2016645 (Refugee)

2016645 (Refugee) [2024] AATA 1249 (22 January 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016645
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wendy Banfield
DATE OF DECISION:  22 January 2024
DATE CORRIGENDUM
SIGNED:4 April 2024
PLACE OF DECISION:  Canberra
AMENDMENT:  The following corrections are made to the decision:
The passport in paragraph 10 should read “Fijian” instead of “Malaysian”.

Wendy Banfield
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016645
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wendy Banfield
DATE:22 January 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 January 2024 at 6:21pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – fear of harm from authorities – intention to gain sponsored work visa – wife and child not included in application – no harm to family members – country information – change of government and effective police force – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 27 October 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 5 November 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 23 October 2023 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Applicant’s identity and country of reference
The applicant stated in his application for a protection visa that he was born on [Date] in Fiji. The applicant provided a copy of his Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Fiji and as such his protection claim will be assessed against Fiji as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] May 2019 as a seasonal worker and has not departed since.
Claims for protection
The applicant submitted claims for protection at the time of application that were set out in the Department’s decision record dated 27 October 2020. The Tribunal is satisfied it is an accurate summary of the claims:
·     The applicant is scared the police cannot protect him.
·     The applicant has experienced harm through ‘safety fears’.
·     The ‘PM’ assaulted Pio Tikoduada and was not charged.
·     Law ‘is not safe’ in Fiji.
·     The ‘police do not have much powers’.
·     The applicant has safety concerns – he fears ‘anything can happen’.
·     The applicant ‘fears for his life due to issues arising since the first coop’ [sic].
·     Authorities are unable to protect him.
·     Authorities are causing problems by bashing people.
·     The applicant will be in danger if he returns to Fiji.
Written submissions
·     Department of Home Affairs notification and decision record dated 27 October 2020.
·     Applicant’s passport biometric information.
·     Applicant’s photo identity card.
·     Media articles and commentary outlining social and political issues in Fiji.
·     Fiji Trades Union Congress press released dated 4 September 2018.
·     Applicant’s Fiji birth certificate.
·     Applicant’s [Bank], [Health insurance], Medicare and Safework NSW cards.
·     Applicant’s superannuation account details.
·     Banks statements in the name of the applicant.
·     Boarding pass from applicant’s travel Fiji to Australia.
·     Payslips and letters of support from the applicant’s employer.
·     Applicant’s certifications in [Work skills].
·     Invoice for payment for a Certificate IV in [Subject].
·     Police clearance in the name of the applicant.
·     Birth certificate for the applicant’s [Child] born on [Date].
·     Photos of the applicant working in the Northern Territory.
·     Third party submission to the Department dated 7 December 2023 requesting an extension of time on the applicant’s Bridging Visa to allow the applicant to be sponsored through [Sponsor].
The applicant also submitted evidence to the Department at the time of application which has been considered in this decision. This included media articles and commentary about the political situation in Fiji in 2009 and in 2020 including reports of police brutality.
Evidence at the hearing
The applicant advised the Tribunal that he had assistance to complete his protection visa from a person he believed was a lawyer. When asked if the claims are true and correct, the applicant said they are. He came to Australia [in] May 2019 as a seasonal worker, for six months. The applicant went to [City 1] to undertake farm work. He said he married in Australia and has a [Child] who was born in Australia. His wife and child live in Sydney and are not part of the applicant’s protection visa. The applicant confirmed he is a citizen of Fiji and does not have a right to live in any other country.
In Fiji the applicant has his parents as well as [sisters] and [brothers]. He has cousins in Australia. The applicant completed high school and vocational study for one year in Fiji. He usually worked in farming in his home country.
The applicant was asked about his plans when he came to Australia. He said he had intended to work to be able to renovate his house in Fiji but after being in [City 1] for six months [doing a job task], he could not achieve his goal. He said after he was granted a Bridging visa he worked in a [workplace 1] in [City 1], then moved to [City 2] and worked in a [workplace 2] and in a [workplace 3]. The applicant then moved to [City 3] with the [workplace 3] and then moved to Sydney. He said he is currently living in Darwin. because one of his cousins started a company and was looking for [Occupation]s.
The Tribunal asked the applicant about his claims for protection at the time of application. He said the main reason he did not want to return to Fiji was because he was spending his time staying home, looking for money and doing some farming and fishing. He said when he first came to Australia, he was able to help his mum and dad at home with renovations and buying furniture. The applicant said now he has a partner and [Child] who are in Australia.
The applicant was asked if he had any fears about returning to Fiji or if his concerns were about the economic situation. The applicant referred to a politician in Fiji allegedly being assaulted and he said he would not stand for it anymore. It was put to him that there has since been a change of government and according to country information, the situation is now relatively stable. When asked if the applicant has any concerns for his own safety, he said he does not. However, he said he wants to stay in Australia to help his family here, and his mum and dad in Fiji.
The Tribunal explained the refugee criteria to the applicant and put to him that it appeared he wanted to remain in Australia to work and therefore, a protection visa was not the type of visa he should have applied for. The applicant said when he applied, he did not know anything about protection. The Tribunal explained that he could not be granted a protection visa unless he feared persecution for a refugee reason, or because he could not return to Fiji because he would be seriously harmed or killed. The Tribunal put to the applicant that his parents and family members appear to be living safely in Fiji and the applicant confirmed this. The Tribunal put to the applicant that Fiji has had a change of government, it is relatively stable and has an effective police force and the applicant did not refute this.
According to the applicant he is not planning to return to Fiji and has discussed with his employer about a work sponsored visa. He said he has been working for that employer for eight months. The Tribunal suggested the applicant obtain independent advice about his situation in that regard.
The Tribunal asked the applicant if he had any other reasons for not wanting to return to Fiji. The applicant advised he had moved to Darwin to help [specified people 1] there. He said he enjoys meeting the people and providing for their needs and while it is a demanding job, he wants to stay there and help. He was asked if he could do that kind of work in Fiji. The applicant said he had never heard of the same kind of work in Fiji, except for assisting [specified people 2].
The Tribunal explained that the applicant’s original application had been assessed based on his claims regarding his political opinion, but since then there is a new Prime Minister, and the Tribunal considers the applicant is unlikely to be detained or suffer any harm. The Tribunal explained again that in Fiji currently there is a stable government and effective police, despite difficulties with numbers and resourcing, and there are effective protection measures available.
Country information – Fiji
Political overview
The head of government is Prime Minister Sitiveni Ligamamada Rabuka, leader of the People's Alliance Party, who was elected Prime Minister by the Parliament with support from the National Federation Party (NFP), led by Deputy Prime Minister Biman Prasad, and the Social Democratic Liberal Party (SODELPA), led by Deputy Prime Minister Viliame Gavoka, following Fiji's 14 December 2022 election. Fiji's head of state, who is appointed by parliament, is President Ratu Wiliame Maivalili Katonivere. Inia Seruiratu of the party, is Leader of the Opposition in parliament.[1]
[1] Department of Foreign Affairs and Trade, Fiji Country Brief.
Political opinion (Actual or Imputed)
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
Street protests are relatively uncommon in Fiji. In the last several years protests have been especially uncommon due to COVID-19 lockdowns and restrictions. The lack of protests may also be related to the country’s turbulent political history and police restrictions; permits are needed for a protest, and these are sometimes denied. Violence has been reported in some protests and police will attend to violent incidents, but there is no suggestion that street protests or street protesters are inherently violent.
DFAT assesses that protesters in general may be prevented by the state from protesting lawfully. DFAT notes that COVID-19 restrictions against protest have been enforced by police as they have elsewhere, including in Australia. Laws, including provisions outlawing sedition and the Public Order Act, can be used against protesters which can lead to prison sentences. DFAT has not observed a strong pattern of interference against low-level attendees of protests (protest leaders are more likely to be charged). On that basis, DFAT assesses that protesters face a low risk of official discrimination but notes that such discrimination is not impossible. There is a moderate risk of violence in the form of police brutality.
A former political candidate, Benjamin Padarath, was charged with sedition, among other crimes, for his social media posts that were found to interfere with an investigation by the Fiji Independent Commission Against Corruption (FICAC). Padarath allegedly destroyed evidence and leaked information in a way that was considered prejudicial to the investigation. At the time of writing the matter has not been resolved. DFAT notes that, apart from the application of ‘sedition’ charges, such actions would likely also be illegal in Australia and other liberal democracies.
…
DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law.[2]
Economic Overview
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’.
Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.[3]
[2] DFAT County Information Report – Fiji – 20 May 2022.
[3] DFAT County Information Report – Fiji – 20 May 2022.
CONSIDERATION OF 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). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Refugee assessment
The Tribunal considered whether the applicant fears persecution if he returns to Fiji for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In his application for a protection visa, and at the Tribunal hearing, the applicant referred to the former Prime Minister having allegedly assaulted an opposition politician. In his oral evidence the applicant remarked that he “would not stand for it anymore”. The applicant’s evidence also stated the police in Fiji are ineffective and corrupt. He provided media reports and commentary critical of the authorities in Fiji, however, the reports predated the elections in 2022 that saw a change of government. The Tribunal put to the applicant he did not appear to be claiming he was fearful for his own safety in Fiji and the applicant did not dispute this. He did not provide any details in support of his original claims, and instead gave evidence about his economic circumstances in Fiji, and his reasons for coming to Australia to work.

The applicant has not specifically claim that he will be persecuted if he returns to Fiji for a refugee reason, or for any reason. The Tribunal notes most of the evidence provided to the Tribunal is related to his family, his qualifications and employment in Australia and his general circumstances. The applicant admitted he did not understand about applying for a protection visa and had been advised by another person. The applicant did not provide any evidence that he has ever been critical of the past or present government of Fiji, or that he has a profile in Fijian politics or that he has ever had any involvement in politics. If he were to express any opinions on politics, the Constitution of Fiji provides guarantees relating to freedom of speech, expression, assembly, and association. Having assessed the applicant’s evidence and claims it is apparent the applicant wishes to remain in Australia for economic reasons after finding his seasonal worker experience did not meet his expectations. This finding is supported by the written evidence from the applicant’s employer asking the Department to extend the applicant’s Bridging visa in order to begin the process of sponsorship through employment.
The Tribunal considered whether the applicant is a member of a particular social group, that being an unqualified worker with limited means and earning capacity in Fiji and whether he would suffer serious harm for that reason. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
After reviewing the written submissions and evidence at the hearing, the Tribunal finds the applicant would be able to return to Fiji and find employment there. He has an extended family in Fiji, and prior to travelling to Australia as a seasonal worker, he lived and supported himself by farming and fishing. He has demonstrated that he is a capable and resourceful person who has gained some qualifications and experience through working in Australia that will assist him on his return to his home country. The Tribunal is not satisfied the applicant will be persecuted for a refugee reason, or for any reason if he returns to Fiji. The Tribunal finds the applicant would not face significant economic hardship that would threaten his capacity to subsist or be denied access to basic services where the denial would threaten his capacity to subsist or be denied the capacity to earn a livelihood of any kind, where the denial would threaten his capacity to subsist.
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).
Complementary protection assessment
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). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
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 Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
As outlined in this decision, the applicant claims he applied for protection in Australia after being dissatisfied with his seasonal worker experience in Australia, and after speaking to another person who he believes was a lawyer about his circumstances. According to the applicant, he had intended to renovate his house in Fiji by earning an income in Australia, but he was unable to achieve his goals when he was engaged as [an Occupation 2] in [City 1] in New South Wales. He submitted that since then, while employed in [City 2], [City 3] and Darwin, he has been able to help his parents in Fiji financially. The applicant now has a partner and [Child] and advised the Tribunal he wants to remain in Australia to provide for them also. The applicant has not claimed that anyone in Fiji will intentionally harm him, and the Tribunal is not satisfied there is a real risk of serious harm if the applicant returns to his home country.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
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 1249

22 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice