to remove the rust from his brain that had accumulated due to pollution in Fiji. In response to a question asking what would happen to him on return to Fiji, the form stated that nothing would happen to him but that he and his family would never be happy because of poverty.
The applicant was not offered an interview by the Department. The delegate refused to grant the visa on the basis that none of the applicant’s claims related to the refugee grounds set out in s 5J(1)(a) of the Act and that he therefore did not face a real chance of persecution. For the purposes of complementary protection, the delegate found that the applicant made no claims to fear significant harm and there was not a real risk of suffering significant harm if returned to Fiji.
Before the Tribunal
At hearing, the applicant gave evidence that he left Fiji for better work opportunities to support his family. The government had cut wages and the jobs available did not pay enough to cover living costs. He stated that he also left because he feared the government of the time, which treated people harshly if they expressed their rights.
The applicant explained that he had no knowledge of what was written in his protection visa application form and that he had not, and did not, make any claims in relation to pollution. He was assisted with the application by a friend who filled the form in by herself and did not show the applicant what was written in it or give him a copy of the form.
When elaborating on his claims, the applicant gave evidence that he had retired from his job in approximately [year]. He had from that time thought to come to Australia to be able to provide for his family. Before he left for Australia, he worked odd jobs such as being [an occupation 1]. He and his wife came to Australia in May 2017 to see what it would be like and figure out how they would make a living here. They then returned to Fiji for a couple of months to say goodbye and wrap up their affairs before returning to Australia. The applicant stated that he did not want to return to Fiji because he would have to start again after spending several years working in Australia and he did not believe he would be able to find work in Fiji.
The applicant also gave evidence that he did not support the government that was in charge at the time he left Fiji. He and others in Fiji lived in fear that they would be taken and tortured because that is what happened to people who spoke out. He and others would not say anything against the government.
The applicant stated that his parents had always voted for political parties that supported indigenous rights and that from the time he could vote he had supported the same parties. He stated that he had supported the Fijian Association Party, then SODELPA, and that he was now a supporter of the People’s Alliance. He had long supported Sitiveni Rabuka, the current Prime Minister.
In Fiji, he was a member of SODELPA for many years and went to seminars and meetings held by the party. The applicant went to these meetings twice or three times a year. They were general meetings for members to discuss party strategies. The applicant was notified by an organising committee about these meetings but played no role in organising them himself. The applicant stated that police were present at these meetings to keep the peace but that there was never any issue for him or other attendees because the meetings covered party issues and did not involve criticism of the government. Other than attending meetings, the applicant stated that he supported the party by going to church because this is what they were encouraged to do by the party.
When asked what had prompted his departure from Fiji in 2017, given that the Bainimarama government had been in power since 2006, the applicant responded that it was because government policies were affecting hours of work and salaries and that the applicant could not meet the cost of living.
Since being in Australia, the applicant had voted in the 2022 Fijian election and joined a community group supporting the People’s Alliance Party. He has made financial contributions to the party from Australia. The applicant stated that he was happy that the Bainimarama government was no longer there and that there had been a change in government. If returned to Fiji, he stated that had no fear on the basis of his political views because of the change in government. In Fiji, he would continue to support the current government. He did not know what form this support would take, just that he would offer the support they needed.
FINDINGS AND REASONS
At hearing the applicant raised new claims, which were not mentioned in his protection visa application, to have left Fiji for political reasons, namely because the government at the time was not managing the economy well and because the government treated people who spoke out on their rights harshly. The Tribunal accepts to be reasonable the applicant’s explanation (outlined above) as to why these claims were not raised at an earlier stage. The hearing before the Tribunal was the applicant’s first opportunity to explain his circumstances with an interpreter. In the circumstances draws no adverse inference in relation to the credibility of his claim.
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Fiji or whether there is a real risk of significant harm if the applicant is removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which was provided to the Department and Tribunal. He has consistently stated that he is a citizen of Fiji and the Tribunal finds that he is a Fijian citizen. The Tribunal has assessed his claims against Fiji as the country of nationality and the receiving country.
Refugee criteria
Harm arising on the basis of political opinion
The Tribunal accepts that both prior to and during the former Prime Minister Bainimarama’s administration, the applicant supported opposition parties and/or parties in support of indigenous Fijian’s rights and that he attended local meetings a few times a year to demonstrate that support. It also accepts that he has continued that support in Australia through financial contributions.
The Tribunal accepts the applicant’s evidence that the meetings he attended did not receive negative attention from the police or authorities and finds that the applicant carried out low-level activities that never drew the notice or attention of the former government or its supporters.
The Tribunal also finds, on the basis of the applicant’s evidence and his conduct in Australia, that on return to Fiji the applicant would continue to provide support in the same ways that he has in the past, such as through financial contributions or attendance at gatherings organised by the party and that he has not been publicly outspoken on political issues or in support of a particular party or parties even in circumstances where the fear of harm as a consequence of such conduct has been removed. The Tribunal finds that he would not be publicly outspoken about political issues on return to Fiji now or in the reasonably foreseeable future.
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 hearing, the applicant stated that he did not have any fear of being harmed in relation to his political views or activities on return to Fiji because there had been a change in government. The Tribunal finds that he does not hold a subjective fear of being persecuted in the future in this regard.
The Tribunal also does not accept that there is an objective, real, chance of the applicant being persecuted on this basis. As discussed with the applicant at hearing, the parties he has supported in the past are now in government. Prime Minister Sitiveni Rabuka of the People’s Alliance (PA) leads a three-party coalition that also includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[1]
[1] Department of Foreign Affairs and Trade (DFAT), Fiji Country Brief <>
Sources identify rising tensions between the former and present Prime Ministers, with various charges recently being laid against former Prime Minister and FijiFirst leader Frank Bainimarama.[2] Further, some forecasters have raised concerns about the longevity of the coalition government because of tensions between PA and SODELPA[3] and rumours in early 2023 of potential military intervention. However, despite these suspicions, and as discussed with the applicant at hearing, the military did not intervene in the new government’s transition to power[4] or at any time since. On 1 January 2024, despite the challenges it has faced, the Rabuka government exceeded the longest term in office for any Fijian government installed through a peaceful transfer of power.[5] DFAT advises that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[6]
[2] Economist Intelligence Unit, 'Fiji - In brief’ < Lice Movono, ‘Fiji's former prime minister Frank Bainimarama to spend night in police custody after abuse of office charge’ ABC News (6 February 2024).
[3] Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024); Economist Intelligence Unit, 'Fiji - In brief’ < DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
[5] Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024).
[6] DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
Political expression and association have been restricted in Fiji in the past, and under the former government, protest leaders and people who criticised the government online were subject to investigation and, particularly for those who were high-profile figures, potential arrest under sedition or public order legislation.[7] However the Rabuka government has taken steps to facilitate the return of several critics of the Bainimarama (FijiFirst) government who were exiled from Fiji.[8] Some of those who were deported, threatened or forced to leave Fiji for speaking out against the former government are being granted permission to return, and are doing so.[9]
[7] DFAT, Country Information Report Fiji (May 2022) [3.26], [3.28]-[3.29].
[8] Australian Institute of International Affairs, 'Cautious Optimism for Fiji’s Coalition Government' (8 March 2023).
[9] Ibid.
DFAT advises that it is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or to FijiFirst pursuing Fijian nationals who publicly opposed them since the change of government.[10] DFAT is also not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government.[11]
[10] DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
[11] Ibid.
The Tribunal is satisfied, in light of the change of government in Fiji, that the applicant does not have a real chance of harm now or in the reasonably foreseeable future, noting that the next election in Fiji is not expected until December 2026 and there is no real indication of events giving cause to doubt this timing. In this regard the Tribunal notes that the elections in 2022 and those prior, held in 2018, were deemed fair and were orderly and free from violence.[12]
[12] DFAT, Country Information Report Fiji (May 2022) [2.34].
However, even if political tensions were to escalate and the government become unstable or worse, the Tribunal finds that the applicant does not have a political profile giving rise to a real chance of harm in the reasonably foreseeable future. The applicant’s past low-level activities did not make him known to be a Rabuka supporter or attract past attention or harm to him. As set out above the Tribunal finds that in the future he would continue to conduct only low-level and sporadic activities which do not involve public political criticism on return to Fiji.
Economic harm
The Tribunal accepts that the applicant experienced some economic difficulties prior to his arrival in Australia and that he has been better able to financially provide for his family since being in Australia. The Tribunal also accepts that his accommodation was somewhat precarious in Fiji, as the applicant lived in a squatter’s settlement on land owned by another person.
The applicant gave evidence that he was unable to find work other than casual jobs following his retirement from [Employer 1]. However, he also stated that he had not seriously sought employment during the period between his retirement and leaving for Australia because he planned to come to Australia. At hearing the applicant stated that he thought he would be able to find work on return.
The Tribunal finds that based on his past experiences of being able to find casual employment at will, and his lengthy work record at the company for which he worked for more than 20 years that the applicant could find work on return to Fiji. However, noting that he is currently [age] years old, the Tribunal also finds that upon his retirement from work or in the event he becomes physically or mentally unable to work his adult children in Fiji could support and care for him on return. The applicant stated at hearing that he believed his children would financially provide for him.

In relation to his housing situation, the applicant stated that he would return to the settlement where he has always lived and where some of his children continue to reside without issue. He also stated that he had adult children who lived on other properties, but expressed some uncertainty about whether he would be able to live with one of these children as while his children would allow it, their spouses may not.
In the circumstances, the Tribunal finds that the applicant has financial support available to him from family members and that if needed he would be able to reside with one of his children who live outside of the settlement. Country information indicates that this is a common practice in Fiji. DFAT advises that iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them.[13]
[13] Ibid [2.23].
In any event, the applicant did not claim, and the Tribunal does not accept, that any economic hardship he faces arises for a refugee protection reason in s 5(J)(1)(a).
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).
Complementary protection
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).
In relation to the applicant’s political claims, the Tribunal notes its findings above that the applicant did not face a real chance of serious harm on this basis. The ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test applicable to the refugee criteria in s 36(2)(a) of the Act.[14] For the same reasons as above, the Tribunal finds that there is not a real risk the applicant will be subjected to significant harm from the Fijian authorities or from members or supporters of the former government as a necessary and foreseeable consequence of being removed from Australia and returned to Fiji.
[14] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
In relation to the applicant’s economic claims, the Tribunal has considered whether the harm feared amounts to significant harm as exhaustively defined in s 36(2A) of the Act. The applicant did not suggest that he would be subject to the death penalty or torture. As discussed with the applicant at hearing, the remaining forms of significant harm in s 36(2A) require such harm to be deliberately inflicted on a person through intentional acts or omissions.
Nothing in the applicant’s evidence or other evidence before the Tribunal suggests that any economic harm feared by the applicant would arise from the intentional act or omission of the government or other entity such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal therefore finds that any economic hardship the applicant may face on return to Fiji does not fall within the definition of significant harm.
Further, the risk of harm to the applicant arising from the Fijian economy is one faced by the population of Fiji generally and not by the applicant personally. In such circumstances, s36(2B)(c) has the effect that there is taken not to be a real risk that the applicant will suffer significant harm.
As such the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm arising from his economic circumstances as a necessary and foreseeable consequence of being removed from Australia to Fiji.
For the above reasons, 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 also 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Adrienne Anderson
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.
…

[2024] AATA 1050

14 February 2024

Key Legal Topics

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Administrative Law

Immigration

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Judicial Review

Procedural Fairness

Statutory Construction

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