2441057 (Refugee)
[2025] ARTA 2175
•5 September 2025
2441057 (Refugee) [2025] ARTA 2175 (5 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2441057
Tribunal:General Member M Hanna
Date:5 September 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 05 September 2025 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – homosexual woman – appearance, dress and behaviour – beatings by family, ostracism by community, bulling, threats, employment discrimination and economic hardship – inaction by teachers and police – attempted suicide – return trips to visit only supportive relative and to attend his funeral – delay in applying for protection – applied soon before student visa expired – advice from agent and later inaction – casual relationships and social media activity in Australia – credible evidence and supporting statements – country information – constitutional protections but widespread non-acceptance and low visibility – conservative religious and cultural values – moderate risk of discrimination and violence – no effective state protection and real chance of persecution relates to all areas – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant S395 of 2002 v MIMA (2003) 216 CLR 473
BEH15 v MIBP [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v MIBP [2018] FCAFC 2
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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 national of Fiji, applied for the visa on 17 July 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations and on 29 October 2024 the applicant sought a review of that decision from the Administrative Review Tribunal (ART).
The applicant appeared before the Tribunal on 9 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, [Ms A], a friend of the applicant, and [Mr B], who is the applicant's cousin. The Tribunal is satisfied that the applicant had a reasonable opportunity to present her case.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant is a [Age]-year-old citizen of Fiji who was born in [Province], Fiji. She is of mixed Melanesian iTaukei and Indian Fijian ethnicity and of Hindu faith.
The applicant’s family consists of her parents and [siblings] with the applicant being the [birth order] of [the] children. The applicants mother, of native Fijian ethnicity is deceased having passed away sometime in 2021 and her father, who is of Indian ethnicity is [an occupation 1] living in [Village 1], Fiji. The applicant’s siblings are aged [Ages] years of age consisting of [sisters] and one brother. [Some] of the applicant’s [siblings] are currently working and the [youngest] siblings are at school. Following her arrival in Australia, the applicant maintains occasional contact with one of her sister’s but has limited contact with the remainder of her family.
The applicant is single, has never been married and/or in a de facto relationship and does not have any children.
Prior to her arrival in Australia, the applicant had lived in [Town 1], Fiji from [birth] until her travel to Australia in January 2022. Whilst the applicant’s family home was in [Town] 1, she would often stay with her [relative] in the [Location] settlement and/or her grandparents in [Town 2], Fiji. In Australia, the applicant has at all times lived in metropolitan Melbourne.
The applicant completed her secondary school education in Fiji sometime in [Year] following which she commenced but did not complete a trades certificate in [subject 1]. In Australia the applicant has completed a Certificate III in [subject 2]. In Fiji the applicant has been employed in numerous short term/casual [job task] roles, as [an occupation 2] and as [an occupation 1]. In Australia, the applicant has worked as [an occupation 3] and in various [workplace] roles. She is currently working full time as [an occupation 4].
On 29 December 2021 the applicant was granted a Subclass 500 Student visa (500 visa) that was valid until 20 July 2024. The applicant arrived in Australia as the holder of this visa [in] January 2022 and has since returned to Fiji on two occasions [in] August 2023 and [October] 2023. The applicant’s visits to Fiji during the above periods was so that the applicant could visit her sick [relative] with whom she was very close (August 2023) and later to attend his funeral (October 2023). On 17 July 2024 she lodged an application for a protection visa which is the subject of this review application. The applicant currently holds a Subclass 010 Bridging visa A and has not departed Australia since her last arrival in October 2023.
The applicant has never travelled anywhere else outside of Fiji.
The Tribunal accepts the above matters to be true.
Evidence before the Department
In her protection visa application, the applicant claimed in summary that:
·She left Fiji because she faced severe discrimination and persecution due to her sexual orientation as a lesbian.
·She experienced personal threats, societal ostracism, professional challenges, economic hardship and financial instability as a result of her sexual orientation.
·She was subjected to hostile workplace environments, was denied job opportunities and/or opportunities for promotion due to widespread corruption and discrimination. She faced workplace harassment, and no action was taken after she filed a complaint.
·She did not experience harm in Fiji and she do not move, or try to move, to another part of Fiji because the discrimination and persecution against LGBTQIA+ individuals is systematic and prevalent throughout the entire country. The issues she faced were widespread and not confined to a specific area. Additionally, her professional and personal networks were centred in her current region, and she lacked the resources and support to be able to relocate successfully.
·If she were to return to Fiji, she will continue to face severe discrimination, persecution and threats due to her sexual orientation as a lesbian. She is also likely to continue to face professional challenges, economic hardship and harassment such that her safety and well-being would be at risk.
·The authorities will not protect her, as they have previously shown support for the discrimination and harassment she has experienced when reporting such incidents to the police.
·If she were to return to Fiji she is likely to continue to face severe discrimination, physical violence and emotional abuse on account of her sexual orientation as a lesbian. This would include being ostracized by society, denied access to employment opportunities, and subjected to threats and harassment. There is also a high risk she may be the target and/or victim of hate crimes which may result in physical assault or worse.
·She does not think the authorities in Fiji can and will protect her as police officers are corrupt.
·She does not think that she would be able to relocate within Fiji to an area where she would not be harmed.
Supporting documents
In support of her primary protection visa application, the applicant submitted the following to the Department of Home Affairs:
i.Completed Form 866 Application for a protection visa dated 17 July 2024.
ii.Statutory declaration by the applicant dated 17 July 2023 briefly setting out her claims for protection.
iii.Further statement by the applicant dated 15 July 2024 which elaborated on her claims for protection.
iv.Copies of identity documents including her Fijian passport and Australian driver’s licence.
v.Copy of her curriculum vitae.
vi.Bank account statement for the period of August 2023 – February 2024.
vii.Evidence in support of the applicant’s claims including online articles and postings regarding the situation for the LGBTQIA+ community in Fiji.
viii.Copy of the applicant’s Australian police check.
The interview
Departmental records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
On 18 October 2024, the delegate refused to grant the applicant a protection visa as the delegate was not satisfied that she was owed protection as a refugee or under the complementary protection provisions.
In their decision, the delegate noted that on 26 August 2024, the applicant had been sent correspondence inviting her to provide additional information about her claims under s56 of the Act (s56 request for more information) however no additional information was provided in response. The delegate found that “the applicant’s claims lack significant details and they did not provide any evidence in support of their claims. The applicant did not respond to the invitation under s56 of the Act to provide further information or evidence to support their claims, or provide any explanation of why they could not provide the information or evidence.”[1]
[1] Department of Home Affairs Decision record at pg. 4 of 6.
The delegate went on to find that “due to the applicant’s lack of details in claims, as well as their lack of evidence, I am not satisfied that their claims that regarding their sexual orientation are credible…” and therefore the delegate did not accept that the applicant was a lesbian as claimed. Consequently the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or s36(2)(aa) of the Act.
Evidence before the Tribunal
On 29 October 2024, the applicant applied to the Tribunal for a review of the delegate’s decision.
Supporting documents – pre-hearing submissions
In support of her review application, the applicant submitted the following to the Tribunal:
i.Copy of the delegate’s decision together with a copy of her passport.
ii.Detailed legal submissions received by the Tribunal on 1 and 7 July 2025 which address the applicants’ background, updated personal circumstances and her claims for protection with reference to relevant legislation and country information.
iii.Evidence in support of the applicant’s claims including online articles, video links and postings regarding the situation for the LGBTQIA+ community in Fiji.
iv.Letters of support from the following individuals:
a. [Mr B], the applicant’s cousin.
b. [Ms A], the applicant’s childhood friend.
c. [Ms C], the applicant’s former co-worker and friend.
d. [Mr D], the applicant’s colleague during her time as [an occupation 1] in Fiji.
Evidence at hearing
On 9 July 2025, the applicant appeared before the Tribunal to give evidence and present arguments in support of her application.
Immigration history and primary protection visa application
The Tribunal discussed with the applicant her immigration history and the preparation of her primary protection visa application. The applicant gave evidence that she first travelled to Australia [in] January 2022 as the holder of student visa with the intention of studying and finding a new life. When asked to elaborate on what she meant by that, the applicant stated with sincerity that she was really tired of all the trauma and discrimination she constantly faced in Fiji as a result of her sexual orientation and therefore she had made the decision to travel to Australia to seek a new life and a new beginning somewhere where she could study and live. She went on to state that she had come to Australia in order to undertake vocational studies in the field of [subject 2], an industry she had always been interested in and in which hoped to have a career following her studies.
The applicant gave evidence that after her initial arrival she had returned to Fiji on two occasions in August 2023 for 9 days and October 2023 for 10 days. The purpose of the applicant’s trip in August 2023 was to visit her [relative] who was unwell and in October 2023 she returned to Fiji to attend his funeral. As detailed in her evidence set out below, this particular [relative] was a significant figure in the applicant’s life having been one of the very few members of her family who accepted the applicant for who she was.
She went on to state that, upon her return to Australia following her [relative]’s death and in light of the ongoing discrimination, ostracism and persecution she experienced while in Fiji for the funeral, the applicant ultimately concluded that she would not be able to return to Fiji. She gave evidence that prior to her last travels to Fiji, she had come across some information on social media regarding applying for protection but it was not until her return from her last visit to Fiji in October 2023 that she then sought the assistance of a migration agent regarding her options for remaining in Australia. The applicant stated that she was then assisted by this migration agent in the preparation and lodgement of her application. When asked why there was a significant delay in the lodgement of her protection visa application on 17 July 2024 from the date of her initial arrival [in] January 2022, the applicant gave evidence that she had initially thought she would come to Australia to study and begin a new life with the prospect of returning to Fiji one day. However when she returned to Fiji to attend her [relative]’s funeral, she was subjected to ongoing discrimination, ostracism and persecution including being forbidden by her family from participating in the funeral rites of her deceased [relative]. This exclusion and mistreatment had a particularly significant impact on the applicant, as her [relative] had been her last surviving relative who accepted her for who she was and had treated her with kindness and respect. With the death of her grandparents preceding that of her [relative], the applicant was left with no remaining family in Fiji who would provide her with support or acceptance. She went on to state that this was the reason she then contacted the migration agent on her return from Fiji in October 2023. When the Tribunal put to the applicant that this still did not explain why her application was only lodged in July 2024 and not soon after her return from Fiji, the applicant gave evidence that the migration agent who had prepared and lodged her application had advised her that she had to wait for her current visa to expire before she could lodge the application for a protection visa. With her student visa expiring on 20 July 2024, the migration agent then lodged her application for protection on 17 July 2024. The Tribunal accepts the applicant’s evidence as set out above regarding the delay in lodgement of her protection visa application from the date of her first arrival and finds the applicant credible and forthcoming in her evidence. The Tribunal makes no adverse findings in this regard.
The applicant also gave evidence that at the time of lodgement of her application, she had seen a copy of the application and confirmed that all the information provided as to her claims was correct with the exception of the answer that she had not experienced any harm in Fiji. The applicant stated that this was incorrect as she had experienced serious and ongoing harm in Fiji and this response was likely a mistake made by the migration agent.
The Tribunal then went on to discuss with the applicant the Department of Home Affairs request for more information dated 26 August 2024 and her lack of response to such a request. The applicant gave evidence that at the time of such a request, her then migration agent had notified the applicant of the request and subsequently began asking for more money in professional fees. She went on to state that she had prepared a detailed response to the Department’s request and provided that to her agent but the migration agent threatened the applicant that he would not submit any further documents unless she paid him more money. She gave evidence that she had paid the migration agent $3,500 in professional fees and he was demanding a further $1,500 before becoming unresponsive. She then went on to state that when he became unresponsive, she had a feeling something was wrong only to later find out that he did not submit her detailed response to the delegates request for further information. The Tribunal finds that the applicant’s evidence and responses to its questions regarding the above matter were provided in a candid, honest and forthcoming manner. In light of this, and given the applicant’s overall oral and written evidence, the Tribunal accepts the applicant’s explanation as to why no response was provided to the Department’s request for further information and draws no adverse inference in regard to this to matter.
Life as a Lesbian in Fiji
When asked why she had left her country Fiji, the applicant gave evidence that she left Fiji because she is a lesbian. She stated that because of her sexual orientation towards women only she had always been discriminated against, insulted, bullied and subjected to various forms of violence and aggression. She also stated that she was subjected to ongoing physical and mental abuse and ostracism from her family and community, she found it difficult to get a job or keep a job for long and as a result of this consistent and ongoing discrimination she felt so much pressure in her life resulting in an attempted suicide.
The applicant gave evidence that she was the [birth order] of [children] having grown up in an average socio economic environment. Her father was [an occupation 1] and her mother a homemaker. From infancy she was raised by, and lived with her grandparents. She returned to live with her parents just prior to starting school. She described a difficult upbringing in which from a young age she was neglected by her parents and made to feel like she was the black sheep of the family. She did not have a close relationship with her siblings and describes growing up predominately around males figures including her uncles and her male cousins who were of similar age to her.
The applicant stated that she first became aware of her sexual orientation and identity around the age of [age] years as she came to recognise that there was something was different about her because she had a different feeling from within her. She was born a female but felt totally different and over time she began to develop feelings for other females. She went on to describe that during her secondary schooling years she would often be discriminated against and bullied by her peers who would call her derogatory names because of her physical appearance and the fact that she would dress in a masculine way. When she would seek the help of the school teachers, she would often get told by the teachers that whatever the other students were saying was true and that she should go and change her appearance or change her behaviours to act like a girl. The applicant described growing up in a very religious and culturally dominant environment where girls were required to wear dresses for their school uniform and because she was not comfortable in doing so, she often wore her dresses very baggy. As a consequence she would be relentlessly teased and bullied by her peers and discriminated against by her teachers causing her to experience significant and ongoing stress, trauma and depression.
In relation to her family members, the applicant stated that the first people she told about her sexual orientation and identity was her [relative] and her first cousin [Mr B]. The applicant stated that her cousin [Mr B] already knew as they were always together and when she told her [relative] he accepted her for who she was. Her [relative] and cousin [Mr B] warned her however that she would not be accepted by other family members. The applicant then went on to state that although she never directly told her parents of her sexual orientation, they came to know from her physical appearance, how she dressed and behaved. Whilst their initial reaction was one of embarrassment and neglect it soon escalated into ongoing exclusion from the family and family events and physical and psychological violence. The applicant described as a young child when she would ask her parents for help in dealing with the relentless and ongoing discrimination and bullying she experienced at school, from both teachers and her peers, her parents would say to her that she was born a girl and that she should act like it. She explained that, rather than protecting or assisting her, her parents would regularly beat her and tell her to stop embarrassing them.
The applicant went on to describe instances in which her father, who was well known in the community through his work as [an occupation 1], would return home and severely beat her after being ridiculed by his customers. She explained that his clients would make comments to him that his daughter was a lesbian and mock him on this basis. In response, he would physically punish the applicant for, in his view, embarrassing him in front of the community. The applicant also explained that she was subjected to these constant beatings throughout her childhood and into her early adulthood, until approximately the age of [age] years. She gave evidence that when she was approximately[age] years of age, she had begun a secret relationship with a girl at school, which was discovered by her mother. On that occasion, sometime in [Year], when both her parents became aware of the relationship, they beat her so severely that she was left with bruises and whip marks. She explained that the repeated beatings over time caused her to suffer depression and stress. The applicant did not access medical treatment at the time. She further stated that she had gone and reported the incident to the police only to be told by the police that if her parents were beating because she was a lesbian, then her parents were correct and that given she was born a girl, she should act like it.
The applicant stated that the beatings continued and her parents would often kick her out of the house, at which point she would usually end up going to stay with her [relative]. She gave evidence that the bruises and whip marks were sometimes so severe that she was unable to attend school, and she would remain at her [relative’s] home until she recovered sufficiently to return. She explained that she never disclosed the abuse to her teachers or school staff, as she knew they would not assist her, rather agree with her parents.
The applicant then went on to state that the ongoing abuse, discrimination, and pressure from her family to end her relationship with her then girlfriend ultimately culminated in a suicide attempt. This took place in [Year]. She went on to describe that after a week of repeated assaults and being denigrated by her parents, who told her she was not their child, she felt unable to cope with the combined stress of their mistreatment, them forcing her to end her relationship with her girlfriend, and the pressure of her upcoming school exams. On the night before one of her exams, she was beaten so severely by her father that she decided it would be better to end her life. The following morning, before attending her exam, the applicant swallowed [tablets] of [Medicine]. While at school, she began foaming at the mouth, became very weak, and eventually lost consciousness. Prior to her passing out, a teacher had noticed her condition and asked what was wrong shortly before she collapsed.
The applicant was subsequently taken to hospital where she was treated and remained for approximately one week. She gave evidence that at the hospital she had been given some counselling and when she told the counsellor and medical staff about her situation in the hope that they could assist her, she found them to be unhelpful. The applicant went on to state that, after leaving hospital, she had hoped her parents might give her a second chance and stop hurting her. However, within two months of her return home, her father resumed physically assaulting her.
The applicant told the Tribunal that she had contacted the hospital sometime around 2020 to ask if she can access a copy of her admission and treatment records but was told by the hospital that given it had been more than 10 – 12 years, the hospital no longer held any records of her attempted suicide and admission. She went on to state that [Ms A], her childhood friend and witness had visited her at the hospital at the time and can attest to the above events taking place. The Tribunal notes that the evidence provided by the applicant’s witness was consistent with, and supportive of, the applicant’s account of the events that took place. In her evidence, [Ms A] confirmed the events that took place noting that she attended school with the applicant and had gone to visit the applicant in hospital following her attempted suicide. The Tribunal accepts [Ms A]’s evidence as credible and reliable.
The applicant went on to state that the situation at home remained unchanged until her mother passed away sometime in 2021. She explained that her current relationship with her father and [some] of her siblings is distant and that she only communicates with one of her sisters on occasion. She also stated that she remains fearful that, if she were to return to Fiji, she would face the same harm and circumstances as before.
When asked if she had told her friends about her sexual orientation and/or circumstances, the applicant gave evidence that she had told a few close friends including her childhood friend and witness [Ms A]. She explained that [Ms A] had always witnessed the abuse and discrimination the applicant suffered at school or in the community. [Ms A] was also there when she attempted suicide and came to see her at the hospital. When asked how her friends reacted to her news, she said some of them didn’t accept it, some mocked her and made fun of her whilst others did believe her but were sceptical.
When asked if had ever been intimate with or had any relationships with a man, the applicant stated that she had not. She went on to explain that her first and only experience with a girl was at the age of [age] years with her then girlfriend as described above. She said that she had told this particular girl of her romantic feelings towards her since the age of [age] years but it was not until they were [age] years of age that they began a relationship. They were together for less than one year before the applicant was forced to end the relationship, a contributing factor to the applicant’s attempt to end her life. The applicant went on to state that she has since never entered into another relationship because of the trauma of that experience and because of her fear that if she were to enter into another relationship, she would get beaten up again.
When asked if she had faced any other incidents of harm in Fiji the applicant described ongoing discrimination and harassment in both her education and employment. She gave evidence that following secondary school she had enrolled in a vocational qualification in [subject 1], a field she was told was “for boys”, and while she undertook the course because she enjoyed what was considered men’s work, she was subjected to persistent bullying by her classmates who were all males. They mocked her, told her to “know her place”, and called her derogatory names. Although there was no physical violence, the sustained harassment prevented her from completing the course.
The applicant further stated that in every job she undertook, she experienced persistent bullying, harassment, and discrimination. In her [job task] work, customers would tell her employer not to hire her because she “scared customers away”, and on numerous occasions, her employer would instruct her to dress or behave in a more feminine manner. She reports being subjected to constant verbal abuse, and described one incident where, during a disagreement with a co-worker, he slapped her, spat on her, and told her that being a lesbian was wrong. When she attempted to escalate the matter with their boss and told him she wanted to report the incident to the police, her employer dismissed both her and the co-worker, stating that this was to avoid reputational damage to the business. The applicant went on to state that she often found it difficult to get a job and/or maintain a job because of her sexual orientation and physical appearance and this resulted in her suffering economic hardship and financial instability particularly given the lack of any help from her parents.
When asked whether she was involved in the LGBTQIA+ community in Fiji, the applicant gave evidence that whilst she knows that there is a community, she did not socialise or go out within the LGBTQIA+ community for fear that she would be beaten and/or harmed. She stated that there were reported incidents of lesbians and other LGBTQIA+ people being assaulted and murdered because of who they were. When asked if she knew of any LGBTQIA+ groups or organisations, and/or whether she had joined or sought the assistance of such organisations, the applicant stated that she knew there were some foundations that advocated for LGBTQIA+ rights but she was not involved with such organisations. She said that sometime in 2007 she had reached out to a Pride Group asking for help when she being constantly beaten and kicked out of the house by her parents but the group could not really help her with accommodation or anything else.
When asked if she had experienced any other incidents of harm, the applicant stated that she could not attend public or family events such as weddings and the like because she was forbidden from attending given her appearance and behaviour. She said she was not allowed to take part in religious occasions despite being a practising Hindu and that given that Fiji was a religiously conservative country, the community did not accept LGBTQIA+ people. LGBTQIA+ individuals do not get support from the government or the legal system and are disadvantaged in terms of employment and economic opportunities.
Life as a Lesbian In Australia
When asked about her life in Australia, the applicant stated that since her arrival she has become more open-minded, gaining a better understanding of herself and exploring her identity. She described feeling amazed to be accepted, respected, cared for, and loved by others. She has formed friendships and reported that her co-workers were accepting and respectful. Unlike the trauma she experienced in Fiji, she now feels able to live freely in the way she chooses. Whilst she is not currently in a relationship, she expressed that she would like to be in the future, and noted having had casual encounters in Australia, meeting other women through work and social media. She maintains an active, publicly identifiable social media profile, through which she occasionally shares or reposts LGBTQIA+ rights content, though she has not been involved with formal groups or organisations. She stated that being in Australia has given her a sense of respect, acceptance, opportunities in employment, and most importantly safety – something she never experienced in Fiji.
Return to Fiji
When asked whether she could return to Fiji now, the Tribunal notes that the applicant became visibly upset and stated that she would face the same trauma and assaults as before. She explained that she no longer has any family support there, as her grandparents and her [relative] – the only relatives who accepted her – have passed away. She also explained that her cousin [Mr B] now lives in [Country 1] and her childhood friend [Ms A] lives in Sydney, Australia so she has no one and nothing to return to in Fiji other than a life of discrimination and persecution. She stated that relocation within Fiji would not be a viable option, as the situation for LGBTQIA+ individuals is the same nationwide. She added that landlords commonly refuse to rent to those who are visibly LGBTQIA+ and that she would likely continue to face difficulties securing employment. She concluded that returning to Fiji would mean returning to a life of misery, to the point where she fears she would be driven to attempt suicide again.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity and country of nationality
The applicant’s nationality is not in issue. The applicant is a [Age]-year-old citizen of Fiji who was born in [Province], Fiji. The applicant travelled to Australia on a valid Fijian passport and states that she is a national of Fiji. In support of her protection visa application, the applicant provided a copy of her Fijian passport. The delegate accepted that the applicant had provided sufficient evidence of her identity and nationality and accepted the applicant’s identity. On the evidence before it, the Tribunal is satisfied that the applicant is a national of Fiji and has assessed her claims against Fiji as his country of reference and ‘receiving country’ respectively.
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[2] The mere fact that a person claims to fear 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, the fact that an 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.
[2] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3]
[3] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
The Tribunal acknowledges however the importance of adopting a reasonable approach when making findings of credibility.[4] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[4] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Does the applicant satisfy the refugee criterion for protection?
Findings
The Tribunal records at the outset that it found the applicant gave her evidence in a credible, candid, forthright and consistent manner and that she has provided documentary evidence to support her claims. The Tribunal further records that the evidence of the two witnesses was consistent with, and provided compelling support for, the applicant’s account. Both witnesses gave evidence based on their firsthand knowledge and direct observations of the applicant’s circumstances, which the Tribunal finds to be credible and reliable.
The Tribunal has carefully considered all the evidence provided by the applicant in her primary visa application, at hearing and the corroborative evidence provided to the Tribunal and it accepts that the applicant is a Lesbian as claimed, that she lives openly as such both in Fiji and Australia and that she fears harm upon return to Fiji on the basis of her sexual orientation and non-normative gender expression. The Tribunal has formed the impression through its own observation at hearing that the applicant styles herself to present as more masculine and the Tribunal accepts that these all of these characteristics are fundamental to the applicant’s identity and conscience and that she is identifiable as a lesbian by her appearance, her behaviours and her previous relationships with women both in Fiji and Australia. Overall, the Tribunal found the applicant to be credible, frank, sincere and reliable in the giving of her evidence and that her claims have remained consistent before the Department and the Tribunal. She responded to the Tribunal’s questioning in a spontaneous, natural and forthcoming manner and accordingly, on the evidence before it, the Tribunal accepts as true the claims made by the applicant at hearing, in her written evidence and as set out above.
The Tribunal accepts that the applicant fears severe consequences if she were to return to Fiji on account of her sexual orientation and non-normative gender expression. It accepts that she fears discrimination and ostracism form her family, the authorities, and the community at large, and that she faces a real chance of physical, psychological and emotional harm and violence. The Tribunal also accepts that, because of her physical appearance, the applicant is particularly vulnerable to heightened discrimination. It finds that she would likely be ostracised, potentially subjected to violence, denied employment and housing opportunities, and systematically discriminated against and shamed wherever she went in Fiji. The Tribunal further accepts that internal relocation within Fiji is not a viable option, as the stigma and hostile attitudes towards the LGBTQIA+ community is prevalent throughout the country, meaning she would face the same serious risk of harm regardless of location.
Risk of future harm
Having accepted the applicant’s claims in their entirety, the Tribunal must now turn its mind to consider whether there is a real chance that the applicant will face serious harm if she were to return to Fiji on the basis of her sexual orientation and non-normative gender expression
DFAT country information reports that “Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched.”[7] In reference to issue of violence against women and girls, it notes that “In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world.[8] It also notes that “reported cases of sexual assault are also high[9] [and that] police protection is available but not consistently.[10] NGOs provide some services to women and girls who are subject to violence but women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks.”[11]
[7] Department of Foreign Affairs and Trade DFAT Country Information Report: Fiji 20 May 2022 at 3.49.
[8] Ibid at 3.51.
[9] Ibid at 3.52.
[10] Ibid at 3.53.
[11] Ibid at 3.56 and 3.57.
As to the issue of sexual orientation and gender identity, DFAT reports that;
·Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.
·There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.
·Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.
·In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.
·In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.
·Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.”[12]
[12] Ibid at 3.58 – 3.65.
In the 2023 US Department of State Country Report on Human Rights Practices: Fiji it is reported that “NGOs reported violence against members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment.”[13] It also reported that whilst “the constitution prohibited discrimination on the grounds of sexual orientation, gender, and gender identity and expression. The law prohibited discrimination in employment based on sexual orientation. Nevertheless, NGOs reported complaints of discrimination against LGBTQI+ persons in employment, housing, access to health care, and other fields. It also noted that “Research by the NGO Diverse Voices and Action for Equality found that a majority of lesbian and bisexual women, and of transgender persons, lived in poverty due to unemployment. According to Diverse Voices, approximately 62 percent of this group were unemployed or involved in precarious casual work.”[14]
[13] 2023 US Department of State Country Report on Human Rights Practices: Fiji.
[14] Ibid.
Other sources confirm that the LGBTQIA+ community continue to face harm and discrimination in Fiji. For example:
·“There are limited protections against hate crimes and incitement to hatred, and no explicit legal recognition for traditional third-gender identities or legal gender change for transgender people.[15]
·LGBTIQ+ people have been subject to discrimination and punitive treatment by Fijian police.[16]
·Research conducted by local NGO Diverse Voices and Action for Equality (DIVA) in 2018, found that 76 per cent of surveyed LGBTIQ+ people did not feel safe going to the police. Numerous respondents stated they had been beaten by the police due to their sexual orientation or gender identity.[17]
·Successive Fijian governments have not been publicly supportive of the LGBTIQ+ community. While in office, former Prime Minister Frank Bainimarama stated that same-sex marriage would not be legalised in Fiji, suggesting that same-sex couples who marry abroad should stay abroad. The current Prime Minister, Sitiveni Rabuka, has been evasive on the topic and there is little expectation that his coalition government will debate the topic.[18]
·Despite legal protections, societal discrimination, bullying and violence against LGBTIQ+ people remains common, influenced by conservative cultural and religious values.[19]
·LGBTIQ+ people experience discrimination in employment and in other areas, including accessing healthcare and housing.[20]
·Reported in 2024 more than 80 per cent of lesbian and bisexual women, trans men and gender non-conforming people surveyed had been forced to leave their home and 35 per cent had experienced mental and emotional abuse.[21]
[15] Legal Gender Recognition in Fiji: a Legal and Policy Review in The Context of Human Rights', Asia Pacific Transgender Network, 26 April 2022, pp. 14, 51-53, 20250218130250
[16] ‘Sexual and reproductive health and gender-based violence in Fiji: A review of policy and legislation', Rowe, J, Sullivan, C and Vaughan, C, United Nations Population Fund (UNFPA) and the University of Melbourne, 26 October 2022, p.61, 20221201105714 - fiji_policy_and_legislative_review_290922.pdf
[17] DIVA for Equality concerned about the treatment of LGBTQI people by some police officers - accessed 5 September 2025.
[18] Why the fight for marriage equality in Fiji divides LGBTQ+ activists | Fiji | The Guardian accessed 5 September 2025.
[19] 4.Fiji_AVP-Pride-Guides.pdf – accessed 5 September 2025.
[20] Fiji: Freedom in the World 2024 Country Report | Freedom House – accessed 5 September 2025.
[21] Diva for Equality quoted in p.4, Supporting SOGIESC Equality in the Pacific: Australia's Role, Equality Australia, 2024, 20250416151602
It is well established that persons of non-normative gender identity and/or sexual orientation in a given country can constitute a particular social group.[22] Having accepted that the applicant identifies as a lesbian of non-normative gender expression, the Tribunal accepts that the applicant is a member of the particular social group comprising the LGBTQIA+ community in Fiji.
[22] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
In these circumstances, the Tribunal accepts that the applicant faces a real chance of serious harm in Fiji for the essential and significant reason of her membership of the particular social group comprising the LGBTQIA+ community in Fiji. That harm includes, but is not limited to, degrading treatment and other acts of discrimination and violence amounting to serious harm, exclusion from employment opportunities and societal harassment and discrimination, all of which the applicant is likely to face if she were to return to Fiji. The perpetrators of that harm include the applicant’s family, Fijian authorities and members of the broader Fijian community.
As one of the perpetrators of harm in this case is the Fijian state, the Tribunal accepts that effective state protection is not available to the applicant and the real chance of persecution relates to all areas of Fiji.
Having now carefully considered all of the circumstances of the applicant, the evidence before the Tribunal and for the reasons given above, the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group comprising the LGBTQIA+ community in Fiji if she were to return to her country Fiji, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Third Country Protection
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if they have not availed themself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.
Nothing in the material before the Tribunal indicates that the applicant has a right to enter and reside in any third country apart from Australia. It follows that s 36(3) does not apply in the circumstances of this case.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 9 July 2025
Representative: Ms Thara Sujith Kumar
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.
…
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