2009636 (Refugee)

2009636 (Refugee) [2024] AATA 2849 (22 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009636
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Michael Brereton
DATE:22 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2024 at 2:00pm
CATCHWORDS
REFUGEE – protection visa – Fiji – detained, questioned and tortured during coup – delay in applying for protection visa – long period as unlawful non-citizen – limited education and knowledge of visa system – physical health – honest and credible evidence – teenaged street kid who went to coup site because there was food there – weapons later found to be missing – no political involvement or profile – country information – 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
CASES
MIAC v SZQRB [2013] FCAFC 33
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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 21 May 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 11 January 2019. The applicant claimed to fear harm because of an incident during the 2000 coup that led to his being detained, questioned, and tortured. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant has a political profile which will attract any adverse attention from the Fijian authorities. The applicant applied to the Tribunal for review of the delegate’s decision.
The applicant appeared before the Tribunal on 12 April 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are the applicant’s fear of harm from the police because of incidents during and after the 2000 coup, and his fears for his health should he return to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims and evidence provided to the Department
Protection visa application
The applicant arrived in Australia on a tourist visa in 2011. He applied for the protection visa in 2019. This delay is discussed further below.
In his application for the protection visa, the applicant claims that he was one of the people who visited the coup participants in the Fijian parliament building during the 2000 coup. In 2009, he was taken to an army camp for questioning and subjected to torture. The police have come looking for him three times since then and this is why he came to Australia.
Claims and evidence provided to the Tribunal
The review application
The applicant’s application for review contains a statement explaining his fears of returning to Fiji. He also asks the Tribunal to delay the matter until 2025 because he has medical issues. He has provided medical evidence of suffering sinus and nasal polyp conditions and also provided a referral for possible surgery. He has an appointment with a specialist in May 2024.
The Tribunal considered the applicant’s request for a delayed hearing but as the applicant does not appear to be incapacitated or otherwise unable to participate in a hearing, decided to invite the applicant to a hearing listed for 12 April 2024.
Prehearing
On 10 April 2024, the applicant accepted the invitation to the hearing and provided further evidence and information with his hearing response. This comprises a further statement, headed “The ground of fear going back to Fiji(1)”, copies of medical information already provided, a copy of a medical referral letter dated 21 February 2024, and an estimate of self-funded surgical fees. He stated that he would like to call two witnesses from Fiji.
The hearing: oral evidence
The applicant attended the hearing on 12 April 2024. The applicant’s friend, Ms A, attended as a support person. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages, although the applicant was comfortable giving some evidence in English. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The Tribunal has not received any post-hearing submissions or evidence.
CONSIDERATION
Identity
The applicant has provided a copy of his Fijian passport. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Based on the evidence provided, the Tribunal finds that the applicant is a citizen of Fiji and has assessed the protection claims against Fiji as the country of reference and receiving country.
Delay in application for protection
The Tribunal asked the applicant about fleeing Fiji in 2011 and what visa(s) he had held. The applicant responded with candour that he came to Australia on a tourist visa that expired in, he believes, late 2011. He remained in Australia unlawfully until 2019. When asked why he decided to apply for the protection visa in 2019 he said that by that time he had met his friend, Ms A, and she was able to explain things and translate for him. He had not realised before that time that he could apply for protection. He said that Ms A had explained it to him and helped him to fill out the application form. He said that everything in the application form was true, and he did not want to change or amend anything.
The applicant’s biographical evidence is that he left school and home in his early teens and lived for some time as a “street kid” in Suva. He came to Australia at the age of [Age]. At the hearing he demonstrated an ability to speak and understand a little English but said he has not undertaken any formal study or training in Australia.
It may be relevant for a Tribunal to consider delays between arriving in Australia and applying for protection, especially where this also involves a period of unlawful residence. In the present case, however, the Tribunal takes into account the applicant’s early life experience and lack of education opportunity. The Tribunal does not consider the applicant’s explanation for the delay is unreasonable or implausible. The Tribunal has not drawn any adverse inferences in respect of the delay or the applicant’s past migration history.
Credibility
The applicant presented as a quiet, reserved, and anxious person. He appeared to be suffering some physical pain and the Tribunal extended invitations to stand and walk around, and for breaks. The applicant presented as an honest and credible witness whose story appeared to come from lived experience. The Tribunal has no concerns with the applicant’s credibility or with his claimed history.
Witnesses
The Tribunal asked the applicant what evidence the witnesses will give. The applicant said that they will tell the Tribunal about the time he was taken by the police and the injuries he received. The Tribunal asked if there was anything else the witnesses will say. The applicant said that they will only be able to talk about the incident. The Tribunal said that at the moment it was inclined to believe the applicant’s evidence in his statement and if it did accept this, were there any other questions that the applicant would like the Tribunal to ask the witnesses. The Tribunal gave the applicant an adjournment to speak with his support person in private. When the hearing resumed the applicant said there was nothing else to ask the witnesses and the Tribunal said on that basis it was proposing to not call on the witnesses. The Tribunal said if it became necessary to do so, it would call the witnesses.
Towards the end of the hearing, the Tribunal invited the applicant’s support person, Ms A, to speak. The Tribunal has considered Ms A’s comments further below.
Refugee Consideration
History
The applicant claims the following history of events:
a.The applicant was born and lived on an outlying island of Fiji until the age of about 13 or 14. His father was a “difficult” man and the applicant suffered instances of family violence including physical violence.
b.In around [Year], the applicant left home and school and went to Suva. He lived there as a “street kid” and made a living as [an Occupation 1].
c.During the failed coup in 2000, the applicant and some of his friends went to the parliament buildings because they heard there was food there. They stayed in the buildings with the coup people.
d.When the coup failed, the police found that some weapons were missing from the parliament buildings. Some of the applicant’s friends were questioned but the applicant was not detained or questioned at this time.
e.The applicant later obtained work as [an Occupation 1]. He worked as [an Occupation 2] for a few years in Fiji.
f.In 2009, the police took him into custody and questioned him about the missing weapons. He does not know anything about the weapons, but he was tortured and suffered injuries. He was too scared to get medical treatment after his release, but some friends helped him.
g.He was able to return to work but was scared that the police would come looking for him. People did come to his workplace looking for him on three occasions, although he was able to avoid them.
h.After he received some money through an inheritance, he was able to come to Australia.
i.He continues to suffer some physical pain and problems and suffers a lot of anxiety and mental anguish because of what happened.
The Tribunal asked why the applicant and his friends would be accused of taking the weapons. He said that they were street kids and were blamed for everything that went missing. The Tribunal asked when the last time was that someone had looked for him in Fiji. He said it was before he came to Australia (in 2011). The Tribunal asked if the police continued to arrest or question any of the other boys who were involved. He said he did not know. The Tribunal asked if the applicant has ever been involved in politics, a member or affiliate of a political group, or had any political profile. The applicant said no. The Tribunal asked if he feared harm from any member of his family and he said no. The Tribunal asked why he fears harm if he returns to Fiji and he said because of what happened before, he might face the same situation.
The Tribunal considers it is plausible that the Fijian authorities would be concerned about missing weapons in the immediate aftermath of the 2000 coup. The Tribunal also notes that there was a further coup in 2006 and considers it plausible that police interest in missing weapons may have been reignited. The Tribunal considers it plausible that street kids may be suspected of thievery and that this is the reason the applicant and his friends were of interest to the police. The Tribunal accepts the applicant’s claimed history of events, including his detention, mistreatment, and injuries; however, it finds that the adverse interest in the applicant was related only to the missing weapons. The Tribunal finds that the applicant has no political, opposition, or other profile that may be considered an adverse profile.
The Tribunal discussed country information about the political developments in Fiji with the applicant. It noted that the former Prime Minister Mr Bainimarama and his Fiji First party (who were in power at the time of the applicant’s detention) have been ousted. The new Prime Minister, Mr Rabuka, is rumoured to have been a supporter of the failed 2000 coup. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups and politics in Fiji today is no longer characterised by the unrest of the past.[1] The current regime is even considering pardoning the 2000 coup leader, Mr Speight, and has repealed some of the draconian media laws of the past.[2]
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022,
[2] ‘Move to pardon Fiji’s 2000 coup leader could raise political temperature”, The Australia Today, 9 July 2023, >
The applicant’s lack of any adverse political profile and the changed political landscape in Fiji, indicate that the applicant will not be of any adverse interest to anyone for political reasons, should he return. The Tribunal finds that there is no real chance that the applicant will be of adverse interest to the Fijian government or authorities and face harm because of any real or implied support to, or involvement in, the 2000 coup.
The Tribunal acknowledges that the authorities’ concerns about missing weapons on its own may be a reason for adverse interest. However, the events occurred 24 years ago. The applicant has not heard of any ongoing or recent interest in himself, or any of the other people who were with him at the parliament buildings. The Tribunal does not consider it is plausible that the authorities would still have an adverse interest in the applicant because of missing weapons now, or that he will be subjected to further questioning, detention, and/or mistreatment. The Tribunal finds that there is no real chance that the applicant will face harm from the Fijian authorities arising from the missing weapons.
Health
The applicant claims to suffer from nasal polyps, fatty liver, haemorrhoids, chest pain, and back pain. He has had a recent blood test to investigate the chest pain and he believes his chest and back pain are the results of the injuries he suffered in Fiji. He is also having trouble with mobility as he ages (he is now [Age] years old), a lack of energy, and breathing problems in cold winters. He said he is fearful of returning to Fiji because of the standards of health care, the use of expired products and medicines, and because he doubts that he will receive appropriate treatment. He said that he had heard about people who went into hospitals in Fiji and died for no explained reasons. He fears that he will not be able to obtain proper medical treatment in Fiji and may die.
The Tribunal discussed the DFAT information that:
Health care is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor. Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
The Tribunal said that there was no indication that people are denied access to health care, treatment, or medications for any reasons. Nor is there any information suggesting that anyone is deliberately inflicting harm for any reasons. The applicant said that the health care system in Australia is fast and professional and emergency care is better here.
The Tribunal acknowledges the applicant’s fear in respect of his health, prognosis, and treatment options in Fiji. The Tribunal accepts that the level of healthcare in Fiji may not be at the same level as that available in Australia. However, the information before the Tribunal does not indicate that people are denied, or are otherwise unable to access, healthcare in Fiji. The information does not indicate that the Fiji health system is so poor that people face a routine or systemic chance or risk of harm within that system. There is no information suggesting that the authorities, any organisation, or any persons, inflict harm on patients.
Having regard to the above, the Tribunal finds that there is not a real chance that the applicant will face serious harm for any of the reasons contemplated in s 5J(1)(a) should he need to access and/or enter the Fiji health system.
Ms A

Towards the end of the hearing the Tribunal invited the applicant’s support person, Ms A, to tell the Tribunal anything she wanted the Tribunal to know about the applicant. Ms A said that the applicant has been living in fear, always feeling fear because of what happened in the past. She said if he goes back to Fiji he will be depressed. She said that he has been influenced by the behaviour of people in Australia and the work ethic here and will be “brought down” by the tenure of “delay, delay, delay” that is in Fiji. She said that he does not want to go back to that level.
The Tribunal accepts that the applicant is fearful of returning to Fiji because of what happened in the past, and his concerns about the health system there. However, having regard to the evidence and country information noted above, the Tribunal finds that the applicant’s fears are not well-founded, and the applicant does not have a well-founded fear of persecution for any reason should he return to Fiji.
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
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’.
Pursuant to s 36(2A), a person will suffer significant harm if:
·they will be arbitrarily deprived of their life; or
·the death penalty will be carried out on them; or
·they will be subjected to torture; or
·they will be subjected to cruel or inhuman treatment or punishment; or
·they will be subjected to degrading treatment or punishment.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience harm from anyone because of the 2000 coup and/or the missing weapons if he returns to Fiji. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant will face significant harm for any of these reasons if returned to Fiji.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013)
per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts that there are some concerns reported about the health care system in Fiji. However, there is no information before the Tribunal indicating that any persons within, or trying to access, the healthcare system face a real risk of being arbitrarily deprived of their lives, having the death penalty carried out on them, or being subjected to torture.
In SZTAL v MIBP; SZTGM v MIBP[4] the High Court held that the concepts of cruel or inhuman treatment or punishment and degrading treatment or punishment for the purposes of s 36(2A) require an actual, subjective intention to inflict harm or bring about the suffering caused. The country information before the Tribunal does not indicate that there is any group, organisation, or person, involved in the Fiji healthcare system, who will, or may, intentionally inflict harm of this type, for any reason or reasons.
[4] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
For these reasons, the Tribunal finds that the applicant does not face a real risk of significant harm, now or in the reasonably foreseeable future, from or within the Fijian healthcare system for any reason.
The Tribunal accepts that the applicant is fearful of returning to Fiji and notes his and Ms A’s evidence that it may lead to depression or other mental anguish. The Tribunal has sympathy for the applicant; however, it finds that any fear, depression, upset, or other concerns that the applicant may experience will not amount, singly or together, to harm of a level contemplated by the exhaustive definition at s 36(2A). Nor is there any evidence indicating that any person will intentionally cause fear for the applicant or undertake any other conduct that may trigger or exacerbate his fears or other anguish. The Tribunal finds that the applicant does not face a real risk of significant harm, now or in the reasonably foreseeable future, arising from his fears or mental health, should he return to Fiji.
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)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Brereton
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.
…

in the World 2023 - Fiji', Freedom House, 31 August 2023,

[2024] AATA 2849

22 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice