2316069 (Refugee)

2316069 (Refugee) [2023] AATA 4746 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry
CASE NUMBER:  2316069
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rodger Shanahan
DATE:12 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2023 at 2:37pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political participation – candidate for Freedom Alliance Party – volunteer for People's Alliance Party – fear of physical harm by political opponents from the Fiji First party – credibility concerns – knowingly provided bogus document in previous visa application – inconsistent evidence – request for additional time denied – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1978 (Cth), s 2A
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
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 25 September 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 10 August 2023.
The applicant appeared before the Tribunal on 22 November 2023 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.
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 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following responses to questions in his protection visa application:
a.Why did you leave Fiji: I do not wish to return to my home country for fear of my life due to constant threats and intimidation by a group of individuals;
b.Details of harm: I was physically harmed returning home one night after volunteering for the current Fiji governments political party during their election campaign in 2022. I was approached by two individuals who were officials for former PM Frank Bainimarama’s political party and was questioned on my involvement with the opposition party. After stating my involvement and views on the previous governments way of governance, it did not sit well with the two individual resulting in them attacking me and physically harming me. I was able to escape their clutches but was physically hurt and injured from their attack;
c.What organisations did you ask for help and what did they do: I had filed numerous complaints with the relevant authority the Fiji Police Force but no action or preventatives were undertaken. I was only advised that investigation is still continuing and no suspects identified;
d.Did you try to relocate to seek safety: No, I live in my owned home and with my immediate family and with current upsurge in VAT of all basic necessities and economic hardship in Fiji, relocating or moving to another part of the country is a financial burden; and
e.What will happen to you if you return to Fiji: I will still face the same harm and mistreatment from this group of individuals because of my political view of the former governments ministers and officials they support. I and many others that had supported the current governments during their election rally and campaign till their win in last years election are advocating for the imprisonment of the former PM and some of the former cabinet ministers and officials for their involvement in corruption dealings and deaths of citizens during their 16 years of governing Fiji. For these I am being targeted, threatened, harmed and mistreated by this groups of individuals.
The applicant also provided this letter in support of his claim:
I convey in writing my humble plea in seeking protection in Australia under the Protection Visa (Subclass 866) as I do not wish to return back to my home country for fear of intimidation, threats, and harm upon my life.
This letter serves to state my reasons for seeking protection as mentioned on my online application through lmmiaccount together with circumstances I encountered while working under the Pacific Australia Labour Mobility Scheme (PALMS) as a Poultry Farm Hand in [Town 1], QLD.
I do not wish to return back to my home country due to constant threats and intimidation by a group of individuals who are supporters of the previous government that had been governing Fiji for the past 16 years. A government that subjected its own citizens to intimidation and threats, restricting media freedom to their own contentment, flight restrictions on individuals and groups that support the opposition (current government), creating laws and legislations to suit their own desires, and accruing the country's debt to the billions of dollars causing the current government to upsurge the VAT on basic necessities in order to avoid a recession.
I was involved in Fiji's past election in 2018 when I contested the election under the Freedom Alliance Party banner as a youth candidate on the primefocus of assisting the youths of Fiji and bringing about new changes in government. My unsuccessful endeavour though during that year's election did not deter my vision and effort in bringing a new change when fast forwarded four (4) years later to the recent election in 2022 when I volunteered for the People's Alliance Party election campaigning team. I was involved in the current Fiji Prime Minister's party election campaign which involved attaining signatures from the general public in order for the party to contest the 2022 Fiji Election, to assisting fellow volunteers during campaigning and assisting in verifying vote counts for the alliance party at various polling stations around the country during the election period.
During this occurrence I with fellow party volunteers would encounter threats and intimidation from the previous governments party officials and volunteers. We would often be subjected to verbal abuse and at during one point were verbally threatened and verbally abused by the former PM's brother in-law Francis Kean, who was at that time the Commissioner for Prison. With the alliance party winning the election and forming a coalition government, it spelt a huge change in the governance of the country with many predicting the end of Frank Bainimarama's political dominance, but it did not deter their party supporters from committing insubordination towards myself and fellow volunteers. This act of insubordination relates to their grievance of their party's loss in the recent election where this group of individuals began focusing on inciting scare tactics and
fearmongering for the purpose of creating instability within urban centres and communities. I would constantly be subjected to verbal abuse and intimidation in urban towns and centres when I'm about on my own or with my family. I had filed numerous complaints with the relevant authority and political party that I had volunteered for, but no action or preventatives were undertaken. The constant threats would come by way of phone calls or conveyed to friends or relatives and relayed to me, and with the unrelenting conduct and behaviour becoming a daily episode, my decision to try and leave Fiji for fear of my life was premeditated.
I came over to Australia to work under the Pacific Australia Labour Mobility Scheme (PALMS) which had become my only alternative of leaving Fiji for the sake of my life. And with this opportunity providing a pathway for a new beginning, I was determined to work hard and support my family back home in hope of securing a good future for them as well. But during the first month of working as a poultry farm hand for my employer, I became very sick together with other fellow workers due to chemical exposure and hazardous working condition without proper safety kits and PPE. I was exposed to carbon monoxide while cleaning the chicken enclosures due to lack of proper ventilation and proper PPE while using the petrol operated blower and pressure washer. During the exposure I became dizzy and began vomiting severely and having flu like symptoms. I was taken to hospital with fellow workers where I was treated for chemical poisoning with flu-like symptoms and advised to rest till illness subside. But after spending more than a couple of days resting, I returned to the hospital as I remained unwell and was treated for flu-like symptoms diagnosed as COVID-19.
I returned home to rest for over a week until I was advised by my employer to return back to work. The health and safety officer of the agency that I work for found my employer to lack proper PPE and proper ventilation inside their chicken enclosures. But without proper consultation and advise from the agency I was told to returned back to work by my employer and encountered the same dilemma of exposure in the hazardous environment without sufficient PPE to protect me. I now no longer work for my employer as I did not agree to the predicament of working in a harsh environment with exposure to chemicals without proper PPE. I cannot change employer under my current visa and to do so I will have to return back to Fiji to be able to do that, but as I've already mentioned above that I do not wish to return back to my own country for fear of harm upon my life.
I humbly seek your approbation for the grant of a protection visa as I do not wish to return back to Fiji and face the constant reality of intimidation and threats on my life. I seek to begin a life and earn the right to live without fear of intimidation and threats, and I humbly plead your assurance and approval of a visa grant with a favourable decision in order to gain proper employment and a better opportunity in life.
AAT Hearing
The applicant said that if he returned to Fiji he would be physically harmed (punched and attacked) by a group of political opponents. Asked to be more specific, he said it was a political youth group (Fiji First Group). He was a candidate in the 2018 election for the Freedom Alliance Party in the national elections and had been punched and attacked then. In 2022 the party he was involved with won and he was simply a volunteer and would be targeted because of this. He had no other claims and had this fear from September 2018.
He had previously sent some evidence and the Tribunal said it had received this information. In September 2018 he was campaigning with the youth and handing out t-shirts and spoke a lot in the media. Asked if he had evidence he said it was on his phone. He was told the Tribunal needed this evidence before the hearing began. He also promoted the campaign through songs.
He provided a screen shot of the election outcome in which he was a candidate. He was asked what website it came from and he said it was the election outcome website. He also confirmed that it was not a youth election but the general election. He agreed that the evidence said that he received [number] votes. He was asked why he would be targeted given he only received such a small number of votes and he claimed that the previous government had been in power for 16 years and anyone running against them would be targeted.
Asked if anything actually happened to him, he said he was in [Venue 1] and there were some of the government supporters there and they had a clash and he was punched. He did not report this to the police – he had no evidence of the incident. He was also chased out of his village when he campaigned there as they thought being anti-government was bad for the village. He was also told by the village chief that if he ran again in the elections he would be banned from the village.
After the election he was intimidated. Asked what he meant, he said that people commented about his low number of votes. It was put to him that he got a very low number of votes and therefore he wasn’t a threat to them and was asked why he would be of interest to them. He said that in Fiji the culture was that you shouldn’t run against the government.
He said that he knew people were talking adversely about him when he went to places. Asked to be specific, he said that if he had to apply for rations from the government they would not give them to him. Asked if he ever mentioned this before he said that he didn’t. A Chinese mobile company gave them rations instead. Asked why he never mentioned this previously, given he had provided two written statements with no mention of this.
He said that he volunteered for the government that got elected at the last election. Asked if he had any evidence that he campaigned for the party such as photos, social media or the like, he said that he had no evidence of this. he said that people who tried to be anti-government at that time were targeted. He used to put the party’s logo on his Facebook or wear their t-shirt and some people shunned him. At the last election and vote for the government in parliament, a new government was sworn. He stayed and then went home. He didn’t have photos of him there but he could provide them later and he was told that he would be given time to provide them post-hearing.
He said the Alliance won and he was still hated by people including family members, because he was sending in the voting reports. His brother and his wife hated him for this. After this he tried to stay away from them and politics. Asked why it would be a problem to return to Fiji, he said that he wanted to leave politics behind and get on with his life. It was put to him that he could just return, there was a new government and he was asked why there would be problems for him. The party he supported was in power and nothing had happened to him after 2018, and he hadn’t explained what would happen to him.
He said that the Fiji First party still hated him and it was put to him that he wasn’t a candidate since 2018. There would be another election coming up. He was asked why he couldn’t cease his political activities in Fiji. He said that he wanted to work and study in Fiji. It was put to him that he appeared to be saying he wanted to work here but not that he feared serious harm in Fiji. He was asked why he was applying for protection from the Australian government and he said it was his political issues. He was asked what political issues he was talking about, he said he would receive intimidation from his family. It was put to him that an argument over politic in the family didn’t represent serious harm.
He then mentioned there were coups in Fiji in the past and the groups worked hard to stop people like the applicant from working (in politics). It was put to him that there was no mention of an assault in [Venue 1] in 2018 and he was asked why this was the case. He failed to answer and then said it was in his letter – he was told that it was not in either his application or the letter.
It was put to him that he had said that he had been assaulted in 2022 yet at the hearing he only mentioned a 2018 attack. It was put to him that he had mentioned this several times and it was put to him that the Tribunal had doubts that he had been assaulted at all.
Asked what his job was in Fiji, he said that he was an advertiser. Asked what he meant by this, he said that he helped in the production of the newspaper. He would physically put the pages together for [a newspaper] from 2000-2003 and worked in construction from 2006-2020 and then he began doing farm work at his own house from 2011-12 and then for a [company] where he [performed specified task] from 2013-15. After that he helped to co-ordinate students at school – he was promoting [a] school from 2015-18, then came to Australia for three months to visit then ran for election and helped during it.
Asked if he had done any study, he said that he did some study after he left school, in the college. Asked if he did a course, he said he did an English course. Asked if he had been refused a visa for Australia, he said he had been refused in 2018 (it was put to him that it was 2019). He said he was also refused in 2018. Asked why he was refused, he claimed that there weren’t sufficient documents for him to come. He came this time on a government visa. He did a diploma in [Discipline 1] in Fiji in 2020/21.
Asked if he had studied [Discipline 2] he said that he had. Asked if he had worked as one he said that he did for a little bit but wasn’t very good at it. Asked if he had ever worked as the [Position 1] of a family company, he said that it didn’t work well after a while.
He was told about s 424AA and it was put to him that in his 2018 business visa application he provided a letter from a company that said he was the [Position 1] for a company yet he had not mentioned this role and he was not qualified in that role so the Tribunal was concerned that it was a fraudulent letter. He said that he was helping in the company and asked to be the [Position 1] – it was put to him that he had no qualifications and had worked in construction and on a farm so it made no sense he would be appointed to that role. He was asked again if he was the [Position 1] and he then said that he wasn’t. It was put to him that the Tribunal was concerned that he had given this false document because he had been denied a visa previously and that this would go to issues of his credibility.

He had also claimed that he was a [Occupation 1] for [Employer 1] from 2004-09 but this was different to what he told the Tribunal today. He said he did some work for them but it was in the production section – he was asked why there was a difference in what he said about his work in construction and the manufacturing job. He said that perhaps he got the dates wrong.
Asked if he had any relatives in Australia, he said he had a sister in [Town 2] and had applied for protection. They had breached their visa – they arrived in Australia in 2016 (his sister and cousin) and they worked in [Town 2] helping the school and one was working for the council. They applied for protection after their visa ran out. Asked again when they applied for protection he said it was in 2016 – they had their claim heard and he said that it had been accepted.
It was put to him that he had letters of support from [Town 2] and he was asked if they knew he was applying for a protection visa, he said they did. It was put to him that none of them acknowledged this and that they were just support letters so wouldn’t carry any weight regarding the situation in Fiji. There was mention of threats to his life in Fiji that he had not mentioned today. Asked if he had received such threats he said that he had, and this was as soon as he decided to run in the 2018 election.
He had also claimed that he was verbally abused by Francis Kean the Commissioner for Prisons and was asked when this was. He said it was 2018 before the election in which he ran, yet his written letter said that it occurred in 2022. Francis Kean was a Fijian figure who had been mentioned adversely in the media so the Tribunal was concerned that he was just using the name of a well-known individual as part of his claim and that this event had never occurred. He simply replied ‘yes sir’.
It was put to him that he had family members in Australia, had previously been refused a visa and just wanted to stay and work here and the Tribunal was concerned that he had fabricated a protection claim in order to achieve this. He had provided a fake document to come to Australia in 2019 so had shown a willingness to provide false documents to gain a migration outcome. He said that he just wished to come to Australia and work and study. He was told there were other avenues that allowed this. he was told that he would be given time to provide evidence of his participation in the 2022 election campaign – the Tribunal also asked for a link to the election site he had provided screenshots of.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant last arrived in Australia [in] June 2023 on a visa as part of the Pacific-Australia Labour Mobility Scheme and applied for protection on 10 August 2023. I have seen a copy of his passport and I am satisfied that he is a Fijian national.
The applicant is a [age] year-old male. He claimed that if he returned to Fiji he could be physically harmed by a group of political opponents from the Fiji First party.
In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.
I found the applicant’s claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.
Knowingly Providing False Document
In determining the applicant’s credibility, the Tribunal has placed significant weight on his willingness to provide a false document in support of an earlier visa application. As part of a 2018 visa application he provided a letter from [Employer 2] saying that he was a manager and [Position 1]. He initially, when asked, claimed that he did work there and asked to be [Position 1] but when it was put to him that he was unqualified for such a role and had not mentioned it as one of his employments at hearing, he agreed that the letter provided false information.
Political Participation
I am satisfied that the applicant ran as a candidate in the 2018 election, however I do not accept that applicant has ever been threatened, intimidated or otherwise harmed because of this. I do not accept that he took any part in the 2022 election. The applicant provided a screen shot that he stated showed his candidacy and result at the 2018 election. He said that he ran for the Freedom Alliance Party and was asked to provide a link to the website from which the screenshot was taken.
No link was provided to the Tribunal however the 2018 election are readily accessible. The applicant ran for [Party 1] (which was in an alliance with the Freedom Alliance Party) at the election. There were [number] candidates from [Party 1] of which the applicant placed [number] in the list with a total of [number] votes in the country.[1] The Party won no seats in the election.
[1] [Source redacted], accessed 7 December 2023.
Given this poor result, the party as a whole and the applicant in particular posed no threat to the government. The applicant claimed that he had a profile as a result of this campaign and that he spoke a lot in the media, spoke to the youth and promoted the party through songs. He was asked to provide any evidence of this and was unable to do so. Hence, while the Tribunal accepts that he ran as a candidate I do not accept that he had any profile that would have brought him to the attention of any other party’s political supporters.
I also do not accept that he campaigned on behalf of the party that won the 2022 election. He did not provide any evidence of his activities but said that he had some and could provide them. He was given time post-hearing to provide any additional evidence however he failed to do so.
I do not accept that he was punched at [Venue 1] by some government supporters or assaulted elsewhere, that he was chased out of the village when he campaigned there, that he was denied government rations, received threats from family members or any other person, or that he was verbally abused or threatened by Francis Kean. He was inconsistent in recounting events and timeframes throughout the evidence he provided. For example:
a.In his protection visa application, he claimed that during the 2022 election campaign he was physically harmed by two individuals who were officials for former PM Bainimarama’s party. He was returning home one night and was questioned by these men about his political involvement and views and on answering them, they then attacked and harmed him. No other instances of harm were noted;
b.Because of his 2022 election activity he and fellow volunteers would encounter threats and intimidation from previous government officials and at one point they were threatened and verbally abused by Francis Kean, the former PM’s brother-in-law and Commissioner for Prisons. He was constantly threatened by phone or relayed to him via friends and relatives. It became a daily occurrence; and
c.At hearing he claimed that during the 2018 election campaign he had a clash with some government supporters at [Venue 1] and was punched although he didn’t report this to the police. He also stated that the abuse he received from Francis Kean occurred in 2018.
As seen above, in one submission he claimed that he was assaulted in 2022 by former government party officials but failed to mention this elsewhere. At hearing he claimed he was punched in 2018 but this was never mentioned elsewhere, and he mentioned being verbally abused by the (high profile) Francis Keane variously in 2018 and 2022. Whilst memories are not expected to be perfect, the failure to mention assaults and to be inconsistent with dates to the extent that he has does little to engender confidence in the applicant’s truthfulness. He never mentioned being denied government rations except at hearing, even though he had two previous opportunities to do so in his written submissions.
Whilst I accept that the applicant ran in the 2018 election his profile and appeal was such that he garnered only [number] votes in total. Given this, I lacks credibility that anyone else would see him as any kind of political threat. The applicant was unable to provide any evidence that he had been active politically since the 2018 election, even though he claimed to have such evidence and was willing to provide it post-hearing.
I also do not accept that groups associated with the coups in Fiji worked hard to stop the applicant from working in politics. The last coup was in 2006 and the applicant had no part in it. He did not explain how such groups would know who he was or want to stop him from working in politics. It also doesn’t explain how he was still able to run in the 2008 election if there were groups stopping him from working in politics.
The day following the hearing the Tribunal received an email from the applicant’s agent stating that he had just been engaged by the applicant and requesting an additional ten days-two weeks to provide a post-hearing submission. That request was denied given the Tribunal had provided the applicant with sufficient notice of the hearing date and had already taken into account all the relevant facts of the case, including submissions and material provided by the applicant prior to the hearing.
The Tribunal is also cognisant of the Tribunal’s purpose in s 2A of the Administrative Appeals Tribunal Act 1978 (Cth) that requires it to be ‘fair, just, economical, informal and quick’. The request for additional time was viewed in that light and the Tribunal believes that the applicant had been given a fair opportunity to present all his evidence. Nevertheless he was advised that if additional material was received prior to the application being finalised it would be taken into consideration. No submission or additional information was provided in the three weeks between receiving the request and the finalisation of this decision – if it had been it would have been taken into account.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will face serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant was ever of interest to Fijian party political figures or was politically active after the 2018 election, that he was ever assaulted, abused, threatened or denied government rations, or stopped from working in politics by groups associated with the coups. Because of this, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
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.
…

[2023] AATA 4746

12 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction