2104051 (Refugee)

2104051 (Refugee) [2024] AATA 4458 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael Jones
CASE NUMBER:  2104051
HOME AFFAIRS REFERENCE:               CLF2017/19127
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Suseela Durvasula
DATE:3 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first-named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second-named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 03 October 2024 at 11:50am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – fear harm from her ex-husband – family violence the applicant had experienced from her second husband – a victim of domestic violence – membership of a social group – women in Fiji – applicant would not be able to obtain effective protection from the Fijian authorities – satisfied that the applicant is a person in respect of whom Australia has protection obligations – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
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 18 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 23 February 2017. The delegate refused to grant the visas on the basis that the first-named applicant was not a person to whom Australia owed protection obligations.
The applicants appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the first-named applicant’s sister and mother.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance, that if the applicants return to Fiji, they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Fiji, there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicants have provided copies of their passports to the Department and the Tribunal, which shows that they are Fijian citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of Fiji and have assessed their claims on this basis. There is nothing to suggest that the applicants have a right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply.
Background
The first-named applicant (hereafter called ‘the applicant’) is a [age]-year-old Fijian national who was born in [Fiji]. The second-named applicant is a [age]-year-old Fijian national who is the applicant’s daughter (hereafter called ‘the second-named applicant’ or ‘the applicant’s daughter’). In the protection visa application, only the applicant made claims for protection. At the review stage, both applicants stated they were making their own claims for protection.
The applicants’ immigration history is set out in the delegate’s decision record. The applicants visited Australia on visitor visas on [date] May 2012 and departed on [date] June 2012. They visited again on visitor visas on [date] November 2013 and departed on [date] January 2014. They arrived in Australia on [date] March 2016 and have not departed since.
The applicants applied for Subclass 835 Remaining Relative visas on 10 May 2016. The visas were refused and the refusal was affirmed by the Administrative Appeals Tribunal (differently constituted) on 3 January 2017. The applicants sought Ministerial intervention under s 351 of the Act and the matter was not referred on 2 February 2017. The applicants applied for the protection visas on 23 February 2017.
In her protection visa application, the applicant provides the following background information:
·     She was previously married. Her relationship started on 8 June 2002 and she married on 28 June 2004. She is now divorced.
·     Her daughter was born in [year].
·     She completed high school and then completed a [course] in June 2013.
·     Her mother and sister live in Australia and are Australian citizens.
·     Her father and one brother live in Fiji.
·     In Fiji she lived in [City 1] until she left for Australia.
An order for child maintenance indicates the applicant divorced her ex-husband in 2011/2012.
Protection visa claims
The applicant’s protection visa claims are set out in her application and in an undated statement provided with the application. These are summarised below:
·     The applicant claims to fear harm from her ex-husband if she returns to Fiji.
·     The applicant witnessed and experienced domestic violence at the hands of her father between the ages of [age] and [age] years.
·     Due to the violence, she left her home at [age] years, went to her cousin’s place and worked at her cousin’s [business], where she met her ex-husband.
·     After marriage, his behaviour started to change and he became physically abusive towards her.
·     The violence escalated and he attempted to kill her with a knife but she managed to run away with some injuries.
·     One time after an incident, she went to the police station for help and from there she was taken to the hospital for a medical examination.
·     She decided to divorce him due to the violence and applied for a divorce. He refused to sign the divorce papers and she returned to court several times before they were finally divorced.
·     Due to the divorce he got very angry and threatened to kill her. She reported this to the police and he was imprisoned for a few days.
·     After the divorce she began working again but lived in constant fear of her ex-husband. He attempted to harass her a few times after the divorce and sent threats through friends.
·     She lived in a room with her daughter at her next door neighbour’s property.
·     Her ex-husband attempted to break into her house late one night but she informed the local authorities and tried to escape to save herself.
·     She did not attempt to move to any other part of the country as she did not have a job, money or any accommodation.
·     Her mother lived in Australia during this time and advised her to come to Australia for a short time to relieve her stress.
·     She is worried that if she returns to Fiji, that her life and her daughter’s life will be in danger because of her ex-husband’s threats.
·     During her stay in Australia, she contacted her Fijian family friends and told them she had decided to return to Fiji. They told her that her ex-husband was saying to everyone that she had run away with her daughter and he was still furious and angry about this. He warned her through friends that if she were to return to Fiji he would kill them both.
The applicant was interviewed by the delegate by telephone on 29 October 2020. At that interview, the applicant described in detail, the violence that had been committed by her

ex-husband during their relationship and her attempts to report the incidents to the police. When she reported the incidents to the police, her ex-husband was taken away for a day, but he then returned to the house as there was nowhere else for him to live. She did not go to women’s shelters as she did not know about them.
At that interview, the applicant also advised that she had met and married an Australia citizen on 29 May 2020 and she was pregnant. Subsequently, the applicant provided a birth certificate showing that she had a second child on [date]. This child is an Australian citizen.
Evidence provided at review
After lodging the review application, the applicant stated that her relationship with her second husband had broken down due to family violence perpetrated by her second husband. An order by the Federal Circuit and Family Court dated 15 April 2024 states the child of that relationship is to live with the applicant and the father is to have contact. The child is prevented from leaving Australia until he turns 18 years of age. Other evidence was provided regarding the family violence the applicant had experienced from her second husband. The applicant has now divorced her second husband and the divorce was finalised in September 2024.
The applicant also provided a report from [Ms A], a mental health social worker and domestic and family violence counsellor dated 23 September 2024. This states that the applicant had been attending the women’s health centre since October 2021 and sees [Ms A] regularly for trauma and support counselling once a fortnight. [Ms A] describes in detail, the nature of the violence committed by the applicant’s ex-husband in Fiji.
At the hearing, the applicant told the Tribunal she does not have any contact with her biological father and brother who both live in Fiji. Her father was abusive towards her mother and the applicant left home when she was [age]years old. She does not know where her father or brother live.
Findings on domestic violence claim
The applicant claims she is a victim of domestic violence and claims to fear harm from her ex-husband if she returned to Fiji.
The Tribunal finds the applicant has given a consistent, credible and plausible account of the violence she had experienced from her ex-husband over several years of marriage. In her decision record, the delegate found ‘the applicant was a compelling witness who appeared to speak genuinely in relation to the traumatic experiences she claims to have endured while living in Fiji’ and that her account of the abuse was ‘sufficiently credible’. The delegate accepted the applicant was a victim of domestic violence inflicted by her ex-husband and that after her divorce, her ex-husband and third parties sent by him continued to harass her while she still lived in Fiji.
Based on the applicant’s evidence at hearing, her evidence at the Departmental interview, her written statements and the report from the counsellor, [Ms A], the Tribunal accepts the applicant’s account of the past harm inflicted by her ex-husband. In particular, [Ms A]’s report sets out the past harm in some detail. The Tribunal accepts the applicant’s ex-husband physically abused her on multiple occasions and exerted coercive control over the applicant during the course of their marriage.
The Tribunal accepts that the abuse continued after the applicant divorced her ex-husband as the applicant continued to live within close proximity of her husband on the same block of land. The Tribunal accepts the applicant did not have anywhere else to go as she relied on her neighbour (whom she also called her ‘brother’) and his wife for support. The abuse consisted of verbal abuse; throwing stones at her window; threats to inflict harm; and using third parties to intimidate the applicant and steal items from her as she walked home. While there was no actual physical abuse from the ex-husband after the divorce, it is well- documented that abuse does not need to be physical to constitute domestic and family violence. It can include emotional and psychological abuse or behaviours such as following, harassing and monitoring.[1] In the applicant’s case, she would have reasonable cause to be fearful of her ex-husband given the past history of physical abuse from him. She stated that he had also remarried and was equally abusive towards his new wife.
[1] Australian Institute of Judicial Administration, Australian Government Attorney-General’s Department, University of Queensland & University of Melbourne, National Domestic and Family Violence Bench Book at 3.1, accessed 24 September 2024
The Tribunal had some concerns that the applicant came to Australia twice (in 2012 and in 2013/2014) after her divorce and returned to Fiji, despite claiming to experience ongoing abuse from her ex-husband. However, at the hearing, the applicant explained that when she came to Australia in 2012 and 2013/2014, she thought she could return to Fiji and manage the threats from her ex-husband with assistance from her neighbours as she was living in a room in their house. Each time she came to Australia, she would ask her neighbour to help her obtain her ex-husband’s consent for her daughter to travel. On the third occasion in 2016, her ex-husband threatened to physically harm her and her daughter in a violent way and this made her more fearful. This prompted her to want to remain in Australia permanently as she was fearful about her ex-husband harming her if she returned to Fiji. She initially applied for a Remaining Relative visa as she did not get any legal advice and was not sure what kind of visa to apply for. This resulted in a delay in lodging the protection visa application.
The Tribunal accepts this as a plausible explanation as to why the applicant returned to Fiji after her visits to Australia in 2012 and 2013/2014, and her delay in lodging the protection visa application. It is reasonable that her fear of harm increased after her ex-husband indirectly threatened to physically harm her in 2016. It is also reasonable that without legal advice, she did not know what type of visa to apply for in 2016, but knew that she wanted to remain in Australia permanently. Therefore, the Tribunal is satisfied that the applicant’s delay in applying for protection and her return to Fiji do not diminish her fear of harm from her

ex-husband.
In summary, the Tribunal accepts that the applicant experienced past harm from her

ex-husband during their marriage and following their divorce in 2011/2012. The Tribunal accepts that this harm continued until the applicant departed Fiji in 2016.
Refugee criterion
Is there a real chance of serious harm if the applicant returns to Fiji?
The Tribunal must now consider whether the applicant faces a real chance of serious harm from her ex-husband, now, or in the reasonably foreseeable future, if she returns to Fiji.
At the hearing, the applicant told the Tribunal that she has not had any direct contact with her ex-husband since she left Fiji in 2016. After arriving in Australia, she was in regular contact with her neighbour, whom she regards as a brother, and he would update her on her

ex-husband’s activities. She had told the delegate at the interview in October 2020 that she had last spoken to her neighbour about her ex-husband in April 2020 and he continued to threaten her.
At the hearing, the applicant stated that her neighbour had passed away in 2022, but she was in touch with him regularly in the 2 years before he died, as his health deteriorated. From her neighbour, she learnt that her ex-husband had since ended his second marriage and had married a third time. He was equally abusive towards his new wife. His drinking had become worse. She understands he was driving a one-tonne carrier and this work took him around the country. He continued to make threats towards the applicant and her daughter, stating that he would use a knife to harm them if they returned to Fiji; or he would send Fijian men to find them and harm them, as he had done in the past. Her neighbours were also getting harassed by her ex-husband. Since her neighbour passed away in 2022, she has not heard anything more about her ex-husband, as her neighbour’s wife also moved away. However, she has no reason to believe that her ex-husband is not living in the same area.

The Tribunal has considered the applicant’s evidence and accepts that while she has not had any direct contact with her ex-husband since she has been in Australia, she has heard about him and his threats towards her through her neighbour. These threats continued until at least 2022. As her neighbour has passed away, she no longer has access to information about her ex-husband, but the Tribunal accepts it is likely that he still lives in the same area, where he has lived for many years, and would seek to harm the applicant and her daughter if she returns.
The Tribunal has also had regard to the independent country information regarding violence against women in Fiji. DFAT reports that violence against women is a serious problem in Fiji with rates of violence being among the highest in the world. A 2013 study by the Fiji Women’s Crisis Centre found that 64 per cent of women in a relationship had experienced domestic violence. Fiji is a ‘traditionally male dominated society’ where ‘traditional gender roles are well-entrenched’.[2] The Tribunal also notes that domestic and family violence does not stop when the victim and perpetrator separate, as a victim leaving an abusive relationship may be viewed by the perpetrator as a direct threat to the perpetrator’s ability to maintain control over the victim.[3]
[2] Department of Foreign Affairs and Trade, Country Information Report Fiji at 2.34, 3.49 and 3.51.
[3] National Domestic and Family Violence Bench Book at 4.1 accessed 25 September 2024
A ‘real chance’ of harm 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. Having considered the applicant’s particular circumstances and the independent information discussed above, the Tribunal finds there is a real chance the applicant’s ex-husband would harm her in the same manner as he has done in the past. There is a real chance this future harm would include, carrying out his threats to physically harm the applicant and her daughter, and using third parties to threaten and intimidate them.
The Tribunal accepts this harm constitutes significant physical harassment and physical

ill-treatment of the applicant, which is serious harm for the purposes of s 5J(5). For the reasons set out above, the Tribunal is satisfied there is a real chance the applicant would suffer serious harm from her husband if she returns to her home area of [City 1], now or in the reasonably foreseeable future.
Is the harm for a refugee reason under s 5J(1)(a) of the Act?
Having found that the applicant faces a real chance of serious harm on return to Fiji, the Tribunal has considered whether that harm is for the essential and significant reason of her race, religion, political opinion, nationality or membership of a particular social group for the purposes of s 5J(1) of the Act.
The Tribunal accepts that the applicant’s husband committed domestic violence against her. In this regard, the country information suggests that domestic violence is a pervasive issue within Fijian society, with patriarchal attitudes and inconsistent protection measures making women vulnerable to violence. DFAT assesses that women who experience domestic violence, are, by definition, at high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.[4] While domestic and family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[5]
[4] DFAT Country Information Report Fiji at 3.51 to 3.57
[5] National Domestic and Family Violence Bench Book accessed 24 September 2024
For these reasons the Tribunal accepts the violence perpetrated upon the applicant by her husband is gender-based and it is directed at her for the essential and significant reasons of her gender and her membership of the particular social group, ‘women in Fiji’. The Tribunal finds the group of ‘women in Fiji’ is identifiable by the characteristics of gender and the common characteristics or attributes are not a shared fear of persecution. Therefore, the Tribunal is satisfied that the harm the applicant fears is for reason of her membership of a particular social group for the purpose of s 5J(1)(a).
Could the applicant obtain effective state protection?
The Tribunal has considered whether effective protection measures are available to the applicant (s 5J(2) of the Act).
The delegate found that the applicant would be able to access effective state protection from any harm from her ex-husband, upon her return to Fiji.
The Fijian Police Force has been described as professional and as generally treating victims of crime with dignity. DFAT states that the Fijian Police Force has an overall capacity to protect individuals from societal harassment, discrimination and violence and that police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[6]
[6] DFAT Country Information Report Fiji at 5.6 to 5.10
However, DFAT also states that while police protection for women from violence is available, it is not consistent. Some police stations lack equipment or transport to deal effectively with cases of gender-based violence. An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. In practice, the Auditor General found (and in-country sources confirmed to DFAT), that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.[7]
[7] DFAT Country Information Report Fiji at 3.53 to 3.57
In the applicant’s particular circumstances, the Tribunal accepts that she attempted to report her husband to the police on several occasions while she was married. He was taken away by the police for a few hours or one or 2 days, but he was then returned to the house and the abuse continued. The Tribunal accepts the applicant obtained an apprehended violence order after the marriage ended, but her ex-husband continued to threaten her and used third parties to harass and intimidate her. Consistent with the country information cited above, the police attempted to assist her, but were not consistent or particularly effective in their responses.
In view of the above country information, and the applicant’s particular circumstances, the Tribunal finds the applicant would not be able to obtain effective protection from the Fijian authorities, such that she does not have a well-founded fear of persecution. Therefore,

s 5J(2) does not apply.
Does the harm relate to all areas of Fiji?
The Tribunal has considered whether the real chance of persecution relates to all areas of Fiji as required by s 5J(1)(c).
DFAT states that relocation is not necessarily helpful for women fleeing domestic violence in Fiji. The country is geographically relatively small and people can be tracked down through kinship networks. This limits relocation in practice. Even [City 1], where the applicant was residing, has only a small suburbia and few relocation options.[8] In the applicant’s particular circumstances, the Tribunal accepts that her ex-husband may be able to find her due to his extensive contacts acquired through his previous work [and] his current work as a [occupation]; along with Fiji being geographically small.
[8] DFAT Country information report Fiji at 3.57 and 5.25
The Tribunal is therefore satisfied the real chance of persecution relates to all areas of Fiji as required by s 5J(1)(c).
Therefore, the Tribunal is satisfied the applicant meets the refugee criterion under

s 36(2)(a) of the Act.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
Second-named applicant
The second-named applicant has made her own claims for protection. The Tribunal accepts, on the evidence, that she also fears harm from her father if she returns to Fiji. The Tribunal has not considered her claims in detail and has not made findings on whether she is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
The Tribunal accepts, however, that the second-named applicant is a member of the family unit of the applicant. A birth certificate shows she is the applicant’s daughter. She was [age] years old at the time of application and is [age] years old at the time of this decision. The Tribunal accepts the evidence that she lives with the applicant and is a full-time student studying [and] is financially dependent on the applicant for her basic needs. The Tribunal is therefore satisfied the second-named applicant is a member of the family unit of the applicant. The Tribunal is therefore satisfied that the applicant’s daughter is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i).
As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second-named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.
Suseela Durvasula
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 4458

3 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies