2403986 (Refugee)

2403986 (Refugee) [2024] AATA 2430 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr MUHAMMAD IQBAL CHAUDHRY
CASE NUMBER: 2403986

COUNTRY OF REFERENCE: Fiji
MEMBER:Lilly Mojsin
DATE:28 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 May 2024 at 2:52pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the previous government – restrictions on land owners – religion – Christian – freedom of speech – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 441, 499
Migration Regulations 1994, 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 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 19 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 October 2023. The applicant claims to be a citizen of Fiji.
The applicant first arrived in Australia [in] July 2017 and departed [in] August 2017. He returned to Australia [in] September 2017. He applied for the PV on 8 October 2017.
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on his return to Fiji, within a reasonably foreseeable future.
The applicant appealed that decision to the Tribunal, attaching a copy of the Department decision to his review application.
The applicant was invited to attend a Tribunal hearing on 22 April 2024. The applicant’s representative contacted the Tribunal on 19 April 2024 and advised the Tribunal that the applicant was not medically fit and thus unable to attend the hearing because of the pain in his knees. A medical report, dated 19 April 2024 was provided to the Tribunal by [a named doctor] certifying that the applicant was suffering from chronic health problems and was unable to attend the scheduled hearing.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 May 2022 at 9.30am.
In order to assist the applicant’s medical condition the Tribunal organised that the applicant attend the hearing via Teams Video. The applicant did not attend the Tribunal hearing and no correspondence was received from the applicant’s representative or the applicant.
The Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance withs 441A(5) and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims, as outlined in his PV application, are summarised as follows:
·He has been having trouble in Fiji with the current rulers, they are oppressive. He left feeling insecure.
·Has problems in Fiji relate to his religious background, being a born Christian. He came into scrutiny by the current rulers
·threatened by the current rulers of Fiji, that if he did not work for them he will be harmed or killed.
·current rulers of Fiji do not like anyone talking against them openly
·he is denied freedom of speech
On 12 December 2023 the Department wrote to the applicant seeking further information to assess his application. The delegate requested that the applicant advise details of his claims.
In a response to the Department the applicant stated:
·   Political opposition: 2006 Coup and Military Takeover: The reference to the 2006 coup indicates a significant political event in the country's history. The coup likely resulted in the military taking control of the government, which he opposed. This suggests a violation of democratic principles and likely led to a contentious political environment
·   Land ownership issues: Decrees Impacting Landowners: The past government's implementation of decrees affecting landowners for 16 years is a substantial period. Restrictions on harvesting and selling logs from private lands may have had severe economic consequences, limiting opportunities for those dependent on the land for their livelihood
·   Religious background creating problems: Christian Persecution: The mention of born-again Christians facing challenges due to restrictions on open-air religious gatherings implies a violation of religious freedom. Government decrees limiting religious practices could lead to social tensions and discrimination against a specific religious group.
·   Threats and harassment: Dictatorial Rule: A dictatorial rule typically involves the concentration of power in the hands of a few, resulting in terminated contracts for government workers and challenges for businesses. Curtailing union power further consolidates control, limiting the ability of individuals and groups to voice their concerns and negotiate for their rights
·   Freedom of speech and political criticism: Suppression experienced during dictatorship goes against the principles of democracy.
·   Freedom of Speech and Political Criticism: Opposition to Democracy: The suppression of freedom of speech and political criticism during the 16-year dictatorship creates an environment of fear and control. This goes against the principles of democracy, where the free exchange of ideas and criticism is essential for a healthy political system
·   Personal impact: Individual Trauma: The cumulative effects of the past 16 years of dictatorial rule, including loss of businesses, land resources, and financial stability, have left individuals traumatised. This suggests a broader impact on the well-being of the population, reflecting the deep social and economic scars left by the oppressive regime
·   In summary, the points outlined paint a picture of a country grappling with political instability, economic challenges, religious discrimination, and human rights abuses. The consequences of the past regime's actions are far-reaching, impacting both the collective and individual experiences of the population
INDEPENDANT EVIDENCE
By way of background[1] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.
[1] DFAT Country Report Fiji 2022
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
According to DFAT’s most recent report – Fiji 20 May 2022, Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.
2.24    Land rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.
2.25    About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.
2.26    Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.
2.27    Informal land use (‘squatting’) is common. Most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.
3.11 The 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion and specifically protects against religious discrimination. In practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom.
3.12              About 65 per cent of Fijians are Christians, about 25 per cent are Hindu and about 6 to 7 per cent are Muslim. The Methodist Church in Fiji and Rotuma (MCFR) is the largest denomination with over 212,000 members, according to the World Council of Churches. Other Christian denominations include Catholicism, Assemblies of God and Seventh Day Adventist. Religion tends to be divided along ethnic lines; most iTaukei are Methodist and most Indo-Fijians are Hindu or Muslim.
REASONS AND FINDINGS
On the basis of his Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa). The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any, and all claims made, by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
Frank Bainimarama was Fiji’s Prime Minister from 2007 until 2022.The applicant’s passport was issued [in] 2017. Department records suggest the applicant came to Australia on a number of occasions after that date. The applicant did not attend the Tribunal hearing and I was unable to explore with him if he departed and returned to Australia on numerous occasions during that regime. I was also unable to explore his claims that the 2006 coup likely resulted in the military taking control of the government, which he opposed. Without further information from the applicant I do not accept that the applicant opposed the government of Fiji since the coup or that he suffered any harm for his political opinion or any other refugee reason during the former Bainimarama government.
As the applicant did not attend the Tribunal hearing and has not provided any detailed information regarding what trouble he has been having with Fiji’s current rulers or why he claims they are oppressive and he feels insecure, I also do not accept that his freedom of speech and political criticism has been suppressed when he resided in Fiji.
DFAT[2] assesses that Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The head of government is Prime Minister Sitiveni Ligamamada Rabuka, leader of the People's Alliance Party. The most recent US State Department Human Rights Report Fiji reported that international observers deemed the electoral process as free and fair overall, despite some initial concerns with the pace of rolling results announcements and a glitch in the official reporting app that took it offline early in the count. National elections were widely reported to be fair and free of abuses and irregularities.
[2] DFAT Country Report Fiji 2022
Without further information from the applicant I do not accept that he was threatened by the current rulers of Fiji that if he did not work for them he will be harmed or killed. Without further information from the applicant I do not accept that he attempted to speak openly about the current rulers of Fiji who do not like anyone talking against them openly. As for the applicant’s claim that he is denied freedom of speech, he has not explained how and when he was denied freedom of speech, therefore I do not accept that he was denied freedom of speech.
The applicant also claims that had problems in Fiji relate to his religious background, being a born again Christian who came into scrutiny by the current rulers. He has not provided any details of his claim and without further information from the applicant I do not accept that he is a born again Christian or that he came into scrutiny by the current rulers. As for born-again Christians facing challenges due to restrictions on open-air religious gatherings DFAT advises that the 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion and specifically protects against religious discrimination. In practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom. Without further information from the applicant and in light of DFAT’s advice I do not accept that the applicant suffered any harm for reasons of his religion in Fiji.
In regard to land ownership the applicant has made a general statement in regard to decrees impacting landowners. DFAT advises that iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. The applicant has not provided any details as to whether or not he has suffered any harm. Without further information from the applicant I do not accept that he has suffered any harm in regard to land ownership.
As for his claims that the government was terminating contracts for government workers and creating challenges for businesses or curtailing union power, or limiting the ability of individuals and groups to voice their concerns and negotiate for their rights, I do not accept these claims are genuine. The applicant has not provided any information that he was a government worker, a businessman, a union member or that he had voiced his concerns about any matter in Fiji.
Whilst the applicant has claimed that individuals have suffered a personal impact and individual trauma as the cumulative effects of the past 16 years of dictatorial rule, including loss of businesses, land resources, and financial stability having left individuals traumatised, without further information from the applicant, I do not accept that he suffered any personal impact or individual trauma when he lived in Fiji or that he suffered any deep social and economic scars.
The applicant was able to obtain a passport in 2017 and he left Fiji legally. I am satisfied that the applicant had no adverse political profile or an imputed political profile in Fiji, when he resided in Fiji. I am satisfied that the applicant did not suffer serious harm when he lived in Fiji. I am satisfied that the applicant did not flee Fiji fearing serious harm for a refugee reason.
I am required to consider whether the applicant will suffer serious harm for any reasons of his race, religion, nationality, membership of a particular social group or political opinion, enumerated in s.5J(1)(a), on his return to Fiji within a reasonably foreseeable future.
The applicant, an ethnic Fijian, did not suffer serious harm when he lived in Fiji. I have rejected all his claims.
I have considered the applicants’ claims and evidence singularly and cumulatively. As I have rejected all of his claims I do not accept that there is a real chance that the applicant will suffer serious harm for a refugee reason on her return to Fiji within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I must also consider whether there is a real risk the applicant, an ethnic Fijian, who had no adverse profile when he lived in Fiji will suffer significant harm on his return to Fiji. The applicant has not claimed he publicly criticised the government in any forum, or attended rallies and demonstrated against the government in Australia.
There is no death penalty in Fiji. There is no evidence that there are widespread conditions of violence in Fiji, and I do not accept, in light of DFAT’s report, that there is a real risk of harm from non-state actors.
Therefore, I am not satisfied that there is a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future on his return to Fiji, as an ethnic Fijian.
Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.

Therefore, the applicant does not satisfy the criterion set out in s.36(2)(aa).
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).
CONCLUSIONS
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.
Lilly Mojsin
Member

ANNEXURE A
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.
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 2430

28 May 2024

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