2011922 (Refugee)

2011922 (Refugee) [2023] AATA 4487 (20 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011922
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:20 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.
The Tribunal affirms the decision not to grant the second named applicant a protection visa.

Statement made on 20 October 2023 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – Fiji – no claim of past harm by first applicant – medical treatment in Australia and claim of inadequate facilities in home country – now deceased, with no jurisdiction to review – second applicant’s preference to live in Australia with most of family and visit husband’s grave – separation from family in Australia not serious harm – own house and pension in home country – political instability – country information – recent peaceful change of government – medical facilities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751
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 25 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of the Republic of Fiji (Fiji) and arrived in Australia [in] July 2018 as the holders of visitor visas.
They applied for the protection visas on 19 September 2019.
The delegate refused to grant the visas on 25 June 2020.
On 21 July 2020 the applicants applied for a review of that decision. They provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 21 July 2022 the second named applicant advised the Tribunal that the first named applicant had died [in] May 2022 and she provided a copy of his death certificate.
The second named applicant (the applicant) appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by Microsoft Teams video. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay in the matter if the hearing was not to be conducted by video.
The applicant gave evidence about her background and claims for protection. Her son [Mr A] also provided oral evidence. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on her behalf.
The applicant was not represented in relation to the review.
For the following reasons, I have concluded that the Tribunal does not have jurisdiction in relation to the first named applicant, and that the decision under review regarding the second named applicant should be affirmed.
Material before the Tribunal
The first named applicant provided several documents to support his application for a protection visa. Some evidence was only relevant to the primary applicant’s health claims. The evidence that was relevant to the applicant’s claims includes:
·a copy of the applicants’ daughter’s birth certificate
·a citizen journalism Fiji article ‘Grab him by the lapel and push him back whilst swearing at him tells Lenora Qereqeretabua’ (9 August 2019)
·a citizen journalism Fiji article ‘Lynda Tabuya files complaint against Prime Minister for insulting her ‘modesty’ (5 September 2019)
·an expat arrivals information sheet on ‘healthcare in Fiji’
·a letter from [Mr B], [Official position] in Ba, dated 11 September 2019 endorsing the applicants’ applications for permanent residence status in Australia
·a letter from [Rev C], [Church organisation], dated 8 June 2018 wishing the applicants well in their future endeavours
·a copy of pages from the applicant’s Fijian passport
·a letter of support from the applicants’ daughter dated 19 September 2019 requesting her parents be allowed to stay because of the inferior medical facilities and unstable government situation in Fiji
·photographs of the applicant assisting the first named applicant’s [treatment]
·a public services international article ‘The path to the human right to healthcare in Fiji is at risk’ (16 May 2018), and
·a media release from National Federation Party ‘NFP President assaulted by Prime Minister’ (9 August 2019).
On 21 July 2020, with his request for a review of the delegate’s decision, the first named applicant submitted a letter from the first named applicant dated 19 July 2020 reiterating his claim regarding [treatment].
On 21 July 2022 the applicant submitted:
·an email explaining that:
oher husband had died
oshe currently has no children in Fiji
oher oldest son [Mr D] works as [an Occupation 1] with [Employer 1]
oher second son [Mr A] is in Australia working at [Employer 2]
oher daughter [Ms E] is an Australia citizen living in Darwin
oher third son [Mr F] is [at Employer 3, Occupation 2] in Australia
oher fourth son [Mr G] is working at [Employer 4] through the [Employer 3] system
oshe would like the visa to provide security and comfort knowing she is not leaving her husband, who is buried in Darwin, behind, and
·a copy of the first named applicant’s Northern Territory of Australia death certificate dated [June] 2022.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection.
Background
The first named applicant was a Fijian citizen who was born in [Island], Fiji. He was [an Occupation 3] before he retired in 2009. He died [in] May 2022 in Darwin.
The applicant is a Fijian citizen who is [Age] years old. She was born in [Town], Vana Levu, Fiji. She was [an Occupation 4] for [Number] years and retired in 2007. She married the first named applicant in 1977 and she has five children. Her oldest son lives and works in Fiji, her daughter is an Australian citizen living in Darwin and her other three sons are working in Australia.
At the hearing the applicant explained that she has [grandchildren]. Her daughter has [children] who live in Australia and between them her sons have [children] who live in Fiji. She has three daughters-in-law living in Fiji and one working in Australia.
Country of reference
The applicant claims that she was born in [Town], Fiji and is a citizen of Fiji. She provided a copy of the biodata page from her Fijian passport.
I am satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
In his protection visa application, the first named applicant claimed that he had not experienced harm in Fiji. He was diagnosed with [Medical condition] in Australia and was [receiving treatment]. He feared there were no proper facilities for [treatment] in Fiji and he would not receive the same treatment if he returned, which would severely impact his health. He claimed health promotion in Fiji was concerned with communicable diseases and people were dying for lack of affordable access to [treatment].
In the protection visa application, the applicant claimed that she did not experience harm in Fiji and she did not fear harm but she wished to remain in Australia with her husband to support and assist him with his [treatment].
After the first named applicant’s death, in her 21 July 2022 email the applicant claimed that she had no children currently living in Fiji and she would like to continue living with her daughter and one son in Darwin and not leave her late husband behind.
In her letter of support dated 19 September 2019 the applicants’ daughter raised the inferior medical facilities and unstable government situation in Fiji
Assessment of claims and evidence
The applicant has provided a copy of the first named applicant’s Northern Territory of Australia death certificate dated [June] 2022. As discussed at the hearing, based on the information before me, I accept that the first named applicant has died. For this reason, I find that the Tribunal does not have jurisdiction in relation to the first named applicant.
In the protection visa application and at the hearing, the applicant claimed and I accept that she has not experienced harm in Fiji.
In the protection visa application and at the hearing, the applicant claimed that no one would harm her. She said ‘I don’t really think there would be anything happen to me if I go back to Fiji’.
Her son said that they all understand the main purpose of the protection visa and if she went back to Fiji nothing would happen to her. He said that they would worry about her living by herself in the village by herself and that she would not have the life that she enjoys in Australia, where she is able to go to her husband’s grave every week or every month and have her daughter’s family support her.
Children currently living in Fiji
At the hearing, the applicant explained that her oldest son is now [an Occupation] with [Employer] based in [Town], Fiji and he lives with his wife and [children] in [City]. Based on the applicant’s evidence, I do not accept that she does not have any children currently living in Fiji.
Living arrangements
The applicant claims, and I accept, that she would prefer to live in Australia with her daughter. She said that she is comfortable living here and life is much easier. She said she does not have to worry about anything like food or transport because her relatives provide everything.
As confirmed at the hearing, the applicant and her late husband were covered by the Fiji National Provident Fund (FNPF).[1] The applicant explained that she and her husband took all of their money out of the FNPF when they retired and used it to build their home in the village on [Island]. She said they lived on [Island] when they married and they moved back there when they retired. She said that if she returned to Fiji she would be alone in that home and she is getting old. The applicant agreed that she can still take care of herself and still cook for herself.
[1] DFAT, ‘DFAT Country Information Report Fiji’ (20 May 2022) 8.
I discussed the country information that says that those on the social pension aged 70 years and above received a 25 per cent increase in monthly payments to FJD125 from August 2023.[2] I asked the applicant if she would be able to receive the pension in Fiji and she said ‘yes, I think so’.
[2] Vijay Narayan, ‘Social pensions increase and 1,500 FNPF pensioners who had their rates reduced will also be covered ‘ Fiji Village (30 June 2023).
I discussed the country information that says Indigenous Fijians (iTaukei) generally have large kinship networks, that it is uncommon for elderly people to live alone and they will more commonly live with family who will support them.[3] I asked the applicant if she could live with a family member in Fiji if she wanted to. She agreed that she could either live on her own or with her son or daughters-in-law but said that she would prefer to live with her daughter in Australia. She said that her daughters-in-law would look after her but not to the extent that her daughter would do.
[3] DFAT, ‘DFAT Country Information Report Fiji’ (20 May 2022) 9.
Based on the information before me, I find that the applicant would be able to receive the social pension and either live in her house in the village on [Island] or with one of her Fiji-based family members. I find that if the applicant returned to Fiji now or in the foreseeable future, her living arrangements on her return would not threaten her capacity to subsist or otherwise amount to serious harm or significant harm.
Having accepted that the applicant would prefer to remain with her daughter and Australian citizen relatives in Darwin, I considered whether forced separation from her Australian citizen relatives could be considered persecution involving serious harm and systematic and discriminatory conduct. I find that any distress that the applicant may suffer does not meet the threshold of serious harm. I considered whether forced separation from her Australian citizen relatives could be considered significant harm. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A).[4] I applied this reasoning and find that the removal of the applicant from Australia to Fiji and the separation from her Australian citizen relatives does not constitute significant harm as defined in s 36(2A). I do not accept that there is a real chance or a real risk that the applicant would experience serious harm or suffer significant harm by being separated from her Australian citizen relatives.
Applicant’s late husband
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
At the hearing, the applicant said that it would be difficult to return to Fiji because her husband is buried in Darwin. She said that if she returns to Fiji a part of her would be left behind because her husband is in Australia. She said that when she thinks about him, she is able to go to the cemetery and it gives her peace to see his grave and feel close to him.
I accept that the applicant likes being able to visit her husband’s grave when she wants to and that being separated from her husband’s grave would be emotionally difficult and cause her distress. I considered whether forced separation from her husband’s grave could be considered persecution involving serious harm and systematic and discriminatory conduct. While I recognise that the applicant would experience emotional difficulty and distress, I do not accept that this emotional difficulty and distress amounts to serious harm. I find that the distress that the applicant would suffer does not meet the threshold of serious harm. I considered whether forced separation from her husband’s grave could be considered significant harm. The judgment in GLD18 v MHA confirms that s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[5] I applied this reasoning and find that the removal of the applicant from Australia to Fiji and the separation from her husband’s grave does not constitute significant harm as defined in s 36(2A). I do not accept that there is a real chance or a real risk that the applicant would experience serious harm or suffer significant harm by being separated from her husband’s grave.
Government situation
[5] GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
At the hearing, I explained that the applicant’s daughter had raised the unstable government situation in Fiji and asked the applicant if she had anything she wished to discuss. She said ‘no mam’.
Fiji experienced two coups d’état in 1987, another in 2000 and a fourth in 2006, which was led by Josaia Voreqe (Frank) Bainimarama, who became the interim Prime Minister. Mr Bainimarama’s FijiFirst party wone the 2014 and 2018 elections, which were both judged to be credible by the Multinational Observer Group led by Australia.[6] The government changed in December 2022, when Sitiveni Rabuka was elected and confirmed as Prime Minister by the parliament. While Fiji’s political climate is currently in a state of flux there has been no significant political unrest or deterioration of government functions,[7] and the transition of power has been peaceful.[8]
[6] DFAT, ‘DFAT Country Information Report Fiji’ (20 May 2022) 6.
[7] DFAT, ‘Fiji – Country information – Political Update’ (2 August 2023).
[8] ‘Can Fiji keep its democracy in 2023?’ East Asia Forum (3 February 2023).
Based on the evidence from the applicant and the country information, I do not accept that there is a real chance or a real risk that the applicant would suffer serious harm or experience significant harm because of the government situation if she returned to Fiji now or in the foreseeable future.
Medical facilities

At the hearing, I explained that the applicant’s daughter had raised the inferior medical facilities in Fiji and asked the applicant if there was anything she wised to discuss. She said, and I accept, that the standard of health facilities in Fiji is not up to the standard in Australia. She said that her husband’s [medical] problem was not diagnosed in Fiji and was diagnosed in Australia straight away, which shows that the Fiji standard of facilities is not really good.
I asked the applicant if she would be denied medical treatment for any reason. She said the issue was the standard of treatment. I asked if anyone would deny her treatment and she said no, it was about the outcome. I asked if anyone would discriminate against her in any way and she said no.
I asked the applicant if she would be treated differently to any other Fijian seeking medical treatment and she said ‘no, I don’t think so, no’.
Based on the applicant’s evidence, I do not accept that she would be denied medical treatment for any reason or that she would be treated differently to any other Fijian accessing medical treatment. Based on the applicant’s evidence, I do not accept that there is a real chance or a real risk that she would experience serious harm or suffer significant harm because of the medical facilities or treatment if she returned to Fiji now or in the foreseeable future.
Does the applicant meet the refugee criterion?
Having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to Fiji now or in the foreseeable future that she faces a real chance of persecution for a refugee nexus reason.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[9]
[9] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the evidence before me, I find that there is no real chance that the applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution because there is no real chance that she will be persecuted. As the applicant does not have a well-founded fear of persecution, I find that she is not a refugee within the meaning of s 5H of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia 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.[10]
[10] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
On the information before me, considering the applicant’s claims individually and cumulatively, I find that there is no real chance that the applicant will experience serious harm and, for the same reasons, find that there is no real risk that the applicant will suffer significant harm on her return to Fiji now or in the foreseeable future.
Conclusion
For the reasons given above, the Tribunal does not have jurisdiction regarding the first named applicant.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that she is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal does not have jurisdiction in relation to the first named applicant and affirms the decision not to grant the second named applicant a protection visa.
Katherine Harvey
Senior 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.
…

[2023] AATA 4487

20 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal