2448253 (Refugee)
[2025] ARTA 1792
•12 August 2025
2448253 (REFUGEE) [2025] ARTA 1792 (12 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2448253
Tribunal:General Member C Stokes
Date:12 August 2025
Place:Adelaide
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 1958 (Cth).
Statement made on 12 August 2025 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – women – victims of family violence – physical assault – gender-based violence – threats of killing – return visits to Fiji – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2Any 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 then Minister for Home Affairs on 19 November 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a national of Fiji, applied for the visa on 26 November 2020. The delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations.
On 11 December 2024, the applicant applied to the Administrative Review Tribunal (the Tribunal) for review.
On 29 May 2025 and 4 August 2025, the applicant appeared before the Tribunal by videoconference to give evidence and present arguments. The Tribunal also received evidence by videoconference from the applicant’s Australian citizen mother. The applicant was unrepresented in relation to the review.
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 if the applicant, whether the applicant is a member of the family unit of a person found to be 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 set aside and remitted for reconsideration.
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.
Applicant’s background and visa application history
The applicant is [an age]-year old female who was born and grew up in Suva, Fiji. She is of indigenous iTaukei ethnicity and Christian (Seventh Day Adventist) faith. She married a man from [Village 1] in Fiji in August 2000 and had [number] children with him. They are now divorced.
The applicant provided a copy of the biodata page of her Fijian passport along with her birth certificate which shows she was born in [a named province] in Fiji. She has consistently claimed to be from Fiji. There are no apparent concerns with the applicant’s identity. I am satisfied that the applicant is a citizen of Fiji. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply. I am satisfied that Fiji is her receiving country and have assessed her claims against that country.
She arrived in Australia in October 2017 as the holder of a frequent visitor visa, to visit family. She departed and returned a number of times as the holder of a frequent visitor visa throughout 2018 and 2019 and last arrived [in] February 2020. The applicant remained in Australia due to Covid-19 and applied for the protection visa on 26 November 2020.
Claims and evidence
The applicant claimed in the protection visa application that she left Fiji because she feared harm at the hands of her ex-husband who is volatile, aggressive, violent, abusive and threatening to her and her children. In particular, she claimed the domestic violence was:
…to the extreme that he was almost raping and sexually assaulted me but lucky i pushed him hard and escape as he was sober, and that night i went to my grandparents and cried and told them what had happened. Because of tradition and culture my grandfather advise me not to report the matter to the police as it will bring reproach to the family. Hence, i told him and my grandmother that i will not set foot or meet up with my husband again. I no longer see him as a man i know on the first day we met or as a father of my [kids]. I now see him as a monster, a traitor, an abuser, and a pshycho. I see him as he is no longer fits to be a father of my children, my kids are no longer safer to be around or near him, they are feel insecure when he's around, and i personally kindly ask the Australian government if me and my kids can be protected under your care as i know that your country is a country where it values women and children. Right now, i divorcing him as the Dissolution of Marriage (Divorce documents) will be submitted later.
She claimed that she did not seek assistance from the police because of her tradition and culture makes it an offence to report domestic violence. She also claimed she cannot relocate because they are related and in the same district and she needs to live with her children. She feared if she were to return she would be subject to physical abuse, sexual abuse and assault and the authorities could not protect her given her ex-husband is a very volatile, violent and dangerous man.
On 6 January 2023, the department wrote to the applicant pursuant to s 56 of the Migration Act seeking more information about her claims. In response, the application provided the following further information:
a.a voter identification card of her ex-husband
b.photographs of screenshots from video calls with her children
c.a statutory declaration by the applicant addressing the following: she had dissolved the marriage due to irretrievable differences; she did not see a future for her in Fiji with her ex-husband being around, having no living relative for support and no surety for her safety and wellbeing in Fiji; and the reasons she did not approach the police of Fiji Women Crisis centre
d.a certificate of final dissolution of marriage dated [in] October 2020
e.birth certificates of her [children]
f.a statement by the applicant addressing the department’s specific queries including: details of incidents where she was physically assaulted by her ex-husband; details about the daily sexual abusive she experienced; why she did not seek help from the authorities; when and where the abuse happened; reasons for the delay in making the protection visa application and why she returned to Fiji a number of times between 2017 and 2020.
On 19 November 2020, the delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations. Although the delegate accepted the applicant’s claims that she had been a victim of domestic violence in the past, the delegate did not accept her claims that she continues to fear domestic violence upon her return to Fiji. The delegate was also satisfied that the applicant would be able to obtain effective state protection on return to Fiji.
When the applicant lodged the application for review with the Tribunal she provided an appeal statement, a statutory declaration annexing 4 photographs of scars on her body, news articles about domestic violence in Fiji, letters from her employer, teacher, work placement supervisor and conformation of acceptance of enrolment to study a diploma. Before the hearing, the applicant provided a further 2 photos showing her engagement in the Australian workforce.
At the hearing, the applicant gave evidence in relation to her background and claims. In particular, the applicant gave evidence that:
a.she prepared the protection visa application herself and understood what visa she was applying for. She also confirmed she continued to rely on the same claims
b.there was a delay in making the protection visa application as her mother, an Australian citizen, decided to write directly to the Minister to try to get her to stay permanently rather than apply for a further visa
c.she was born and grew up in [a named province], Fiji and attended primary and secondary school in Suva. She then completed certificate of [subject] at university in Suva and worked in a [specified business]
d.she met her ex-husband through a friend in 1998 and they courted for around 2 years before getting married in 2000. When she was pregnant with their first child his behaviour started to change and he became very cold. He started to become violent in 2004 or 2005
e.her ex-husband was a jealous person and he would embarrass her in front of other people, including slapping her. At home he would punch her when they had disagreements. Once when they went fishing he hit her with an oar and on another occasion he hit her with piece of wood leaving her unconscious. This physical abuse was ongoing as was the sexual abuse. She explained that he would punch her if she didn’t want to have sex and force himself on her frequently in their marriage
f.she wanted to get help and went to the headman in village (in Fiji it is custom to go to the head of the village first to sort out any issues before going to the authorities). When she did this he told her that they would sort it out in the village and he encouraged her not to call the police which would bring shame on village
g.she also wanted to get medical assistance but her ex-husband would stop her as he knew the doctor would make a statement and refer it to the police
h.the photographs she provided are of a scar on her [body part] when he hit her with his fist, and scars on her legs from when he cut her with a razor
i.her children were also physically and emotionally abused by him, including yelling, swearing, throwing objects at them and hitting them with something. They did not ever need medical attention for any injuries but suffered emotionally. They became withdrawn and their schoolwork suffered
j.her children have told her he continues to abuse them and her youngest recently sent her a photo of her thigh saying her dad had hit her with a belt which left red marks
k.she has not sought any support or contacted the police in relation to her children’s safety since arriving in Australia as she has been afraid as to what will happen to them if the police take their father away
l.she separated from her ex-husband in February 2020 due to the many years of abuse and they were divorced in November 2020. She asked him for a divorce and then he made the application with the court. She did not have to sign anything but only orally advised that she consented to the divorce
m.her ex-husband remains in the village and is not working. He has not, to her knowledge, re-partnered. She is not in contact with him but she speaks to her children through their phones and she sends them money. She has occasionally spoken with her ex-husband about the children’s needs since she has been in Australia
n.she fears that he will pressure her to get back with him if she were to return to Fiji and that he will use the children as a way of getting that
o.the police will not be able to assist her, and she knows he will harm her given his past behaviour and women have recently been killed in Fiji due to domestic violence and a lack of police protection
p.she has no family or friends anywhere in Fiji so it would be impossible for her to relocate as she will have nowhere to live while she looks for work.
At the very end of the hearing the applicant divulged for the first time that she had a daughter from a previous relationship who was born in [year] (and is now [age] years old). She is married, has [children] and lives in a different village in [Village 2]. She did work as a sales assistant in a shop but is now a stay-at-home mother. Her husband works. When asked why she could not live with them, at least initially on return, while she re-established herself, she told me that they don’t really have a proper house of their own.
Following the hearing the applicant provided the following further documents:
a.a letter to the Tribunal from the applicant dated 12 June 2025
b.photographs of a leg injury and a screenshot of text message from her daughter which is untranslated and undated
c.photographs of her children
d.a letter from her eldest daughter dated 10 June 2025 explaining that she lives in a village 8km away with her husband, [children] and her husband’s parents
e.a letter from her mother to the then Minister of Immigration dated [in] November 2020
On 4 August 2025, the Tribunal conducted a second hearing to discuss these further documents and take evidence from the applicant’s mother. At the second hearing the applicant gave evidence that:
a.her half-brother works in [a specified occupation] and lives with their mother in Sydney. Her mother used to work in Australia before she was injured. They paid for her to visit to support the mother while she was undergoing surgery and recovering
b.her ex-husband was no supportive of her frequent travel to assist her mother as he did not want her to be away that much. He didn’t realise when she left in 2020 that she would not return so did not have any particular reaction
c.her ex-husband has made threats to kill in the past, on more than one occasion, and he also would be very jealous and stalk her by going to places she was at uninvited
d.her mother’s letter to the minister doesn’t mention her fleeing domestic violence as she and her mother didn’t know anything about being able to claim protection for that reason and thought she would be able to get her to stay to care for her
The applicant’s mother gave evidence that the applicant had come to support her when she was unwell but that she had also been in an abusive relationship in Fiji. She claimed she witnessed him humiliating her in front of others, and knew that he physically and mentally abused her and their children and that she understands that he continues to beat the children which she had heard from family who remain in Fiji. She also gave evidence that her granddaughter had told her that the applicant’s ex-husband has not re-partnered with another woman and that he was still waiting for the applicant to return as he considered they were still in a relationship despite the divorce.
On 8 August 2025, the applicant provided the following further documents:
a.a photograph of a computer screen showing the photograph of a leg injury and text message from her daughter which was dated 24 August 2024
b.the application for the divorce lodged by her ex-husband.
Does the applicant satisfy the refugee criterion for protection?
Is there a real chance of persecution?
The applicant presented as an honest and credible witness at each of the hearings. Her evidence was detailed and appeared to me to reflect a genuine lived experience. It was also supported by the evidence she submitted before and after the hearings. Further, her claims were corroborated by the oral evidence of her mother at the second hearing. The applicant’s evidence is also consistent with country information (discussed further below).
While I had some concerns about the applicant’s frequent travel to Australia to care for her mother and delay in seeking protection I accept the applicant’s explanation in relation to these concerns, including as to why the letter her mother wrote to the Minister did not mention her situation with her ex-husband. I find that it is true that she travelled to Australia to care for her mother, but it is also true that she was at the same time fleeing her abusive ex-husband. I accept that she and her mother did not know anything about protection visas until after she wrote to the Minister and her delay in seeking protection has not caused me to question her credibility.
On the evidence before me, I accept that the applicant was a victim of domestic violence perpetrated by her ex-husband between around 2004 and 2020. I accept this included controlling behaviour including humiliating her in front of others, demonstrating jealousy, undertaking staking type behaviour, threats to kill her, and acts of violence including punching, slapping, throwing items at her, hitting her with an oar and on another occasion with a piece of wood leaving her unconscious and regularly sexually assaulting her. I accept that she wanted to get help and went to the headman in village, and that he encouraged her not to call the police which would bring shame on village and that he wanted them to conciliate. I further accept this was the advice her grandparents also gave her. I also accept that her children continue to be the victim of family violence and that as recently as August 2024 her daughter sent her evidence of her being beaten by him.
If the applicant returned to Fiji, I find she would return to live with her ex-husband and children, with her eldest daughter in a nearby village or in Suva with extended family at least while she re-established herself. Regardless as to where she is living in Fiji, I accept that she will suffer similar mistreatment that she has suffered over many years, including physical assaults, threats, and controlling behaviour, now and into the reasonably foreseeable future. There is reason to think the treatment may even be worse, given she left Fiji in 2020 without his permission and requested that they get a divorce.
I accept the mistreatment that the applicant would suffer amounts to significant physical harassment and significant physical ill-treatment, and therefore serious harm within the meaning of the term in s 5J(4)(b) of the Act and I accept that there is a real chance of that occurring now or into the reasonably foreseeable future.
I am also satisfied that the feared harm is systematic and discriminatory against her as it is non-random or arbitrary, but rather is the direct result of her ex-husband’s motivation to control her and assert his position as head of the family consistent with traditional cultural norms.[1]
Reasons for the feared harm
[1] s 5J(4)(c) of the Act
I have considered whether the applicant’s persecution is on the basis of her membership of a particular social group for the purposes of s 5J(1)(a) of the Act.
The country information suggests that domestic violence against women is prevalent in Fiji and a significant problem. From January to August 2023, the Fiji Women’s Crisis Centre recorded 599 domestic violence cases. This was an increase over the previous year.[2] Whilst the global average of women experiencing domestic violence is 1 in every 3, Fiji has an average of 2 in every 3 women who face violence,[3] amongst the highest rates in the world.[4] Key social and political factors affect the situation of violence for women in Fiji. Violence against women is rooted in gender-based discrimination, social norms and gender stereotypes that perpetuate such violence. Gender-based discrimination is heightened in the patriarchal context of Fiji, characterised by extreme gender inequality.[5]
[2] US Department of State, 2023 Country Reports on Human Rights Practices – Fiji, 22 April 2024, 18
[3] Repeka Nasiko, Alarming figures revealed, 2 May 2025, < accessed 11 August 2025. See also DFAT, DFAT Country Information Report Fiji, 20 May 2022, [3.51]
[4] DFAT Country Information Report Fiji, 20 May 2022, [3.51]
[5] Fiji Women’s Fund, Promising Practices in Preventing & Eliminating Violence against Women and Girls in Fiji, 2020, 2
I accept the violence perpetrated upon the applicant by her ex-husband is gender-based and that it is directed at her for the essential and significant reasons of her gender and her membership of the particular social group ‘women in Fiji’. I find that the group of ‘women in Fiji is identifiable by the characteristics of gender and the common characteristics or attributes are not a shared fear of persecution. Therefore, I am satisfied that the harm the applicant fears is for reason of her membership of a particular social group for the purpose of s 5J(1)(a).
Does the persecution relation to all areas of Fiji
According to DFAT, women who experience violence in rural areas may have more difficulty escaping violence, including because shelters are unlikely to exist in these areas, and therefore family members may have to be relied upon for protection. Family ties, loyalties and traditional hierarchies can protect perpetrators. DFAT also assesses that relocation is ‘not necessarily helpful’ given Fiji’s small size and that people can be tracked down through kinship networks.[6]
[6] DFAT Country Information Report Fiji, 20 May 2022, [3.57]
I accept that the people around the applicant may encourage her to reconcile, may not provide her with protection and may also deter her from seeking the help of the police given her experiences in the past.
Further, while the applicant has an adult child in a neighbouring village, I accept it will be difficult for her to stay there while she re-establishes herself given her living arrangements and in any case it is only 8km away from her ex-husband’s village and therefore her ex-husband is likely to know she is living there. While the applicant may also be able to stay in Suva with extended family while she re-establishes herself, I also consider it reasonable to expect that the applicant will wish to have access to her children which will inevitably involve having some contact with her ex-husband. Further, given Fiji’s small size and the country information which suggests that people can be tracked down through kinship networks, I find that the applicant’s ex-husband will be able to find out where she is living in Suva.
I am satisfied on the basis of the applicant’s evidence and the country information that the ex-husband will have the capacity to find the applicant on her return. I therefore accept that the chance of harm relates to all areas of Fiji.[7]
Are effective protection measures available?
[7] s 5J(1)(c) of the Act
I accept the applicant was deterred from going to the police given the pressure from the village headman and family. Further, the country information suggests that police protection is available but not consistently and is generally ineffective.
Domestic violence is a specific criminal offence under the law in Fiji. Police have a ‘no-drop’ policy whereby they are required to investigate domestic violence accusations even if a victim withdraws the complaint, however women’s organisations reported that police did not consistently follow this policy and there have been reports of lax police enforcement of domestic violence laws. Courts also dismissed some cases of domestic abuse and incest or gave perpetrators light sentences. Traditional and religious practices of reconciliation among aggrieved parties in both the Indigenous and Indo-Fijian communities were sometimes utilized to mitigate sentences for domestic violence. In past years, authorities released offenders without a conviction on condition they maintained good behaviour.[8]
[8] US Department of State, 2023 Country Reports on Human Rights Practices – Fiji, 22 April 2024, 18.
A 2024 study of Fijian police officers found a majority didn’t enforce the organisation’s zero-tolerance approach to domestic violence, and encouraged traditional means of settling cases, while only proceeding further with a case if a victim insisted.[9] In this study, responses of 365 police officers were obtained, with 89% responding that they were aware of the ‘no-drop policy’ but only 29.3% claimed to implement the policy. Instead of practising the zero-tolerance policy, police officers said they encouraged women victims to use traditional customary ways of settling domestic violence cases.[10]
[9] ABC, When home becomes hell, 16 May 2025, < accessed 11 August 2025
[10] Anand Chand, Maureen Karan, David Mapuru and Unaisi Nabobo-Baba, The Police Practice of Resolving Domestic Violence in Fiji, (2004) 13(3) International Journal for Crime, Justice and Social Democracy 35-46
In 2022, DFAT assessed that police protection is available but not consistently, although also noted that some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence and sometimes police were unhelpful or even hostile to victims.[11] A 2019 audit by the Fiji Auditor General found that there was inconsistency in the application of legislation prohibiting violence against women, pressure on women to reconcile by police or society, and lack of knowledge among women about their rights.[12]
[11] DFAT, DFAT Country Information Report Fiji, 20 May 2022, [3.53];[3.55].
[12] Ibid [3.55]
In 2023, Fiji launched a National Action Plan in relation to domestic violence against women and girls for the period 2023-2028.[13] A recent study of gender-based violence in Fiji, reveals 54 women were killed by partners between 2013 and November 2024, with three more deaths in April 2025, prompting public admissions of failure from Fiji’s leaders and a declaration that the national response has been ineffective.[14]
[13] Fiji National Action Plan to Prevent Violence Against All Women and Girls (2023-2028), 1 June 2023, < accessed 11 August 2025
[14] Samantha Rina, New research calls Fiji’s GBV response a ‘failure,’ 24 July 2025, < accessed 11 August 2025
DFAT assesses that women who experience domestic violence are by definition, at high risk of violence and at moderate risk of discrimination in the form of a lack of access to protection.[15]
[15] DFAT, DFAT Country Information Report Fiji, 20 May 2022, [3.57]
I therefore accept that the protection available to the applicant in Fiji is inadequate or ineffective.[16]
Behaviour modification
[16] s 5J(2) of the Act
Finally, I am satisfied that there are no reasonable steps that the applicant could take to modify her behaviour to avoid a real chance of persecution. It would be unreasonable to expect her to go into hiding or to not have any contact with her children.[17]
[17] s 5J(3) of the Act
Conclusion
For the reasons set out above, I am satisfied the applicant faces a real chance of persecution at the hands of her ex-husband in the reasonably foreseeable future, should she return to Fiji, that the real chance extends to all areas of Fiji, and that effective protection is not available to the applicant, nor can she modify her behaviour.
I am satisfied that the applicant is a non-citizen of Australia who is a refugee. I am therefore satisfied that the applicant satisfies the criteria set out in s36(2)(a) of the Act, and therefore the I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.
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 Act.
Date(s) of hearing: 29 May 2025 and 4 August 2025
Representative for the applicant: N/A
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.
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36 Protection visas – criteria provided for by this Act
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(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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