2405698 (Refugee)

2405698 (Refugee) [2024] AATA 4352 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2405698

COUNTRY OF REFERENCE: Fiji
MEMBER:Mark Oakman
DATE:27 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2024 at 4:49pm
CATCHWORDS
REFUGEE – protection visa – Fiji – religion – Christian Mission Fellowship – rejection and abuse from family – physical assault – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 1 March 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 20 November 2023. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 30 July 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of his Fijian passport. He stated in his protection visa application that he was a citizen of Fiji and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Fiji. Fiji is the receiving country for the purpose of this assessment.
Migration history
The applicant last arrived in Australia [in] March 2023. He lodged an application for a protection visa on 20 November 2023.
Background
According to information given by the applicant in his application and at the hearing, he is [age] years old and was born in [Town 1], Fiji. In Fiji he lived in the family home in his home village in Nadi. He is not married and has no children. His parents and [a sibling] live in the family home in Fiji. He has [other family members]. They are married and live in Fiji with their partners. He has some contact with his family in family, mainly his parents, especially his mother. He is Fijian and Christian. He speaks, reads, and writes Fijian and English. He completed high school in Fiji in [specified year]. In Fiji he worked [in specified roles] at a [business 1] ([specified years]) and [in another role] ([years]). When not working in Fiji he was supported by his family, worked on the family farm, and played [Sport 1]. In Australia he does volunteer work and plays [Sport 1]. He is supported by members of his local community and [Sport 1] club in a named NSW regional location.
Evidence before the Department
In the protection visa application lodged 20 November 2023, the applicant made the following claims (see pages 13-14 of his application):
·“Provide reasons why this applicant left that country? – I had initially come to Australia on a 400 visa.
·Did this applicant experience harm in that country? – No.
·Did this applicant move, or try to move, to another part of that country to seek safety? – No.
·Give details for why this applicant did not try to move another part of the country? – No.
·Explain what the applicant thinks will happen to them if they return to that county? – After being in Australia, my views and political alliance have changed and I am fearful that if I return home, I will be persecuted for my new found of political beliefs. I am afraid to voice my concerns but can provide more information upon request.
·Does this applicant think they will be harmed or mistreated if they return to that country? Give details – Yes. After being in Australia my views and political alliance have changed and I am fearful that if I return home, I will be persecuted for my new found of political beliefs.
·Does this applicant think the authorities of that country can and will protect this applicant if they go back? Give details – No. The police and authorities are generally into corruption and will align themselves with the most powerful political party. They will be the ones I fear most.
·Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? Give details – No. In Fiji, it is not a very big country. News spread quickly through word of mouth and it does not matter where I am, they will be able to find me.“
The Department wrote to the applicant on 16 January 2024 and requested further information under s 56 of the Act. The Department requested, among other things, further information and documentary evidence about his protection claims.
The applicant provided a two-page statement in response to the Department’s request. It said (sic):
“To Whom it May Concern
My Name is [applicant’s name] and I am [age] yrs of age. I’m of a Fijian and currently live at [address in QLD]. I was born [date of birth] making me to be the [position in family].
I applied for a protection visa application and have received a request for more information and in particular on political grounds. I note that in my initial application, the information provided was unclear and in this letter, I would like to confirm my claims and confirm the correct reasons behind my claims.
I grew up in a small community name [named village] with a very strong tie to a Methodist Church Denomination. Everything seems ok until after November 2021 where I change my life to join another denomination Name Christian Mission Fellowship.
November 2021, I came back from a [Sport 1] training at our local village ground whereas a Christian Mission Fellowship were having their Crusade in sharing a gospel/Goodnews of God. There was something that enchant my attention was how to be responsible in life and the important of being a church missionary. I was moved to a message that was shared by a Pastor on that night. The crusade was last for one week. Every Night I must hide from my family and go to the shrubbery sitting there so that no one in my family glimpse me since my family fully support Methodist Church and go against Christian Mission fellowship. From that entire night I was fascinating on the message that was delivered by a pastor and at the same time I start to reflect my daily life attitude and what to do to become a better person in the community and a trusted missionary.
After a Christian Mission Fellowship crusade, I opt to switch my denomination to join them and leave my family. The reason why opts out I can feel the holy spirit moving on me and what I have encounter at the crusade enable me to this decision.
Rejection, verbal abuse and threat came along when my family heard the determination I make. December 2021 the first threat I received was when I was called to a family meeting to discuss why I changed my denomination. My biological father was chairing the meeting where they all spoke against my choice. I was worried and fear for my life as I was the only one at the meeting with majority of my family were at hand. My Dad did warn me to change my denomination, or they will kill and destroy me. My feeling that night was shocked and in terror. I was crying thinking they will feel downcast on me, but it was the opposing. On that night they ask me to change my denomination and with fear on that current affair I was just having to say YES to make them happy so that I can exit safe from that community hall. Subsequent that meeting I have that mix feeling to end my life as it seems like my family are not accepting me anymore.
January 2022 I vividly remembered I affix the Christian Mission Fellowship picnic at beach. The venue of the picnic was just 15 minutes’ walk from home. I was be amused with picnic with church members and it was shocking to see two of my cousin brothers and my dad were walking straight to where I was standing and start to verbally abuse me. I was sheepish. My Dad throws a punch at me, and I managed to run for my life at the bush so that I can be save from being hurt. I was agitated and fearful. Church members try to endeavor my family hence they were verbally abuse as well from them. I came home that night, and my dad did give me a lecture and tell me I bring shame to a family. During our conversation my dad younger brother did came by and throw punch on me. This treatment was continued, and I was worried of my safety and future life.
August 2022, I came back from church on a Sunday Church service, that’s where my family all group up to assault me to their intention to end my life. I was lay unconscious and secretly pray to God to saved me from that situation. After what they had done to me, they let me alone and I have creep to the mango tree to gather myself. My nose was bleeding, and my body was twinge. I crab my phone and call my pastor to come and pick me up to transport me to the hospital. I was shuttered and fear for life. At the hospital the doctor instructs me report the case at the police station. I went to the police station and report the incident, the police advise me since it was a community issues, I have to come back to sort it out first to my family with the police presence. We managed to travel together with the Police at [named location] Fiji. We arrived at home my dad fake fully assured the police officer that we will solve the issues amicably. Straight after the police depart from home, my dad warns me if I report again to the police, they will kill me and dumb me at the sea. With that I was worried and fear for my life, I decided not to report any incident to the authority again.
I am grateful to be in Australia and I to be worshiping God without any issues. I am unable to return return home to Fiji because I am fear for my life that I will suffer persecution again. I wish to remain in Australia as I know that my safety is looking after.
I [applicant’s name] hereby write in requisition to the Department of Home Affairs to be granted a Protection visa Based on the contents of my letter.
I Look forward to hearing from you to further elaborate any other information that the department may need from me to secure my application.
Sincerely Yours”
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 21 March 2024, together with copies of the notification letter and decision record from the Department in relation to the refusal to grant his protection visa.
The applicant appeared before the Tribunal in person on 30 July 2024 to give evidence and present arguments. He had a support person present at the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the start of the hearing, he provided the Tribunal with a further copy of his two-page statement set out at paragraph 16 above.
Analysis, reasons, and findings
The applicant was asked at the hearing why he left Fiji to come to Australia. He said, first, he came for [Sport 1]. He was asked if there were any other reasons and he said, yes, he faced some problems at home. When he had the chance to play [Sport 1] in Australia, he thought it was his chance to play and to get a new life in Australia.
He explained that his problem at home was with family members because of religion. His family was Methodist and later he moved to the Christian Mission Fellowship (CMF). His parents didn’t like his change and wanted him to stay Methodist, so he hid it from his parents and snuck out when going to the CMF. When his parents asked where he was going, he would say he was visiting a friend. He moved to the CMF in 2021 and recalled his first CMF crusade was in the village in November 2021. He was asked what his involvement with the CMF was and he said he just helped the church members and the pastor with whatever was needed. He would go regularly on Sundays, about 2-3 times a month. It was not consistent, he said he went 2-3 times a month for about seven months in the period from when he was first involved with the CMF until he left Fiji (that is, from about November 2021 to March 2023). During that time, he also attended Methodist services about once a month.
He confirmed he had no other problems in Fiji and that he did not leave Fiji for any other reasons. He said he was not involved in political activities in Fiji, and he was not involved in political activities in Australia.
At the hearing he was asked what he feared would happen to him if he returned to Fiji. He said he didn’t know if they would still be harsh. He didn’t know what will happen, he will be safer here. He was asked what he would be safer from here. He said he didn’t know what would happen if he went back, whether they still had the same hatred as when he left. He was asked if he thought he would be harmed in anyway if he returned. He said there was a 70-80% chance of being harmed. He feared the harm from some of his family members, from his father’s side of the family, including his father. He didn’t fear harm from anyone else. He feared he would be harmed because of his changed religion. He was asked if he had previously been harmed when he was living in Fiji. He said yes, he was harmed emotionally, they said foul words. He confirmed that, other than emotionally, he had not been harmed in any other way.
He was asked about his religious practices in Australia. He said he just did his devotions at home. He had not attended church activities. He had not made any enquiries about CMF or affiliates here in Australia.
He was asked if there was anything else he wanted to tell the Tribunal about his fear of harm if returned to Fiji, and he said there was nothing. He was asked if he feared any other harm, issues, or problems, other than those already discussed, if he returned to Fiji. He said that if he goes to Fiji, he won’t be able to come back to Australia.
He said if he returned to Fiji, he would look for a job, keep playing [Sport 1], and would live in Nadi, in town. He said he wouldn’t go back to the village as he didn’t know what his family would do to him if he returned to the village. He said some of his father’s relatives also lived in the village, but none of them lived in Nadi town.
After a short (approximately 15 minutes) break in the hearing, the applicant was asked if there was anything else he wanted to say about his fears, or the harm he might suffer, if he returned to Fiji. He said he had misunderstood the earlier questions about emotional harm. He said one time he came home his father’s family bashed him. He called his pastor who came and got him and took him to the hospital. He was treated for a bleeding nose. At the hospital the doctors said he could report it to the police, but because the police would just treat it as a family matter, he didn’t. He went back with the pastor from the hospital, and the pastor reported the incident to the police. The police came and said if you harm this boy again there will be a problem. His father said it was okay to the police but when they left, he said to the applicant if he complained to the police again, he would end the applicant’s life. This happened around August 2022. He said no one threatened to kill him at any other time, just that once. He also said he might be scared to stay in Nadi as it is only a one-hour drive from the village, plus if on a day’s shopping around the town some family members might come and grab him.
Having had the opportunity to observe the applicant giving his evidence at the hearing, I am satisfied he is largely a credible witness in relation to his background details, why he came to Australia and his general desire to remain in Australia. I accept his personal details as set out in the ‘background’ above. I also accept that he came to Australia to play [Sport 1] and because he experienced some problems in Fiji. However, I do have some concerns about aspects of his claimed problems in, and fears if returned to, Fiji.
I raised several concerns with the applicant at the hearing in relation to his claim that he moved from the Methodists to the CMF and suffered harm, and feared similar harm if he returned, from his family as a result. In particular:
·The applicant said initially at the hearing that he had suffered emotional harm from his father and his father’s relatives. He did not refer to any physical assaults that he had earlier mentioned in his two-page statement to the Department, until after we had a break in the hearing. The Tribunal said his not mentioning such a significant issue at the hearing prior to returning from the break may raise a credibility concern about those claims. He responded that his father was more emotional and vocal towards him, it was his father’s relatives who bashed him up. His father just vocalised words to him. This response does not explain his failure to mention the physical assaults until after the break in the hearing.
·The applicant said in his two-page statement to the Department that he was first assaulted in January 2022 at a church picnic and then more seriously assaulted in August 2022, and mentioned the August 2022 assault at the hearing. But in his protection visa application and at the start of the hearing he said he continued to live in his family home in the village until he left to come to Australia. The Tribunal said this may raise credibility concerns about his claims in general. In respnse he said he was staying with the pastor, and sometimes he would come home. He would stay with the pastor for a week, come home for a few days, then go back to the pastor’s house. This response was unconvincing.
·The applicant said at the hearing that he had not attended any church activities in Australia, and he had not made any enquiries about whether there was a CMF affiliated church in Australia. The Tribunal said this may raise credibility concerns about his claims in relation to moving to the CMF church and his claims in general. He made no comment in response.
·The Tribunal said it had been unable to locate any country information about disputes or general problems between officials and/or members of the Methodist church and officials and/or members of the Pentecostal churches, which includes the CMF, in Fiji. The Tribunal said this may raise concerns about the credibility of his claims in general and it may also raise concerns that it is highly unlikely that the applicant would suffer serious or significant harm from Methodists, including his family, if he returned to Fiji. The applicant responded that there is no problem with the religion there, just with his family. It is a family matter nothing regarding the religions.
·The Tribunal said to the applicant that his family reacting so negatively and violently to him changing his faith from following one Christian church denomination to another church denomination, may be seen as a highly unlikely response. The Tribunal said this may raise credibility concerns about his claims in this regard. He made no comment in response.

As discussed above, I consider the applicant failing to mention at the hearing that he suffered any harm other than emotional harm in Fiji, prior to the Tribunal taking a break, to be a significant omission. It reflects poorly on the credibility of his claim that his father’s relatives physically assaulted him because he moved from the Methodist church to the CMF. When this is considered together with the concerns discussed above in relation to his having provided an address history where he lived in the family home until he left Fiji; it being highly unlikely that his family would react so negatively and violently to his changing Christian denominations, and the absence of country information to suggest any general issues or problems between the relevant churches and their officials / members, I do not accept that the applicant was physically assaulted in Fiji. As I do not accept that he was physically assaulted, it follows that I also do not accept he had to go to hospital; the police became involved in the matter; nor that the applicant was threatened because of the police involvement. However, I am prepared to accept that in his religious practice the applicant did move from the Methodist church to the CMF church in Fiji, and that he may continue to follow the CMF church if he returns to Fiji. I am also prepared to accept his evidence that his father was more emotional and vocal towards him because he moved from the Methodist church to the CMF church. I accept that the applicant would have found this emotionally distressing and may be subject to similar emotional and vocal behaviour from time to time from his father, over his religion, if he were to return to Fiji. However, I do not consider such distress or upset amounts to significant ill treatment or any other type of harm that may be regarded as serious harm. Nor do I accept that there is a real chance of the applicant suffering any other harm, whether from family members or anyone else, because he moved from the Methodist church to the CMF church, if he returned to Fiji, now or in the reasonably foreseeable future.
The applicant said in his protection visa application that he feared harm due to his changed political views following his move to Australia. However, in his two-page statement to the Department he indicated that those claims were not correct. Additionally, he said at the hearing that he was not involved in any political activities in either Fiji or Australia. When the Tribunal raise this as a concern with him at the hearing, the applicant confirmed he did not fear harm on this basis, if returned to Fiji. As such, I find there is not a real chance of the applicant suffering any harm, due to any real or implied political views or opinions, if returned to Fiji, now or in the reasonably foreseeable future.
The applicant confirmed at the hearing that he did not fear harm for any other reason if he were to return to Fiji. Nor is there anything in the information before the Tribunal, including country information from DFAT,[1] to suggest that he may suffer harm for any reason if he were to return to Fiji.
[1] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
The applicant’s evidence, together with the statement made by his support person from the bar table, at the hearing demonstrates he has successfully established himself in Australia. He is valued and supported by his local community, to which he contributes through volunteer work and his involvement in the local [Sport 1] club team. I have no doubt that he would continue to contribute to the local community in the future. However, none of these factors are relevant to the grant of a protection visa.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the foreseeable future, he faces a real chance of persecution.
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).
I accept that, if he returns to Fiji, the applicant may experience some distress or upset on occasion when his father is emotional and vocal towards him about his moving from the Methodist church to the CMF. However, I am not satisfied on the evidence that any distress or upset he may suffer in this regard will amount to severe pain or suffering, or pain and suffering that could reasonably be considered as cruel or inhuman in nature. Similarly, it does not amount to extreme humiliation. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am not satisfied that any distress or upset that may be suffered by the applicant in this regard amounts to significant harm as defined in ss 36(2A) and 5 of the Act.
For the reasons set out above I have found that the applicant does not otherwise face a real chance of harm in relation to his claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[2] he also does not face a real risk of any harm in Fiji. I am not satisfied that the applicant faces a real risk of significant harm in Fiji.
[2] MIAC v SZQRB (2013) 210 FCR 505.
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.
Mark Oakman
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 4352

27 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction