2503643 (Refugee) - [2025] ARTA 1613

2503643 (REFUGEE) [2025] ARTA 1613 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2503643
Tribunal:General Member C Stokes
Date:1 July 2025

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 01 July 2025 at 11:05am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – supporter of political party – abused and threatened, but no physical harm – socio-economic conditions, crime and drugs, and employment opportunities – work history and family support – country information – recent free and fair election and change of government – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Respondent S152/2003 (2004) 222 CLR 1
SCAT v MIMA [2003] FCAFC 80
Any 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 20 January 2025 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Fiji, applied for the visas on 14 November 2024. The delegate refused to grant the visas on the basis that that the applicants are not persons in respect of whom Australia has protection obligations.
On 3 February 2025, the applicants applied to the Administrative Review Tribunal (ART) for review.
On 16 June 2025, the applicants appeared before the Tribunal by videoconference to give evidence and present arguments. The applicants were unrepresented in relation to the review.
The issue in this case is whether one or both of the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; and, if one applicant is found to be a person in respect of whom Australia has protection obligations, whether the other applicant is a member of their family unit.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
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.
Applicants’ backgrounds and visa application history
The first applicant is a [Age]-year-old male from [Village] who was born in [Town 1] Fiji. He first arrived in Australia in 2015 as the holder of a temporary [Visa 1]. He stayed for 6 months and retuned again the following year on the same type of visa again staying for 6 months. The first applicant returned on [temporary Visa 2] in 2018, 2019 and 2022, staying for 6 months each time. He then came in and out of Australia every 3 months in 2023 and 2024 as the holder of [temporary Visa 3] visas. He last arrived in Australia in August 2024 and has not departed since.
The second applicant is a [Age]-year-old female from [Town 2] Fiji and is married to the first applicant. She first arrived in Australia in April 2024 as the folder of a [temporary Visa 3] and stayed for 3 months. She then returned in August 2024 and has not departed since.
Claims and evidence
The first applicant claimed in the protection visa application that:
a.he was sworn at, threatened, almost beaten up and called a traitor in Fiji for voting and supporting the FijiFirst party and former Prime Minister Bainimarama, the man the majority of his people hate
b.he attempted to seek assistance from police, but by then the culprits disappeared
c.he did not attempt to move to another part of Fiji as he knew that after the election things would go back to normal, and it certainly did
d.he fears if he were to return to Fiji, he will be harmed again during the next election in 2026 if he votes for someone his village community hates. However, after the 2022 election all is peaceful and all will go back to normal after the 2026 election.
The applicants were not invited to attend an interview with the delegate.
At the hearing the applicants provided further details about their background and claims. They explained they were threatened, and the first applicant was almost beaten, by members of their village during and after the 2014 elections as they were the only people in their village to vote for the FijiFirst Party. They also claimed that the threats were ongoing until recently. The first applicant claimed they did not know how important it was to keep the messages/social media posts containing the recent threats and they had been deleted. The second applicant claimed she still had some messages but was reluctant to provide anything which might put their children who remain in the village in danger. Further, the second applicant gave evidence that she did not face any threats or harm during the 2022 elections as there was not as much friction during that election, due to there being many parties and other villagers voted for different parties. The first applicant was in Australia at the time of the 2022 elections. The applicants claimed they intend to publicly and openly support the members of the FijiFirst Party who they understand will contest the 2026 election, notwithstanding that the party had been deregistered. The applicants also expressed concerns about their safety in Fiji considering the increase of drug use and crime. Finally, the first applicant expressed concerns about being able to find employment in Fiji given his lack of work experience and education.
The day after the hearing the applicants provided the Tribunal with a letter from the Headman of the [Village] which claimed the applicants were members of the village and experienced verbal abuse, threats, and social exclusion and that members of the village expressed anger toward them and used threatening and inappropriate language due to their political choice during the 2014 election. The Headman said the applicants no longer feel safe in the village and based on his knowledge as the village head and on past incidents, he strongly believes that if they were to return to the village similar or even more serious threats and hostility could occur again.
On 26 June 2025 the Tribunal wrote to the applicants to confirm whether they had any further evidence to provide, given the second applicant claimed during the hearing that she still had some messages but was reluctant to provide them. Later that day, the applicants responded as follows:
Thank you for your recent correspondence regarding our hearing on 16 June 2025 and the request for any further evidence.
We wish to confirm that we do not have any additional evidence to provide, such as text messages. At the time the threatening messages were received, we deleted them immediately and blocked the accounts that were sending them. We also made the decision to delete our [Social media] account altogether in order to avoid further distress or threats.
This decision was made not only to protect our mental wellbeing but also to avoid any negative impact on our professional lives and personal relationships. Given the sensitive nature of our work and our close-knit family ties, we felt that holding onto those messages could cause unnecessary harm to our daily lives and emotional health.
We hope this explanation clarifies our position, and we thank the Tribunal for its understanding and consideration.
FINDINGS AND REASONS
Country of nationality
The applicants travelled to Australia on apparently genuine Fijian passports, copies of which were provided to the Department and Tribunal. They have consistently stated that they are citizens of Fiji and the Tribunal finds that they are both a Fijian citizen. The Tribunal has assessed the applicants’ claims against Fiji as the country of nationality and the receiving country.
Claims based on the applicants’ political opinions
In 2006, Josaia Voreqe (Frank) Bainimarama launched a coup and, in 2007, became interim Prime Minister.[1] In 2014, Bainimarama stepped down as leader of Fiji’s military and formed the FijiFirst political party, which then won the general elections later that year and again in 2018.[2] In 2022, Bainimarama’s FijiFirst party won the popular vote (42.5 per cent) however, it only won 26 seats, just short of the 28 needed to form government.[3] The new Prime Minister, Sitiveni Rabuka of the People's Alliance, leads a three party coalition that includes the Social Democratic Liberal Party and the National Federation Party.[4] Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999.[5] His coalition holds a slim majority in parliament.[6] International observers assessed the 2022 electoral process as being free and fair overall.[7]
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, [2.4]
[2] Ibid
[3] ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 8 March 2023; ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022
[4] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 17 June 2025
[5] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, [3.40],
[6] ‘Fiji’s new politics’, The Interpreter, 17 January 2023
[7] 'Freedom in the World 2024 - Fiji', Freedom House, 6 May 2024; '2023 Country Reports on Human Rights Practices - Fiji', US Department of State, 22 April 2024, p 12
In May 2024, Bainimarama was sentenced to one year in prison for abusing his power to obstruct an investigation into alleged corruption, but he was released after 6 months.^[8] In July 2024, the Fijian Elections Office announced FijiFirst would officially be deregistered as a political party after it failed to amend its Constitution to meet requirements of the Political Parties Act.[9] An appeal was lodged with the Electoral Commission but was later withdrawn.[10] The 26 members of parliament who belonged to FijiFirst now sit in the parliament as independents.[11] In January 2025, the Opposition Leader and former FijiFirst member, Inia Seruiratu, announced an intention to form a new political party called G16 stating that they were in the process of registering the new party.[12]
[8] 'The fall of Frank Bainimarama and Fiji First', Pacific Media Network, 02 July 2024; 'Former Fiji PM Frank Bainimarama jailed for a year', BBC News, 10 May 2024; 'Bainimarama granted early release,' FBC News, 8 November 2024
[9] 'Former Fiji leader Bainimarama's political party FijiFirst deregistered', Radio New Zealand, 2 July 2024
[10] ‘EC Sits to discuss FijiFirst appeal’, FBC News, 17 August 2024; 'Maharaj ends FijiFirst appeal,' FBC News, 4 February 2025
[11] 'The fall of Frank Bainimarama and Fiji First', Pacific Media Network, 2 July 2024; ‘By-election avoided after MPs shift’, FBC News, 9 August 2024; ‘FijiFirst deregistration now in the past, says Usamate’, Fiji Times, 20 August 2024
[12] 'Seruiratu announces intention to form new Political Party,' Fiji One News, 20 January 2025
I accept the applicants voted for, and, were open about voting for, the FijiFirst party and former Prime Minister Bainimarama in the 2014 election. That is because the first applicant was able to refer to specific FijiFirst policies that he agreed with and both applicants appeared to genuinely hold positive views about that party. I also accept the applicants were the only people in their village who voted for that party during the 2014 election and they were subject to verbal abuse and harassment by other villagers for not following the views of the village. That is based on their oral evidence and the letter provided after the hearing from the village Headman.
However, I do not accept the applicants were ever physically harmed by villagers because of their political views. That is because, firstly in the protection visa application, the applicants claimed that the first applicant was ‘nearly beaten’. Consistent with that written claim, at the hearing, the first applicant gave evidence that while punches were thrown he was not ever injured. Secondly, the letter from the Headman only refers to incidents of verbal abuse.
I also do not accept the applicants received any recent threats by villagers because of their political views. That is because, firstly, in the protection visa application the applicants claimed that things returned to normal after the 2014 election, Fiji was peaceful following the 2022 election and they did not make claims to have faced ongoing threats or harassment. Secondly, the second applicant gave evidence at the hearing that she did not face any threats or harm during the 2022 elections as there was not as much friction during that election, due to there being many parties and other villagers voted for different parties. Thirdly, I do not accept it is plausible that the applicants would have deleted recent messages containing threats of harm and deleted their [Social media] account when they last received the threatening messages. The applicants gave inconsistent evidence about when the most recent threats were made. They both said it was ‘up until this day’ and when questioned further about the timing the first applicant indicated the last threatening message was received in August 2024 - before coming to Australia. The applicants also claimed in the protection visa application to have regular contact with their family via [Social media]. That causes me to doubt that they deleted their account after they received the last threats in August 2024. It equally causes me to doubt that they continue to receive threats to this day. Further, it would be reasonable to expect they would have retained some record of such messages which would have been important evidence for any future police action, or, for their protection visa application lodged in November 2024. The absence of any copies of any messages, and the explanation provided has caused me to doubt whether recent threats have in fact been made. For the above reasons, I do not except that they have.
While I accept the applicants suffered verbal abuse during the 2014 elections, I do not accept they were subject to serious harm. That is because, they were not denied the right to vote, their life or liberty was not threatened nor was it significant physical harassment or ill-treatment as per the non-exhaustive examples of serious harm in s 5J(5). Also, given I have found the verbal abuse occurred around the 2014 election and was not ongoing, I do not consider the degree of that short term harm amounted to ‘serious’ mental harm[13] or was so oppressive that the applicants could not be expected to tolerate it.[14] I also have accepted that second applicant did not face threats or harm during the 2022 election, and I do not accept the applicants and the village Headman’s assertion that more serious threats and hostility could be directed towards them on return. That is because I do not accept there have been ongoing threats of harm, there were no threats of harm during the 2022 election and the FijiFirst party has now been deregistered. Even though some members of that party may continue to run as either independents or may become members of a new party, it is merely speculative to say that the members of the village would be hostile to the applicants for wishing to vote for them. That is because the G16 party has not yet been registered and there is no polling data or information about the policies or campaign strategies which will influence their popularity leading up to and during the 2026 election. Further, given the second applicant gave evidence that the villagers voted for different parties in the 2022 election I am not satisfied there is a real chance of the villagers being concerned about the applicants voting for independents or a new party if formed in future elections.
[13] SCAT v MIMA [2003] FCAFC 80 at [23]
[14] MIMA v Respondent S152/2003 (2004) 222 CLR 1
For the above reasons, I do not accept the applicants will be subject to serious harm on return to Fiji now, during the 2026 election or during future elections. I therefore find there is no real chance they will face serious harm in the reasonably foreseeable future in Fiji due to their political views.
Safety concerns due to increase in drug use in Fiji
The county information, which I briefly discussed with the applicants’ at the hearing, suggests that Fiji is generally stable and secure. The security forces, including the police, are well-resourced and maintain effective control of the country.[15] Most crimes are opportunistic and while some criminals operate in larger groups, these lack an organisational hierarchy and generally operate on an ad-hoc basis. The majority of assaults and robberies occur at night around popular restaurants and nightclubs. Both the US and Australia advise that Fiji is safe to travel to and that travellers should exercise normal safety precautions there.[16] Further, local media and social justice groups in Fiji are reporting increasing cases of meth, heroin and cocaine use, including among children as young as 14, as well as numerous drug busts.[17]
[15] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, [2.34] and [5.7]; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p 1,
[16] ‘Fiji Country Security Report’, The Overseas Security Advisory Council US Department of State, 14 June 2023; 'Fiji Travel Advice & Safety,' Smartraveller, DFAT, 6 June 2025, current at 17 June 2025
[17] 'Surge in substance abuse admissions, reported in Fiji,' ABC Pacific, 17 July 2024; 'Fiji launches largest-ever drugs trial as the country tackles growing meth scourge,' ABC News, 15 June 2025

Based on the country information, I accept that drug use is becoming more prevalent in Fiji, including among young Fijians. However, I find Fiji is generally safe and the police are maintaining effective control and are targeting drug related crimes. I therefore do not accept the applicants will be subject to serious harm on return to Fiji, or in the reasonably foreseeable future, due to the increase of drug use in Fiji. While the applicants may be concerned about their children (who are [Age]) being involved with drugs sometime in the future, at this point that is mere speculation, and I am not satisfied that there is a real chance of this occurring in the reasonably foreseeable future.
Economic concerns
As explained to the first applicant at the hearing, the fact that the applicants owe a debt to an Australian bank is not relevant to how they may be treated on return to Fiji. However, I have taken this debt into account when considering whether the applicants have a real chance of suffering serious harm due to the economic conditions in Fiji and the first and second applicants’ financial position and employment prospects on return.
Country information indicates that Fiji is classified as an upper middle-income economy and despite the economic impacts of Tropical Cyclones Harold and Yasa in 2020, Ana in 2021 and COVID-19, it rebounded in 2022 with 11.6 per cent mostly driven by the rapid recovery of the tourism sector. The unemployment rate in 2024 in Fiji was reported to be 4.3%.[18]
[18] ‘Fiji: Country Factsheet’, International Labour Organization, 2024
I accept that the applicants’ earning capacity in Fiji is not as high as it is in Australia. I also accept they are indebted to an Australian bank for approximately AUD$44,000, however the car they purchased with the money borrowed could be sold to repay some of that loan and it is difficult to predict whether any international enforcement action would be taken by the bank to pursue the remaining debt. I find the applicants are both of working age and have some skills and work experience both in Fiji and Australia (including new skills of working in [workplaces] and [work sector]). They also have family in Fiji, who appear to be in a position to offer support such as accommodation at least initially on return. I therefore find that the applicants will have access to accommodation, and basic services, and they will be able to find employment in the reasonably foreseeable future in Fiji given the economic and employment situation of Fiji. I am therefore satisfied there is no real chance the applicants would suffer significant economic hardship that threatens their capacity to subsist, and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exhaustive examples of serious harm mentioned at s 5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, on return to Fiji.
Refugee Assessment
I have considered the applicants’ claims that I accept separately and cumulatively.
For the purposes of the refugee criterion, s 5J(5) provides some examples of serious harm. I am not satisfied that there is a real chance that the applicants would face serious harm as that term is used in s 5J(4)(b) of the Act, now or into the reasonably foreseeable future. As such, I am not satisfied the applicants are refugees or meet s 36(2)(a) of the Act.
Complementary Protection Assessment
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have also considered the alternative criterion in s 36(2)(aa).
I have found the applicants do not face a real chance of serious harm in Fiji. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[19] For the same reasons given above, I find there is not a real risk the applicants will suffer significant harm.
[19] MIAC v SZQRB (2013) 210 FCR 505
For completeness, I find that any difficulties the applicants faced in their village due to the way the voted in 2014 did not constitute significant harm in accordance with the exhaustive definition in s 35(2A) of the Act. While some aspects of their past experiences in relation to the 2014 election have caused them some distress, I do not accept those experiences were severe or so extreme that they were unreasonable or that they will be repeated in the future.
Finally, I have considered whether the applicants’ concerns about their ability to support themselves on return will mean that they and their children will be at risk of significant harm. I accept it will be difficult initially on return while the applicants re-establish themselves and find work. However, I have found the applicants will be able to access accommodation, as well as basic services as would any other citizen in Fiji. In any case, there is nothing to suggest that any suffering faced by the applicants due their financial position and employment prospects would be as a result of an actual subjective intention to bring about the suffering by acts or omissions.
Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicants will suffer significant harm. They therefore do not meet the criterion for a protection visa set out in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date of hearing: 16 June 2025
Representative of the applicants: 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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