2008147 (Refugee)

[2024] AATA 2684

2008147 (Refugee) [2024] AATA 2684 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008147

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wendy Banfield

DATE:8 April 2024

PLACE OF DECISION:  Canberra

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

Statement made on 08 April 2024 at 3:30pm

CATCHWORDS
REFUGEE – protection visa – Fiji – human rights abuses – employment opportunities – racial discrimination – particular social group – unqualified worker with limited means and earning capacity in Fiji – religion – Methodist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Fiji applied for the visas on 6 October 2019. The delegate refused to grant the visas on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicants appeared before the Tribunal on 27 September 2023 to give evidence and present arguments.

4. The Tribunal considered the evidence provided and claims made to the Department at the time of application. Prior to the hearing the applicants submitted the following evidence:

   ·     Department of Home Affairs (the Department) notification and decision record dated 6 May 2020.

   ·     Statement by the primary applicant’s (the applicant’s) parent [Mr A] entitled ‘Support for employment and residence in Australia’ dated 18 December 2019.

   ·     Letter of support from the Methodist Church of Fiji in Australia dated [in] May 2020.

   ·     Character reference for the applicant from [Organisation 1] dated 20 May 2020.

   ·     Receipt for payment of school fees from [School 1] in [Suburb 1] ACT.

   ·     Written statement of the visa applicant (undated).

   ·     Written statement of the visa applicant dated 20 June 2020 with media reports and articles about Fiji, particularly the former regime and president.

   ·     Written statement by [Ms B], the mother of the applicant’s spouse dated 16 July 2020.

   ·     Employment contract from [Employer 1] in the name of the secondary applicant [the second named applicant] dated 30 June 2023.

   ·     School reports from [School 1] in the name of the applicant’s minor children, the secondary applicants.

   ·     Copy email from [School 1] dated 6 April 2022 regarding the speech and language development of the secondary applicant [the fourth named applicant].

   CRITERIA FOR A PROTECTION VISA

5. 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.

   Refugee criteria

6. 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.

7. 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).

8. 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.

   Complementary protection criteria

9. 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

10. 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.

    Applicant’s identity and country of reference

11. The primary applicant [the first named applicant] stated in his application for a protection visa that he was born [date], his spouse [the second named applicant] was born on [date], his son [the third named applicant] was born on [date] and his son [the fourth named applicant] was born on [date].

12. The applicants provided copies of their passports and birth certificates. They also provided a copy of a marriage certificate. There is no evidence to suggest any of the documents are bogus and, as such, the Tribunal accepts the identity of the applicants.

13. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country.

14. Based on the documents provided by the applicants and accepted by the Department, the Tribunal finds that they are citizens of Fiji and as such the protection claims will be assessed against Fiji as the country of reference and 'receiving country' respectively.

    Migration History

15. The applicants arrived in Australia [in] August 2019 holding Visitor visas. They applied for protection on 6 October 2019 and are residing in [Suburb 1], Australian Capital Territory.

    Claims for protection and supporting documentation.

16. The applicants submitted claims for protection to the Department. Those claims were set out in the Department decision record dated 6 May 2020. The Tribunal is satisfied it is an accurate summary of the claims made at the time:

    ·Human rights abuses occur regularly in Fiji and one cannot speak out against the current government.

    ·Lives of ordinary citizens in Fiji are not safe from people who abuse their power.

    ·The applicant was employed by the government for nine years, however in that period he was never offered a scholarship, nor considered for a higher post. Other more junior staff were offered promotions and scholarships however because of their relations with the Fiji scholarships department head. The applicant felt victimised and unfairly treated.

    ·University graduates and less experienced staff were offered positions above those with more relevant work experience because they were good at interviews.

    ·The applicant however was only offered a series of six months contracts., meaning he could not approach a bank for a loan.

    ·In 2018 after returning from a 3-month unpaid leave trip to Australia he was advised he had been overpaid while on leave due to a “blunder”.

    ·He was advised he would need to repay the overpayment immediately.

    ·Although he pleaded with the Ministry, this proved futile and his family needed to live on half pay for the following six months. The applicant felt he was treated unfairly over this issue.

    ·His father is a [office bearer] of the Methodist church. As the current government is not on good terms with the Methodist church all those affiliated with the church are considered enemies of the current government

    ·The applicant could not relocate elsewhere in Fiji as there were no work opportunities in other parts of the country specific to his field of work.

    ·If he returns to Fiji his future will be uncertain.

    ·His family will be subjected to human rights abuses, and if he tries to express his views about the current government he will be seen as an enemy of the government and will be prosecuted and threatened by them. He will be monitored by the police or military and will be subjected to verbal and physical abuse.

    ·He has virtually no chance of being re-employed in the current government as once you lose your employment in the current government your chances of being re-employed are bleak.

    Evidence at the Tribunal hearing

17. The primary applicant (the applicant) advised he completed the protection visa application himself without the assistance of an agent. He and the secondary applicants arrived in Australia in 2019 as visitors. The applicant advised his parents are in Fiji while his parents-in-law live in Australia. He was employed in the civil service in Fiji and had travelled to Australia previously, in 2005, 2015 and 2018. According to the applicant, he and his family came to Australia in 2019 because his mother-in-law had [cancer] and needed to be taken to medical appointments.

18. Regarding claims for protection, the applicant stated his issues in Fiji were with the previous government and the treatment of indigenous Fijians as well as his personal treatment at work when employed as a [Occupation 1] in the civil service. The applicant said he was never given any indication he could further his education and he suffered mistreatment which he believes was racially motivated. When asked why he believed this to be the case, the applicant said Indian Fijians are given sponsorships, and younger, more qualified people were given jobs. The applicant said despite working in the civil service for five years, he was employed on short term contracts that had to be renewed.

19. The applicant referred to an incident in which his salary was overpaid while he was on leave, and he was required to repay the funds. He claimed he had asked for time to pay many times but an accounts officer who was Indian just told him to pay the money back. He said this was difficult as he had to survive. The applicant gave evidence that his department employed too many people and he was “floating around”. The applicant said he was given counselling sessions about having taken leave and told he was deemed to have resigned. He submitted he was trying to go to work to support his family and young children and that he had bills and medications to pay for.

20. The applicant was asked about his claims at the time of application that he fears returning to Fiji. He stated if he returned, he would have to start all over again and referred to the benefits of having employment, welfare, and family members in Australia. The applicant agreed there has been a change of government in Fiji which he said is a good thing. However, he said his father is in the Methodist church and the mention of his name makes things difficult. When asked to elaborate the applicant stated his father was a permanent secretary of reconciliation in Fiji and Fiji First had been put on a watch list. It was claimed that as a consequence, his father could not do anything, his movements were watched, and he was “called up to answer questions”. The applicant alleged there are groups within government that have views about Methodists.

21. The Tribunal asked about the applicant’s qualifications and work experience. He explained that the skill set he gained from working in the Fiji civil service would not allow him to get a job. The applicant claimed in Fiji everything comes down to qualifications and he is grateful for the opportunity to work in Australia. The applicant said he wanted his sons to enjoy the health and education benefits in Australia and submitted he pays taxes and school fees. The applicant claimed he was victimised in Fiji, and it was stressful for the family because they were struggling to survive. The applicant submitted that he has enjoyed living in Australia for the last few years because of the employment he has, that he would not get in Fiji. He submitted that although it has been strenuous work, it has provided a good income allowing the family to pay for rent and cars.

22. Regarding the change of government in Fiji since he left, the applicant claimed it would take a few years for the situation to settle down. He referred to incidences of violence and unrest that have occurred in the country but advised he has never personally been arrested or had trouble with the Fijian authorities. He said that he may have a profile with the authorities because of his father who is well known. The applicant submitted one of the reasons he came to Australia was because of family and in Fiji he would have to start all over again. He declared it would be better for his children to be protected within Australia’s borders where they may be able to pursue further education.

    Country Information - Fiji

    Security situation

    Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence.[1] Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem. Accusations of police violence are commonly reported and regularly investigated.[2]

    [1] The latest Fijian general election was held on 14 December 2022, Sitiveni Rabuka became the12th prime.

    [2] Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji – 20 May 2022.

    Economic overview

    The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.

    Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.

    About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.

    Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.[3]

    Religion

    The 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion and specifically protects against religious discrimination. In practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom.

    About 65 per cent of Fijians are Christians, about 25 per cent are Hindu and about 6 to 7 per cent are Muslim. The Methodist Church in Fiji and Rotuma (MCFR) is the largest denomination with over 212,000 members, according to the World Council of Churches. Other Christian denominations include Catholicism, Assemblies of God and Seventh Day Adventist. Religion tends to be divided along ethnic lines; most iTaukei are Methodist and most Indo-Fijians are Hindu or Muslim.

    Most traditional chiefs, who are influential in Fijian society, are Methodists. Methodism in this context is a shared tradition rather than a single church hierarchy. The MCFR is the largest church organisation, but other Methodist churches also exist.

    The MCFR has historically been influential in Fijian politics. There is some overlap between the ethno-nationalism of the main opposition party (SODELPA) and the MCFR, and many ethno-nationalists are members of both organisations. DFAT assesses that there is no official or societal discrimination against members of the Methodist church based on their religion. Methodists worship and gather freely and the Church and its members are influential in Fijian society.[4]

    [3] (DFAT) Country Information Report Fiji – 20 May 2022.

    [4] (DFAT) Country Information Report Fiji – 20 May 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Refugee assessment

24. The Tribunal considered whether the applicant fears persecution if he returns to Fiji for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion. 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.

25. The applicant’s claims for protection in Australia are based on alleged human rights abuses in Fiji including an inability to speak out and abuses of power. In his protection visa application, the applicant stated he would suffer harm if he returned to Fiji. He also claims to have experienced discrimination in his government workplace and economic issues which include difficulty supporting his family financially.

26. The Tribunal accepts the following facts:

    ·     The applicant was a civil servant in Fiji prior to arriving in Australia.

    ·     The applicant’s father was also a civil servant and is now involved with the Methodist church.

    ·     The applicant was dissatisfied with his role as a civil servant due to the lack of opportunities available to him.

    ·     The applicant was overpaid his salary while on leave and unsuccessfully sought an extension of time to repay the money.

    ·     The applicant’s contractual engagement with the Fiji civil service ended following a dispute about salary overpayment.

    ·     The applicant experienced financial difficulty because of losing his employment in Fiji.

1. The Tribunal does not accept the applicant fears persecution or that he would be subjected to harm due to human rights abuses if he returns to Fiji, or that he faces prosecution or monitoring by the authorities.

2. The Tribunal notes most of the evidence provided to the Tribunal is related to the applicant’s lack of qualifications that affected his working life in Fiji as well as his employment in Australia and the circumstances of his family. The applicant made general claims in his application for protection regarding freedom of speech and human rights in Fiji. However, he did not provide any evidence that he has ever been critical of the past or present government of Fiji, or that he has a profile in Fijian politics or that he has ever had any involvement in politics. If he were to express any opinions on politics, the Constitution of Fiji provides guarantees relating to freedom of speech, expression, assembly, and association. In his written submission dated 20 June 2020, the applicant claimed that as a civil servant, his free speech was curtailed as he was warned not to speak out against the then government of Fiji. He also made general claims about poor governance, nepotism, cronyism and corruption under the Bainimarama government. The Tribunal accepts the applicant was dissatisfied with his experience in the civil service in Fiji and was unable to secure suitable, permanent employment. However, the Tribunal is not satisfied the applicant was persecuted while in Fiji for his political opinion, or that there is a real chance he would be harmed if he returned for that reason. The Tribunal notes that following a General Election on 14 December 2022, Fiji has had a change of Bainimarama FijiFirst party is no longer in power.

3. The applicant claimed he was disadvantaged in the workplace in his home country because of racial discrimination. He alleged employees of Fijian Indian background were given advantages that were not available to him and were unhelpful when he had difficulty repaying salary that he received in error. The Tribunal is prepared to accept the applicant was unable to progress in his career as he hoped but is not satisfied it was for reasons of race. It is usual for candidates with superior qualifications to receive promotions over other employees such as the applicant, or for there to be scholarships or programs that he was not eligible for. Regarding the applicant’s claim that he was denied extra time to correct an overpayment of salary, the Tribunal does not accept it was because of an accounts officer’s ethnicity. There is no evidence to support the claim of discrimination other than the applicant’s bare assertions. The Tribunal is not satisfied the officer’s Indian background was anything other than incidental to the matter, or that his financial difficulties in the past mean he would be persecuted for a refugee reason in future.

4. Having assessed the applicant’s evidence and claims it appears the applicant wishes to remain in Australia for economic reasons and for the education and wellbeing of his spouse and children. The applicant’s parent [Mr A] provided a statement dated 18 December 2018 professing support for the “application for long term residence status for his [the applicant’s] family in Australia and the opportunity for employment and development”. The letter discusses difficulties related to public sector employment in Fiji and the writer’s background in anti-corruption and the Methodist church. In his own undated statement to the Tribunal, the applicant outlines his employment as an [Occupation 2] in Australia and the opportunities for education and employment for his family. This evidence supports a finding that the applicant’s issues in Fiji were economic.

5. The Tribunal considered whether the applicant is a member of a particular social group, that being an unqualified worker with limited means and earning capacity in Fiji and whether he would suffer serious harm for that reason. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. The Tribunal notes the applicant was employed in the Fiji civil service in his home country which, it was claimed, was only ever on a contractual basis rather than permanent. The Tribunal accepts the applicant was overlooked for a permanent position or promotion as a government employee, but he nevertheless acquired skills and experience that would be of benefit in future. In addition, the applicant now has experience in the building industry in Australia as an [Occupation 2] and those skills could transfer to the workplace in Fiji. The Tribunal is not satisfied the applicant would suffer serious harm due to significant economic hardship that would threaten his or his family’s capacity to subsist.

7. The applicant made claims regarding his religion, and in particular, his father being involved in the Methodist church in Fiji. The applicant suggested Methodists are discriminated against when seeking employment. However, country information indicates that the majority of people, including nearly all indigenous Fijis are Christians, with Methodists being the largest of the Christian denominations in Fiji. Country information indicates that Christians, including Methodists in Fiji face little to no official or societal discrimination. There is no information to indicate that Methodists in Fiji are facing any specific problems on account of their religion, or that being a Methodist adversely elevates someone’s political profile in Fiji. In addition, there is no satisfactory evidence to support the claim that the applicant’s father has an adverse profile in Fiji, or that his activities have any impact on the applicants.

   Complementary protection assessment

8. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

9. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

10. As outlined in this decision, the applicants claim they applied for protection in Australia due the primary applicant’s freedom of speech being curtailed in the past, disadvantage in the workplace based on unfair practices and racial discrimination and difficulty finding suitable employment. The primary applicant also claimed he feared returning because of his father and his family being Methodists. The Tribunal has not accepted the applicants believe they will be seriously harmed in Fiji, or that there is a real risk they would be harmed for any reason. Instead, the applicants faced difficulties that are not uncommon for families struggling to provide a good standard of living for themselves. The applicants provided evidence of their employment in Australia and enrolment in school which indicates the primary applicant and his wife have been able to secure superior employment, allowing the family to enjoy an improved lifestyle. While the applicants prefer the benefits of living in Australia, the Tribunal is not satisfied on the evidence that anyone in Fiji will intentionally harm the primary applicant or his wife and children and is not satisfied there is a real risk of serious harm if the applicants return to their home country.

11. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants protection visas.

    Wendy Banfield
    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.

    …