2009973 (Refugee)

2009973 (Refugee) [2024] AATA 4378 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009973
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Patricia Tyson
DATE:17 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 September 2024 at 4:27pm
CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions and inability to find work – application prepared by other people without applicant’s knowledge of contents – study and work history – working to support family in home country, and Australian citizen partner and children – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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
BACKGROUND TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 March 2017 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 3 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
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. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[1]
[1] MIAC v SZQRB (2013) 210 FCR 505.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
In his visa application, the applicant set out brief claims for protection. He stated that he comes from a poor family and both his parents are unemployed. The applicant could not get a job to support his family. The applicant said that he was ill treated. He fears he will not be allowed to work in the village and will be punished and bashed up by real men in the village. The same treatment is applied everywhere. They have asked him to change and respect his community but he cannot. An article about same sex marriage not being legal in Fiji was included with the application.
The applicant was not invited to an interview with the Department of Home Affairs.
With his review application to the Tribunal, the applicant submitted a letter indicating that he had not been aware of the visa lodgement and the parties responsible did not tell him what was happening. He did not find out about the decision of the Department of Home Affairs as the correspondence went to the couple doing the visa. He was ashamed after reading the reasons that that he needed protection, as most of it was untrue. He requested the opportunity to apply for a substantive visa or reapply for a protection visa honestly, and feels he has a lot to offer Australia.
The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages via Microsoft Teams. The applicant initially requested to speak through the interpreter, but ultimately chose to speak in English for the majority of the hearing. I advised him that he could speak through the interpreter or request interpretation of my questions whenever he wished, and he did use the interpreter at times. The interpreter remained present throughout the hearing. The applicant spoke clear English, gave answers which were responsive to my questions, and I did not observe any difficulties in communication.
The applicant requested that the Tribunal take evidence from his friends [A] and [B]. At the hearing, the applicant indicated that these witnesses would give evidence about the circumstances of his coming to Australia and that he did not have knowledge of the protection visa application which was made. He provided further detail about these matters and confirmed the witnesses would speak to these same issues, not about events in Fiji. I indicated to the applicant that I was able to accept his own evidence about the circumstances of him coming to Australia, the way the visa application was lodged and that he was unaware of it at the time. I asked if there was anything else he would like me to speak to the witnesses about and he said no. In the circumstances, I determined not to take evidence from these witnesses as I accept the applicant’s own evidence about these matters.
I indicated to the applicant that I would allow a week after the hearing to provide any further information he would like me to consider, such as media articles or other information relating to his claims about the situation in Fiji. That time has passed and nothing further has been received.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and nationality
The applicant presented his Fijian passport at the hearing and evidently spoke the Fijian language. There are no concerns as to his identity or nationality and I accept they are as claimed.
The applicant gave evidence that he grew up in [a] village, on Vanua Levu, one of the two major islands in Fiji. His parents and two of his siblings remain in the village. His parents have never held employment but engage in subsistence farming on land owned by the extended family. One of the applicant’s brothers lives in Suva where he works as [an occupation], and [other] brothers are currently living in Australia.
In around 2013 the applicant went to live in [Suburb], Suva, with an aunt and uncle. He undertook trade studies at a technical institute and then worked first as [an occupation 1] at a [workplace 1], and then as [an occupation 2] at two [workplace 2s], where he mainly did [two roles]. He stopped working at the [workplace 2] in 2016, around four months before coming to Australia.
The applicant played [sport] in Fiji and arrived in Australia in October 2016 on a subclass 400 visa temporary work visa to play [sport]. He said this was arranged by two couples. They had told him he would be coming to Australia for six months to work, but after he arrived they said he only had a week before the visa expired. He said that these two couples then applied for a protection visa for him without his consent. He thinks that they did this so he would be able to work, as they then required him to pay money. He was unaware of what information was put into the application.
In Australia the applicant has worked for four years in [work sector 1] and before that worked for around two or three years in [work sector 2]. He has a partner who is an Australian citizen, and they have two Australian citizen children.
Claims in protection visa application
The applicant says he did not receive communication from the Department until he provided the Department directly with his own email address some years later. The applicant gave the names of two of the people who brought him to Australia and dealt with immigration matters. One of the names corresponds with the email address given on his protection visa application, and this is where the Department sent correspondence relating to the visa application. While it appears from records on the Department file that the applicant attended an office to provide fingerprints on 23 November 2016, he said at the hearing did not recall doing this. I note that the record indicates he was accompanied by a friend, who is the person who the applicant named as one of the couples who brought him to Australia. While some of the biographical information in the visa application is similar to what the applicant told me at the hearing, there are omissions and differences in the information in the application.
I accept on the applicant’s evidence that he was unaware that a protection visa application had been lodged on his behalf, and that it was later refused, until receiving correspondence from the Department in 2020. While it appears he did attend an office to give fingerprints, I accept he does not recall this, and that he may not have been informed that it was related to a protection visa application. I draw no adverse inference from any information or omissions in the protection visa application.
The applicant confirmed at the hearing that the claims in the visa application are not correct.
Claims made at hearing
When asked about the reasons he does not want to return to Fiji, the applicant referred to his children in Australia needing his support, and to supporting his family back home in Fiji. He said that if he returns he will struggle to look for work, that there is not much work available.
As discussed with the applicant at the hearing, the meaning of ‘well-founded fear of persecution’ in s 5J involves systematic and discriminatory conduct, must be for reasons of race, religion, nationality, membership of a particular social group or political opinion, and involves serious harm. Section 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. While these instances are not exhaustive, they are illustrative of the level or types of harm that may amount to serious harm.
I also discussed with the applicant the requirements of ‘significant harm’ for the complementary protection criterion. ‘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. The definition of torture requires as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. ‘Cruel or inhuman treatment or punishment’ is exhaustively defined to require an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The definition of degrading treatment or punishment requires an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. Each of these three definitions requires that the pain, suffering or humiliation must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362.
At the hearing, the applicant said he could not go back to work in the [workplace 2] because there had been corruption going on and people fighting for leadership. He claimed he had been sacked from [workplace 2] by the leader, [Mr C]. The applicant did not raise any specific future fears in relation to any past issues he experienced in his work as [an occupation 2]. It is now around eight years since he left that employment. I am not satisfied there is a real chance or risk of any future harm in relation to that past employment.
As I raised with the applicant, as the majority ethnic group in Fiji, Indigenous Fijians or iTaukei enjoy significant economic, social and political capital and much of the British-origin ‘native administration’ system was set up to protect Indigenous Fijian culture.[2] DFAT does, however, indicate that Indigenous Fijians may experience some low level societal discrimination.[3] The applicant did not raise any particular fears in relation to his ethnicity and I am not satisfied there is a real chance of serious harm or a real risk of significant harm in this regard.
[2] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Fiji’, 27 September 2017; Ratuva, S and Lawson, S (eds), Australian National University, 'The People Have Spoken: The 2014 Elections in Fiji', 1 March 2016; Fraenkel, J , ‘Fiji: The politics of conflict reduction’, Routledge, 2013; Lal, B V, 'Fiji Before the Storm: elections and the politics of development', Australian National University E Press, 2000.
[3] DFAT, Country Information Report Fiji', 20 May 2022.
The applicant mentioned that he does not know what the government will bring, and referred to corruption. Asked for more detail about what he feared, he said the current Prime Minister Rabuka and previous Prime Minister Bainimarama both had a history of causing coups. Asked what he was afraid of in the event of a coup, he said there was no one else to run to for help. If there was a coup, people would be looking to survive for food.
At the hearing, I discussed information about the political situation in Fiji with the applicant. country information indicates that Fiji has a history of political unrest and coups. Prior to elections in December 2022, Prime Minister Voreqe (Frank) Bainimarama had governed for 16 years. In those elections, despite winning the popular vote, his FijiFirst party won only 26 seats, two short of the 28 required to form government. Now Prime Minister Sitiveni Rabuka of the People's Alliance formed government with a three party coalition.[4] Rabuka had previously instigated coups in 1987 and served as Prime Minister between 1992 and 1999.[5] The transition of power was peaceful, and the military refused to intervene.[6] In a country information update in August 2023, DFAT indicated it was not aware of any credible reports of former Prime Minister Bainimarama, the military or those loyal to him or his party pursuing nationals who publicly opposed him or his party, nor of the new government harassing his supporters.[7]
[4] Economist Intelligence Unit, 'Fiji - In brief', Accessed 19 June 2023; The Interpreter (Lowy Institute for International Policy), Fiji’s new politics', 17 January 2023; The Interpreter (Lowy Institute for International Policy), 'Fiji: A chance to stop political history repeating', 14 February 2023,; Australian Institute of International Affairs, Cautious Optimism for Fiji’s Coalition Government', 8 March 2023; The Guardian, ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, 18 December 2022.
[5] DFAT, Country Information Report Fiji', 20 May 2022.
[6] East Asia Forum, ‘Can Fiji keep its democracy in 2023?’, 3 February 2023; Australian Strategic Policy Institute, ‘The number behind Fiji’s coup culture’, 1 February 2023.
[7] DFAT, ‘Fiji 20230621135833 - Country Information - Political Update', 2 August 2023.
The current government leads by only a one seat majority, and recent commentary suggests that the current coalition is fragile.[8] Looking into the reasonably foreseeable future, it is possible that the country may see a further change of government in the coming years. However, as discussed at the hearing, the opposition FijiFirst is not currently operational and has been deregistered as a political party, although that remains subject to appeal.[9] Members of that party elected to parliament now sit as independents, and several have pledged allegiance to the Rabuka coalition.[10] In May 2024 Bainimarama was sentenced to a year in prison for perverting the course of justice.[11] Other key figures from his government are also no longer in parliament.[12]
[8] Richard Herr, ‘Stress-testing Fijian democracy in 2024’, 5 February 2024.
[9] Radio New Zealand, 'Former Fiji leader Bainimarama's political party FijiFirst deregistered', 2 July 2024; FBC News, ‘EC Sits to discuss FijiFirst appeal’, 17 August 2024.
[10] Pacific Media Network, 'The fall of Frank Bainimarama and Fiji First', 2 July 2024; FBC News, ‘Byelection avoided after MPs shift’, 9 August 2024; Fiji Times, ‘FijiFirst deregistration now in the past, says Usamate’, 20 August 2024; ABC News, 'Nine former FijiFirst MPs pledge allegiance to Rabuka', 9 July 2024.
[11] Pacific Media Network, 'The fall of Frank Bainimarama and Fiji First', 2 July 2024; BBC News, 'Former Fiji PM Frank Bainimarama jailed for a year', 10 May 2024.
[12] Richard Herr, ‘Stress-testing Fijian democracy in 2024’, 5 February 2024.

I put to the applicant that it is difficult to predict what form any future government may take. Even if there were a future change of government, it is by no means clear that it would take the same form as the previous FijiFirst government or conduct its activities in the same way. The information does not suggest a coup is likely to occur. In response, the applicant stated that the government is trying to pay back credit and that people cannot get money and end up in the street. Considering the country information about the political situation and also that regarding the Fijian economy set out below, I am not satisfied that the situation in Fiji is such that there is a real chance of the applicant being seriously harmed in the reasonably foreseeable future or a real risk of him suffering significant harm because of a coup, the financial situation or any other reason related to the political situation or general Fijian economic situation.
The applicant also raised concerns about many young people in Fiji taking drugs such as cocaine and ice. He feared he would face pressure from friends to also use these, or that if he did not, they may harm him as they would be afraid he would tell others. Asked about previous drug use, the applicant initially said he had never used drugs, but later said he had used marijuana on occasion in Fiji previously. He said this had been because of his friends, and that at that time these harder drugs were not available.
I accept that drugs are a major problem in Fiji currently. Media reports indicate that there is a national methamphetamine crisis, with drug related deaths from both addiction and suspected gang activity on the rise. Meth use is spreading wildly among teens and young adults.[13] However, the chance of the applicant being induced into drug use or harmed for not taking drugs is speculative and remote and I am not satisfied there is a real chance of serious harm or real risk of significant harm to the applicant in that regard.
[13] ABC News, ‘Cartels' trafficking of crystal meth through 'Pacific drug highway' sees addiction spread to Fiji's villages’, 1 September 2024, >
I asked the applicant why he thought he would be unable to find work. He said the only work in the village is farming. He said he would be able to do this. The applicant claimed that if he returned to Fiji he would go to his village rather than Suva, because his aunt and uncle are helping a lot of people and have a full house. He said he had previously been able to find work through his uncle’s connections. I asked if he could do this again, and he said he could but there are so many kids from the village in their house. I noted that he was an adult and had lived and worked in Australia, and could potentially go and find a job in Suva, he said it would depend if there was a place he could stay.
I have considered information about the economic situation in Fiji. In 2022 DFAT reported that while the official unemployment rate was relatively low, at 4.8%, youth unemployment was around triple this, at 14.8% in 2019.[14] The World Bank reports that overall unemployment fell to 4.3% in 2022, although does not specify the youth unemployment rate.[15] A significant percentage of the population lives in poverty, higher in rural areas compared to urban locations.[16] However, the rate of extreme poverty is lower than might otherwise be expected due to subsistence farming and kin-based wealth redistribution.[17] There is some limited social welfare available in Fiji such as pensions for the disabled, children and the very poor. [18]
[14] DFAT, ‘Country Information Report Fiji’, 20 May 2022.
[15] Fiji | Data (worldbank.org) Fiji Times, ‘400,000 living below poverty line, says Narube', 5 November 2023; World Bank, ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’.
[17] DFAT, ‘Country Information Report Fiji’, 20 May 2022.
[18] DFAT, ‘Country Information Report Fiji’, 20 May 2022.
I discussed with the applicant information about the economic situation in Fiji. I explained that harm that arose from the general economic situation in Fiji may not amount to persecution or significant harm and asked if he would like to say anything about that. He declined to give a response.
Although the applicant said he would go back to his village if he were to return to Fiji, I find it more probable that he would again live and work in Suva, as he did previously. The applicant has past work experience in Fiji and in Australia, and in my view would likely be able to find a job. However, even if it were the case that the applicant returned to his village and/or was unable to find work and faced financial difficulty, the applicant did not suggest and I am not satisfied on the evidence that this would involve systematic or discriminatory conduct, or be for one of the reasons in s 5J(1)(a). I am not satisfied the applicant has a well-founded fear of persecution in this regard. Nor am I satisfied that any inability of the applicant to obtain work, or financial difficulty he may face, would involve the element of intention required by the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, or otherwise entail significant harm as defined.
While the possibility of separation from his family in Australia is evidently traumatic and upsetting, I am not satisfied that this gives rise to a real chance of persecution in Fiji or a real risk of significant harm as a necessary and foreseeable of the applicant being returned to Fiji.
Considering the applicant’s claims as a whole, I am not satisfied that there is a real chance of the applicant being persecuted in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution within the meaning of s 5J and is not a refugee within the meaning of s 5H(1). Nor am I satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk of him suffering significant harm.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). 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.
Patricia Tyson
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 4378

17 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction