2101809 (Refugee)

2101809 (Refugee) [2023] AATA 4853 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Benjamin Vevers (MARN: 1067816)
CASE NUMBER:  2101809
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Fraser Robertson
DATE:12 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2023 at 10:05am
CATCHWORDS
REFUGEE – protection visa – Fiji – small business owner and money lender – higher risk and financial failure – ostracism by family and community – multiple previous travel – vague claims and no supporting evidence – no pre-hearing statements or submissions, and consent to decision without hearing – country information – failed business owners not a particular social group – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
BBK15 v MIBP (2016) 241 FCR 150
Chan v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
CSV15 v MIBP [2018] FCA 699
DQU16 v MHA [2021] HCA 10; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
ESD17 v MIBP [2018] FCA 1716
GLD18 v MHA [2020] FCAFC 2
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
Selvadurai v MIEA [1994] FCA 301; 34 ALR 347
SZLPH v MIBP [2018] FCAFC 145; 266 FCR 105
SZLVZ v MIAC [2008] FCA 1816
SZTAL v MIBP [2017] HCA 34; 262 CLR 362
SZSPT v MIBP [2014] FCA 1245
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
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 11 December 2023, the applicant sought this application be determined on the papers.
For these reasons, the decision under review should be affirmed.
BACKGROUND
The applicant is a [Age]-year-old male from Fiji. The applicant lodged a protection visa application on 18 October 2020 (PV Application).
The PV Application claimed, in summary, that:
(a)the applicant was a small family business operator, which included a [business] and money lending. He claimed that the money lending business involved a high return because he could charge 20% interest. The applicant claims that the higher-risk nature of moneylending and the high unemployment rate in Fiji badly affected both businesses to the point that they had to close;
(b)the failure of his businesses resulted in family problems and tension. That "growing tension at home from both close and distant members" in the loss of those relationships affected him psychologically. He faced a stigma because of the failure of his businesses and was left alone to deal with this;
(c)his family and community had ostracised him. The applicant considered that time spent in Australia may improve his relationships with family members in Fiji but that it had not done so, with the relationships' turning more sour' instead;
(d)if he were to return to Fiji, the applicant feared mistreatment, psychological harm and physical harm;
(e)the applicant could not obtain assistance from the Fijian authorities because "it is more psychological than physical"; and
(f)the applicant could not relocate because he would meet or have to stay with family members. Those family members would not accept the applicant because of their allegiance to the family hierarchy.
The applicant was not invited to attend an interview.
DELEGATE'S DECISION
On 27 January 2021, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa.
The delegate noted that on 20 October 2020, the Department acknowledged the applicant's application and advised him that he could provide additional information in relation to his claims. By the time the delegate made her decision on 27 January 2021, the delegate noted that the applicant had not provided any further information.
In refusing the applicant a protection visa, the delegate considered that:
(a)she was not satisfied that the applicant's claimed fear of harm had a nexus to any of the reasons set out in s 5J(1)(a) of the Act;
(b)the applicant could obtain protection from any harm he feared from "unnamed and unidentified individual/s (his own family)", which would result in the applicant not facing a real risk of significant harm;
(c)that mental health care would be available to the applicant in Fiji, and he would not be denied access to such treatment for any one or more of the reasons set out in s 5J(1)(a) of the Act;
(d)the economic conditions in Fiji did not amount to significant harm as it was not cruel or inhuman treatment or punishment as defined in s 5(1) of the Act and would not involve the intentional infliction of harm; and
(e)the applicant was not a person in respect of whom Australia owed protection obligations by reason of either ss 36(2)(a) or 36(2)(aa) of the Act.
REVIEW APPLICATION
The applicant applied to the Tribunal for review of the delegate's decision on 17 February 2021. The applicant provided a copy of the delegate's decision record and a copy of the notification of the refusal to the Tribunal.
Mr. Vevers, a registered migration agent, represented the applicant in the review application.
On 16 November 2023, the applicant was:
(a)informed that having considered the material before the Tribunal, the Tribunal was not in a position to make a decision favourable to the applicant on this information alone; and
(b)requested to provide any submissions and statements by 11 December 2023; and
(c)invited to attend an in-person hearing before the Tribunal on 18 December 2023.
At the request of the applicant and his representative, the Tribunal modified the hearing to be conducted by Microsoft Teams because the applicant was working in Queensland.
On 23 November 2023, the applicant, through Mr Vevers, provided a completed hearing response form which indicated that the applicant would participate in the hearing and that "pre-hearing submissions (incl. statement) will be lodged with the AAT".
On 11 December 2023, the applicant, through Mr Vevers, advised the Tribunal that the applicant did not wish to attend the hearing on 18 December 2023 and sought a decision on the papers. Neither the applicant nor his representative lodged any pre-hearing submissions or statements.
RELEVANT LAW
The attachment to this decision includes a summary of the relevant law and an extract of key provisions of the Act.
I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the 2022 DFAT Report[1] as directed.[2]
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336 (2022 DFAT Report).
[2] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
ANALYSIS, FINDINGS AND REASONS
The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a) or the complementary protection criterion contained in s 36(2)(aa) of the Act.
Consideration of the applicant's claims
Section 5AAA of the Act provides that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[3] The Tribunal has no responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
[3] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[4] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[5]
[4] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[5] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
Country of nationality
The applicant claimed to be a national of the Republic of Fiji. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that the applicant is a Fijian national. I find that Fiji is the applicant's country of nationality and the receiving country.
Resolution of claims
The applicant appears to have an extensive travel history between Australia and Fiji. The PV Application claims that among other things:
(a)the applicant was born in [Location], Fiji. Between [Year] and [Year], the applicant lived in [Town 1]. The applicant then moved to [Town 2], where he lived until December 2016;
(b)between [December] 2016 and [January] 2017, the applicant lived in Queensland;
(c)between [January] 2017 and [August] 2017, the applicant lived in [Town 2];
(d)between [August] 2017 and [September] 2017, the applicant lived in New South Wales;
(e)between [September] 2017 and [October] 2018, the applicant lived in [Town 2];
(f)between [October] 2018 and [November] 2018, the applicant lived in New South Wales;
(g)between [November] 2018 and [March] 2019, the applicant lived in [Town 2];
(h)between [March] 2019 and [March] 2019, the applicant lived in New South Wales;
(i)between [March] 2019 and [September] 2019, the applicant lived in [Town 2], and
(j)between [September] 2019 and [October] 2020, the date of the protection visa application, the applicant lived in Western Australia.
The mere fact that a person claims fear of persecution for a reason does not establish the genuineness of the asserted fear, that it is 'well-founded', or that it is for the reason claimed. Similarly, that an 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'. The applicant must satisfy the Tribunal that all the statutory elements are made out.
I consider the protection claims made in the PV Application to be vague, generalised, and conclusory.
The PV Application claims that the applicant operated a business comprising a [business] and money lending. The applicant claimed that the [business] was not very profitable, so he diversified into moneylending, which he considered a high-return activity with a clear 20% interest.
The applicant claimed that those businesses failed, it appears, because moneylending was a high-risk activity, and the high unemployment rate in Fiji adversely affected both businesses to the point that they had to close. No information was given about when the business started, the income that it generated or when the business failed. The applicant included no information about the source of the capital to establish the money lending business or what level of loans were made by the business.
A lack of information about when the business failed means that I cannot properly consider the credibility of the applicant’s claims about the failure. I note that the 2022 DFAT Report assesses that:[6]
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
[6] 2022 DFAT Report, [2.21].
The lack of information also means that I cannot know whether the business failed, for example, because it no longer had any customers because of, perhaps, the claimed high unemployment or because the customers who had borrowed sums of money had defaulted on repayments. I cannot know whether it was COVID-19 affected. It may well have been a combination of two or more factors. However, other than attributing the closure of the businesses to the "high risk" and "high unemployment rate in Fiji", the applicant does not explain why the businesses failed.
The applicant did not wish to attend the hearing and instead sought that the application be determined on the papers. In those circumstances, I have not had the benefit of exploring the applicant's claims for protection, including but not limited to:
(a)how long the applicant had operated his business and when the applicant expanded into money lending;
(b)the circumstances which surrounded, contributed to and caused the failure of the businesses and when that all occurred;
(c)the applicant's past experiences of harm and, in particular:
(i)the nature and extent of the mistreatment that he claims to have suffered in the past and fears in the future;
(ii)the nature and extent of the psychological harm that the claims to have suffered in the past and fears in the future; and
(iii)the nature and extent of the physical harm he claims that he may suffer in the future in Fiji;
(d)the stigma which the applicant claims to face in Fiji and the reasons for it;
(e)the reasons for the past and future harm feared by the applicant;
(f)the nature and extent of his family's involvement in either or both businesses;
(g)the applicant's claims about and around the difficulties between himself and his family and the reasons for those difficulties;
(h)whether the applicant has undergone any treatment for the psychological harm he claims to have suffered either in Australia or Fiji and if not, why not;
(i)his frequent travel to and from Australia in the years before his protection application and what inferences can be drawn from that about the fear, or lack of fear, of harm that the applicant had during that period;
(j)any protection that the application may be able to access and, if not, why not;
(k)the nature and extent of the applicant's relationship with his wife in Fiji;
(l)the applicant's employment history and ability, or lack of ability, as the case may be, to re-establish himself in Fiji, whether by establishing a business or obtaining employment;
(m)the applicant's past and present financial situation; and
(n)the practicalities of relocation within Fiji.
I have, however, carefully considered the written claims of the applicant. I have also had regard to the delegate's decision, which the applicant provided to the Tribunal. Despite foreshadowing an intention to do so, neither the applicant nor his representative made any submission or filed any additional evidence in support of the review application.
Particular social group - proprietors of failed businesses
I have considered whether a particular social group in Fiji consists of, for instance, proprietors of failed businesses or similar. It is well understood that the definition of 'particular social group' should be interpreted broadly to encompass the many groups that do not otherwise fall within the other categories in s 5J(1)(a) of the Act. Even so, I am not satisfied that being the proprietor of a failed business or similar is either:
(a)an innate or immutable characteristic;
(b)is so fundamental to a member's identity or conscience that they ought not be forced to renounce it; or
(c)that the characteristic distinguishes the group from society.
Does the applicant have a well-founded fear of persecution?
The PV Application does not provide any details or particulars of the harm the applicant claims to have suffered in Fiji. The claimed harm is masked by labels such as 'mistreatment', 'psychological harm' and 'physical harm'. Whilst past harm is not necessary to establish a real chance of future harm, it can provide a basis from which inferences can be drawn to the risk of future harm. The past harm may also inform the question of whether the harm feared by the applicant would amount to serious harm, having regard to the non-exhaustive examples of serious harm that are identified in s 5J(5) of the Act.
The vague and generalised claims of past harm contained in the PV Application do not satisfy me that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future in Fiji.
The applicant was invited to attend a hearing but elected not to. That is his right.[7]
[7] Migration Act 1958 (Cth), s 425(2)(b).
[8] SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [53] (Besanko, Gleeson and Burley JJ).
Yet, at that hearing, I could have obtained more information about the claims made by him, including his claimed psychological condition, ostracism from his family or the stigma that he fears. However, it is for the applicant to advance whatever evidence he wishes to support his claims for protection.[8]
That said, in those circumstances and based on the very limited evidence available, the applicant has not satisfied me, among other things, that:
(a)he has been harmed, whether that harm constituted mistreatment, psychological harm or physical harm, in the past by his family or by any other person;
(b)his family, or any other person or group of people, would seek to harm in the future;
(c)his family or community has ostracised him because of the failure of his businesses or for any other reason;
(d)he faces any harm or stigma in the future because of the failure of his businesses (if indeed they did fail as claimed);
(e)even if he did require mental health care, which I am not satisfied that he does, that he would face any harm because of any absence of mental health care in Fiji or that he would be deprived of access to such care for any reason;
(f)he would be unable to obtain employment or start a business to support himself if he were to return to Fiji; and
(g)he would be unable to subsist if he were returned to Fiji now or in the reasonably foreseeable future.
I am not satisfied that if he were returned to Fiji, that:
(a)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, from his family;
(b)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, on account of his psychological condition;
(c)any decline in the psychological condition of the applicant would involve systematic and discriminatory conduct[9];
(d)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, on account of any stigma he might experience;
(e)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, on account of ostracism from his family;
(f)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, on account of the failure of his businesses;
(g)there is a real chance that the applicant would suffer serious harm now, or in the reasonably foreseeable future, on account of not being able to establish a business or obtain employment; and
(h)any harm that the applicant might suffer, now or in the reasonably foreseeable future, would:
(i)be for the essential and significant reason of the applicant's race, religion, nationality, membership of a particular social group or political opinion; or
(ii)involve the discriminatory withholding of state protection.
[9] CSV15 vMinister for Immigration and Border Protection [2018] FCA 699 at [30]-[31] (Collier J).

The above findings mean that it is not strictly necessary to determine whether effective protection measures are available to the applicant in Fiji.[10] In circumstances where the applicant has not set out with any detail or particularity the harm against which he might require protection and elected not to attend a hearing, I agree with the delegate's findings that:
Based on the available country information, while the applicant may not have absolute protection in Fiji, it is evident that the Fijian authorities are able and willing to provide an adequate level of protection from the type of criminal behaviour feared by the applicant. I am satisfied that the Fijian authorities are taking reasonable measures to protect the lives and safety of their citizens by maintaining a reasonably effective and impartial police and judicial system, and investigating and penalising corrupt officials. The reports do not support a finding that the Fijian authorities would withhold protection from the harm feared by the applicant. I note that paragraph 36(2B)(b) of the Act imposes a higher standard of protection from State authorities than the standard referred to in Australian refugee law jurisprudence.
The Department's Complementary Protection Guidelines state that 'an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place'. The Guidelines state further that '[e]ven where there are general measures of state protection in place that would otherwise be considered "reasonable" for the population at large, if there remains a "real risk" of significant harm to the individual in question then Australia's non-refoulement obligations will be engaged'.
I have considered the applicant's particular protection needs against this higher standard of protection and am satisfied he could obtain, from the Fijian police and other authorities, protection such that there would not be a real risk he will suffer significant harm.
[10] Migration Act 1958 (Cth), s 5J(2).
Does the applicant meet the refugee criterion?
For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, I do not need to conclusively determine whether s 5J(2) or (3) applies to the applicant.[11]
[11] ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J).
I have also considered the applicant's claims cumulatively. There is no feature of any of the above claims that, when considered cumulatively with one or more or all the other claims, would lead me to conclude that the applicant has a well-founded fear of persecution within the meaning of s 5J.
For the above reasons, I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) of the Act. The applicant does not meet the criterion in s 36(2)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having determined that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa).
To be entitled to complimentary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that they will suffer significant harm.[12] The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.[13]
[12] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[13] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
Section 36(2A) of the Act exhaustively defines 'significant harm'.[14] There is no suggestion that the applicant will be arbitrarily deprived of his life[15], have the death penalty inflicted upon him[16] or be tortured[17]. Sections 36(2A)(d) and (e) deal with significant harm comprised of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". In that regard, "cruel or inhuman treatment or punishment" means:
(a)an act or omission by which, among other things, "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".
[14]    DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[15] Migration Act 1958 (Cth), s 36(2A)(a).
[16]    Migration Act 1958 (Cth), s 36(2A)(b).
[17]    Migration Act 1958 (Cth), s 36(2A)(c).
The remaining type of significant harm, "degrading treatment or punishment", means "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable".
The removal of an applicant from Australia cannot itself be significant harm, nor can removal be the act against which an applicant is to be protected.[18] Significant harm does not include self-harm or harm the applicant suffers arising from a mental illness where such harm arises because of the applicant's removal to their home country and not due to harm intentionally inflicted on an applicant by 'others'.[19]
[18] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [38]–[39] (Allsop CJ and Mortimer J)
[19] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); see also CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).
Conclusion: complimentary protection criterion
For the above reasons, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk that he will suffer significant harm.
The applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
I have considered the alternative criterion in s 36(2)(aa). The applicant is not 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) based on 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 decision not to grant the applicant a protection visa is affirmed.

Fraser Robertson
Member
ATTACHMENT - RELEVANT LAW
Criteria for the grant of a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they are a person in respect of whom Australia has protection obligations either:
(a)under the 'refugee' criterion in s 36(2)(a);
(a)on other 'complementary protection' grounds; or
(b)because they are 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.[20]
[20] Migration Act 1958 (Cth) s 5H(1)(a).
A person has a well-founded fear of persecution if:[21]
[21] Migration Act 1958 (Cth) s 5J(1).
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);
(a)on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(b)the real chance of persecution relates to all areas of the relevant country.
A 'real chance' is one that is not 'remote' or 'far-fetched' and can arise even when the probability of harm occurring is less than 50%.[22]
[22] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[23] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[24] Further, the persecution must involve serious harm to the person[25] and systematic and discriminatory conduct.[26]
[23]    Namely, race, religion, nationality, membership of a particular social group or political opinion.
[24]    Migration Act 1958 (Cth), s 5J(4)(a).
[25]    Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[26]    Migration Act 1958 (Cth), s 5J(4)(c).
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–5LA, 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the 'complementary protection criterion').[27]
[27] Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
The 'real risk' test imposes the same standard as the 'real chance' test.[28]
[28] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242]–[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at [297] and Flick J at [342] agreed).
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.
Relevantly, 'significant harm' for these purposes is exhaustively defined in s 36(2A).[29] A person will suffer significant harm if they will:
[29] Migration Act 1958 (Cth), s 5(1).
(a)be arbitrarily deprived of their life;
(a)have the death penalty carried out on them;
(b)be subjected to torture;
(c)be subjected to cruel or inhuman treatment or punishment; or
(d)be subjected to degrading treatment or punishment.
'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment' and 'torture' are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[30] These arise where:
[30] Migration Act 1958 (Cth), s 36(2B).
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(a)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[31] that the applicant will suffer significant harm; or
[31] The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).
(b)the real risk is one faced by the 'population of the country generally' and is not faced by the applicant personally.
The term' population of the country generally' refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country's population for s 36(2B)(c) to apply.[32]
[32] BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
Section 36(2B)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.
Mandatory considerations
I must take 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.[33]
[33]    See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person's life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person's capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person's family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2023] AATA 4853

12 December 2023

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