2012376 (Refugee)

2012376 (Refugee) [2024] AATA 2249 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012376
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Haag
DATE:5 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 June 2024 at 9:45am
CATCHWORDS
REFUGEE – protection visa – Fiji – mistreatment at work, political conditions and economic hardship – vague claims and evidence – witness’s evidence based on what applicant told him – education and work history – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 24 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 28 November 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations, and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.
The applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The applicant said the witness is his brother; he also said the witness is his cousin.
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). 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 OF CLAIMS AND EVIDENCE
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
In applying for a protection visa the applicant claimed he was born on [Date] in Suva, Central province, Fiji. He said he was married on [Date] in Fiji. The applicant did not disclose in the application whether he had children overseas.
At hearing the applicant said in evidence that he has [children] in Fiji. They are being cared for by his oldest sister in the family home, being the home in which the applicant resided before he came to Australia. The applicant’s oral evidence establishes that the family home is situated in Suva, and that it is relatively close to [location].
The applicant’s ethnicity is Fijian, and his religion is [Christian].
At the request of the applicant, his wife was present through the hearing in the role of support person. Their youngest child, who was born in Australia, was also present throughout the hearing. The Tribunal understands that the applicant’s wife joined him in Australia some years after he arrived in Australia [in] September 2019.
Between [Date] and [Date], the applicant successfully completed his primary and secondary schooling. During that period, he was supported by his parents. The applicant stated he can speak, read and write Fijian and English.
On 1 January 2009 the applicant was employed by [Employer 1] as [an occupation 1]. He was employed in that role until 31 December 2011 at which time the company transferred him to [another] position. In the visa application the applicant stated his occupation was [Job title], and that his employment involved [doing job task 1]. At hearing the applicant elaborated on his duties: he said he was employed at [Employer 1’s workplace 2] in Suva and that the title of his occupation, namely, [Job title], was the name [Employer 1] gave to his occupation.
The written visa application and the applicant’s oral evidence indicate that between 8 September 2017 and 11 September 2019 the applicant was a part-time student at [Institution]. In that period, he successfully completed 4 skills training courses that were relevant to his employment, namely, [Courses]. These courses meant the applicant fulfilled [Employer 1]’s requirements for permanent employment with the company, and the courses led to him being made a permanent employee prior to him leaving Fiji for Australia.
Applicant’s identity and country of reference
The copy of the passport document the applicant provided to the Department is consistent with the evidence he gave to the Tribunal in relation to his identity, nationality, and citizenship. There is no evidence suggestive of the passport document being a bogus document.
Additionally, there is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than Fiji. Therefore, based on the information provided by the applicant, the Tribunal finds the applicant is a citizen of Fiji, as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Migration history
[In] September 2019 the applicant departed Fiji by air and arrived in Australia on the same day on a visa he said was a visitor visa.
On 28 November 2019 the applicant applied for a Protection (XA-866) visa.
Written protection claims
The applicant stated he came to Australia as a tourist because, it was his first opportunity to see the world outside his small country. In Australia he experienced a democratic country, and the freedom individuals are afforded, such the ability to openly discuss political issues and criticise the Fijian Government without fear of being reported to the government.
The applicant claims he was harmed in Fiji when he was mistreated at his workplace. The applicant also claimed he was harmed by the political situation in Fiji, in that he was prevented from voicing his opinions and he was required to go with the flow of [unspecified] high authorities.
The applicant claims he could not seek help in Fiji because he did not know of any organisation that helped youths like him who were suffering in silence and experiencing psychological trauma. The applicant also claimed his church youth group heard his complaints and consoled him whenever he felt depressed and neglected by the government.
The applicant claimed he did not move or try to move to another part of Fiji because that would mean settling for a lower wage than his base salary. Additionally, he would not find a good job ‘that suits his credibility, [and] the cost of living is very high’.[1]
[1] Department file, Protection visa application, page 15, [Reference]
The applicant claims the type of harm or mistreatment he would be likely to experience in Fiji would be the deprivation of his basic human rights and mistreatment at work. .
The applicant also claims there is a lack of employment opportunities, and his way of living will be unstable. He is unable to move within Fiji to an area where he would not be harmed because he is his family’s only breadwinner, and it would be hard for him to find a job.
The hearing
At hearing the applicant submitted 2 statements of attainment issued by an Australian Registered Training Organisation which state the applicant completed 2 skills-based training courses, one of which was a Certificate III in [Subject]. At hearing the applicant said these qualifications were designed to give him trade qualifications that are necessary for him to [work] in the ordinary course of his [employment].
The applicant provided a character reference from [Mr B], who is the director of his corporate employer, namely, [Employer 2]. [Mr B] states the applicant has been employed for 6 months, and in that time, he has risen to the position of team leader of one of the [Employer 2 teams]. The applicant is a highly regarded employee.
Additionally, the applicant provided 2 character references. The first reference is written by [Mr C], who describes himself as a friend of the applicant, and says that the applicant displays excellent sportsmanship and athletic ability as a [Sport] player.
The applicant also relies on a character reference written by [Pastor D], who states that for several years he was acquainted with the applicant through church attendances and community activities. He states the applicant is a hardworking family man who readily helps people in need, he strives to lead by example, and he is a good family man.
The applicant provided a letter signed by superintendent [Mr E], district manager of the [Volunteer] Service. The letter states the applicant was a probationary member [from] 5 August 2021 to 4 July 2022.
The foregoing correspondence demonstrates the applicant is a capable, hardworking individual, who is readily able to adapt to new working environments, that he gets on well with people, he can operate effectively in a leadership role, and he has the ability to upskill if his employment requires him to do so.
The applicant’s work history in Fiji, indicates that he was still employed by [Employer 1] when he arrived in Australia. There is no evidence that the applicant formally resigned from [Employer 1]. The documentary evidence, combined with the applicant work history in Fiji and Australia is compelling evidence that it is reasonably likely the applicant would be able to obtain and maintain, stable employment in Fiji that would be sufficient to enable him to subsist.
[Mr A]. said in evidence that the applicant was harmed physically and traumatised in Fiji. He also said he had seen the applicant overcome his fears and recover from the abuse he experienced in his workplace in Fiji. The substance of the evidence given by the witness is somewhat consistent with the evidence given by the applicant at hearing about being troubled and upset by management’s rejection of his request for a pay rise, their failure to replace faulty safety equipment, and that management staff spoke to him abusively about a mistake(s) he made at work. There is no evidence before the Tribunal that specifies when each of these alleged workplace-related events occurred, or the actual abusive words the applicant alleged against unspecified members of [Employer 1]’s management team.
Relevantly, the applicant did not allege that in his workplace at [Employer 1] he was physically assaulted and the assault left him bruised, or that he was assaulted.
It is evident that the witness was not present at any time the applicant said he was mistreated in Fiji, or that he has firsthand knowledge of how any bruising to the applicant’s body that he may have observed was caused. It impresses the Tribunal that [Mr A]’s evidence, including the opinions he expressed, is based on what the applicant told him about his experiences in Fiji.
On balance, the Tribunal is of the view the evidence given by the witness is based on what he was told by the applicant about his experiences in Fiji, and the effect those experiences had on him.
The Tribunal finds the evidence of [Mr A] is relevant to the applicant’s protection claims and that it does not derogate from the applicant’s evidence. Nevertheless, the Tribunal is not persuaded that the witness’s evidence is sufficient to amount to material support for the applicant’s protection claims, because it is reasonably likely the witness’s evidence derives from what the applicant told him about marks on his body, his experiences in Fiji and their effect on his wellbeing. It is not evidence that is substantially based on the witness’s firsthand knowledge of events in Fiji relevant to the applicant’s protection claims about his experiences in Fiji and their likely causes. Accordingly, the Tribunal gives little weight to the evidence of [Mr A].
The Tribunal has considered DFAT Country Information Report Fiji, 20 May 2022 (DFAT report), page 7, that states the economic situation is Fiji. Fiji is one of the most developed and connected economies in the Pacific Islands region and it is defined by the World Bank as an upper-middle income country. The World Bank’s lead economist for the Pacific estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024.[2]
[2] COVD-19’s impact on Fiji, The Borgen Project, 26 March 2023, 20230712122006
On balance, the evidence considered alone and in conjunction with the cited country information is insufficient to establish to the satisfaction of the Tribunal that the applicant would be targeted by state or non-state actors and subjected to systematic and discriminatory conduct, that would:
·cause economic hardship that threatens his capacity to subsist;
·deny him the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.
At hearing the applicant said he was living in the family home with his family before he came to Australia. His parents gave the house to him when they vacated it and returned to their home village in Fiji. The applicant was residing in what he said is the family home with his wife and [children] immediately before he came to Australia as a tourist, intending at that time to return to Fiji at the end of his holiday. Currently, the applicant’s elder sister is living in the family home and looking after the applicant’s [children] while he and his wife are in Australia.
The Tribunal asked the applicant if he would be able to resume living in the family home when he returned to Fiji after holidaying in Australia. The applicant did not directly answer the question: he said he gave the house to his sister. Given he has [children] living in the family home in the care of his sister, the Tribunal is not persuaded that the applicant’s sister would seek to exclude him from the family home and hinder his return to parenting his children and residing with them in the family home, if he is removed to Fiji now, or in the reasonably foreseeable future.
The evidence indicates it is reasonably likely the applicant would be able to safely relocate to the home his parents gave to him when they left Suva to return to their home village; the home where [Number] of his children are residing; the home he left only temporarily when he arrived in Australia as a tourist planning to return to Fiji at the end of his holiday.
The Tribunal reiterates the applicant said he entered Australia as a tourist, and, at that time, he intended to return to Fiji at the end of his Australian holiday. The evidence does not indicate the applicant planned to live anywhere but with his children, in the family home when he returned to Fiji. There is no evidence that satisfies the Tribunal that the applicant’s sister or anyone else, would prevent him from residing in the family home with his [children] if he returned to Fiji, now or in the reasonably foreseeable future.
At hearing the applicant’s decision to remain in Australia meant he would not return to his home country, other [children], the family home, and his position as a permanent employee of [Employer 1].
The applicant told the Tribunal that he decided to stay because he saw opportunities in Australia, namely, opportunities to work, study and showcase his ability to play [Sport]. These reasons for deciding to stay are materially inconsistent with the applicant fearing state or non-state actors would subject him to systematic and discriminatory conduct for reasons of race, religion, nationality, membership of a particular social group or political opinion, that would cause him to be seriously harmed in Fiji.
The applicant elaborated on his experiences in Fiji. He said he was deprived of basic human rights in his workplace. He said he was mistreated by his managers at work because he did not receive satisfactory responses to the issues he raised with them, namely, a pay rise and when he reported that certain safety equipment should be replaced, they did not address his concerns. Management also spoke to him abusively when he made mistakes.

The Tribunal asked the applicant to elaborate on the basic human rights he was deprived of in Fiji. He told the Tribunal that the human rights deprivations were like the ones he experienced at work. The Tribunal also asked the applicant to identify who was depriving him of basic human rights. He responded his employer deprived him of his rights, additionally he rehearsed the complaints against his employer that he made earlier in his evidence at hearing.
There is no evidence that the applicant’s employer intended to arbitrarily end the applicant’s employment, or to end his employment for any reason at all. The evidence indicated that the applicant, at his own expense, successfully completed a series of part-time training courses at [Institution] to qualify for a permanent appointment at [Employer 1]. The applicant’s study and efforts at work were rewarded when he was made a permanent employee before he departed for Australia. This evidence weighs against accepting the applicant was mistreated by his employer to the degree that he experienced serious harm or significant harm at work.
The Tribunal sought from the applicant an explanation of the way(s) by which the 2006 coup in Fiji affected his life. The applicant responded that the cost of living in Fiji was too high, and he could not afford family supplies. This evidence is general in nature and lacking in cogent specificity, and considered on its own terms it is insufficient to persuade the Tribunal that the applicant was harmed as a consequence of the 2006 coup, or that he would be harmed for any reason related to the 2006 coup, if he is removed to Fiji now or in the foreseeable future.
There is no evidence before the Tribunal that establishes to the satisfaction of the Tribunal that the applicant, his wife, or any of his children went hungry, or were denied access to basic services, where the denial threatened or would threaten the applicant’s capacity to subsist if he is removed to Fiji now or in the reasonably foreseeable future.
Additionally, the evidence is insufficient to establish to the satisfaction of the Tribunal that the cost of living in Fiji when the applicant was residing in the family home with his family, was so affected by the 2006 coup, that the applicant experienced, or would experience, economic hardship that threatened his capacity to subsist.
Further, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to systematic and discriminatory conduct by state or non-state actors amounting to a real chance of economic hardship, that threatened or would threaten his capacity to subsist if he is removed to Fiji now or in the reasonably foreseeable future.
The applicant said at hearing that he was not involved in politics in Fiji, and in Australia he has not been involved in Fijian politics. The applicant also said that in Australia he speaks openly about politics when he is socialising with friends.
The applicant said he has not sought psychological treatment in either Fiji or Australia, and that he has not sought medical treatment or counselling in Australia.
The applicant claimed he discussed his concerns with his church leaders in Fiji. He said in response to the Tribunal, that he spoke about his concerns about his workplace, the government, and how he was feeling about life. The applicant’s evidence about each of the concerns he discussed with church leaders is vague, general in nature and lacking cogent specificity. Additionally, the applicant’s evidence is unsupported by concrete evidence such as statements, affidavits, or other evidence from his church leaders that is capable of verifying the asserted conversations occurred, and the specific matters that were discussed.
On balance, the evidence is insufficient to establish to the satisfaction of the Tribunal that:
·the applicant had a political profile of any sort in Fiji before he left the country; and
·that the applicant has a political profile of such a nature that state actors, or
non-state actors in Fiji would subject him to systematic and discriminatory conduct for the reason of his political opinion(s), if he were removed to Fiji now or in the reasonably foreseeable future.
The applicant’s Christian beliefs places him with most of the population of Fiji, according to information in the DFAT report, because 65 per cent of Fijians are Christian. The DFAT report and the evidence do not demonstrate to the Tribunal that the applicant was exposed, or would be exposed, to any appreciable risk of harm in the workplace, or elsewhere in Fiji for the reason of religion.
Towards the end of the hearing the applicant was invited to make a general statement in support of his protection visa application. In summary, the applicant asserted that staying in Australia afforded him opportunities and would give opportunities to his wife and their [total number of] children[3] that would not be available to them in Fiji. He said he is trying hard to bring his other [children] to Australia.
[3] Counting here the child born in Australia, together with the [children] born in Fiji
Refugee criterion findings
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal considered alone, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Fiji now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection findings
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169] and [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246], [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Fiji now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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 2249

5 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction