2011508 (Refugee)

2011508 (Refugee) [2024] AATA 3320 (12 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2011508

COUNTRY OF REFERENCE: Fiji
MEMBER:Noelle Hossen
DATE:12 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 August 2024 at 2:25pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the previous government – forced retirement – financial hardship – fear of detention – corruption – employment – change of government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji applied for the visas on 6 January 2020. The delegate refused to grant the visas on the basis that the applicants are persons in respect of whom Australia does not have protection obligations.
The applicants appeared before the Tribunal on 7 August 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.
Department file
The applicants
According to their protection visa application forms, the applicant’s background includes:
The first named and second named applicants were married in Fiji [in] September 1992. They have 4 children. 3 of their children do not have their own claims but are claiming to be members of the same family unit as the first named applicant. The other child has made his own Protection claim [details deleted].
The applicants can speak, read, and write Fijian and the English Languages. The second named applicant can speak Rotuman.
The first named applicant completed his education in Fiji at [College 1] as he completed a [Qualification 1] [between specified years]. He also completed an Induction course to join [an agency]. He also attended [University 1] and obtained a [Qualification 2]. He set out that he was employed as [details of specified roles, dates and employers deleted]. He retired [in year].
The second named applicant indicated that she was employed [between specified dates] as a manager in retail. After she left her employment, she said because the [business] closed, she was a carer for her grandchild.
The [third named applicant] completed High School. His first job was in Fiji as a Team Leader at [Employer 1] [between specified dates].
The [fourth named applicant] was attending school at the time that the parties completed the Protection Application.
The [fifth named applicant] was also still at school at the time that the Application for Protection was completed.
The first named applicant’s passport was issued [in] 2019 in Fiji. The second named applicant’s passport was issued [in] 2017.
The applicants were granted visitor visas and they left Fiji and legally arrived in Australia. The applicants save for the third named applicant arrived [in] December 2019. The third named applicant arrived in Australia [in] November 2019.
They own a property in Fiji at [an address in] Suva.
The Tribunal accepts the background facts as set out in the Protection Application.
Claims by the first named applicant.
According to his protection visa application the first named applicant claimed:
1. His political opinion of the current government
2. Economic hardship because the unilateral retiring age was decreased from 60 years to 55 years, affected his ability to meet his mortgage repayments and his ability to provide for his family.
3. He felt that the government were falsely representing that the economy was stable. He felt that the government had borrowed excessively and that the burden for repayment would be shouldered by the younger generations.
4. The Government practised nepotism in appointing close allies and selecting their preferred persons for appointment regardless of the processes.
He said that he experienced harm because:
He was employed by the government for [number] years and he witnessed 3 coups which caused him mental strain.
Family members of the current regime were awarded contracts that should have been given to others who were more deserving. He was unable to question the decisions as that would be seen as anti- government.
During the last staff assessments for [Employer 2] about 10 of the [number] staff were eligible for bonus increments He said that the system was unfair as the final approval for payment was in the hands of [Leader A]. He authorised payments for those known to him for carrying out duties that benefited them.
He felt emotionally drained because of the misuse of funds [from an international program] by the family of [Leader B].
He felt that as the officer responsible for overseeing the payments he was under duress whilst proceeding with the transactions.
He said in the Application that he was reluctant to speak out as he was an employee, and he knew of instances whereby people lost their jobs.
He said that he did not relocate as he feared losing his job as his family depended on his income. He said after finishing the job and moving away from the country he could finally voice the injustice that was ongoing.
He said that he feared detention by the authorities, charged and fined or imprisonment and that he would be harmed as I would expose the abuse.
Claims by the second, third, fourth and fifth named applicant.
The second, third, fourth and fifth applicants did not have a separate claim as they claim to be members of the same family unit as the first named applicant.
The delegate’s Decision record
In the Decision of the Delegate the delegate stated as follows:
1. The Delegate was satisfied that all the applicants had provided sufficient evidence regarding their identity.
2. The applicants had been given an opportunity to provide all the details of their protection application claims. In addition, on the 16 January 2020 the applicant sent an acknowledgement of valid application letter which advised that they could provide additional information relating to their claims and that there were three ways to provide additional information, relating to their claims and that there were three ways for them to provide it. ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicants that the decision on their application could be made without another opportunity for them to present any further information.
On the 1 March 2020 the following documents were submitted in support of his application:
Character reference for the applicant from [Mr A], dated the 24 February 2020.
Media Article, three-year jail term for former civil servant published by the Fiji Sun dated 5 October 2010.
Media Article, Fiji Labour Chief Fired for Misconduct, published in the Fiji Sun, dated 22 December 2004.
At the time of the department’s Decision no further information was supplied to the Department. The Tribunal has read and considered the information supplied to the department by the applicant.
The Delegate found that:
The applicant claims to have witnessed the misuse of financial resources within the Fijian Government whereby it unfairly favours and rewards family members or close associates over others. He claims that he was not able to speak out against the government during his employment as this would be perceived to be anti- government and he feared losing his job. He claims that if he returns to Fiji, he will be harmed for expressing his opinion and views.
I note in his protection visa application, the applicant stated that he did not raise his concerns about the misuse of government resources during his tenure as a government employee in Fiji out of fear of losing his job. He also expressed his current ability, since ceasing his role as a government employee and leaving Fiji, to freely speak out against the injustices he witnessed in Fiji. There is no evidence before me, however, to indicate that the applicant has publicly criticised the Fijian Government whilst in Australia. Nor is there any evidence to indicate he intends to do so on return to Fiji.
In respect of the character reference supplied to the delegate the conclusion by the delegate was that the articles were published in 2004 and 2010 over a decade ago and there was no evidence to indicate that the first named applicant had engaged in any misconduct himself. There was no substantive link to the applicant’s personal protection claim. The media articles and character references were not considered further by the delegate.
The Delegate noted that:” The applicant claims that he holds views opposed to the current Fijian government’s practises. However, he has not indicated that he has a political or an anti-government profile. In general, DFAT assesses that “high profile figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.”
The Delegate found: “There is no evidence to indicate that the applicant is a high – profile public figure or a senior member of an opposition political party in Fiji who would face a chance of harm from the Fijian government. While I accept that the applicant may hold views opposed to the current government, I am not satisfied that he has a profile such that he would be of interest to the Fijian Government. On the basis of the evidence before me, I am not satisfied the applicant will face a real chance of serious harm on the basis of his political opinion.
The delegate was not satisfied that the first named applicant was a person in respect of whom Australia has protection obligations.
Before the Tribunal
The applicants applied for a Review of the Delegate’s Decision on the 12 July 2020. The applicants provided a copy of the Delegate’s decision to the Tribunal.
The applicants provided further documents that have been considered by the Tribunal namely:
Payslips, [professional certificates], applicant’s statement, academic Certificates and offers of employment.
On the 30 September 2023 the first named applicant provided further statement to the Tribunal with documents attached. The Tribunal has considered the statement and documents attached.
The first applicant stated that he had enrolled and successfully completed [vocational] studies.
He stated that he had been employed in the last year [in industry 1].
He said that he had resettled in [Town 1] in June 2022 with his family. He had completed [vocational courses]. He provided a copy of his payslip, email responses from company regarding his move to WA and his Drivers Licence showing where he was residing in [Town 1].
He said that the [second named applicant] had relocated to [Town 1] as well. A payslip from her employer in [Town 1] employment agreement rent and bond payment for the home in [Town 1] and her driving licence showing the change of address.
The third named applicant is now working for [Employer 3] as a technical assistant doing [specified duties]. He obtained a [professional] Driving Licence. His offer of employment and payslip was provided.
The [fourth named applicant] completed a [Qualification 3] at [a named college]. She continued her studies at the same place. She holds [Qualification 4]. She provided a rent receipt and a payslip from her employer in [Town 1].
The fifth named applicant had completed her High School Certificate in Australia. She provided her transcript for [a college]. He is continuing with a [Qualification 3].
CONSIDERATION OF CLAIMS AND EVIDENCE
APPLICANT’S IDENTITY AND COUNTRY OF REFERENCE
The applicants provided to the Tribunal and the Department a copy of their biodata page of their Passport.The applicants claim to be citizens of Fiji.As such based on the documents provided to the Department, the Department accepted that the applicants are citizens of Fiji.
There is no evidence to suggest that the applicants have a right to reside and or enter whether temporarily or permanently in any other country. The Tribunal finds that the applicants are citizens of Fiji, and their claims will be assessed against Fiji as the country of reference and receiving country respectively.
Evidence at the hearing
The first named applicant confirmed the background facts such as his date of birth and the fact that he arrived in Australia [in] December 2019.He confirmed that whilst he lived in Fiji he had transited through Australia on the way back from [Country 1] in 1994. He said that he did spend a month in Sydney as he won a holiday. He said that he was by himself. He said that he had friends in Sydney. He transited through Australia in 2015 on another work trip. He arrived and applied for his Protection Visa in 2019/2020. [In] March 2024 he and the second named applicant travelled to [Country 2] on a holiday to [attend an event].
The second named applicant said that she came to Australia on 3 occasions previously. She came in 2010 for someone’s birthday, 2017/2018 to [attend an event] and in 2019 she came on her own as she has an aunt in Sydney.
The first and second applicants said that when they arrived in December 2019 that they wanted to treat the children to a holiday as it was the first time that they had travelled internationally. They admitted that they were coming for a holiday and to try for a Visa to stay. They were told by a friend that it was easy to do that. They confirmed that they had not sought legal advice regarding the matter.
They said that they were facing hardships in Fiji and thought they could alleviate it by travelling to Australia to improve their children’s opportunities in life. The first named applicant said that both his parents are deceased. His parents had [number] children. [Some] of his siblings are deceased. [Details deleted.]
The second named applicant said that she has [specified siblings]. She has a brother who lives in Perth. He has lived here for 4 years. [Details deleted.] He has also applied for a protection Visa.
The third named applicant confirmed that he travelled ahead of the family with his mother and sister as he had an employment opportunity in [Town 1]. He said that he lives in his own home with his [partner] who is a citizen of [deleted]. He said that they have lived together for 1 year and 4 months. The Tribunal is of the view that the third named applicant is no longer a dependent on his father and therefore cannot be considered as a member of the family unit. He has been employed throughout his stay in Australia. He has lived apart from his family as he has a partner and has lived with her for 1 year and 4 months. The Tribunal finds that the third named applicant should have lodged his own claim for Protection.
The whole family are working in gainful employment in [Town 1] save for the first named applicant who said that he works as a volunteer for [a named agency].
The first named applicant said that he has a cousin (more of a family friend) who has lived in Australia for 35 to 40 years. He is an Australian citizen.
The Tribunal asked the first named applicant whether he has a well-founded fear of persecution because of his political opinion now because there has been a change in government in Fiji, since the first named applicant arrived in Australia. He confirmed that he does not have a fear of persecution bas he does not fear the actions of the new government.
He said that the main problem would be that he could not cope with his economic situation if he returned to Fiji as he would not be able to earn more money. He said that he would have loved to continue to work as he was a government employee for a significant period, but he was forced to retire.
He said that when he left Fiji he had retired, and a lot of industries were closing shop and people were laid off. He said that the cost of living in Fiji is very high. He said that he reads about it in the Paper. He said that he would suffer significant harm as he would not be able to find a job as it would not be easy.
He was asked to explain what he meant by the fact that he suffered mental strain due to being part of 3 coup d’état. He said he did not seek medical advice as there were no opportunities to do so. He said that mental health counselling is unavailable in Fiji.
There are a lot of opportunities in Australia. There is a lot of debt from the previous government in Fiji. The tax rate has gone up.

The second named applicant said that after [the first named applicant] retired, she had also lost her job. His savings from his retirement superannuation was sufficient to pay off their mortgage. She said that the third named applicant had to leave school as they were in financial difficulty. She said that since they have lived in Australia that the first named applicant is more relaxed. They came to Australia as they did not want their children to suffer. They said that he had taken his superannuation in a lump sum. They had paid off the mortgage of their home in Fiji. They still own the home in Fiji. They used the balance to meet the cost of relocating to Australia and to give themselves a holiday. When they first arrived in Sydney, they treated the children to excursions and outings such as [specified venues] in Sydney.
They said that if they had stayed in Fiji, they might have had to sell the house so the children could continue their studies.
She said that when they left Fiji, they left her brother to live in the house, but they were having arguments regarding the maintenance of the house, and it was the reason her brother moved out and their friend [named] lives in the property paying them minimal rent per month.
Country information
2.7 The World Bank defines Fiji as an upper middle-income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. It’s per capita gross domestic product (GDP) is much higher than most Pacific neighbours.
2.8 Tourism accounted for about 40 per cent of the pre-Covid-19 economy; the pandemic caused significant disruption. According to the Asian Development bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar, and kava, is important to the economy but vulnerable to cyclones.
2.9 About 30 per cent of the population was living in poverty in 2019, according to the world bank data but estimates of poverty rates vary and the full impact of the Covid-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth distribution leads to a lower rate of extreme poverty than might otherwise be expected.
2.10 Corruption is not a significant problem. A 2021 Transparency International Study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However only 5 per cent of Fijians Islands studied. An anti- corruption commission exists, and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture, and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following covid- 19 disruption.
2.21 Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of woman participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher 14.8 per cent in 2019, according to the Asian Bank Development and the ILO. These figures do not take covid-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.[1]
[1] DFAT country report Fiji May 2022
Refugee claim
The applicants claim that they travelled to Australia in 2019. They reiterated that the main reason for their application was because in Fiji they could not afford to meet commitments for their home as they were not earning sufficient funds. The first named applicant did mention that he did not fear that there would be any adverse difficulties if he returned to Fiji because there is now a new government in charge and the problems that he faced previously relating to the government that was in power whilst he lived in Fiji, have dissipated.
The Tribunal acknowledges that the applicants have a fear regarding the economic circumstances in Fiji. However, the Tribunal has considered the country information that states that Fiji’s economy is classified by the World Bank as an upper-middle income country and one of the largest economies in the Pacific region. The prospect of finding work based on the applicants’ circumstances does not amount to the applicants facing a harm that can be considered serious harm. That is, the Tribunal finds that economic hardship the applicants will face will not amount to serious harm as it will not threaten their capacity to subsist. They own a home, and the mortgage is paid off.
The Tribunal finds that given their work experience and motivation to work, the applicants will not be denied the capacity to earn a living that would threaten their capacity to subsist, nor would they be denied basic services, which would threaten their capacity to subsist. The Tribunal finds that there is not a real chance the applicants will be seriously harmed if they are returned to Fiji by reason of their economic circumstances.
The Tribunal accepts that it will be difficult for the applicants to re-establish themselves if they must return to Fiji. Based on the available country information the Tribunal does not accept that they will not be able to access paid employment. Therefore, based on their own evidence and the country information the Tribunal finds that they will be able to access paid work if they return to Fiji.
Therefore, having considered the applicants’ claim both individually and cumulatively, the Tribunal finds that the applicants do not have a real chance of serious harm arising from their own economic circumstances, if they were to return to Fiji from Australia, now or in the reasonably foreseeable future.
As the Tribunal explained at the hearing, such economic harm and other forms of harm would not appear to be directed at them for reasons of their race, religion, nationality, membership of a particular social group and/ or political opinion for the purposes of the refugee criteria. The Tribunal finds that the harm feared by the applicants would not amount to serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion.
Considering the applicants’ claim individually and cumulatively, the Tribunal finds that there is not a real chance the applicants will suffer persecution now or in the reasonably foreseeable future in 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 s36(2)(a).
COMPLEMENTARY PROTECTION CRITERIA
The Tribunal has considered whether the applicant meets the complimentary protection criterion under section 36(2) (aa). The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear. The Tribunal has considered whether it has substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country there is a real risk that the applicants will suffer significant harm of any kind.
The Tribunal has made earlier findings that the applicants do not face a real chance of serious harm arising from their claim. Based on the applicants’ own claims and in the absence of any independent evidence to support their claim that they will be harmed if they are returned to Fiji the Tribunal does not accept that this is the case. As such, it has found that there was no real chance that the applicants will be seriously harmed if returned to Fiji. As the real risk test is the same as the real chance standard it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicants being removed from Australia, that there is a real risk of significant harm. This includes torture, being subjected to cruel or inhuman treatment or punishment for being subjected to degrading treatment or punishment, for reasons based on the applicant’s claim that they will suffer because of their economic circumstances.
In addition, the Tribunal has considered that if there are any reasons to believe the applicants will face a real risk of significant harm arising from their economic circumstances and their ability to find employment in Fiji as contemplated by s.36(2) (aa). Significant harm is different from the concept of serious harm as required by s5J(4)(b) in the context of s36(2)(a). The Tribunal has already made a finding that the applicants have the capacity and inclination to find work in Fiji. Whilst the Tribunal acknowledges the applicants will face difficulties and challenges arising from finding work to support themselves it does not accept that they will not be able to find paid employment in Fiji in circumstances where they have been previously employed. For the reasons expressed above and based on the available country information the Tribunal has found that the applicants will be able to find employment in Fiji. As a result, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if they are returned to Fiji by reason of their inability to earn a living to support themselves. Given their overall experience and based on the available country information the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicants will not be significantly harmed as required by section 36(2A).
At no stage did the applicants advance any other reason in their written or oral claims that they are owed Australia’s protection obligations. As such having regard to all the circumstances and findings above considered individually and cumulatively the Tribunal finds that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji there is no real risk the applicants will suffer significant harm if they are returned to Fiji because of their economic circumstances as claimed pursuant to s36(2) (aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Noelle Hossen
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 3320

12 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction