2218052 (Refugee)

2218052 (Refugee) [2024] AATA 435 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Varni Sathasevam (MARN: 1688817)
CASE NUMBER: 2218052

COUNTRY OF REFERENCE: Fiji
MEMBER:Mia Bailey
DATE:19 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 January 2024 at 11:29am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – single female – religion – choice of church involvement – employment – father’s restriction on studies and work – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 24 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 15 October 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
On 28 November 2023 the applicant, who was represented in relation to the review, was advised that the Tribunal was unable to make a favourable decision based on the available information. The applicant was invited to attend a hearing on 18 January 2024 to give evidence and present arguments. On 12 January 2024 the applicant provided a signed ‘Response to hearing invitation’ form indicating that she will not participate in the hearing and consents to the Tribunal making a decision on the papers without taking further steps to allow her to appear. The Tribunal subsequently received verbal confirmation from the applicant’s representative that the applicant did not wish to attend a hearing and consented to a decision being made on the available information.
I am satisfied that the applicant has consented to the Tribunal making a decision in relation to the review without her appearing before it and have therefore made my decision based on the documentary evidence before me.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), 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 issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
Background and receiving country
The applicant is a [age]-year-old female from [Town 1], Fiji. She last arrived in Australia on a [Visitor] visa [in] March 2020.
The applicant provided a copy of the biodata page of her Fijian passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before me to the contrary. I find that the applicant is a citizen of Fiji, and that Fiji is her receiving country for the purposes of assessing her claims for protection.
Evidence before the delegate
The following is a summary of relevant information from the applicant’s protection visa application:
i.She was born in [Town 1], [Province 1] and resided in [Village 1], [Location 1], [Province 1] from birth until [March] 2020.
ii.Her parents, [and specified family members] reside in Fiji.
iii.She has never married; her ethnicity is Fijian, and religion is [Denomination 1].
iv.She attended high school in [Province 1] between [specified years]; the ‘course status’ is recorded as ‘Completed (Passed)’.
v.She worked at [Agency 1] until July 2018, at which point her contract was not renewed.
vi.She is seeking protection in Australia as she has no means of employment in Fiji. She worked for the [specified] Unit of [Agency 1] between 2014 and 2018. In 2018, while she was an employee, there was a restructuring of the units in [Agency 1]. A meeting was convened with the [Officer 1], but no solution was reached regarding the welfare of employees who would lose their jobs. Seven employees, including her, were given letters to ‘wait home’. The positions were advertised; she applied but new employees with no experience were selected for the roles. This caused a lot of anxiety for her and her family as her financial resources were affected.
vii.In response to what she thinks will happen to her if she returns to Fiji, she states ‘unemployment and no rights to freedom of speech.’ In response to whether she thinks she will be harmed or mistreated in Fiji, she states ‘No’.
The applicant submitted the following documents to the Department in support of her claims:
i.Letter dated [in] June 2018 from the applicant to the [Officer 2’s] office titled ‘Request to Resolve Issues – [Agency 1]’ outlining concerns regarding the restructure process being undertaken by the [agency] and seeking assistance.
ii.Letter dated [in] July 2018 to the applicant from [Agency 1] titled ‘Termination of Appointment’ advising that she was unsuccessful in an ‘open merit’ selection process undertaken following the restructure and her employment will cease effective [a day in] July 2018 in accordance with her employment contract.
The applicant was not invited to attend an interview with the delegate. Based on the information in the protection visa application the delegate found that the applicant would not face a real chance of persecution for any of the reasons in s 5J(1)(a) of the Act for the purposes of the refugee criterion. Further, the delegate found there to be no real risk of significant harm, as defined in s 36(2A), for the purposes of the complementary protection criterion.
Evidence before the Tribunal
On 11 January 2024, in response to a Pre-hearing information request, the applicant provided additional information, consisting of a signed statement dated 9 January 2024 (Further Statement) and two supporting letters, as outlined below.
Further Statement
The applicant states that she did not fully provide her protection claims in the protection visa application as she did not understand the requirements and procedure. She did not have access to legal assistance and completed the application with assistance from a friend. She has now had the opportunity to engage legal representation to present her claims. In summary, the applicant states:
i.She is claiming protection on the basis of her father’s religious beliefs. He joined a ‘cult’ called [Church 1], which split from [Denomination 1].
ii.Her parents separated when she was [age] years old. Her father forced the applicant and her [siblings] to remain with him and they were not allowed to have contact with their mother. The separation from her mother and disruption of the family structure was very difficult for the applicant and she experienced anxiety and confusion.
iii.When she was [age] years old, her father found a new religion. The members of this church believe that children should be kept away from the school system. The applicant was forced out of school while she was in [grade]. They moved from their ‘city life to the bush’. She had to stay home and take care of the house and her siblings and was treated like a maid. Her father prevented her from being exposed to the outside world because of the belief of his new religion that Jesus would return and there was no need to invest in the future. Because they were living in [Town 2], she could not reach out to any adults or the authorities. This experience impacted her mentally, socially and spiritually.
iv.She did not share the same religious beliefs as her father and wanted to associate with a religious community that was part of the [Denomination 1]. She chose to follow the [Parish 1] [Denomination 1]; this caused disagreements between the applicant and her father. She was ‘targeted’ by her father and his community because of her religious beliefs; subjected to ‘humiliation harassment’ and was unable to freely practice her faith while living with her father.
v.She looked for ways to get away from the mental trauma and degrading treatment caused by her father’s religious beliefs. As a single female, she was not given an opportunity to live her life in Fiji. If she returns to Fiji, as a single female, the cultural expectation is that she will return to live with her father. Since [year], her father has been the Pastor of the [Church 2] in [Town 1]. He will coerce her to join his church and she will be unable to continue her own religious practice, work in [industry 1] and access medical services.
vi.If she returns to Fiji, she fears the following harm:
a.As a single female belonging to her father’s family, she will experience social stigma and discrimination and encounter difficulties in establishing or maintaining support networks outside her father’s ministry or seeking external assistance.
b.She will be restricted in returning to the workforce due to her father’s religious beliefs; will not have access to skills training, education and employment opportunities and will be financially dependent on her father.
c.Her mental health will be adversely impacted due to the pressure to conform to her father’s religious expectations and the fear of ostracism and judgment if she does not.
vii.She would be unable to seek protection from the Fijian authorities because they are limited in intervening in personal religious matters within the family setting.
Support letters
A letter dated 10 January 2024 from [Pastor A], Former Pastor of the [Parish 1] [Denomination 1] states that the applicant is a former member of [that] [Denomination 1] in Fiji. The author attests to the applicant’s good character and states that she was ‘struggling with family affairs and was humiliated by her dad as he was in a different denomination from hers and this really affected her spiritually and academically.’ The author believes that the safest option for the applicant is to leave Fiji and seek safety in Australia and that returning to Fiji is not a safe option for her.
A letter (undated) from [Pastor B] states that he formerly served the [Denomination 1] in [Fiji] for over 2 decades as a minister, evangelist, administrator, chaplain and theology lecturer. He now resides in [Australia] and knows the applicant through the [local] Fijian [Denomination 1]. The author provides background to the development of several ‘fringe religious groups that broke away from some mainline Christian denominations’ in Fiji between the 1970s and 1990s. These groups manifested ‘cult-like characteristics’ and adopted certain ‘apocalyptic beliefs and practices’ including that Jesus would return from heaven within their lifetime such that employment and education were not worthwhile. The applicant’s father ‘fell under the spell’ of one such group and this led to him taking the applicant out of school and moving his family from town to a farm on a different island in Fiji. The applicant was stopped from attending school while her siblings continued with school and her stepmother continued to work as [an occupation 1]. This meant that the applicant was treated as a ‘house girl’ for 6 to 7 years, doing all the household chores, and this affected her mentally. That only changed when the applicant ‘ran away from her family and moved to Suva’ for a better future.
Additional information submitted with Response to hearing invitation
As discussed above, on 12 January 2024, the applicant advised that she that she will not participate in the hearing and consents to the Tribunal making a decision on the papers. She provided an additional statement in which she corrects certain details recorded in her protection visa application relating to her residential address and education history. Regarding her address history, she claims that she resided in [Village 1], [Location 1], [Province 1] from birth until [year]; in [Town 2], Vanua Levu from [year] until 2004 and in Suva from 2004 until 2019. Regarding her education, she claims that she completed [grade at] school in [year] and undertook further secondary schooling between [specified years] in Suva but did not complete this course because at [age] years old, she was taken by her father to [Town 2] and forced to stay home.
The applicant also states that in [year] her father remarried – his new wife was from [Church 1] – and the family moved to the ‘bush’ in [Town 2]. Her father and stepmother expected her to perform all the household chores and she was yelled at and emotionally abused if she failed to do so. The ‘cult’ that her family belongs to has grown and moved to ‘other parts in our town’. Their beliefs remain the same, including that women should not work. Her father is the Pastor of the [Church 2] in [Village 1] which is a very remote village with around 60 residents. There are no services in the village, and she would need to travel 2 hours from the village to access support services. She fears that, as a single female, her father will exert control over her life including preventing her from working and coercing her to adhere to his religious beliefs.
A submission dated 11 January 2024 was provided by the applicant’s representative outlining why the applicant’s claims satisfy the relevant legal requirements to engage protection obligations.
Factual findings
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. The Tribunal is not required to accept uncritically any or all of the assertions made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2] As the applicant elected to not attend a hearing, my assessment of the credibility of her claims is limited to the available documentary evidence.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have taken into account the applicant’s explanation for why the claims raised in her review application were not raised before the delegate. In accordance with s 423A of the Act, in circumstances where a claim was not raised or evidence was not presented before the delegate’s decision was made, I am required to draw an unfavourable credibility inference regarding that material if I am satisfied that the applicant does not have a reasonable explanation. I am prepared to accept the applicant’s explanation as provided in the Further Statement as being a reasonable explanation and have therefore not drawn an inference unfavourable to the credibility of the new claims and evidence provided in her review application.
I also accept that some details regarding the applicant’s residential address and education history were incorrectly recorded in the protection visa application. I accept the amended details as provided in the additional statement submitted on 12 January 2024 to be correct. I therefore accept that she moved from [Town 2] to Suva in 2004, at which time she would have been around [age] years old, and lived in Suva until 2019. This is generally consistent with the support letter from [Pastor B] which states that the applicant was treated as a ‘house girl’ for 6 to 7 years before she ‘ran away from her family and moved to Suva’.
Based on the available information I also accept that the applicant has never married; has [siblings] and was a member of the [Parish 1] [Denomination 1] in Fiji.
While I would have discussed these claims with the applicant in detail had she attended a hearing, based on the available evidence I am prepared to accept that the applicant’s parents separated when she was [age] years old, following which the applicant and her [siblings] were required to live with their father and cease contact with their mother. I accept that when the applicant was around [age] years old her father became a member of [Church 1] and that followers of this church did not believe in sending children to school. An article in [a named source] refers to calls for the authorities to take action against ‘cults [which] stop children from attending school’. The article names [Church 1] as being one such group that ‘[insist] children should be kept away from [schools]’ and ‘still [keep] children [from] school despite a directive from [a government agency].’[3] I accept that in [year], when the applicant was [age] years old, her father remarried and moved the family to a rural location in [Town 2] on the island of Vanua Levu which resulted in her being taken out of school and assigned domestic responsibilities. I accept that while living with her father, she was pressured to adhere to his religious beliefs. I accept that these experiences would have caused distress, confusion and frustration for the applicant.
[3] [Source deleted.]
Based on the information in her protection visa application, I accept that the applicant was employed in an administrative role with [Agency 1] between 2014 and July 2018 and was unsuccessful in retaining this role following an internal restructure process. I have no information before me of other employment undertaken by the applicant in Fiji or since her arrival in Australia. She has referred to working in ‘[industry 1]’ and on that basis I find that she has some experience in this field of employment, either in Fiji or Australia.
I have no information before me regarding the applicant’s living arrangements and circumstances in Suva for the period of approximately 15 years between 2004 and 2019. If she had attended a hearing, I would have asked her for details of who she lived with during this period; the nature of her relationship with her mother, [siblings] and extended family members and how she supported herself financially before she secured employment in 2014 with [Agency 1]. DFAT reports that indigenous Fijians (iTaukei) generally have large kinship networks with extended family often providing support when a family member is in need.[4] I consider it likely that the applicant lived in Suva with immediate or extended family and note that in her protection visa application she refers to the loss of her employment with [Agency 1] impacting both her and her family.
[4] Department of Foreign Affairs and Trade, Country Information Report – Fiji, 20 May 2022, p.10

I would also have asked the applicant about any contact or interactions with her father or members of his church community and her involvement with the [Parish 1] [Denomination 1] in Fiji during this period. In her Further Statement, the applicant states that her involvement with the [Parish 1] [Denomination 1] caused disagreements between her and her father; that she was ‘targeted’ by her father and his community because of her religious beliefs; subjected to ‘humiliation harassment’ and was unable to freely practice her faith ‘while living with her father’. It is unclear whether this relates to the period that she lived with her father in [Town 2] ([until] 2004) and/or while she lived in Suva (2004 to 2019). Apart from these general statements, the applicant has not detailed any incidents of harm or mistreatment from her father or members of his church community while living in Suva or indicated that her father did not know of her whereabouts during this period. She has provided no evidence that she experienced social stigma, discrimination or difficulties in establishing or maintaining support networks outside her father’s community while living in Suva.
Based on the available information, I do not accept that while living in Suva between 2004 and 2019 she experienced harm from her father or members of his church community, including any restriction on her ability to follow a religion of her own choosing; undertake further study or training; apply for and undertake employment; or access medical or other services.
Based on the available information, I find that the applicant was able to reside openly and safely in Suva as a single female between 2004 and 2019 and freely practise her religion as a member of the [Parish 1] [Denomination 1].
The applicant claims that as a single female, the cultural expectation is that she would live with her father if she were to return to Fiji. While I accept that there may be such a cultural expectation, in the applicant’s particular circumstances I do not accept that she would be required to live with her father if she were to return to Fiji. The applicant is currently [age] years old; left her father’s home 20 years ago; and resided in Suva safely for approximately 15 years as a single female. I find that she would be free to live in a place of her choosing, including Suva where she lived for many years previously.
I do not accept that the applicant would be unable to secure employment in Fiji, whether in the formal or informal sector. She completed [grade at] school and was previously employed by [Agency 1] in Fiji for 4 years. I also find based on the available evidence that she has some experience working in the [industry 1]. According to the World Bank, unemployment in the formal workforce remains stable, with an overall unemployment rate in 2022 of 4.3 per cent.[5]
Protection obligations assessment
[5] The World Bank Unemployment, total (% of total labor force), undated
The applicant claims that she would face harm in Fiji for reasons of her father’s religious beliefs, including that as a single female she would be required to live with him in [Village 1] and follow his religious beliefs. I have found above that the applicant would not be required to live with her father and could return to live in Suva as she did previously. I have found above that the applicant did not experience harm from her father or members of his church community, including restrictions on her ability to practice a religion of her choosing; secure employment and access services, while she lived in Suva between 2004 and 2019 and there is nothing before me to indicate that she would experience such harm if she returns to Fiji. I have found above that the applicant was able to reside openly and safely in Suva as a single female between 2004 and 2019 and freely practise her religion as a member of the [Parish 1] [Denomination 1]. There is nothing before me to indicate that she could not again reside safely in Suva and freely practise her religion if she returns to Fiji. I find that there is not a real chance that her father would coerce her to follow his religion if she returned to Fiji and it follows that there is no real chance that the applicant would experience harm if she were not to follow her father’s religion.
The applicant claims that as a single female from her father’s family she will experience social stigma and discrimination. I acknowledge that Fiji is a traditionally male-dominated society with well-entrenched traditional gender roles. DFAT assesses that while women face a low risk of official discrimination, they do experience gender disparity and a moderate level of societal discrimination.[6] However, based on the available information and my findings above regarding the applicant’s particular circumstances and claims, I find that she would not face a real chance of being subjected to serious harm of the type outlined in s 5J(5) of the Act by her father, members of his church community, or members of society in general if she were to return to Fiji.
[6] Department of Foreign Affairs and Trade, Country Information Report Fiji, 27 September 2017, p.21
The applicant claims to fear harm in Fiji because she has no means of employment. Given my finding above that the applicant would be able to secure employment in Fiji, I find there to be no real chance of harm for this reason is she returns to Fiji.
The applicant claims that there is no right to freedom of speech in Fiji. She has not articulated any further details of how this impacted her personally or whether or why she fears harm for this reason. While Fiji’s constitution allows for freedom of speech, expression and publication, assembly, and association, DFAT reports that each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[7] The US Department of State reports that authorities use wide and vague provisions in the Public Order Act to restrict freedom of expression and association.[8] The law includes criticism of the government in its definition of the crime of sedition and public opposition to government policy or proposals could provoke a ‘sharp response’. For example, former Prime Minister Bainimarama criticised two prominent human rights activists, Shamima Ali, coordinator of the Fiji Women’s Crisis Center, and Sashi Kiran, founder of the Foundation for Rural Integrated Enterprises & Development Fiji, for calling for a caretaker government ahead of the December 2022 elections.[9]
[7] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, p.15
[8] US Department of State, Country Reports on Human Rights Practices for 2022 - Fiji, 20 March 2023, p.4
[9] US Department of State, Country Reports on Human Rights Practices for 2022 - Fiji, 20 March 2023, p.4
DFAT also reports that Fiji has a vibrant human rights NGO scene relative to its small size. NGOs include those linked to women’s rights, trade unions, environmental activism, religious organisations and health services. While there is some ministerial discretion in the law, for example the Minister can revoke the appointment of NGO officials or refuse registration for a NGO, DFAT understands that these provisions are not often used and that NGOs generally operate freely. Some politicians might accuse civil society organisations of being politically biased but DFAT is not aware of a strong pattern of incidents of interference.[10]
[10] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, p.17
I accept that there are some restrictions on freedom of speech and expression and that in some circumstances public opposition to government policy or proposals may result in adverse attention from the authorities. However, based on the available information, I find that the applicant has not previously been involved in any public opposition to the government or any political activities more generally. Nor has she articulated any political views or convictions as part of her protection claims. Based on the available evidence I find that her lack of involvement in any anti-government activities is not due to a modification of her behaviour based on a fear of persecution. I find that she would not engage in any anti-government conduct if she were to return to Fiji that would bring her to the adverse attention of the authorities. I find that there is not a real chance that the applicant would face harm for reasons of the expression of anti-government views if she were to return to Fiji.
I find that the applicant does not face a real chance of persecution for any of the reasons claimed and is therefore not a refugee.
As I have found the applicant to not be a refugee, I have considered whether she satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, she will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[11] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm as a consequence of her removal from Australia. I therefore find that the applicant does not engage protection obligations under the complementary protection criterion.
[11] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
The applicant has not claimed to fear harm for any other reason if she returns to Fiji and I find that no other protection claims arise on the accepted facts.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
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 435

19 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness