2009678 (Refugee)

2009678 (Refugee) [2024] AATA 1961 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009678
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Michael Brereton
DATE:26 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 April 2024 at 11:31am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – indigenous Fijians who have been associated with the military – older indigenous Fijians who will be unable to work and support themselves in Fiji – a member of the military – was not a member of any political or opposition organisation or group that has been targeted or subjected to harassment or violence – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who are a wife and husband who claim to be citizens of Fiji, applied for the visas on 4 February 2020. Only the wife (the first applicant) made claims. The delegate was not satisfied that the first applicant has a political profile which will attract any adverse attention of the Fijian authorities, or that she will face a real chance of serious harm on the basis of her political opinion. Having considered all the claims of the first applicant, both individually and cumulatively the delegate found that the applicants would not face a real chance of persecution in Fiji now or in the foreseeable future. The delegate was not satisfied that the applicants would face a real risk of significant harm should they return to Fiji.
The applicants appeared before the Tribunal on 12 February 2024 and 6 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A], the President of [a] Community and pastor. The Tribunal hearings were 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, 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 applicants’ claims to fear harm in this case can be categorised in two parts. They fear harm because of their profiles as indigenous Fijians who have been associated with the military; and as older indigenous Fijians who will be unable to work and support themselves in Fiji.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims and Evidence Provided to the Department
On 4 February 2020, the applicants lodged an application for a Protection Visa with the Department. The first applicant made statements that:
My husband and I left Fiji in search of a better life. Even though Fiji is a beautiful nation, we find that it is not an easy life and we have to struggle day in and day out. Putting food on the table is not easy, but we have to make the most of what we have. As my husband is a military officer, he is finding it hard to cope with the changes that are taking place in the military but since it was part of his duty, he was lawfully binded just to keep his job and put food on the table. At times, life is a struggle and we have to suffer in silence because of the changes that are taking place in our country. As a minority, we find that it is not easy to voiced our opinion in a sense that we will be victimised for speaking the truth.
… if my husband goes against the law of the military, he will definitely face the military law whether he is right or wrong.
Fiji is a small nation and it easy to find people when they go in hiding. The full brunch of the military law would take effect and I will loose my husband altogether.
Article 1(1) of the convention defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. It is my opinion that the 2006 coup is far destructive as it has been used as a vehicle to implement a social experiment under the disguise of "equal citizenry" aimed at assimilating the indigenous people of Fiji to a homogenous society minus its ethnicity, minus its cultural autonomy, minus the cultural manifestation and minus the indigenous rights. This is evident in the policies and draconian laws that have now taken effect in Fiji's "progressive" society which has done nothing but supress the views of the indigenous people who are left with nothing but qualms over how it is supposed to promote openly its culture, traditions and way of life without fear.
Claims and evidence provided to the Tribunal
The review application
On 10 June 2020, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The applicants provided the Tribunal with a copy of the delegate’s decision record and attached various media and other reports.
Pre-hearing submissions and evidence
The applicants have provided a large amount of documentary evidence relating to their identities, qualifications, work history in Fiji and Australia, and their engagement with the local community in Australia.
On 10 January 2024, the Tribunal wrote to the applicants advising that their file was being prepared to be given to a Tribunal Member. The applicants have lodged further documents, photographs, letters of support and other information with the Tribunal.
The hearings: oral evidence and supporting documents
The applicants and their witness appeared before the Tribunal on 12 February 2024 to give evidence and present arguments. The Tribunal invited the applicants to a further hearing on 6 March 2024, which they also attended.
Where relevant, the applicants’ oral evidence and documentary evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The Tribunal has received a large volume of post-hearing information. This may be categorised as information relating to the applicants, general country information, and information relating to the applicants’ engagement with and contribution to the Australian community. The Tribunal has considered this information.
CONSIDERATION AND FINDINGS
Identity
The applicants have provided copies of Fijian identity documents. There is no evidence before the Tribunal to suggest that the applicants have 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 applicants are citizens of Fiji and has assessed their protection claims against Fiji as the country of reference and receiving country.
Personal Circumstances
The applicants appeared as engaged, forthright, and credible. The Tribunal has no concerns with the credibility of the applicants’ claims.
First applicant
For the purposes of this decision, the Tribunal accepts the following. The first applicant was born in Fiji and at the time of the hearings was [age] years old. She graduated High School and completed a [qualification] [at] [a] University. She has worked in Fiji in [specified] positions and for the last 10 – 12 years before leaving, she was employed by [an employer]. This was originally a government organisation, but it changed to a private company. A lot of people were made redundant on privatisation, but the applicant was able to keep her job until she and her husband left Fiji.
The first applicant married the second applicant in Fiji in 2005.
Second applicant
For the purposes of this decision, the Tribunal accepts the following. The second applicant was born in Fiji and at the time of the hearings was [age] years old. He was educated at High School to [a grade] ([a grade] equivalent). In 1987 he joined the Fijian Army. He served continuous service as [various roles], retiring in 2019 when he reached the mandatory retirement age of 55. He had a number of overseas [deployments]. He also worked with [an employer]. The Tribunal also notes a letter of commendation from the second applicant’s previous [superior].
Discrimination Claims
The applicants’ evidence is that they suffered some ostracism from other indigenous Fijians and that they are concerned for the future. They do not claim to have had any involvement in politics or the coups in Fiji, nor to have suffered any harm from the government, military, authorities, or the broader state.
The Tribunal asked the second applicant about the ostracism he faced as a member of the military. He said that when he returned from a deployment, he bought a new car. He said that he was “looked on sideways and discriminated as a military man” and the next morning, the car was keyed and scratched. He said this showed how the community disliked the military. He also told the Tribunal about the arrest of a paramount chief of his province when the second applicant was deployed to [Country 1]. He said that the Fijian soldiers in [Country 1] were really upset, and the incident caused friction and bad relationships with indigenous members. The second applicant was not able to do anything because he had to follow protocol and orders, or he would have been sent home. He said that some of the Fijian soldiers who came from his province caused a lot of trouble and engaged in drunken misconduct because of the arrest. The Tribunal asked if the second applicant, as [an] officer, had to help restore discipline. He said that he called all the soldiers together and held a cultural reconciliation process with the deployment commander.
The applicants provided media and other reporting referring to recent concerns expressed by indigenous Fijians and military veterans. This includes a controversial decision to allow a senior officer to take up a posting with the Australian Defence Force, despite allegations of his having been involved in torture and other crimes during the coup periods.
The Tribunal accepts that the second applicant may have been uncomfortable at times during his service with the Fijian military and may have faced some hostility from other persons. The Tribunal accepts that he may have had difficulties with the actions of some of the political leaders at times. However, the second applicant has been retired since 2019. The second applicant was not involved in the coups himself and was not a member of any political or opposition organisation or group that has been targeted or subjected to harassment or violence. The DFAT information does not indicate that former military personnel who have no other adverse profiles are targeted or subjected to harassment for that reason. There is no other information before the Tribunal, including in the information provided by the applicants, that former military personnel are targeted, discriminated against, or harassed for that reason.
The Tribunal finds that the second applicant has had a commendable career with the Fiji military and there is no suggestion that he is of interest to the Fijian authorities for any reason. The Tribunal also finds that he has retired and is no longer subject to military law or disciplinary constraints. Further, while he may have experienced some harassment from persons opposed to the military in the past, the information before the Tribunal does not indicate that former soldiers are subjected to harassment or harm for that reason in Fiji. The Tribunal finds that the second applicant does not face a real chance of harm for any reason arising from his previous service in the Fiji military should he return to Fiji. It follows that the first applicant does not face a real chance of harm for any reason arising from the second applicant’s previous service, should she return to Fiji.
Political regime
The first applicant said that she did not fear anything in particular but the leadership in Fiji is very much of a coup culture and even the current Prime Minister, Mr Rabuka, is a former coup man. She said that the lives of indigenous people are built on harmony and respect but the way the leadership is going it still has the feel of a coup culture and could escalate at any time.
The Tribunal referred to DFAT reporting[1] that:
Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
[1] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, >
The Tribunal also referred to recent reporting that Fiji has re-established the Great Council of Chiefs[2] which, for some commentators, reflects a new Fiji and a more mature Pacific region. Prime Minister Rabuka said that “[w]hile the body is intrinsically linked to the governance and well-being of the iTaukei [traditional Fijians], it carries a profound obligation to embrace and advocate for every member of our diverse society.”
[2] ‘Banned for almost two decades, Fiji's Great Council of Chiefs is back and pushing for greater influence.’ ABC News, 4 March 2024, >
The first applicant said that she is thankful that the government is taking steps to improve and abolish discrimination, and that Fiji is slowly returning from 16 long years of suffering. She said that indigenous iTaukei have different standards of education and while some are well educated, some are not at all. Those who are not rely on village life to live a subsistence living off the land. She said that she was brought up in an urban area and it would be hard to adapt to a village life. The second applicant said that his village has a mindset of fear and a mistrust of the military. He said he was glad for the restoration of the Great Council of Chiefs but spoke of the need to look forward and change attitudes and mindsets. He said this is harder in the villages than the cities.
Based on the information before it, the Tribunal does not accept that indigenous Fijians are discriminated against in Fiji by the government and does not accept that the applicants have faced harm in the past because of their ethnicity. Having regard to the current DFAT assessment, other information before the Tribunal, and the applicants’ past experiences, the Tribunal does not accept that the applicants will face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future due to their ethnicity, and does not accept that they face a real chance or real risk of being discriminated against on the basis of ethnicity, or for any other reason.
The Tribunal acknowledges that the applicants are concerned about the stability of the Fijian government and has considered whether the political situation in Fiji may change in the foreseeable future. The Tribunal finds that it is speculative as to whether the former government may return to power or whether there may be another coup (either led by the former Prime Minister or another person). There is of course no guarantee, but the Tribunal has considered the applicants’ concerns and information and finds that there is no more than a remote chance of unrest or a coup occurring in the reasonably foreseeable future.
Having regard to all the above, the Tribunal finds that the applicants do not have a well-founded fear of persecution arising from their status as indigenous Fijians, the political or security situation in Fiji, or from the second applicant’s previous service with the Fiji military.
Return to Fiji

The Tribunal has also considered whether the applicants may face harm as failed asylum seekers. DFAT reports that it is not aware of any official or societal discrimination against failed asylum seekers. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities. The applicants do not claim to have any other adverse profile (such as criminal activities, involvement in previous coups, or anti-government activities in Australia) and the Tribunal finds that they will not be of adverse interest to the Fijian authorities, including Fijian immigration officers, should they return to Fiji. Nor will they be of any adverse interest to any other authorities, group, or persons for being returned asylum-seekers. The Tribunal finds that the applicants do not face a real chance of harm, let alone serious harm, for any reason relating to their asylum claims, should they return to Fiji.
General Economic Issues
The Tribunal notes the substantial information provided relating to the applicants’ activities in Australia, contribution to society and involvement with their church. The Tribunal accepts that the applicants have undertaken employment and training in Australia, are engaged with their local community and church, have been contributing to Australia since their arrival, and hope to go on contributing into the future. The Tribunal commends the applicants for their efforts but is only able to make findings as to whether the applicants face a real chance or real risk of relevant harm should they return to Fiji.
The Tribunal accepts that the applicants would prefer to remain in Australia to continue earning money, which they use to provide support to children and grandchildren in Fiji. The Tribunal accepts that the first applicant is close to the mandatory retirement age and her evidence that her previous job no longer exists. The Tribunal accepts that she may not be able to find work in Fiji due to her age. The Tribunal accepts her evidence that she will be able to access her pension when she turns 55.
The Tribunal accepts that the second applicant retired from the Fiji military having reached the mandatory retirement age. The Tribunal accepts that the second applicant is receiving a pension from the military. The Tribunal accepts that he may not be able to find work in Fiji due to his age.
The Tribunal accepts that upon return to Fiji, the applicants may not be able to obtain work and would need to use their pensions to pay for their living expenses. The Tribunal accepts that this may not provide an income commensurate with what the applicants are earning, or can earn, in Australia. The Tribunal accepts that they may not be able to provide the same support to their families in Fiji. However, the test for the Tribunal to consider is whether the applicants will face harm. While the Tribunal accepts that being unable to support their families in the way they wish may be distressing for the applicants, the Tribunal finds that any harm the applicants may face, including this distress, if experienced, would not comprise, include, or amount to any conduct that may threaten their life or liberty, or lead to significant physical harassment or significant physical ill treatment. Nor would it constitute significant economic hardship, a denial of access to basic services, or a denial of capacity to earn a livelihood of any kind.
The applicants may find it more difficult to live on their pensions in Fiji than the life they can lead in Australia. The Tribunal has sympathy for the applicants but finds that any difficulties or challenges they may face will not be inflicted on them for any of the reasons specified in s 5J(1)(a).
Having regard to the above, the Tribunal finds that the applicants do not have a well-founded fear of persecution arising from economic conditions in Fiji.
The Tribunal is not satisfied that the applicants satisfy the criterion in s 36(2)(a),
COMPLEMENTARY PROTECTION
The Tribunal now turns to whether the applicants satisfy 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.
The Tribunal has found above that the applicants do not face a real chance of harm for any reason relating to their asylum claims, should they return to Fiji. Section 36(2)(aa) of the Act 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]). For this reason, the Tribunal finds that the applicants do not face a real risk of significant harm for any reason or reasons arising from their status as returned asylum-seekers, should they return to Fiji.
The Tribunal has accepted that the applicants will face difficulties and challenges returning to Fiji and living on their pensions. The Tribunal accepts that this may include emotional distress brought on by being unable to support their families in the way they wish to. The Tribunal has sympathy for the applicants but on the information before it, it finds that any economic or related harm the applicants may face in Fiji would not comprise, include, or amount to being arbitrarily deprived of their lives, having the death penalty carried out on them, being subjected to torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading treatment or punishment. The Tribunal finds that the applicants will not face a real risk of significant harm, as defined in the Act, for any economic or related reason(s) should they return to Fiji.
Having regard to the above, the Tribunal finds that there are not substantial reasons to believe that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that the applicants will suffer significant harm.
The Tribunal is not satisfied that the applicants satisfy the criterion in s 36(2)(aa).
Conclusion
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.
There is no information before the Tribunal suggesting that either of the applicants satisfy the criterion in s 36(2)(b) or (c). The Tribunal is not satisfied that either of the applicants satisfy those criteria. The Tribunal is not satisfied that the applicants satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2024] AATA 1961

26 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice