2013688 (Refugee)

[2024] AATA 1369

2013688 (Refugee) [2024] AATA 1369 (29 January 2024)

Date of corrigendum:  1 February 2024

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013688

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Lilly Mojsin

DATE OF DECISION:  29 January 2024

DATE CORRIGENDUM

SIGNED:1 February 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. Page 8, paragraph 44 of the Decision Record is to be deleted as a clerical error. 

2. On page 8 of the decision paragraph numbering after “paragraph 43” should read “paragraph 44” and continue numbering.

Lilly Mojsin
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2013688

COUNTRY OF REFERENCE:                   Fiji

MEMBER:  Lilly Mojsin

DATE:  29 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2024 at 9:08am

CATCHWORDS
REFUGEE – protection visa – Fiji – fear of being taken by the military – handed out pamphlets during the 2006 coup – no adverse political profile – departed country legally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2020 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant claims to be a citizen of Fiji.

1. The applicant first arrived in Australia [in] July 2017 and departed [in] August 2017. He returned to Australia [in] September 2017. He, applied for the PV on 8 October 2017.

1. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on his return to Fiji, within a reasonably foreseeable future.

1. The applicant appealed that decision to the Tribunal, attaching a copy of the Department decision to his review application.

1. The applicant appeared before the Tribunal on 24 January 2024 to give evidence and present arguments via Teams video, from [an immigration detention centre].

1. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicant and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

CRITERIA FOR A PROTECTION VISA

1. See annexure A

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant’s claims, as outlined in his PV application, are summarised as follows:

   ·The applicant was a Pastor in Fiji preaching the ‘Rights of the People’ within the 1991 constitution during the coup of 2000 and 2006.

   ·The military arrested him and took him to custody. He was traumatised by the experience and still have post-traumatic experience today.

   ·Since that arrest, he constantly lived in fear for his life thinking that one day it will be arrested and killed by the military.

   ·He lodged complaints against the military to the Office of the Human Rights Commission, which was to no avail.

   ·If he stands up for the people of Fiji, he will be killed, as they have done to people in the past.

   ·For his safety, he moved to the western side of Fiji and lived in [City 1], but the situation got worse when everyone started to eavesdrop on what was being discussed in private or in public.

   ·The military hired people to gather information of people who state anything against the government of the day. Therefore, he lived in fear of the military.

   ·He was heavily involved with NGOs and well known organisation in the campaign for Human Rights and represented their voice.

   ·He was glad that his name did not appear in the travel ban of individuals from Fiji.

·If he returns to Fiji, he will be arrested, taken into custody and killed.

·The authorities of Fiji are unable to protect him. All the law enforcement agencies in Fiji are corrupt by the corrupt politicians who would do anything to stay in power.

1. The applicant did not provide any further submissions to the Tribunal.

1. At the Tribunal hearing the applicant gave evidence that he had been married in Fiji and his ex-wife is in Fiji. He has no children. He is not in a relationship.

1. He is presently in detention as he breached his bridging visa. He was imprisoned for 1 year with a 2 year parole period as he assaulted a female.

1. He travelled to Australia twice in 2017. On his first visit he returned to Fiji after 3 months. He had come to Australia in order to watch a football game and for a holiday. He returned shortly after because his visa lasted for 3 years. He started working in Australia in 2018, he was working as a [Occupation 1] in [Suburb 1]. He worked in [Occupation 2] until December 2021 when he went to jail. In Fiji he was a gospel worker and did farming. He has  [number] sisters in Fiji. His brother just died. He has no relatives in Australia. He does not own land, he just lived with his sisters in a house that his mother built. His reason for leaving Fiji was to come to Australia to work.

1. The applicant explained that the military took him in for questioning in 2006 for distributing leaflets when he was volunteering for an NGO ‘[Organisation 1]’. They were going to take them to the camp but he was at the police station for 2 hours and then they released him. After 2006 the military did not take him again but he was always on the edge. One time he was driving down road when the military stopped him and his friend and asked for his name in 2013. He confirmed nothing happened and they went on their way.

1. He believes that the military will come again, even in Australia, as they are here and come and go.

1. He confirmed that he came to Australia and returned to Fiji and nothing happened to him on his return. He was able to get a passport in his own name and he had no problems.

1. I put to the applicant that he told Department he was arrested and taken into custody. He responded that there was chaos and other guys were getting arrested, but he was told to go so he left. Asked what he fears about returning to Fiji, he said the government is unsecure. He still has the trauma of being taken by military holding guns. He does not trust anyone. It is better here in Australia.

1. I discussed the independent evidence that Fiji is generally stable and secure. The recent elections were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Politics in Fiji today is no longer characterised by the unrest of the past.

1. The applicant confirmed that he had no political profile and other than handing out pamphlets in 2006 and nothing happened to him after that.

1. I discussed the independent evidence from DFAT that people involved in the 2006 coup are unlikely to experience official or societal discrimination merely for their involvement. There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. In the December 2022 elections, Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.

1. When asked what he feared about returning he said he would like to stay and work and make some money in order to build a house in Fiji. He was ministering in jail. He would like to continue his ministering work here in Australia.

1. The applicant confirmed he had no criminal offences in Fiji.

INDEPENDANT EVIDENCE

1. By way of background1 about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.

1. 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. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.

1. According to DFAT’s most recent report – Fiji 20 May 2022, Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.

1. The Republic of Fiji Military Forces2 (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.

The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.

Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians.

Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.

The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.

Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined Policing is conducted on

1 DFAT Country Report Fiji 2022

2 DFAT Country Report Fiji 20 May 2022

a community policing model and police are generally actively engaged with the communities they serve.

Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court.

Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.

The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.

Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.

Mandatory considerations

1. 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.

REASONS AND FINDINGS

1. On the basis of his Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

1. The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any, and all claims made, by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of

assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.

1. The applicant is Christian a gospel worker/pastor. I accept that in 2006, at the time of the Bainimarama coup, the applicant was handing out pamphlets when he was volunteering for an NGO ‘[Organisation 1]’, and the military took him to the police station for questioning. He was released after 2 hours. Other than on one occasion in 2013 when he was driving with a friend and the military pulled them over, questioned them and let them go nothing else happened to them. I find that being questioned by the military and/or police for 2 hours or being pulled over when driving and questioned, then released, does not amount to serious harm.

1. When put the applicant that he had claimed to the Department he was arrested and taken into custody he said that he was released after being questioned for 2 hours by police. This occurred in 2006. Therefore I find that the applicant was not arrested by the military and taken into custody or that he was traumatised by that experience and still has post-traumatic experience today. I find that the applicant did not lodge complaints against the military, for being taken into custody, to the Office of the Human Rights Commission.

1. The applicant confirmed to the Tribunal that he was only handing out pamphlets for an NGO in Fiji therefore I find implausible and I do not accept that the applicant was heavily involved with NGOs and well known organisations in the campaign for Human Rights and represented their voice or that he was preaching the ‘Rights of the People’ within the 1991 constitution during the coup of 2000 and 2006.

1. Whilst I accept that the applicant was traumatised and feared being taken by the military holding guns when he was in Fiji during the coups and in the aftermath of the coups, I do not accept that he continues to live in fear constantly, even in Australia. The applicant left Fiji in 2017, came to Australia to watch a football match and returned to Fiji. I am satisfied his return to Fiji indicates the applicant did not have a subjective fear of harm.

1. Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 20073. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s Fiji First party went on to win the 2014 and 2018 elections. The applicant was questioned during the 2006 coup. I am satisfied he was not seriously harmed in the years following the coup.

1. The applicant was able to obtain a passport in 2009 and he left Fiji legally in 2017 without any problems during the Bainimarama regime. I am satisfied that the applicant had no adverse political profile or an imputed political profile in Fiji when he resided in Fiji. I am satisfied that the applicant did not suffer serious harm when he lived in Fiji. I am satisfied that the applicant did not flee Fiji fearing serious harm for a refugee reason.

3 DFAT Country Report Fiji 20 May 2022

1. I am required to consider whether the applicant will suffer serious harm for any reasons of his race, religion, nationality, membership of a particular social group or political opinion, enumerated in s.5J(1)(a), on his return to Fiji within a reasonably foreseeable future.

1. The applicant, an ethnic Fijian Christian Pastor/Gospel worker, did not suffer serious harm when he lived in Fiji. He came to Australia for a holiday and then returned to Australia to work. In Australia, whilst in jail, he has converted to Christianity some inmates. I am satisfied that this activity would not impute an adverse profile to the applicant.

1. I have rejected all his claims other than he was a Pastor/Gospel worker who once as held by the police for 2 hours questioning after being taken by the military and once in a vehicle stopped by the military and asked questions. As the applicant had no adverse political or adverse imputed political profile I do not accept that he will stand up for the people of Fiji. The applicant returned to Fiji in 2017 and nothing happened to him. Therefore I find there is not a real chance the applicant will be arrested, taken into custody and killed within a reasonably foreseeable future on his return to Fiji.

1. The applicant’s only fears about returning to Fiji are that he fears being taken by the military again and he believes the government is unsecure. The independent evidence4 is that Fiji is generally stable and secure. Since the applicant’s arrival in Australia in 2017, the Fijian government has changed. Following the December 2022 Fijian general election5, no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Josaia “Frank” Bainimarama who assumed leadership in Fiji following a coup in 2006. Since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable. Politics in Fiji today is no longer characterised by the unrest of the past.

1. DFAT6 stated that people involved in the 2006 coup are unlikely to experience official or societal discrimination merely for their involvement. There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. In the December 2022 elections, Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.

1. As for the military, according to DFAT7 the Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup. Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. I accept that the applicant, like some Fijians, is still suspicious of the military and still fears them. Simply fearing harm does not mean a person has a well-founded fear of persecution. I find that if the applicant returned to Fiji, in the foreseeable future, he would not face a real chance of serious harm simply arising from the fact that he is fearful of the Fijian military.

1. In light of the applicant being taken for questioning in 2006 during the coup once only and in light of nothing happening to the applicant after that time, except for his vehicle being

4 DFAT Country Information Report Fiji 20 May 2022

5 A New Era in Fijian Politics (csis.org) DFAT Country Information Report Fiji 20 May 2022

7 DFAT Country Information Report Fiji 20 May 2022

stopped on one occasions in 2013, and the applicant returning to Fiji in 2017, I find there is not a real chance the applicant will suffer serious harm at the hands of the military on his return to Fiji within a reasonably foreseeable future.

1. What the Tribunal must consider is whether the applicant faces a real chance of serious harm from the Sri Lankan government for one or more of the reasons in s 5J(1)(a), rather than simply whether he subjectively fears harm. The Tribunal considers that many Tamils may hold a fear of the Sri Lankan government, or the authorities more broadly, but that does not mean they have a well-founded fear of persecution.

1. I have considered the applicants’ claims and evidence singularly and cumulatively. As the applicant does not have an adverse profile in Fiji, I am not satisfied that there is a real chance the applicant will suffer serious harm for a refugee reason in Fiji, if the applicant returns to Fiji.

1. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

1. I must also consider whether there is a real risk the applicant, a Christian Fijian Pastor/gospel worker, who handed out pamphlets during the 2006 coup, will suffer significant harm on his return to Fiji. The applicant he has not publicly criticised the government in any forum, or attended rallies and demonstrated against the government in Australia. His only activity in Australia is converting some to Christianity. He did not have an adverse political profile when he left Fiji for his political opinion, his religion or any other reason.

1. As stated above, I accept that the applicant, like some Fijians, is still suspicious of the military and still fears them, but the applicant returned to Fiji in 2017 and nothing happened to him. I find there is not a real risk the applicant will suffer significant harm at the hands of the military on his return to Fiji within a reasonably foreseeable future.

1. There is no death penalty in Fiji.

1. There is no evidence that there are widespread conditions of violence in Fiji, and I do not accept, in light of DFAT’s report, that there is a real risk of harm from non-state actors.

1. I accept that the applicant wishes to remain in Australia to work and to preach. I accept that the applicant does not own property in Fiji but he has [number] sisters that he lived with previously who all lived in their mother’s home. He was a gospel worker/pastor who also worked as a farmer. The applicant was able to find work in Australia and has gained valuable experience in Australia. I am not satisfied that any difficulty the applicant may be subject to, on his return to Fiji, would amount to significant harm. Therefore, I am not satisfied that there is a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future on his return to Fiji, as an ethnic Christian Fijian gospel worker/pastor who also worked as a farmer.

1. Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.

1. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

1. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Lilly Mojsin Member

ANNEXURE A

1. 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.

1. 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.

1. 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).

1. 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.

1. 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.

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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