2404247 (Refugee)

2404247 (Refugee) [2024] AATA 4189 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404247
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Damien Power
DATE:23 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 4:07pm
CATCHWORDS
REFUGEE – protection visa – Fiji – threatened by relatives of former partner and attacked by one – relationship ended while applicant in Australia – delay in applying for protection visa – inconsistent claims and no supporting evidence – written claims prepared by lawyers – country information – adequate police response – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
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 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 23 February 2024 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 11 January 2024. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [Age] years of age from Fiji. He is from [Town], in [Province].
The applicant speaks, reads and writes English and Fijian. He is a certified [occupation 1], which was his occupation before coming to Australia.
Evidence before the Department
Migration History
The applicant arrived in Australia [in] March 2021.
On 11 January 2024, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 23 February 2024, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The claims in the applicant’s protection visa application are set out below.
He is unable to return to Fiji because he is being threatened by relatives of his former partner. He is being threatened that he will be harmed, tortured and killed if he is ever found or located by them in Fiji. This is because he is no longer in Fiji and living in Australia, and no longer partnered with his former partner [Ms A].
The applicant was attacked a few times by his former partner’s relative, a man called [Mr B], when he mentioned that he was travelling to Australia for work. [Mr B] attacked the applicant verbally but later his attacks became physical. The applicant mentioned this to the police, but nothing was done because they always had other priorities.
The applicant could not relocate because he had no money to move. Relocation is not practical or easy in Fiji.
If he were located by his former partner’s relatives in Fiji, the applicant would be attacked, tortured and killed by them. He would not be safe anywhere in Fiji.
Interview with the delegate
The applicant was not offered an interview by the Department. The delegate’s decision was made on the basis of the information contained in the applicant’s protection visa application.
Delegate’s decision
The delegate was not satisfied that the applicant would face harm on return to Fiji. The delegate referred to country information in finding that the applicant could avail himself of adequate state protection in Fiji.
Evidence before the Tribunal
Application for review
On 12 February 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant did not provide any further evidence regarding his claims prior to the hearing.
The hearing
The applicant attended a hearing on 22 July 2024.
The applicant gave evidence about his background, work history, and his family in Fiji. He also gave evidence regarding his claims to be at risk of harm from relatives of his former partner in Fiji.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
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.
Nationality
The applicant provided a copy of the bio-data pages of his Fijian passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is Fiji. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Fiji.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was asked at the outset of the hearing if he had prepared his application himself. He said that a lawyer had assisted him. He was asked if the claims in his application were still his claims, and he replied that they were. He was asked if everything in his application was true and correct and the applicant said it was.
The applicant was asked if there was anything he wanted to clarify or correct in his application. The applicant paused for some time but did not make a response, so the applicant was asked to outline the claims for protection that he wished to put before the Tribunal. The applicant said that he came to Australia in March 2021. He was living in Perth and working in the [work sector]. Things were going well for him, and he was working to support his partner and [children] back in Fiji. However, one day his partner’s relatives had called him from Fiji and told him that his partner in Fiji was going out at night and was seen with other men. He said that he called and confronted his partner, and she confessed to being unfaithful. He said that was when the issues began. His partner had an uncle, named [Mr B], who had a history of being abusive. He had his own crew. They did bad things and got away with it.
The applicant was asked whether he was currently working in Australia. The applicant said he worked as [occupations]. He had [an occupation] licence. He had been doing that work since April last year for a major [firm]. Prior to that, he had worked for a couple of years in Western Australia [(WA)].
The applicant was asked why he moved from WA to New South Wales. The applicant said that he would start at around 6 am and not get home until 5 pm. By that time, it was nine pm in Fiji. He would usually call his [children] straight after work. But during daylight savings, it would be 10 pm by the time he got off work. He had no chance to talk to his [children], so he moved to Sydney where things were easier.
In Fiji, the applicant had been employed as [an occupation 1], a job he did for about 12 years prior to coming to Australia. He said he worked up until the end of February, before flying out of Fiji in March. He had arrived on a Pacific Australia Labour Mobility (PALM) visa, which was valid for three years.
Most of the applicant’s family are still back in Fiji. His father, who was also [an occupation 1], was diagnosed with cancer and is in and out of hospital. His father was divorced many years ago from his mother, who lives in a different part of Fiji from his father. He has [sisters and brothers] in Fiji, who are employed in a range of jobs including [work sectors]. He also has a sister in Queensland who works in a [workplace].
The applicant was asked to describe in more detail why he feared returning to Fiji. The applicant referred to the events outlined above, where he had learnt his partner had been unfaithful and confronted her. He said that he had told his partner that things were over between them, and he wanted to end the relationship. He said that was when the dispute started.
I asked him when he had met [Ms A], his partner. He said they had met in 2011. They had [children] together – [Names and birth years]. They had all lived together in Fiji in a town called [Town]. However, once his [children] had started attending school, they had gone to live with an aunt in [another place]. The aunt was a schoolteacher, and the applicant’s [children] were able to attend the school at which his aunt was teaching. The aunt had discussed this option with the applicant and [Ms A] and they had all agreed it was the best course of action.
He had discussed with [Ms A] the option of coming to Australia. Back in Fiji, the applicant said he was struggling with the demands of work and studying for his formal certification as [an occupation 1]. Finances were also an issue. When he saw an ad for the PALM scheme, he thought it was his chance to move to Australia. He had been planning to build a house and buy things for his kids, but this was difficult with the wages paid in Fiji. The applicant had discussed all this with [Ms A], and she was supportive of the move.
The applicant claims that four months after arriving in Australia, he had gotten a call from [Ms A]’s relatives. They told him [Ms A] had been going out and drinking a lot. He said that it came to a point that he could not take it anymore and had just called [Ms A] and asked her about it. He said she did not deny anything and that she told him everything, including that she had been unfaithful. He told her he wanted to end things with her.
I asked him when that discussion about ending things had taken place. He said it was about a month after he had first the discussion with [Ms A] and she had told him of her unfaithfulness. I asked what her reaction had been when he said he wanted to end things, and he said she had reacted badly. She asked him to reconsider and give her another chance. The applicant said that he told [Ms A] that what she had done had greatly affected him. He was losing weight and it had affected his work. He said he told her that she had been unfaithful once, and he did not have any confidence that she would not be unfaithful again. He also pointed that they were living far apart. He said that she had started crying and her family had gotten involved.
He said that three or four days after that, one of [Ms A]’s uncles had called. This uncle was [Mr B]. The applicant claimed that [Mr B] had told him that what he was doing (in breaking up with [Ms A]) was wrong and that he better watch his back if he ever returned to Fiji. I asked the applicant what [Mr B] had wanted him to do. The applicant said that [Mr B] had just warned him, telling him that he better have eyes in the back of his head because he would not know what was coming. The applicant said that this continued for two or three weeks.
He said [Mr B] would call him and try to contact him on [social media]. The applicant would call him on numbers that the applicant did not recognise. The applicant said that he felt compelled to take the calls because his mother would also sometimes call him from other numbers, such as his aunts’ or cousins’ phones.
I ask the applicant what had happened after the three weeks or so of phone threats. He said that after that, the threats had slowed down because he had blocked all the numbers. However, he said he had to unblock [social media] because that was the only way of talking to his kids.
I asked him why he could not just call his aunt and ask to speak to the [children] directly. The applicant said that he could do that now, but at that time his [children] were not yet living with their aunt, so he had to contact [Ms A] in order to speak to them.
I asked the applicant when he had last spoken to [Ms A]. He said it was Thursday last week. I asked the applicant what that conversation was like. He said that things were beginning to get back to normal. He had some things for his [children], some things they were asking for, and [Ms A] was going to help deliver them to the right place.
I asked him when he had last spoken to [Mr B], and the applicant said it was sometime in 2022. I asked if [Ms A] was seeing someone, and he said he thought she was but that he was not sure. I asked the applicant if he was seeing someone, and he said he was. They had met in July 2023 and she was an Australian citizen, and not Fijian.
I said to the applicant that [Ms A]’s own relatives had contacted him about the fact that she was apparently going out at night and seeing other men. She had admitted that she had done so. He had broken up with her, which seemed understandable under the circumstances. I said that I did not quite understand why [Mr B] had such a strong reaction to the break‑up. The applicant said that [Ms A] had grown up with her uncles. They had always come to her defence if anyone upset her.
I asked the applicant what would happen if he returned to Fiji. The applicant said it would be really bad if he returned, especially because [Ms A] and [Mr B] lived not far from where he lived. I asked him where they lived, and he said they both lived in [Town]. I asked what he meant by “really bad”. The applicant referred to [Mr B]’s friends. He said whenever [Mr B] gets into disputes or problems, he liked to call up his friends and do really bad things.
I put it to the applicant that he and [Ms A] had started to reach some sort of accommodation. He was with someone else and [Ms A] was also with someone else. He was the father of [Ms A]’s children. I was finding it difficult to see why [Mr B] would attack him now. The applicant said it was because of everything that had happened. He said [Mr B] does not forget these kinds of small things. He said he had seen how [Mr B] does things and how he talked about people he did not like.
I said that I understood that [Mr B] might have been upset at the time of his breakup with [Ms A]. [Ms A] was upset and he might have been upset on her behalf. But the applicant had not spoken with [Mr B] since 2022, and both he and [Ms A] had moved on in a sense. I said I was finding it difficult to accept that [Mr B] would be interested in harming him after all this time. The applicant said that [Mr B] would bring up the past again and things would just go from there, by which I took him to mean things would escalate.
I asked the applicant if he could live somewhere else other than [Town]. The applicant said that [Town] was always like home to him, and when he returned to Fiji it was the only place he went to. I said that I understood [Town] is where he spent a lot of time but asked again if he could move elsewhere. He said he had started building a house in [Town] and he would have to pay rent if he moved elsewhere. His brother was building the house, although it was not yet finished.
I asked the applicant if anyone else other than him was helping to support his children and he said no. I asked if [Mr B] had met the applicant’s children and he said that he had. I said that they were both his and [Ms A]’s children. He appeared to be their sole or primary provider. His break‑up with [Ms A] happened towards the end of 2021. He had not spoken to [Mr B] since 2022. I put it to him again that I was having trouble understanding why [Mr B] would be so intent on harming him. The applicant repeated that he would bring up past issues and would not rest until he had done something about it.
I ask the applicant if [Mr B] had ever been in trouble with the police and the applicant said ‘lots of times’. I asked the applicant if he had ever had issues with [Mr B] when they were in Fiji. The applicant said that they had a couple of issues. I asked him to tell me what the issues were. The applicant said that one time they were playing [sport]. [Mr B] was bullying one of his friends and the applicant had told him to stop. The applicant said that they had a ‘little fight’, and after a few weeks everything had gotten back to normal.
The other occasion had occurred some time in 2019. [Mr B] was drunk on Christmas Day. He came home and saw the applicant with some others. [Mr B] had stood up and wanted to fight everyone. The applicant was not sure what his issue was. The applicant said that [Mr B] had started targeting him and calling him names and swearing at him. [Mr B]’s brother had called the police. The applicant said that [Mr B] had to sleep in a cell for the whole of that weekend.

I said that it sounded as though [Mr B] had been a nuisance for quite some time. However, he had bullied one of the applicant’s friends and the applicant had been willing to confront him. [Mr B] had backed down and things got back to normal. When he got drunk at Christmas, [Mr B]’s own brother had called the police, who had shown up and detained him for the weekend. I said that [Mr B] seemed like a difficult individual, but it also seemed like the applicant and his [Mr B]’s own family recognised this and were able to handle him. I said I was not seeing from his description someone who was unmanageable. It seemed as though his own family regarded him as an issue and were willing to call the police on him when he steps out of line. I said he also seemed like a hothead, someone who acted on impulse, and I had difficulty seeing him confronting the applicant about a relationship that had been over for more than two years. The applicant did not make a response.
I said that when [Mr B] had gotten out of hand at Christmas, his family had called the police. I asked the applicant whether he could do the same. The applicant said that he could do that. However, he said that sometimes the police in Fiji do not show up for ‘small problems’ and only attend when the problem has gotten worse and become a really big problem.
I said that the country information before me did indicate that there was sometimes a delay in police responding in Fiji. Country information before me indicated that police in Fiji may not be based in vehicles and may not arrive in time to disrupt crimes[1]. However, in [Mr B]’s case, they were called, they did show up and they did put him in a cell for a couple of days. I said the country information also indicated that police are usually disciplined, conduct policing on a community policing model and are generally actively engaged with the communities they serve[2]. I said that this general description gelled with the description he had given – that there was a problematic relative, his own brother called the police, and the police put him in jail. The country information further indicated that the police force overall has the capacity to protect individuals from societal harassment, discrimination and violence[3]. Police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention[4].
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095532
[2] Ibid
[3] Ibid
[4] Ibid
I asked the applicant again, given the police had attended and dealt with [Mr B] in the past and given the country information I had just relayed, if he could seek protection from the police if there was an issue with [Mr B]. The applicant indicated that he could.
I advised the applicant that there were two further matters I wanted to put to him. Firstly, he had arrived in Australia in March 2021. The discussion with [Mr B] had happened around five months later. However, he had not sought to lodge an application for protection until January 2024, a delay of more than two years. I said this delay may lead me to consider that he did not have a genuine fear of returning to Fiji.
The applicant responded that when he was living in WA, he lived right in the outback. He had not saved a lot of money and lawyers were expensive. He said this was the reason he could not lodge it back in WA.
I put to the applicant that he spoke good English. The application fee for a protection visa was very low. Notwithstanding that he chose to engage a lawyer, it was open to him to make a protection visa application a lot earlier than he had. I said the considerable delay in applying for protection may lead me to believe he had made the protection visa application for another reason, such as extending his stay in Australia. The applicant said that at first, he did not know he could lodge it himself and that everything was new to him at the time.
I also put to him that the claims he put forward in his original application were different to the claims he had put forward at hearing. I said that in his original claims, he had talked about his former partner and about [Mr B]. However, in his original claims the applicant had said that [Mr B] attacked him in Fiji. He said that [Mr B] had attacked him a few times when the applicant mentioned that he was going to Australia to work. He had also said that [Mr B]’s attacks had started as verbal attacks but escalated to physical attacks. He also claimed that his partner’s relatives had threatened to torture and kill him.
The applicant appeared surprised to hear this, so his claims were read back to him verbatim. The applicant paused for a considerable period before replying that his lawyers did not send him any emails, and that most of their interactions were over the phone.
I put it to him again that he spoke English. I said that if something had been submitted on his behalf that was completely different to his current claims, it might indicate a breakdown in communication. However, his written claims had mentioned a lot of the details he had related to me today but gave a very different account of when events had happened. I also put to him that at the point his protection visa application had been refused, he was on the notice that the Department had rejected it based on the information in his initial application. I said I would have expected that he would read the refusal decision and put before the Tribunal something to correct any inaccuracies. The applicant said that when he got the email, he had only checked the date and had not read the whole thing.
I said that if he genuinely feared returning to Fiji, I would have expected that the first thing he would do is read the decision to see the basis on which it had been rejected. I said that the fact that he did not take such a close interest may suggest to me that he did not genuinely fear returning to Fiji.
The applicant said that he had only read the part [in the refusal decision] where it said he did not have enough evidence. He also again indicated that there were problems with his representatives because they called him instead of messaging him.
The applicant had mentioned that [Mr B] had threatened him by text and on [social media] and asked if he had any of those texts or messages. The applicant then said that [Mr B] had hardly ever messaged him and had only called him. He said that when you block someone and then you unblock them, their previous messages are deleted.
I noted his comments but asked him to confirm that he did not have anything in terms of texts, online posts or other evidence that could verify that [Mr B] had threatened him. The applicant confirmed that he did not have any evidence.
The applicant was asked if there was anything else he wanted to add or say to the Tribunal and he said there was not.
I have considered the applicant’s evidence. However, even if I were to accept the applicant’s account, I am not satisfied that there is real chance that he would face harm on return to Fiji.
The applicant’s relationship with his partner ended back in 2021. The applicant and his partner have both moved on with new partners and their relationship with each other is, in the applicant’s words, getting back to normal. The applicant has not had any contact with [Mr B] for more than two years. He is also the sole or primary support of [Ms A]’s (and his) children. I do not accept as credible that [Mr B] would seek to harm the applicant if he returned to Fiji now.
The applicant also gave evidence at hearing that he and other family members had been able to manage [Mr B] in the past and that the local police were willing to respond when [Mr B]’s behaviour escalated. Country information also indicated that the police in Fiji were responsive and able to offer the applicant adequate protection.
However, I do not accept that the applicant was targeted by a relative of his former partner because of the break-up of their relationship or for any other reason. I base this on the following.
·     The significant differences between the applicant’s written claims and his evidence at hearing in regard to the timing of and motivation for [Mr B]’s attacks (that the applicant was preparing to leave Fiji as opposed to the subsequent breakup of his relationship with [Ms A] after he had arrived in Australia) and the nature of those attacks (physical assault as opposed threatening calls and messages)
·     The absence of any evidence in the forms of texts, posts, messages or screenshots, that [Mr B] had actually threatened the applicant
·     The applicant’s considerable delay in applying for protection and the unsatisfactory nature of his explanations for doing so
I am not satisfied that the applicant would face any harm on return to Fiji from relatives of his partner or from any other person. The applicant did not put forward any other claims for protection at hearing.
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).
I have considered the applicant’s claims under the complementary protection provisions. For the reasons set out above, I am not satisfied that the applicant faces a risk of any harm on return to Fiji from relatives of his former partner or from any other party. I am similarly not satisfied that there is a real risk he would suffer significant harm on that account if returned to Fiji.
The applicant has not put forward any other claims that would engage the complementary protection criteria.
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.
Damien Power
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 4189

23 August 2024

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Immigration

Administrative Law

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Procedural Fairness

Statutory Construction

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