2305761 (Refugee)

2305761 (Refugee) [2024] AATA 3519 (16 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2305761

COUNTRY OF REFERENCE: Fiji
MEMBER:Garry Fitzgerald SC
DATE:16 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 July 2024 at 4:50pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – SODELPA youth wing member – opposition to the previous government – indigenous rights – detention – change of government – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2; r 2.08
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Fiji. He applied for the visa on 6 October 2020. The delegate refused to grant the visa on 6 April 2023.
The applicant appeared before the Tribunal on 21 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant appeared at the hearing without his representative on the record. He had informed the Tribunal the day before, on 20 June 2024, that his representative would not be participating in the hearing.
PROCEDURAL MATTERS
Some of the earlier history of this matter should be noted.
On 15 December 2023, the Tribunal first invited the applicant to a hearing, then scheduled for 23 January 2024. On 19 December 2023 the applicant’s then representative requested that one of the applicant’s sons be added to the review, enclosing his birth certificate. [1] The Tribunal postponed the January hearing, to enable the applicant and his representative to make an application to the Department to have the son’s application dealt with, so that he could then be included in this review. The reason for this was that the son would be a deemed applicant, because he was born after the protection application was made but before the Departmental decision was made. [2] If the application concerning that son were made to the Department and dealt with expeditiously, he could then be included in this review.
[1]This son was [name], born on [date]. The applicant also provided a copy of the birth certificate for his second son, [name], born on [date]. Both birth certificates name [name] as the mother. She is his de facto partner. She had a separate application to the Tribunal for review of her protection visa refusal in case number 2011210. The Tribunal affirmed that refusal in its decision on 30 January 2024.
[2]Pursuant to reg 2.08 of the Migration Regulations, as the son was born on [date], before the delegate made his decision on 6 April 2023.
Since that had not occurred by 19 April 2024, the Tribunal invited the applicant to a hearing on 4 June 2024. The applicant did not attend that hearing. When contacted by telephone by the Tribunal after the commencement time for that hearing, the applicant said that he was unaware of the hearing and that his representative had not informed him about it. The Tribunal therefore rescheduled the hearing to 21 June 2024, as set out above.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether:
a.there is a real chance that, if the applicant returns to Fiji, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Fiji, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality, country of reference and receiving country
The applicant’s nationality is not in issue. The Department conducted identity checks on the applicant and was satisfied as to the passport which he produced. The Tribunal accepts that the applicant is a Fijian citizen. Accordingly, Fiji is the country of reference and receiving country for his application for a protection visa.
The applicant’s travel and migration history
According to the applicant’s oral evidence at the hearing, his Departmental application for a protection visa lodged on 6 October 2020 (the Departmental application) and Departmental records, he arrived in Australia [in] October 2008 on a [tourist visa].
He applied for a protection visa on 6 October 2020, almost 12 years after first arriving in Australia.
He has not travelled to any other countries.
The applicant’s personal background
According to his evidence at the hearing and the information contained in his Departmental application, the applicant’s background is set out below.
The Tribunal is prepared to accept these statements as to his personal background as true, as it has no reason to doubt them.
The applicant is in his [age range].
In Fiji
He was born and grew up in Suva, the capital of Fiji. His mother, [and specified family members] still live in Fiji. His mother and [a sibling] live in the family home in Suva, where he grew up. [Another sibling] lives in a different suburb of Suva with [the spouse]. He also has another [another sibling] who lives in Australia.
He attended high school in Fiji until [grade] in [year], when he was about [age range] years old. He also attended a [college] after he left school to do [a qualification] for about four months but did not complete this course.
He then worked as [an occupation] in Fiji for about a year, finishing in late 2008, [doing specified work] for a [company].
His ethnicity is Fijian (also referred to as iTaukei).
His religion is Christian, more particularly Methodist. While in Fiji, he and his family were very religious. He attended church every week and the Bible readings at home daily.
His Fijian passport expired in [2018], but he has not renewed it.
In Australia
Since arriving in Australia in October 2008, he has lived and worked most of the time in Victoria, where he has spent about 15 years since arriving. He has lived in Melbourne in different suburbs during that time. He also lived and worked for about a year in Queensland.
From arriving in 2008 until about 2020, he worked as [an occupation 1] in the [specified] industry with a friend. He learnt this trade on the job. He did this work for about 12 years.
Since then, for the last four years, he has worked in [various businesses]. His latest job is as [an occupation 2] for a [company] in [Town 1] where he has been working about a year. He has worked continually since arriving in Australia.
He is still religious in Australia but not quite as much is when he was in Fiji. He goes to church on average about every two weeks but he no longer spends much time reading the Bible.
The applicant’s claims for protection
The applicant’s claims
Background to the claims
In his Departmental application, the applicant made claims for protection in Australia based on his claimed membership of a Fijian political party called SDL (Soqosoqo Duavata ni Lewenivanua, the Social Democratic Liberal Party or SODELPA). When the applicant first made these claims in October 2020, SDL or SODELPA was in opposition and the Fiji First party led by Prime Minister Voreqe (Frank) Bainimarama was in power in Fiji.
However, in the December 2022 elections in Fiji, Fiji First failed to win a majority, ending its 16 years in power. [3] The new prime minister, Sitiveni Rabuka of the People’s Alliance party, leads a three-party governing coalition which includes SODELPA and the National Federation party. [4] International observers assessed the electoral process as being free and fair overall. [5] The transition of power has been peaceful. [6] There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. [7]
[3]‘Fiji’s new politics', Interpreter, The Lowy Institute for International Policy), 17 January 2023,; 'Fiji: A chance to stop political history repeating', Interpreter, The Lowy Institute for International Policy), 14 February 2023.
[4]'Fiji - In brief', Economist Intelligence Unit, accessed on 19 June 2023.
[5]'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11.
[6]‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023.
[7]‘Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023.
In other words, the political landscape has inverted: SODELPA has been in power and in the government since December 2022. The applicant based his protection claims in 2020 on persecution by the opposing governing party (Fiji First) but it is now out of power and outside the government. The applicant’s party (SODELPA) is in power as part of a three-party coalition.
The claims in the Departmental application and at the hearing
In the Departmental application, the applicant stated he had left Fiji because:
I was a member of the youth wing of the SDL party called SOQOSOQO. The party was advocating for Indigenous land righst. The military government that staged the coup was persecuting the youth. I was one of the targets. The military government was throwing people into barracks prisons and torture them. I was arrested and tortured. Afterwards they let me go. [8]
[8]Departmental application, at page 17. Reproduced as written, but not in capitals.
At the hearing, the applicant was asked about his statements in the Departmental application. He said a few times that, with the change of government, ‘to be honest, Fiji is not a threat now’. He also acknowledged that he had not been tortured. He explained this falsehood as being advised by his then representative.
He explained at the hearing that what had in fact happened to him in Fiji was this. In late 2007, he joined the youth wing of SODELPA while he was at school. He was involved in some campaigning by the youth group for that party in and around Suva. This involvement consisted in trying to attract support and votes for the party and its policies. He was low-level political campaigner.
He was only personally involved in two incidents in Fiji where he alleged that he had suffered any harm as a result of his political activity.
The first incident he described was in about April 2008. He was with a friend and they attended a school in Suva to campaign. When leaving the school, with his friend driving the car, their car was stoned. He said this was done by political opponents yelling, ‘Keep it to yourself’. He said he was scared. He suffered a minor cut near his eye, which occurred when shattered glass from a stone hitting the car cut his face. He did not obtain any medical treatment. The applicant said as a result of this incident, in June 2008 he stopped being involved in any campaigning or political activity.
The second incident occurred earlier, in about April 2007. He claimed he was detained one night by the police with other youths. They were released in the morning. They were not charged with any offences. He claimed they were detained because they were identifiable as members of the youth group. The applicant did not recollect this second incident until he was questioned about the statement in the Departmental application that he was ‘arrested’. At first, he said, it was not true that he had been arrested. Then he changed that evidence and spoke about this detention.
The applicant was asked if he had any comment on the relevant country information for Fiji. [9] He did not.
[9]Namely, the information set out above in paragraph 33 of this decision, as well as DFAT Country Information Report Fiji dated 20 May 2022, at [2.34] (‘Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence’), [3.32] (‘Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’).
He was asked if he thought he would be harmed or mistreated if he now return to Fiji. He said that although there had been a change of government, he was not comfortable - not 100% - that he would be safe in Fiji. He was asked to explain this. He said that he feared for his life. He feared getting harmed and that there was no guarantee he would be safe from harm if he returned to Fiji. He thought that there would be people still in Fiji who if he returned would find and harm him, even though there had been a change of government.
The Tribunal noted that he had only suffered minor harm while he was in Fiji in 2007 and 2008. It also noted that his involvement in political activity was at a low level and had only lasted for about a year at the most. The Tribunal asked why anyone would want to harm him if he returned now, 16 years after those events. He said that despite the change of government and even though he had been away for a while, he feared his return would trigger perpetrators to attack or harm him. The Tribunal queried whether this was plausible. He said in substance that he was still worried.
The Tribunal also asked him to explain the apparent contradiction between his repeated acknowledgement that there was no threat if he returned to Fiji but that nevertheless he would be harmed. He said in substance that he was still scared he might be harmed because, he said, political rivalries were still raw and there might be animosity towards him.
Towards the end of the hearing he did acknowledge that he was not genuinely scared for his life, but rather just scared he or his family would be harmed if he returned.
The applicant was also asked why he had not applied for a protection visa until about 12 years after he arrived in Australia. It was put that this might suggest that his application was not based on a genuine fear of persecution, given the very long interval between arriving in Australia in 2008 and applying for protection in 2020. In substance he said that he had not made the application earlier, because he did not think it would be approved, since he did not have proper proof of his claims. The Tribunal asked why he did not earlier try to obtain such proof and then make the application. He said that he had recently tried to obtain such proof from his political friends in Fiji, but they had told him that there was no threat to him now in Fiji.
The Tribunal was left the distinct impression that the applicant did not have a genuine fear of persecution if he returned to Fiji, but that he was exaggerating and embellishing the risks if he returned to support his application.
At the end of the hearing, he was asked if there anything else relevant to his application which he wished to say. He said that he was concerned about his family if he returned to Fiji. He just wanted his family to live here and have a good life and future.
Other claims
The applicant confirmed that he did not have any other protection claims.
The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicant which clearly emerges from or on the material before it.
The applicant’s claims - credibility
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. 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. [10] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. [11]
[10]Section 5AAA of the Act.
[11]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

The Tribunal found the applicant to be generally credible and candid; but had reservations, as foreshadowed above, about the applicant exaggerating and embellishing some evidence, particularly as to the risks of harm if he returns to Fiji and his evidence about the second incident, in order to strengthen his application.
As the applicant and his political friends in Fiji had noted and consistent with the country information, as set out above, there is no real threat or risk of harm in the foreseeable future to the applicant (or his family) if he returns, arising from his limited and long-past political activity in Fiji. Moreover, the 12-year delay in bringing the application also counts against the genuineness of any fear of returning (and the sincerity of fleeing Fiji to escape the alleged persecution in the first place). This delay occurred he said because he did not have proof. But he did not seek any proof until recently.
Finally, given the applicant’s equivocation and the fact that it was only adduced when prompted after an initial denial, the Tribunal was not persuaded that the second incident of the overnight police detention had occurred; or that if it did, it happened because of his political activity or associations.
The applicant’s claims - findings
Accordingly, the Tribunal accepts and finds that:
a.the applicant was a member of the youth group of SODELPA in 2007-2008
b.the applicant was a low-level political campaigner for that party in and around Suva during that time;
c.the first stoning incident in 2008 took place as described;
d.as a result of that incident, the applicant ceased being involved in any political activity in June 2008; and
e.in the December 2022 elections, SODELPA took power as part of a three-party coalition government.
The Tribunal does not accept that:
a.the second incident of the overnight police detention in 2007 occurred; or that if it did, it happened because of the applicant’s political activity or associations; and
b.the applicant genuinely fears returning to Fiji for the reasons he put forward at the hearing.
REASONS FOR THE TRIBUNAL’S DECISION
Assessment of refugee criterion
The Tribunal has to applying these findings to the relevant refugee criterion: namely, that the applicant will be a refugee and have a well-founded fear of persecution under s 5J(1) if the Tribunal is satisfied, among other things, that:
a.he fears being persecuted for at least one of the reasons set out in s 5J(1)(a) (the refugee nexus); and
b.there is a real chance he would be persecuted for that reason: s 5J(1)(b).
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 persecution must involve ‘serious harm’ to the person: s 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
As set out above, the Tribunal does not accept that the applicant holds the necessary subjective fear of persecution for these claims.
Moreover, the Tribunal does not accept that that there is a real chance the applicant would be persecuted because of these claims in the foreseeable future if he returned to Fiji. Putting it simply, there has been a complete change in the political situation in Fiji. His party is now in power. The country information and his own evidence (as well as what he said his political friends told him), all point to there not being any real threat or risk of harm to him if he returns to Fiji now, due to his limited and low-level involvement in political activity there about 16 years ago on behalf of his former party (now in power).
For these reasons, based on the material before it, the Tribunal does not accept that there is a real chance the applicant will suffer serious harm, based on these claims, in the foreseeable future if he returns to Fiji. The prospects of this are remote.
The Tribunal is therefore not satisfied that Australia has protection obligations in respect of the applicant as a refugee pursuant to s 36(2)(a) of the Act.
Assessment of complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa) for complementary protection. This complementary protection criterion is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk he would suffer significant harm, based on these claims.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[12] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).
[12]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
By similar reasoning as set out above, the Tribunal does not accept that that there is a real chance the applicant would suffer significant harm because of these claims in the foreseeable future if he returned to Fiji. There has been a complete change in the political situation in Fiji. The country information and his own evidence (as well as what he said his political friends told him), all point to there not being any real threat or risk of harm to him if he returns to Fiji now, due to his limited and long-past political activity in Fiji on behalf of a party now in power.
For these reasons, the Tribunal does not accept that there is a real chance the applicant will suffer significant harm, based on these claims, in the foreseeable future if he returns to Fiji. The prospects of this are remote.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk that the applicant will suffer significant harm because of these claims.
The Tribunal is therefore not satisfied that that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Assessment of family member
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. [13] Accordingly, the applicant does not satisfy the criterion in s 36(2).
[13]His partner’s protection application refusal was affirmed by the Tribunal in its review decision made on 30 January 2024 (Tribunal case number 2011210), as noted previously.
Conclusion
For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicant pursuant to s 36(2) of the Act.
Accordingly, the Tribunal has concluded that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Garry Fitzgerald SC
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 3519

16 July 2024

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