2207655 (Refugee)

[2024] AATA 2177

2207655 (Refugee) [2024] AATA 2177 (28 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2207655

COUNTRY OF REFERENCE:                   Fiji

MEMBER:James Horsley

DATE:28 March 2024

PLACE OF DECISION:  Melbourne

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

The Tribunal makes a recommendation for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth)

Statement made on 28 March 2024 at 12:29pm

CATCHWORDS

REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – advocating for indigenous rights – wrongful detention – change of government – delay in applying for protection – access to Australian citizen children – period of unlawful residence – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 14, 36, 65, 415, 417, 499
Migration Regulations 1994, Schedule 2

CASES

GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FMCA 78

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

1. The applicant claims to be [an age]-year-old Fijian national of iTaukei ethnicity and Christian faith. He left Fiji [in] December 2017 from Nadi International Airport, arriving in Australia on the same day on a Visitor visa (Subclass 600).

   CRITERIA FOR A PROTECTION VISA

2. 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 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.

3. 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.

4. 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).

5. 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.

6. 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: 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

7. 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.

   CLAIMS AND EVIDENCE BEFORE THE DELEGATE

   Protection visa application

8. On 12 March 2021, the applicant applied for a Protection visa.

9. In his Protection visa application, the applicant stated he was married to a dual Fijian and Australia citizen, and they had a daughter together in Fiji. He arrived in Australia on a Visitor Visa and had intended to apply for a Partner visa upon arrival in Australia. However, the applicant and his wife separated, and he was unable to do so.

10. The applicant applied for a Protection visa because he fears harm from the Fijian authorities, including the military and police, on the basis of being wrongfully detained on [a day in] October 2014. He was around [age range] years old at the time, and the Fijian Police Force detained the applicant at the [Police Station 1] on false allegations that he incited violence during the 2014 general election. The police released him without charge. He and his family voted for SODELPA [Social Democratic Liberal Party] in the 2014 general election. [Former Prime Minister] Bainimarama installed military men in most key positions in government and rigged the 2014 general election. The applicant did not relocate within Fiji, as there was no safe place. He previously lived close to a Military Camp, and fears harm from the authorities, so relocation is not an option for him in future.

11. The applicant also stated if the ‘Police Bill’ passes parliament, Fiji will be a totally different country under the military and it will become a police state, where the iTaukei will not be spared. He witnessed police going to iTaukei villages to arrest their suspects, and most of the time they were tortured without being found guilty. He is unable to return to Fiji because he has two children that he needs to care for and contribute to their education.

12. In support of his Protection visa application, the applicant provided a certified copy of his Fijian passport.

    Decision of the delegate

13. On 10 May 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate did not offer the applicant an interview.

14. In essence, the delegate accepted the applicant’s claims that the police detained him on accusations of inciting violence during the 2014 general election, and that he was released without charge. The delegate also accepted that the applicant voted for SODELPA during the election. However, the delegate found that the applicant lived a normal life following his detention, as he continued to attend school and his workplace up until his departure from Fiji.

15. The delegate found that the applicant was able to leave from Nadi International Airport, without experiencing any problems. These factors led the delegate to find that while applicant holds a private political opinions against the Fijian government, he does not have any profile of adverse interest to the Fijian authorities for his detention in 2014, political opinion, or for any other reason.

16. The delegate found that it was likely that the applicant will continue to keep his political opinion private, as he has done in Australia, and that he would be able to access protection from the police on the basis of his actual or imputed political opinion as a previous detainee.

17. For those reasons, the delegate was not satisfied that the applicant faces a real chance of serious harm upon return to Fiji due to his political opinion. Accordingly, the delegate found that the applicant did not meet the criteria in s 5H(1) of the Act and is not a refugee or a person to whom Australia owes protection obligations as per s 36(2)(a) of the Act. For the reasons above, the delegate found there is not a real risk of the applicant suffering significant harm because of his political opinion as outlined in s 36(2)(aa) of the Act.

18. On 24 May 2022, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

    CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL

    Procedural history

19. On 26 February 2024, the applicant appeared before the Tribunal (via video) to give evidence and present arguments. In submitting his application for review, the applicant did not request an interpreter. As such, an interpreter was not present during the Tribunal hearing. At the outset of the hearing, the applicant confirmed that he did not require an interpreter. The hearing was conducted in the English and there were no indications that the applicant did not understand any of the Tribunal’s questions or that speaking in English hindered his ability to answer those questions.

20. Below is a summary of the applicant’s oral evidence during the Tribunal hearing.

    Background

21. The applicant is [an age]-year-old Fijian national of indigenous iTaukei ethnicity and Christian (Catholic) faith. He was born and raised in Suva, Fiji.

22. After completing high school, he began a degree in [subject 1]. He completed [part] of the degree, before stopping his studies to travel to Australia. From when he was around [age range] years old, the applicant worked as [an occupation 1] in Suva, Fiji. He has not worked in Australia and has been relying on the financial support of his former partner, who he separated from in 2023.

23. The applicant’s father is a retired [Agency 1] officer, having reached the [position] of [Level 1 manager]. His mother is a homemaker. Both reside together in Suva, Fiji. The applicant has [specified siblings], who also reside in Suva, Fiji. [Specified siblings] work in [businesses] in Fiji. His other [siblings] do not work and reside with his parents. The applicant speaks with his family members in Fiji every weekend.

24. [In] 2016, the applicant issued his passport in Fiji, without experiencing any problems. [In] December 2017, he left Fiji from Nadi International Airport, arriving in Australia on the same day on a Visitor visa.

25. After his arrival in Australia, the applicant lived for a few weeks with his daughter and her mother (the applicant’s ex-wife, who is an Australian and Fijian dual national). However, soon thereafter, they separated, and the applicant moved to regional Victoria. There, the applicant met the future mother (an Australian national) of his son, and they remained in a relationship until 2023. She has children from another relationship. In [specified year], she gave birth to the applicant’s son.

26. In summary, the applicant has a son and daughter to two Australian women. Both of his children reside in Victoria, and both are dual Australian and Fijian nationals. The applicant sees his daughter about twice per year, while he sees his son every day.

27. From December 2017 to March 2021, the applicant took care of his son and his partner’s children. He has not worked since his arrival in Australia and has been financially supported by his ex-partner (mother of his son).

    Protection visa application

28. In March 2021, the applicant was introduced through a mutual friend to [Pastor A], who offered to assist the applicant with lodging a Protection visa application for a fee of over $1,000 (AUD).

29. The applicant applied for a Protection visa because he wanted to remain in Australia to be with his son. The applicant provided background information about himself to [Pastor A] and told him the reasons why he left Fiji and why he wanted to remain in Australia. However, [Pastor A] wrote many things in the form that were not true, and that the applicant did not understand or agree with. The applicant did not read the Protection visa application form or [Pastor A’s] responses before he signed the form.

30. The following is a summary of the applicant’s evidence during the Tribunal hearing regarding his claims for protection.

    Political opinion

31. The applicant has never voted in any Fijian election. He was never politically active in Fiji and has not been politically active in Australia. He is not and has never been a member of any political party. He agrees with the policies of the FijiFirst political party, as they support the interests of indigenous iTaukei. However, he was never involved with the party and never voted for them.

32. He heard that during the 2014 general election not all votes were properly counted. The applicant stated that he was too young to follow the election and these issues at the time.

33. The applicant’s father was a [Level 1 manager] in [Agency 1]. As a result, when then Prime Minister Frank Bainimarama was in power, his father was required to follow the orders of the Prime Minister and his Fiji First party. However, his father was never a member of the FijiFirst political party. The applicant does not know how his parents voted in past elections, as he never asked them.

34. The claim in the applicant’s Protection visa application form that former Prime Minister Frank Bainimarama installed military men in key positions was made up by [Pastor A]. While the applicant agrees with this statement, he acknowledges that the political situation has changed, as there is a new government and Prime Minister. He does not follow Fijian politics and has ‘no idea’ about the political situation in Fiji at the moment.

35. The claim in the applicant’s Protection visa application form about the proposed ‘Police Bill’ before the Fijian parliament was made up by [Pastor A]. Other than admitting this, the applicant did not have any further comment about the Police Bill.

    Wrongful detention on false accusations

36. The applicant was never wrongfully detained during or following the 2014 general election in Fiji on false allegations of inciting violence. He was never detained in [Police Station 1]. These claims were manufactured by [Pastor A] and none of them are true. The Fijian authorities never arrested or detained the applicant.

    Ethnicity

37. While living in Fiji, the applicant was never treated differently or harassed for being an indigenous iTaukei. The applicant stated that iTaukei are treated well in Fiji, and he would not be harmed for reasons of his ethnicity if he returns to Fiji.

38. Around two or three years ago, the applicant saw that the Fijian Army entered some villages and arrested some Chiefs. However, this was something political and not related to their ethnicity. The claim in his Protection visa application form that the Fijian Army were arresting and torturing iTaukei villagers was made up by [Pastor A], and he has not personally witnessed anything like that.

    Family separation

39. If the applicant returns to Fiji, he would prefer to reside Suva, Fiji, to be near his family members. He does not think his daughter would join him, as his relationship with her mother has broken down. As a result, he only sees his daughter twice every year. He is unsure whether his son would join him, as he is currently separated from his son’s mother. She has children to a former partner, who had previously refused to allow her to travel overseas with the children. For this reason, the applicant doubts that his son’s mother will be able to obtain a passport and travel to Fiji with his son.

40. The applicant does not want to return to Fiji because he would be separated from his Australian children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

41. The issue in this case is whether the applicant has well-founded fear of persecution if returned to Fiji or whether there is a real risk he will suffer significant harm if he is removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

42. The applicant provided his Fijian passport in support of his application for a Protection visa. The applicant has consistently stated that he is a Fijian citizen and does not hold citizenship of any other country. Given this supporting documentation, as well as the applicant’s general credibility, the Tribunal accepts that the applicant is a citizen of Fiji. The Tribunal has assessed the applicant’s claims against Fiji as his country of nationality and the receiving country.

    Third country protection

43. According to s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. There is no evidence to suggest that the applicant has any right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

    Political opinion

44. As indicated above, the applicant abandoned almost the entirety of the claims raised in his Protection visa application. These are summarised below.

45. During the hearing, the applicant abandoned the following protection claims related to his political opinion, which were originally raised in his Protection visa application:

    ·on [a day in] October 2014, when the applicant was [age range] years old, the Fiji Police Force detained him at the [Police Station 1] for a crime he did not commit, that is, inciting violence during the 2014 general election.

    ·the Fijian authorities released him without charge;

    ·he and his family voted for SODELPA in the 2014 general election; and

    ·if the Police Bill passes parliament, Fiji will be a totally different country under a military and police state.

46. When each of the above claims were raised by the Tribunal during the hearing, the applicant explained that [Pastor A] made them up, and that they are not true. The applicant provided an honest and detailed account of the assistance received from [Pastor A], and how he did not understand the Protection visa application process. It was clear throughout the Tribunal hearing that the applicant did not know what was written in his Protection visa application form.

47. As such, the Tribunal does not accept that the Fijian authorities ever arrested and detained the applicant at the [Police Station 1] on false allegations of inciting violence during the 2014 general election. The Tribunal does not accept that the applicant or his family members voted for the SODELPA in the 2014 general election. The Tribunal does not accept that the applicant has any fears or concerns related to the passage of a proposed Police Bill. Further, on this latter point, country information indicates that in March 2021, Former Prime Minister Bainimarama withdrew the Police Bill and stopped all public consultations on it, after widespread criticism and opposition.[1]

    [1] Radio New Zealand, Fiji Draft Police Bill withdrawn: PM's move puzzles critics, 19 March 2021, available at: and The Fiji Times, Police Bill 2020: Who will police the police? 16 March 2021, available at:

48. While the applicant claimed that he heard that not all votes were counted during the 2014 general election, country information suggests that it was free and fair. For example, DFAT stated that the 2014 election was ‘…judged to be credible by the Multinational Observer Group led by Australia.’[2] Further, the applicant has not claimed to have experienced past harm or expressed any subjective fear of harm as the result of his claim that not all votes were counted in the 2014 general election.

    [2] DFAT, Country Information Report: Fiji, 20 May 2022, at [2.4].

1. During the hearing, the Tribunal informed the applicant that it may accept that he was never politically active in Fiji, never voted in any election, and has not been politically active in Australia since his arrival in 2017. The Tribunal said that if it made such a finding, it would be based on his own evidence at the hearing. The applicant did not have any comment in response.

2. The Tribunal informed the applicant that, for these reasons, the Tribunal may find that he will have no profile of interest to the Fijian authorities if he returns for reasons of his political opinion. The Tribunal informed the applicant that there have been significant changes in Fiji, as there were elections in 2022 and the former Prime Minister lost office. The Tribunal stated that it may accept that his father was a [Level 1 manager] in [Agency 1], and that due to this, he was required to follow the orders of the former Prime Minister, who belonged to the FijiFirst party. However, the Tribunal said that it may find that his father was never politically active or engaged, based on his own evidence. For this reason, the Tribunal informed the applicant that it may find there is no real chance that he would be harmed for being a member of his family or for being his father’s son. For the reasons above, the Tribunal told the applicant that it may find that that he would not face a real chance of serious harm for his political opinion. When asked if he had any comment or response to the above, the applicant stated, ‘no comment to be honest.’

3. During the hearing, the applicant did not express any subjective fear of harm if he returns to Fiji for reasons of his actual and/or imputed political opinion. It follows that the applicant does not have a subjective fear of persecution for reasons of his political opinion, meaning that he does not meet the refugee criteria in s 5J(1)(a), that is, that a person fears persecution.

4. Even if the Tribunal accepted (which it does not) that the applicant does hold a subjective fear of harm for reasons of his actual and/or imputed political opinion, the Tribunal does not accept that the objective or ‘real chance’ test contained in s 5J(1)(b) is met, given the particular circumstances of the applicant and after considering country information.

5. In the Protection visa application, the applicant described himself as a supporter of SODELPA, having voted for them in the 2014 general election. However, during the hearing, he clarified that he agrees with the policies of the FijiFirst party, as it promotes the interests of indigenous iTaukei. The Tribunal has considered the applicant’s profile as a person who is not and has never been politically active, never voted, and privately agrees with the policies of FijiFirst.

6. In mid-May 2023, the Fijian Elections Office suspended FijiFirst from parliament and barred its Members of Parliament from the chamber without pay. The suspension was reportedly based on the party’s failure to provide audited financial statements to the acting Registrar of Political Parties.[3] Despite fears of another coup in Fiji as a result of this political stalemate[4], on 9 June 2023, the Fijian Elections Office lifted the suspension on FijiFirst.[5] High profile figures in FijiFirst have been prosected by the Fijian authorities in the past year. For example, former Prime Minister was charged with sedition, but later acquitted of a criminal charge of perverting the course of justice.[6] The Director of Public Prosecutions reportedly appealed the acquittal on the grounds that the Suva Magistrates Court ‘erred in law and in fact on several evidentiary and procedural issues, thereby resulting in an unfair trial and an erroneous verdict.’[7] The former Attorney General, Aiyaz Sayed-Khaiyum, was charged with abuse of office, but his trial has been delayed for health reasons.[8]

   [3] Australian Strategic Policy Institute (ASPI), Coups and rumours of coups in Fiji, 5 June 2023, available at:

   [4] Ibid.

   [5] Fiji Village, FEO lifts suspension of FijiFirst, 9 June 2023, available at:

   [6] East Asia Forum, Stress-testing Fijian democracy in 2024, 5 February 2024, available at:

   [7] Fiji Village, DPP files appeal against Bainimarama and Qiliho’s acquittal, 3 November 2023, available at:

   [8] East Asia Forum, Stress-testing Fijian democracy in 2024, 5 February 2024, available at: >

   Despite the above developments, FijiFirst remains the largest party in the Fijian parliament, and the Tribunal could not locate any other country information to suggest that other Members of Parliament, supporters, or members of FijiFirst have been targeted or faced politically motivated prosecutions on account of their association or involvement with the party.[9] The Tribunal notes that the DFAT report on Fiji pre-dates the Fijian general election in December 2022. Nonetheless, the Tribunal could not locate any other country information to indicate that, following the election, persons who hold private political opinions agreeing with the policies of FijiFirst are targeted or mistreated in any way by any persons or groups or the authorities in Fiji.

   [9] US Department of State, 2022 Country Reports on Human Rights Practices: Fiji, 20 March 2023, available at:

7. Therefore, while the Tribunal accepts that the applicant privately holds political views in support of the FijiFirst party, thinks that Former Prime Minister Bainimarama installed military men in key positions, had a father in [Agency 1] that followed orders of FijiFirst and Former Prime Minister Bainimarama, the Tribunal finds that the applicant will not face any adverse interest for reasons of his imputed and/or actual political opinion in Fiji and that he would not be open in sharing his political views publicly.

8. This assessment is based on the applicant’s lack of interest or involvement in politics while he was in Fiji and since his arrival in Australia. The applicant displayed a limited understanding of Fijian politics, and admitted as such, stating that the has ‘no idea’ about the political situation in Fiji. For the reasons above, as well as the country information, the Tribunal does not accept that persons with such a low-profile face a real chance of serious harm on account of their actual and/or imputed political opinion in Fiji.

9. For these reasons, the Tribunal does not accept that there is a real chance that the applicant would be seriously harmed in Fiji for reasons of his imputed and/or actual political opinion, and therefore he does not meet the criteria in s 5J of the Act and is not a refugee for the purposes of s 5H of the Act.

   Ethnicity

10. The applicant provided a relatively detailed account of being an indigenous iTaukei, and, as such, the Tribunal accepts his claims in this regard.

11. When questioned about his past treatment in Fiji, the applicant denied that he was ever treated differently or harassed for reasons of his ethnicity. In fact, the applicant stated, ‘it is ok, how we are treated. We do our own thing, no harm or nothing…we are treated well.’ When asked if he fears that he would be treated differently or discriminated against if he returns to Fiji on account of his ethnicity, the applicant responded, ‘no, that will never happen.’

12. As outlined above, the applicant made several claims in his Protection visa application form related to his ethnicity. However, similar to the claims about his political opinion, the applicant clarified in the Tribunal hearing that the claims related to his ethnicity were manufactured by [Pastor A] and not true.

13. The Tribunal referred the applicant to the two ethnicity-based claims in his Protection visa application form, that is, he witnessed the military arresting and torturing iTaukei villagers. The applicant clarified that has never heard of this and never witnessed any such incident. He also clarified that two or three years ago, he saw that the Fijian Army entered some villages and arrested some chiefs, but this was related to ‘something political’ and ‘not about indigenous.’ Second, the applicant claimed in the Protection visa application form that the if the Police Bill passed parliament, this would impact on the iTaukei, and they would not be spared. During the hearing, the applicant clarified that [Pastor A] wrote this in his Protection visa application, and the applicant did not have any further comment.

14. Above, the Tribunal referred to country information, which suggested that in March 2021, the Police Bill was withdrawn from parliament after widespread opposition. The Tribunal could not locate any country information to indicate that there is any new proposal for a similar Police Bill that would impact on the indigenous iTaukei. When this is considered in light of the applicant’s no comment on the Police Bill and how it would impact the iTaukei, in addition to his general lack of subjective fear on account of his ethnicity, the Tribunal does not accept his original claim that a Police Bill will impact upon him or disproportionately impact on the iTaukei.  

15. The Tribunal could not locate any country information to support the applicant’s claim that the military arrested some village chiefs for politically motivated reasons. Even if that country information existed, any such targeting does not impact on the applicant personally. He was born and raised in Suva, and has never been politically active, and neither have his family members. Further, the applicant was in Australia at the time this alleged incident took place, and he provided little detail about this claim. For these reasons, the Tribunal does not accept that the Fijian Army arrested village chiefs for politically motivated reasons some two or three years ago. 

16. As outlined above, during the hearing, the applicant did not express any subjective fear of harm if he returns to Fiji for reasons of his ethnicity. Therefore, the Tribunal finds he does not meet the refugee criteria in s 5J(1)(a), that is, that a person fears persecution.

17. Even if the Tribunal accepted (which it does not) that the applicant does hold a subjective fear of harm for reasons of his ethnicity, the Tribunal does not accept that the objective or ‘real chance’ test contained in s 5J(1)(b) is met, given the particular circumstances of the applicant and after considering country information.

18. During the hearing, the Tribunal referred to the DFAT report on Fiji, which indicates there is ‘no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.’[10] When provided with an opportunity to respond to this information, the applicant stated, ‘no, there is no comment.’

    [10] DFAT, Country Information Report: Fiji, 20 May 2022, at [3.10].

19. The Tribunal finds that the applicant could reside in Suva, Fiji, where he would have the support of his family members, including his [specified siblings], who work at local [businesses]. There is no information before the Tribunal to suggest that his indigenous iTaukei ethnicity would make it difficult for him to find employment, or that he would be discriminated against while seeking employment or while working in Fiji.

20. Given the applicant’s lack of past persecution or discrimination for reasons of his ethnicity, his lack of subjective fear of harm for reasons of his ethnicity in the future, and the country information that indicates that there is no official discrimination against indigenous iTaukei, the Tribunal does not accept that there is a real chance the applicant will be harmed for reasons of his indigenous iTaukei ethnicity now or in the reasonably foreseeable future. Therefore, he does not meet the criteria in s 5J of the Act and is not a refugee for the purposes of s 5H of the Act.

    Delay in lodging the Protection visa application

21. The applicant’s delay of some three years to apply for a Protection visa is of concern. The Tribunal raised this during the hearing, seeking the applicant’s response. He stated that during this period, he was taking care of his son and his now ex-partner’s children, and he was not working. He stated that he did not know about the option of applying for a Protection visa, and that he only eventually applied for one after hearing about it through a friend. The applicant stated that he only applied for a Protection visa because he wanted to remain in Australia to be close with his children.

22. Given the sufficient level of detail he provided, as well as his honesty, general credibility during the hearing, and the fact that has lived in regional Victoria for most of the time he has spent in Australia, the Tribunal accepts his claims that he did not know about the option about applying for a Protection visa. In this regard, the Tribunal has also taken into account a Letter of Support received from the applicant’s ex-partner following the hearing, in which she explains that the applicant overstayed his visa because she had a difficult pregnancy, and the applicant was concerned for her health and well-being of their son (this Letter of Support is discussed in further detail below).

23. Despite the above, the applicant’s delay in lodging and his stated reasons in the Tribunal hearing for why he lodged the Protection visa application (to remain close to his children) further strengthens the Tribunal’s assessment above that the applicant does not have a subjective fear of harm on account of his ethnicity or political opinion if he returns to Fiji.  

24. Nonetheless, it was clear on the evidence given by the applicant that he does have a fear of being separated from his children, if he returns to Fiji. The Tribunal has considered this claim in the circumstances of the criteria outlined in s 5J.

    Family separation

25. The Tribunal accepts that the applicant has children to two former partners, and that both of his children are Australian citizens. The applicant provided a detailed account of these claims, which were consistent with the information contained in his Protection visa application. The applicant also provided documentary evidence in this respect, which the Tribunal accepts (see below).

26. The applicant provided an honest and forthright account of his relationships with his former partners, and how he doubts that his children would travel with him to Fiji either temporarily or permanently. The Tribunal accepts his claims that he rarely sees his daughter, as his relationship with his ex-wife has broken down. The Tribunal accepts that the applicant may see his daughter in Fiji, as she has travelled there in the past with her mother. The Tribunal accepts the applicant’s claims that the mother of his son had two children to a former relationship, and she has, in the past, had difficulty negotiating with her former partner to issue passports or travel overseas. The Tribunal accepts that the applicant’s claims that this may result in his son never visiting Fiji. For the above reasons, the Tribunal accepts that if the applicant returns to Fiji, he will be separated from his daughter and son.

27. During the hearing, the Tribunal informed the applicant that it may find that a fear of being separated from family in Australia does not make a person a refugee, as such a claim does not relate to one of the ‘refugee nexus’ reasons (race, religion, nationality, political opinion, or membership of a particular social group). In response, the applicant stated that he had no comment.  

28. While the Tribunal accepts that the applicant would be separated from his children, the Tribunal does not accept that this relates to a ‘refugee nexus’ as per s 5J(1)(a) of the Act. Therefore, the Tribunal does not accept that the applicant would face a real chance of serious harm for the essential and significant reason of his race, religion, nationality, political opinion, or membership of a particular social group if he returns to Fiji.

29. For the above reasons, the Tribunal finds that the applicant is not a refugee for the purposes of s 5H of the Act, and that Australia does not owe him protection obligations as per s 36(2)(a) of the Act.

    Complementary protection

30. 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).

31. In considering whether there is a real risk the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Fiji, the Tribunal has taken into account MIAC v SZQRB, where the Full Federal Court found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]

    [11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

32. The Tribunal found above that there is not a real chance the applicant would be harmed in Fiji on account of his political opinion or ethnicity. It follows that the Tribunal finds that there is not a real risk that he would be significantly harmed in Fiji for these reasons.

33. The applicant has not claimed to fear economic hardship if he returns to Fiji. Above, the Tribunal found that the applicant would be able to obtain employment in Fiji commensurate with his skills and experience as [an occupation 1] in Suva. While it is acknowledged that the applicant has not worked for several years, there is no information before the Tribunal to indicate that he would be unable to find employment in Fiji.

34. According to DFAT, 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.’[12] According to The World Bank, ‘Fiji led the Pacific’s post-COVID-19 recovery with open borders and a strong rebound in 2022 and is now on track to reach its pre-pandemic output level in 2023... tourism arrivals in June 2023 surpassed the June 2019 arrivals. As a result, Fiji is expected to continue leading the Pacific’s recovery with strong growth.’[13]

    [12] DFAT, Country Information Report: Fiji, 20 May 2022, at [2.7].

    [13] The World Bank, Pacific Economic Update, 6 August 2023, at [1.2] and [1.2.1], available at:

35. The Tribunal finds that any economic hardship the applicant might experience if removed to Fiji, including feelings of emotional distress and/or humiliation due to his economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected, if returned to Fiji, would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) of the Act.

36. The Tribunal has accepted that if he returns to Fiji, the applicant will be separated from his daughter and son. The Tribunal found above that such a fear does not relate to a refugee reason as per s 5J(1)(a) of the Act. During the hearing, the Tribunal informed the applicant that it may find that such a fear of being separated from family in Australia does not entitle someone to complementary protection, as there would be no actor or intent to cause significant harm. When asked if he had any comment to this information, the applicant responded in the negative stating that he has no comment.

1. The Tribunal finds that being separated from his children would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm. For these reasons the Tribunal does not accept that separation from children would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) of the Act.

2. While the applicant did not explicitly make this claim, it could be implied that he claimed that he would be significantly harmed by the very act of removal from Australia to Fiji. During the hearing, the Tribunal informed the applicant that it may find that removal from Australia in and of itself does not amount to significant harm. When asked if he had any comment to this information, the applicant responded in the negative. The Tribunal finds that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[14]

   [14] GLD18 v MHA [2020] FCAFC 2 and SZRSN v MIAC [2013] FMCA 78.

3. The Tribunal has considered the applicant’s circumstances, and has had regard to the findings of fact outlined above. The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is real risk the applicant would face significant harm, as set out in s 36(2A) of the Act, from the Fijian authorities and/or any other organisation, group and/or individual.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

4. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.

   Ministerial intervention

5. In light of the applicant’s particular circumstances, the Tribunal considers that the following facts and circumstances warrant the making of a recommendation to the Minister for their intervention pursuant to s 417 of the Act on public interest grounds, and the granting of a visa for the applicant to remain in Australia. In making the following recommendation, the Tribunal has taken into account the President’s Direction - Conducting Migration and Refugee Reviews, dated 1 August 2018.

6. According to s 417(1) of the Act, ‘[i]f the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.’

7. The Tribunal has taken into account the Ministerial intervention principles as per the Minister’s Guidelines on Ministerial Powers under s 417 of the Act (the Guidelines). In particular, the Tribunal notes that the Guidelines state, ‘I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa…or has been an unlawful non-citizen.’

8. On 30 November 2017, the Department granted the applicant a Visitor visa (Subclass 600). The applicant arrived in Australia [in] December 2017 on this visa. His Visitor visa ceased on [a day in] January 2018. Following this, the applicant did not apply for any substantive visa, and was rendered an ‘unlawful non-citizen’ pursuant to s 14(1) of the Act. On 12 March 2021, the applicant applied for a Protection visa (Subclass 866). On 19 March 2021, the Department granted the applicant a Bridging Visa C (Subclass 030), with condition 8101 imposed (no work rights). Based on the information above, the applicant was an ‘unlawful non-citizen’ January 2018 to March 2021.

9. Despite this, the Tribunal notes that the applicant is currently a lawful non-citizen, as the holder of a Bridging Visa C. Further, he has complied with his Visitor visa and Bridging Visa C conditions, to the Tribunal’s knowledge, having not worked since his arrival in Australia. In addition, the Tribunal considers there are unique and exceptional circumstances that warrant a referral for Ministerial intervention, despite the applicant having been an ‘unlawful non-citizen’ in the past.

10. According to the Guidelines, cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of their intervention powers. Relevantly, this includes:

    ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.’

11. In the applicant’s circumstances, he has two children who are Australian citizens. The applicant has provided the Tribunal with their birth certificates, which confirms that he is listed as the father. The applicant also provided a Citizenship by Descent certificate issued by the Australian High Commission of Suva, Fiji (see list of documents provided to the Tribunal below).

12. The applicant married the mother of his daughter in Fiji. Shortly after his arrival in Australia, the applicant and his wife separated. The applicant moved to regional Victoria. There, he met the future mother of his son, and they soon after developed a relationship. She gave birth to the applicant’s son in [year]. In late 2023, she and the applicant separated. However, the applicant lives [close] to their home. He regularly sees her, her children, and his son. Due to the relationship breakdown with his ex-wife, the applicant only sees his daughter around twice per year.

13. The Guidelines also refer to ‘other relevant information’ that the Minister will consider in exercising their discretion. These include, but are not limited to the following:

    ‘circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.

    […]

    the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.’

14. The Tribunal has considered Article 9.1 of the Convention on the Rights of the Child, which provides that State Parties ‘shall ensure that a child shall not be separated from his or her parents against their will, except when…separation is necessary for the best interests of the child.’ In the Tribunal’s view, it is not in the best interests of the applicant’s children that they are separated from their father. Rather, it is in the best interests of the applicant’s two children that he remains in Australia. His children are [ages], respectively. While the applicant is only able to see his daughter twice per year, he maintains daily contact with his son. Further, the mother of his son has been unable to travel overseas with her other children, due to a dispute with her former partner about leaving Australia with her the children. This means that the applicant may be indefinitely separated from his son, without the ability of his son to travel to Fiji for the reasonably foreseeable future.

100.   In the applicant’s circumstances, he has been in Australia since [December] 2017, and has not returned to Fiji. During this period, he has not worked in Australia. As discussed above, he was a lawful non-citizen from [December] 2017 to [a day in] January 2018 (some [number] days); an unlawful non-citizen from [January] 2018 to 18 March 2021 (some 3 years); and a lawful non-citizen from 19 March 2021 to the present (some 3 years). In total, the applicant has spent more time in Australia as a lawful non-citizen than as an unlawful non-citizen. While the Tribunal is mindful of this lengthy period of time he was an unlawful non-citizen, the applicant was residing in regional Victoria and supporting and raising his now ex-partner’s children, and supporting her during a difficult pregnancy. He was not aware of the possibility to apply for a Protection visa and stated that he would have done so earlier if he had known this was an option.

101.   On 19 March 2024, the applicant provided the following documents to the Tribunal via email:

·Citizenship by Descent of [Child A] (DOB: [specified]), dated [specified date], issued by the Australian High Commission of Suva, Fiji;

·Birth Certificate of [Child A] (DOB: [specified]), registered on [specified date], issued by the Fijian Registrar of Births, Deaths and Marriages (the applicant is listed as the father);

·Birth Certificate of [Child B] (DOB: [specified]), registered on [specified date], issued by the Victorian Registry of Births, Deaths and Marriages (the applicant is listed as the father);

·Letter of Support from the applicant’s ex-partner (mother of his son, [Child B]), undated; and

·Birth Certificate of another child (but the applicant is not listed as the father, so the details have not been included in this decision record).

102.   The Letter of Support from the applicant’s ex-partner indicates, in summary, that she was in a relationship with the applicant from 2018 to 2021. She had [other] children from a different relationship and fell pregnant shortly after the applicant began living with her. Their [son] was born on [specified date]. She explains that the applicant overstayed his visa because she was pregnant and having difficulties in the pregnancy. She stated that he realised that he was required to return to Fiji but was worried for her health and the well-being of her and the child. She had to financially support the applicant and her [number] children because the applicant did not have work rights. As the applicant was technically still married to his ex-wife, they were unable to apply for a Partner visa. The applicant’s ex-partner then details the poor migration advice and assistance provided by [Pastor A], which is consistent with the applicant’s claims (see above). She concludes the letter by stating that they separated in 2021 because they were no longer getting along. Since then, the applicant has lived close by, calls his son every night, and sees his son once a week. She continues to provide the applicant with material aid, given that he has no work rights.

103.   The Tribunal found the applicant to be an honest and credible witness and did not make any adverse credibility findings regarding his delay in lodging an application for a Protection visa. The applicant’s ex-partner also provides some insight into why the applicant overstayed his visa. There is one inconsistency between the applicant’s oral evidence in the hearing and his ex-partner’s Letter of Support. The applicant stated that they separated in 2023, while his ex-partner stated that they separated in 2021. During the hearing, the applicant stated that have been trying to work through their issues since the separation. The Tribunal accepts that in the mind of the applicant they separated in 2023, as there may have been a brief reconciliation, whereas in the mind of his ex-partner, they officially separated in 2021. Therefore, the Tribunal does not make any adverse credibility findings in this regard.  

104.   In summary, the applicant is currently on a Bridging Visa C with no work rights and is experiencing financial hardship. If he is returned to Fiji, his two children, both Australian citizens, will be left without their father, which the Tribunal considers is not in their best interests.

105.   For these reasons, the Tribunal considers that this case should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances of a kind the Minister has indicated should be brought to his attention.

CONCLUSIONS

106.   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).

107.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

   DECISION

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

James Horsley
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.

…