2300774 (Refugee)

2300774 (Refugee) [2024] AATA 2651 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2300774
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Adrienne Anderson
DATE:26 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 26 March 2024 at 10:49am
CATCHWORDS
REFUGEE – protection visa – Fiji – family violence – physical abuse from the father – gender-based violence directed against the mother – parents divorced – threatened with weapons – stalking – made threats to kill – threats of suicide – alcohol abuse – particular social group – family – effective state protection – restraining order – suspended sentence – complementary protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2023 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 26 August 2022.
The applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The hearing was conducted via videoconference at the applicant’s request due to difficulties travelling to attend an in-person hearing.
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, 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if 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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant is a [age]-year-old Indo-Fijian male from [City 1], Fiji. He is an only child. His mother resides in Australia with the applicant and his father, from whom he is estranged, resides in Fiji.
The applicant completed high school in Fiji up to year [level] and in Australia is studying and working as an [Occupation 1].
The applicant has visited Australia on two previous occasions (in 2017 and 2019) to spend time with extended family.
He arrived in Australia on a Tourist visa [in] June 2022 and made a protection visa application on 26 August 2022.
Applicant’s claims for protection
Before the Department
In his protection visa application, the applicant stated that he came to Australia to visit his mother but decided to stay because he missed her and is lonely in Fiji without his mother around. The applicant stated that after the Covid-19 pandemic life in Fiji has changed and the cost of living has risen. The applicant stated that if given an opportunity here the applicant would be able to survive and support his mother who was a victim of family violence in Fiji from the applicant’s father.
The applicant was not interviewed by the delegate. The delegate refused to grant the visa on 19 January 2023 on the basis that the applicant’s claims that he would experience financial difficulty did not meet the criteria for the grant of a protection visa.
The applicant lodged an application for review of the decision on 22 January 2023.
Before the Tribunal
At hearing, the applicant provided further information on the claim in his protection visa application that his mother had experienced abuse at the hands of his father in Fiji. He stated that his mother suffered through beatings and threats to kill her and that his father became physically violent towards the applicant when he turned 15 or 16. At that time, he started beating him, smashing things around the house, and threatening the applicant with knives.
He stated that his father was an alcoholic who became violent and angry when he was drunk. He often had affairs and was violent towards the applicant’s mother when she confronted him about this as well as other occasions when things made him angry around the house. He was often verbally abusive to the applicant when he forgot to turn lights off or other minor occurrences. He said things to the applicant like he was useless and should never have been born.
The applicant’s mother had gone to the police about the violence before. The police would come to the house and try to settle things down between the applicant and his mother. His mother would ask that the applicant’s father not be arrested because she wanted the applicant to be able to continue his schooling and the applicant’s father was the primary earner for the family. Eventually, the applicant’s mother kept quiet and stopped going to the police.
When the applicant was about 15 years old, he was awoken one night at about 3am by his father shouting. His mum was returning from her night shift and the applicant’s father locked her out of the house. He threatened to burn the house down with the applicant inside. The applicant was very afraid and stayed in his room. Eventually the applicant’s father left and the applicant was able to let his mother inside.
After this incident, the applicant’s mother went to the police for help. She and the neighbours made statements to the police about what had occurred. The applicant’s father was put in jail for a few days and then released on bail with conditions not to be violent to the applicant and his mother or to anyone else. He was charged with criminal intimidation. It took a couple of years for the case to come to court and during this time the applicant’s father was living at the family home with the applicant and his mother and was not violent to the applicant. However, when the court case was over, the applicant’s father was not sentenced to any term of imprisonment and the violence and abuse resumed after a few months.
On one occasion the applicant refused to do what his father wanted him to do and the applicant’s father tried to hit him with a metal pipe before he was stopped by the applicant’s mother and another relative. The applicant and his mother decided they had to try to leave and moved out when the applicant’s father went to work. The applicant’s father found where the applicant and his mother were living and started driving round and round the streets past their house. He also waited outside the applicant’s school and tried to get the applicant to go in his car. The applicant’s mother left for Australia and the applicant moved to a relative’s house to try to avoid his father before he also left for Australia.
Since the applicant has been in Australia, he has had no contact with his father. His mother and father have divorced while the applicant’s mother has been in Australia.
The applicant gave evidence that he feared that his father would hurt or kill him if he returned to Fiji. Fiji is so small that wherever he went his father would find out he was back and would be able to find him. He stated that his father threatened to kill him in the past, including by threatening to commit a murder-suicide like the applicant’s father’s brother had. His father’s brother killed his wife, injured his son in an attempt to kill him, and then killed himself.
After the hearing, on 18 March 2024, the applicant provided an electronic copy of the court’s sentencing judgment in his father’s criminal case for the charge of criminal intimidation, dated [in] 2021. He also provided an electronic copy of a court document dated [in] 2022 dismissing a restraining order in respect of the applicant’s mother against his father.
FINDINGS AND REASONS
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which was provided to the Department and Tribunal. He has consistently stated that he is a citizen of Fiji and the Tribunal finds that he is a Fijian citizen. The Tribunal has assessed his claims against Fiji as the country of nationality and the receiving country.
Credibility
The applicant provided new evidence in relation to a claim to fear his father on return to Fiji that was not previously provided to the Department. When the Tribunal asked the applicant why his visa application did not contain any details of his father’s past abuse towards him the applicant explained that he and his mother had received advice from a Fijian woman who did their protection visa applications and who advised them on what to put in the application form. The applicant believed that his claims would be looked at together with those of his mother who he understood had explained about the past family violence.
The Tribunal notes that the applicant was a minor at the time and not familiar with Australian immigration processes. The Tribunal also notes that his protection visa application form did refer to the applicant’s father being abusive to the applicant’s mother. In these circumstances the Tribunal finds the applicant’s explanation reasonable and in light of his overall credibility has not drawn any adverse inference as to the omission of detail in his protection visa application.
The applicant gave frank and compelling evidence to the Tribunal at his hearing of his father’s past abuse of himself and his mother and his fears in future. The sentencing document relating to the conviction of criminal intimidation, which the Tribunal accepts to be genuine, substantiates the applicant’s father’s threat to burn down the house with the applicant inside.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Refugee criteria
The Tribunal accepts that the applicant has been subjected to verbal and physical abuse at the hands of his father, including a serious incident involving a threat to kill the applicant by setting the house on fire as well as other threats to carry out a murder-suicide and threats to use knives against the applicant.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal has had the benefit of hearing from the applicant which provided significantly more information than that which was before the delegate on the past behaviour of the applicant’s father. On the evidence before it, the Tribunal is satisfied that there is a real chance that the applicant’s father will seek to harm him on return to Fiji. The Tribunal considers that the applicant’s past experiences and the escalating levels of physical abuse exerted by his father in the past, as well as his threats to kill the applicant is indicative of the risk he faces on return.
The Tribunal notes that the applicant’s parents have divorced while the applicant has been in Australia and that the applicant is no longer a minor under his father’s care. However, the Tribunal finds, on the basis of the evidence before it, that the applicant’s father’s abuse was linked with the gender-based violence directed against his mother and notes in this regard that the period following separation and/or divorce is one of the most dangerous times for family violence victims.[1] The applicant’s father’s past behaviour towards him exhibits a number of factors that are understood to heighten the risk of severe and escalating abuse in domestic and family violence contexts. This includes that the applicant’s father has threatened the applicant with weapons,[2] stalked the applicant,[3] made threats to kill the applicant,[4] made threats of suicide,[5] and that his father misuses alcohol.[6] Given these considerations, the Tribunal finds there is a real chance that the applicant’s father will harm the applicant, despite the divorce and him reaching the age of majority, either as a means of re-exerting control over the applicant or as a means of harming his mother.
[1] ‘Where violence has occurred during the relationship, it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim, or to punish the victim for leaving the relationship’: ‘Factors affecting risk’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
The harm feared includes threats to his life and significant physical harassment and ill-treatment amounting to serious harm under s 5J(5) of the Act.
The Tribunal considers that the applicant’s risk arises for the essential and significant reason of his membership of the particular social group of his ‘family’. The evidence before the Tribunal indicates that the applicant’s father’s violence was linked with the gender-based violence directed at the applicant’s mother. The applicant’s father has sought to dominate and control the members of his family including the applicant and is consistent with country information suggesting that Fiji is a traditionally male-dominated society with well-entrenched gender roles[7] including a strong role for the male head of the family. Indo-Fijian ideology of family emphasises that ultimate authority should be vested in the father.[8] Children are expected to conform to socio-cultural norms of family unity, obedience within the family and respect of elders.[9]
[7] Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji (May 2022) [3.49].
[8] Shireen Lateef, ‘Rule by the Danda; Domestic Violence among Indo-Fijians’ (1990) 13(3) Pacific Studies.
[9] Kavitha Suthanthiraraj , Save the Children, Unseen, Unsafe: The Underinvestment in Ending Violence Against Children in the Pacific and Timor-Leste (30 July 2019) 12.
The Tribunal has considered whether effective protection measures would be available to the applicant for the purposes of s 5J(2) of the Act. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The Fijian legislative framework defines domestic violence as a specific offense and defines domestic violence as including violence against people with whom the perpetrator has a ‘family relationship’.[10] Police practice a ‘no-drop’ policy, requiring them to continue investigations of domestic violence cases even if a victim later withdraws the accusation.[11] This policy is not consistently implemented, and police sometimes do drop domestic violence cases.[12]
[10] Domestic Violence Act 2009 (Fiji), section 3.
[11] United States Department of State (USDOS), 2022 Country Reports on Human Rights Practices: Fiji (20 March 2023).
[12] DFAT, Country Information Report Fiji (May 2022) [3.55].
DFAT advises in relation to Fiji that magistrates can issue restraining orders, enforceable by the police, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person.[13] A breach of a domestic violence restraining order is a criminal offense. The penalty for a breach of a restraining order is a maximum fine of $1,000 and a term of imprisonment of 12 months.[14] The DFAT report notes however that police protection is not available consistently as some police stations do not have the equipment or transport to deal effectively with domestic violence.[15]
[13] Ibid [3.54].
[14] Domestic Violence Act 2009 (Fiji), section 77(1).
[15] DFAT, Country Information Report Fiji (May 2022) [3.53].
On the basis of the above country information, the Tribunal considers that there are effective measures of state protection in Fiji despite some identified issues in relation to the consistency of access to protection measures nationwide.
The Tribunal therefore does not accept that the applicant has a well-founded fear of persecution. It follows that the Tribunal finds that the applicant does not meet the criteria set out in s 36(2)(a) of the Act.
Complementary protection

For the reasons set out above, the Tribunal has accepted there to be a real chance the applicant will face serious harm from his father if he returns to Fiji, now or in the foreseeable future.
The Tribunal notes that section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test applicable to the refugee criteria in s 36(2)(a) of the Act.[16] For the same reasons, the Tribunal accepts there to be substantial grounds for believing there is a real risk he will face significant harm from his father as a necessary and foreseeable consequence of being removed from Australia to Fiji.
[16] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts that the harm feared by the applicant involves severe physical and mental pain and suffering which would be intentionally inflicted on him by his father. The Tribunal considers such harm would include ‘cruel or inhuman treatment or punishment’ as defined in s 5 of the Act.
Pursuant to s 36(2B)(b) of the Act, the Tribunal has considered whether the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm. The Tribunal has noted country information above indicating that Fijian laws address family violence and that victims can obtain restraining orders from magistrate courts which are enforceable by the police.
However, s 36(2B)(b) of the Act requires a state to offer a level of protection such that the risk of significant harm is reduced to something less than a real one.[17] That is, the protection available must remove the real risk of significant harm. This requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm.[18]
[17] MIAC v MZYYL (2012) 207 FCR 211 at [40].
[18] ABAR15 v MIBP (No 2) [2016] FCA 721 at [60]–[61].
The Tribunal notes that in the past the applicant’s father was charged with and convicted of a criminal offence in relation to an act of domestic violence against the applicant and his mother, and that the applicant provided a copy of a restraining order against his father of which his mother was the subject. However, in the Tribunal’s view, it does not follow from this experience that the applicant would be able to access a domestic violence restraining order or other protection in the future. The country information indicates that there are difficulties for both women and children obtaining protection orders and that police enforcement of domestic violence laws is ‘lax’. The DFAT report records advice from in-country sources that police can be ‘unhelpful’ and even ‘hostile’ to victims of family violence.[19]
[19] DFAT, Country Information Report Fiji (May 2022) [3.55].
In light of this information, the Tribunal cannot be confident that the applicant will be able to obtain a restraining order against his father in the future such that a real risk of significant harm is eliminated. Moreover, given that the applicant’s mother had reported the applicant’s father to the police previously without the police taking action until the incident for which he was charged, it is likely that the applicant would need to already have experienced a serious threat or actual physical harm before he could access any protection.
The Tribunal also does not accept that the nature and degree of protection offered by the Fijian authorities is sufficient to reduce the risk of harm to the applicant to below a real one. Central to this assessment is country information suggesting that the courts dismiss cases of domestic abuse and/or give perpetrators light sentences[20] and the applicant’s own experiences in this regard.
[20] USDOS, 2022 Country Reports on Human Rights Practices: Fiji (20 March 2023).
In the sentencing judgment provided by the applicant in relation to his father’s conviction for criminal intimidation under the Domestic Violence Act 2009, the court noted that criminal intimidation is a serious offence for which the maximum sentence is 10 years’ imprisonment and that serious cases should be given a sentence in the upper range. The court considered that the starting point of the tariff in the applicant’s father’s case was 12 months; with mitigating factors, the court sentenced the applicant’s father to 10 months of imprisonment and, because the sentence was less than two years, suspended the sentence for three years. The applicant’s father was not subject to any period of imprisonment. The court also imposed a domestic violence restraining order. As set out above, the Tribunal accepts the applicant’s evidence that his father’s abuse and violence began again a few months after this sentence was handed down. The Tribunal finds that the applicant’s father continued to abuse the applicant despite the existence of a restraining order and an ongoing suspended sentence.
While, as noted above, the law provides for punishment for a breach of a restraining order, given the information in the DFAT report and other sources that police are not always responsive or helpful to victims of domestic violence, the Tribunal finds that protection may not have been forthcoming if the applicant or his mother had sought to enforce the order. The Tribunal also notes information in the DFAT report indicating that the police in Fiji do not have the transport or other capacity to respond to crimes in progress.[21]
[21] DFAT, Country Information Report Fiji (May 2022) [5.6].
Given these considerations, the Tribunal finds that even were the applicant able to obtain a restraining order against his father in the future, a real risk of significant harm would still exist in his circumstances.
In considering, in relation to s 36(2B)(a) of the Act, whether it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, the Tribunal notes that the applicant is a young [age]-year-old who has never lived on his own and who has no history of work or work experience in Fiji. The Tribunal finds that he would be compelled to rely on family support on return to Fiji, at least initially, and that in those circumstances the applicant’s father would be able to locate the applicant. The Tribunal accepts the applicant’s evidence that his father would discover that he had returned to Fiji and his whereabouts because mutual connections could inform his father where he was. The Tribunal notes in this regard that the DFAT report states in relation to relocation away from domestic violence in Fiji that people are tracked through kinship networks.[22] Given the small geographic size of Fiji and the applicant’s father’s ability to locate him throughout Fiji through family or other connections, the Tribunal finds that there is no area of Fiji where there would not be a real risk that the applicant will suffer significant harm.
[22] Ibid [3.57].
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has taken all possible steps to avail themselves of a right to enter and reside a third country. In this case, there is no evidence to suggest that the applicants have 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.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Adrienne Anderson
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 2651

26 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies