2309225 (Refugee)

2309225 (Refugee) [2024] AATA 3255 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2309225

COUNTRY OF REFERENCE: Fiji
MEMBER:Gary Ledson
DATE:1 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 May 2024 at 10:44am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – support for indigenous rights – race – indigenous Fijian – employment – mental health issues – fear of physical assault – targeting by labour hire companies – change of government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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 on 20 June 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 4 February 2021. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments.
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.
Refugee criterion
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.
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.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)). 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.
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, 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: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]
[1] (1999) 197 CLR 510.
Complementary protection criterion
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) (and extracted in the attachment to this decision). ‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection under either the refugee criterion in s 36(2)(a), or under the ‘complementary protection criterion’ in s 36(2)(aa) of the Act.
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.
The current DFAT report is the DFAT Country Information Report Fiji dated 20 May 2022 (DFAT Report).
Protection visa application
The applicant is [an age] year-old male citizen of Fiji, born on [date]. He declared that he has never married and provides the detail of [number] children born in [specified years]. The applicant’s parents are Fijian and he has [number] siblings. The applicant declares that his ethnicity is Pacific Islander and he is Christian.
The applicant has completed primary and secondary school and in 2014 he commenced a [Qualification 1] at [a named university] but withdrew shortly after. Since that time the applicant has held a number of jobs with brief periods of unemployment. Prior to leaving Fiji the applicant worked as [an occupation 1] in a [business]. Since arriving in Australia the applicant worked as [an occupation 1] in a [business] in [Town 1], Queensland.
The applicant travelled to Australia [in] January 2020 on a valid Fijian passport issued [in] 2019 entering Australia on a Temporary Work (Subclass 403) visa, valid to [2023].
On 4 February 2021, the applicant lodged an application for a Protection visa.
In his protection visa application, the applicant’s claims are as follows:
Why did you leave that country(s)?
I came to Australia on the 403 visa, that is the Temporary Worker (International Relations) Visa. I find myself lucky to have been part of the selected few to come and work in Australia and was given a three year multiple travel visa. This has been a golden opportunity for me because I would not bar able to come on my own because I do not have the financial capacity to travel overseas. It was a dream that I knew I would not be able to fulfil as I have a young family and my family cannot afford it. Coming to Australia has been an eye opener for me. I have learnt a lot form my one year experience here and my life and my health has changed a lot since coming to Australia.
Did you experience harm in that country(s)?
I experienced harm in Fiji. I have experience a lot of psychological and mental depression in Fiji. This was because of the different government policies that have been put in place by the current government and have caused of my depression as I do not have a voice in the country. It is very dressing to have learnt about democracy in school and not to be able to practice it because the government of the day is a dictatorial government and does not believe in democracy.
The Fiji Government is responsible for the psychological harm. And this is so because they do not want the indigenous Fijian to be recognised as the first of people of Fiji and our cultural and traditional values are not respected by the current Fiji Government. Indigenous rights are not recognised in Fiji. There is not Freedom of expression and the Media is controlled by the government. The country is not a democratic country and youths have no voice. All these limitations and restrictions have resulted in my negative attitude towards life and hence the psychological depression.
Did you seek help within the country or those countries after the harm?
I seeked help with my friends and my family, they councilled me and provided positive support to me. That enabled me to live and strive forward and try to look after my long family in Fiji. Otherwise we would joke able what was happening to us just to make sure that the suffering we had was eased.
The is no Non Government Organisation in Fiji that has been set up to assist the people and especially the young men and women in society who are psychologically stressed out. It is only my family and friends that I turn to.
Did you move, or try to move, to another part of that country/those countries to seek safety?
My moving around from [Town 2] to Suva was because I had to attend a different school to try and finish schooling. I dropped out of school in [specified year] and went back to school in 2011. I continued High school and at the same time lived in Suva. I experienced that their is no difference between living in the major city and life in rural and island communities. I was brought up in [Town 2] but left the [Town 2] for further studies.
Interestingly enough the discrimination both racial and religious that existed in [Town 2] was very much alive in the major city, so no need to move and find refuge else where.
What do you think will happen to you if you return to that country or those countries?
Coming to Australia has greatly improved my health condition. Meeting new people who I have come to treasure and getting great counselling has greatly assisted me reducing the psychological stress. My Rights as a person is exercised and I now have a sense of Freedom that I never experienced in Fiji.
If I go back to Fiji I will continue to suffer psychological and mental stress and depression and my family will continue to suffer because they are the ones who take the brunt of my depression and stress. I blame it on them and my aggressive temper that had developed over the years had reached a critical stage because I started physically and verbally abusing my family. I do not want that to happened because my family will suffer if I bottle up things when situations get worse
Do you think you will be harmed or mistreated if you return to that country(s)?
The psychological harm and depressed life that I went through will be worsened. I now experienced freedom and it is quick healing and a great medicine to me as mental depression that I had continuously experienced in Fiji is slowly disappearing. The government has not changed its stand and has continued to deprive people. We hear and see this in the news and on Social media every day. I know that the thought committing suicide will continue. This psychological depression will continue to harm me.
My young family was the only thing that kept me going. Opportunites in Fiji was limited and the rich continue to get richer while we the less fortunate continue to be deprived of opportunities.
Do you think the authorities of that country(s) can and will protect you if you go back?
Those in authority in the country cannot help me. This is because it is the very group that is causing this problem and that I am trying to move away from. It is the very government that I am trying to avoid and that is the cause of the harm that I go through every day when I was in Fiji.
I really feel for my family after experiencing the difference that I now experience in Australia. In Fiji I am always afraid and I made sure I am not against the government, the police or the military at any time because once these two groups take you to task you can be beaten up and for the unlike few they have ended up dying in the hands of those in authority.
Do you think you will be able to relocate within that country/those countries to an area where you would not be harmed?
Relocating within Fiji is not an option for me. This is because the problem that I faced in Fiji is an clover the country and it does not matter where I go I will always be faced with the same problem. If there was an option in Fiji it is that for a person to be saved, the only option is to relocate overseas. coming to Australia have been a great help to me. It opened my eyes and educated me a lot. I am so luck to come to a country where my depression an psychological stress could be cured and my problems addressed.
The applicant was not invited to attend an interview with a delegate and, whilst invited to do so, the applicant did not provide any additional information or evidence about his claims prior to the primary decision being made.
When considering the applicant’s claims, the delegate found that the applicant’s fear of persecution for the Convention reasons of:
- His race as an indigenous Fijian because his rights as an indigenous Fijian are not recognised by the Fijian government, and
- His political opinion because he claims there is no freedom of expression in Fiji and he disagrees with Fijian government policies.
The applicant’s claims in relation to his mental health and suicidal thoughts were assessed under the Complementary protection criterion.
The delegate refused the application on 20 June 2023, finding that the applicant is not a person in respect of whom Australia has protection obligations as set out in s.36(2)(a) or s.36(2)(aa).
Review application
On 6 February 2024, the Tribunal sent email correspondence to the applicant inviting him to complete a ‘Pre-hearing information form’ seeking additional information about his claims for protection, or other reasons why he is afraid to return to his home country, Fiji. In response, on 8 February 2024, the applicant lodged an online form detailing his availability and arrangements for a hearing. No additional information was included as to his claims.
Evidence at the hearing
The applicant applied for a passport so that he could be granted a Temporary Work (Subclass 403) visa that was valid for three years. He initially landed in Brisbane and commenced work as [an occupation 1] for [Employer 1] in [Town 3]. He remained in [Town 3] for about a year and moved to [Town 4] to undertake a similar role as [an occupation 1]. He quit that job and is currently working as [an occupation 2].
The applicant’s parents are both deceased and he has [number] siblings. He is in a de facto relationship and has [number] children from that relationship. Before leaving Fiji he lived with his partner and their [children] in his partner’s family home in [Village 1], Fiji. He had lived there since 2014.
The applicant explained that he completed primary school and he commenced secondary school but withdrew for a period when his father had died so he went back to his village to help support his mother and sister. During this time he worked on the family farm. He ultimately returned to complete his secondary school. The applicant then commenced a [Qualification 1]. He withdrew from that course because his girlfriend had become pregnant and he needed to work to support her.
The applicant said that he had been employed on a reasonably regular basis. His last job in Fiji was as [an occupation 1] for [Employer 1]. The applicant moved to Victoria because he was not being paid as he had promised. He had found it difficult meeting his expenses on the low wages he was receiving, including sending money to his partner in Fiji. The applicant said that he had problems with his contractor and ultimately resigned. At the time of the hearing the applicant was working as [an occupation 2].
In response to his claims for protection the applicant said that he has suffered psychological and emotional harm because of government policies. He said that the government don’t care about the people and he doesn’t agree with its policies. He described an incident in 2010 where he witnessed people being beaten and he was worried that this would happen again.
The applicant said that his concerns in his visa application were about the treatment of people under the Bainimarama government. The applicant said that since the change of government he believed things have been better. But whilst the leadership had changed circumstances for the people had not changed. Violence and racism are increasing and prices are always going up. The applicant also expressed a fear that Bainimarama will be freed and something else will happen.
The Tribunal asked the applicant how government policies had affected him personally. He said it was about freedom of speech. Her referred to the ‘Malani case’ which was all over Facebook which had been cut off by the government. The applicant referred to bombings that had occurred in the past in which one Malani had died.
The applicant said that he is afraid to speak up and once you speak up you could be targeted. He personally had not spoken up in the past because he fears he will be targeted.
He said that indigenous Fijian are i-Taukei and he believed that they are being pushed away, particularly under Bainimarama and he is afraid of being referred to as i-Taukei. The applicant said that the Bainimarama removed the Council of Chiefs. The applicant acknowledged that the Council of Chiefs had now been reinstated. The Tribunal indicated that indigenous Fijians are the majority and hold about 90 per cent. His family land had not been affected. He said that he thought some Asians were going to take some of their land but nothing had come of that.

The applicant said that things have improved. The Tribunal asked whether he had been discriminated against for being indigenous Fijian. He said that it was all over Facebook but could not give any specifics. The Tribunal asked the applicant how his freedom of speech had been affected. He said that you can’t talk about the government and he keeps things to himself. The Tribunal asked the applicant if there had been any times when he spoken out against the government and suffered harm because of this, the applicant said he had not spoken out.
The Tribunal asked the applicant what support his family and friends had provided him. He said that he had always been encouraged to go with the flow and move on. He said that this was hard and again referred to the Malani case. He thought it was about a bombing that took place and one of the Malani had died. The applicant said this was all on Facebook, he thought it occurred in 2019.
The applicant said that he had not sought any help for his psychological stress because he did not believe there were any resources.
The applicant said that he moved from [Town 2] to Suva after his father had died wanting to completing his secondary education. He did experience discrimination after school from Indo Fijians. He said that he was not prevented from doing anything as an indigenous Fijian while he completed his education. The Tribunal wondered whether his experience was more like ‘school chatter’. He said these things happened after school and not during school.
The applicant said that he had never been diagnosed with depression. The Tribunal asked why he believed he suffered depression. He responded that when some people talk about others in a bad way it affected him because they didn’t know what people were going through. He said that he felt that he was not really stressed or depressed before he came to Australia. Sometimes the Indo Fijians were getting robbed on the streets. He said he almost got robbed on his way home and he was approached by a group but they recognised him as a Fijian.
The applicant outlined his experience working with labour hire companies in Australia. He said that he and other Fijians were exploited, working long hours at $19 an hour. After complaints they left and joined new labour hire company that sent him to [Town 4]. He said that he had seen reports on Facebook about the labour hire companies based in Fiji who might target him on return for quitting his jobs in Australia, but he wasn’t sure that this was serious.
The Tribunal asked the applicant about his behaviour before he left Fiji. He said that he didn’t like the way family and friends treated others but he has never been abusive to his partner or children and he had never been abusive toward his family and friends.
The applicant has never approached the authorities for any reason because the believes the military and police are controlled by government. The applicant had never any need to be involved with the police at any time.
The Tribunal asked the applicant whether he had suicidal thoughts. He said that the government did not listen or care for people and this may lead him to commit suicide. He was not aware of anyone having committed suicide. It was just the way he feels at times.
The applicant said that he couldn’t move to another part of Fiji to avoid the harm because the circumstances would be the same.
The applicant said he feared that something might happen to him if he returned to Fiji and he wouldn’t know what he would do. People are complaining about the rise in prices in Fiji and he feared there might be another takeover. He had no idea what might happen.
The applicant said he had not experienced harm for any reason in the past and if he had been harmed he did not know if it was possible to report this to police. He said most people are doing things and people are found dead everywhere.
He said if he returned to Fiji he would not know where to start and he is the only one supporting his family. In Fiji, he could not afford to take his children to ‘Maccas’.
The applicant said he doesn’t know what the government would do. He said his partner is always telling him that prices in Fiji are very high compared to what people were earning.
The Tribunal asked the applicant would he be able to get a job as [an occupation 1] at [Employer 1]. He said that he would get a job but the pay would not be sufficient to meet the high prices.
The applicant said that he may suffer harm because he had worked overseas and he had left his jobs in Australia. He thought that the labour hire company would harm him because he had left the jobs that they had organised for him in Australia. He had not experienced harm in Fiji before he arrived in Australia.
The applicant said that his family would suffer if he had to return to Fiji, because he is the only one providing support for his family.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Is the applicant a refugee?
At the hearing the Tribunal found the applicant largely repeated claims made in his Protection visa application. At times he appeared to struggle when asked to provide more detail or further explanation of his claims, responding at times with information he had obtained on Facebook, often making sweeping, general and unconnected statements about events in Fiji not relevant to his claims.
The Tribunal has considered the applicant’s claims and accepts the applicant has a subjective fear of serious harm, if he were to return to Fiji, for reason of:
- His fear of speaking out against the government
- He has faced psychological harm and depression because of government policies
- The government does not recognise indigenous Fijian rights
- Being targeted by labour hire companies on his return to Fiji because he quit his jobs in Australia
- His fear of economic harm
On his evidence the applicant said that he had not suffered any harm from the government either directly, or as consequence, of any government policies. He could not identify any specific government policy that had had a direct impact on him. Whilst he claimed to have had his freedom of speech curtailed, the applicant told the Tribunal he had never spoken out against the government.
The applicant told the Tribunal the claims in his visa application related to the previous government led by Josaia Voreqe (Frank) Bainimarama and whilst there was a new government, the circumstances for the people would not be changed. The applicant claims the government does not respect indigenous Fijian rights. However he was unable to provide any detail or give examples of how his rights, as an indigenous Fijian, have been limited or denied by the Fijian government.
The applicant claims that he has suffered psychological and emotional stress by government policies, was depressed and started to be physically and verbally abusive to family and friends. However, at the hearing he said that before coming to Australia he was not really stressed or depressed. He had never been diagnosed with depression nor sought help for his mental health in Fiji or Australia. He said he was never physically and verbally abusive to his family and friends as claimed.
The applicant has speculated that because he had left his jobs in Australia, he would be targeted by the firms that hired him. The Tribunal notes this claim was not made to the primary decision maker at the time of application. Again, the applicant’s source of evidence was social media, in particular Facebook, however he was not sure this information was true or was just gossip in social media.
The applicant told the Tribunal he would find it difficult to find a job and provide support for his partner and [children] referencing rising prices in Fiji. However, the applicant has demonstrated that he is resourceful, having ongoing work in Fiji prior to coming to Australia and has gained further work experience whilst in Australia.
However, the Tribunal is not satisfied there is an objective, real chance the applicant would be persecuted, if he is returned to Fiji, in the reasonably foreseeable future because the Tribunal finds as follows:
- Whilst the applicant disagrees with Fijian government policy which potentially limits his rights and affects him psychologically, he was not able to identify how his rights as an indigenous Fijian had been affected by, or how any, government policies had impacted on him personally
- The applicant has not spoken out about the government in the past and on his evidence will not do so in the future
- Whilst the applicant expressed concern about the impact of government policies on his mental health, he was unable to give detail or examples of how government policies had affected his mental health and gave evidence he did not have mental health issues before he departed Fiji
- The applicant’s concern that he would be targeted by labour hire companies, on his return to Fiji, for quitting his jobs in Australia is speculative and based on unverifiable information on social media
·Notwithstanding the applicant’s concerns expressed at the hearing, he has good prospects of finding a job in Fiji, if he is returned there, on the basis that he had been regularly employed in Fiji before he left in 2020 and has gained further work experience in Australia as [an occupation 1] and [occupation 2]. Additionally, the applicant would be living with his partner and their children, in the partner’s family home and has previously worked on his family’s land holding which is currently farmed by his brother.
In conclusion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution under s 5J of the Act. As such, the applicant is not a refugee and not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Is the applicant owed complementary protection?
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
Significant harm is defined in s 36(2A). The applicant does not suggest that any harm he may suffer in Fiji would constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant does not claim the death penalty would be carried out on him.
In MIAC v SZQRB, the Full Federal Court held that 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.[2] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. Having found the applicant does not have a well-founded fear of persecution if he returned to Fiji, it follows the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm in any of these ways.
[2] [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Gary Ledson
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 3255

1 May 2024

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