2503917 (Refugee) - [2025] ARTA 2319

2503917 (Refugee) [2025] ARTA 2319 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Mr Michael David Jeremy (MARN: 0208955)
Respondent:  Minister for Immigration and Citizenship

Tribunal Number: 2503917

Tribunal:General Member G Sammon
Date:25 August 2025

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit and Family Court remittal – political opinion – opposition to the previous military government – particular social group – educated, professional women – family illnesses – spiritual disturbances – loss of government employment – fear of witchcraft – fear of killing – mental health issues – internal relocation – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
MIAC v SZQRB [2013] FCAFC 33
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.
I, General Member G Sammon, certify that this is the Tribunal’s statement of decision and statement of reasons.
Statement made on 25 August 2025 at 3:33 PM.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection[1] (the Delegate) on 17 July 2014 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] As was the then Minister’s then title.
The Applicants who claim to be nationals of Fiji,[2] applied for the visas on 3 October 2013.[3] The Delegate refused to grant the visas on the basis that the Applicants were not persons in respect of whom Australia had obligations for a protection visa under s 36(2)(a) as a ‘refugee’, as that term is defined in the Act[4] or for 'complementary protection’ under s 36(2)(aa) of the Act.
[2] With the exception of [Applicant 5] who was born in Australia.
[3] The Delegate’s decision notes that the Applicants (with the exception of [Applicant 5] who was not born then) had made an earlier application for a protection visa dated 13 September 2010, which was refused as a result of a decision by the then Refugee Review Tribunal. The Applicants then made the current application on 3 October 2013. In this decision, I will consider only the current application.
[4] Section 5H.
The Applicants are a family consisting of two parents ([Applicant 1], the husband and father and [Applicant 8], the wife and mother) and their six children. For convenience, in these reasons, I will refer to the Applicants by their first names.

The parents both appeared before the Tribunal on 16 July 2025 to give evidence and present submissions in support of their claims for protection visas. The Applicant identified in the Delegate’s decision [the] parents’ daughter [Applicant 6], also gave evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages for the evidence by [Applicant 1], but the interpreter's assistance was not required for [Applicant 8] or [Applicant 6].
The Applicants were represented at the hearing by Mr Michael Jeremy, a Migration Agent.
In summary, the bases for the Applicants’ claims for protection visas as described in the application dated 3 October 2013 were that:
(a)in [Applicant 1’s] case, he was a supporter of the movement in Australia to restore democracy to Fiji; and
(b)in [Applicant 8’s] case, she made claims for a protection visa arising from work as an employee of [Public Agency 1] and because she had spoken out against the then Fijian Government and was fearful of harm due to her political activities.[5]
[5] See page 11 of the Delegate’s decision.
However, at the commencement of the hearing, [Applicant 1] and [Applicant 8] said they no longer wished to rely upon those grounds, but instead, their sole basis for their claims for protection visas, was that they feared harm if they returned to Fiji now, or in the foreseeable future, because witchcraft would be practised on them there. After the hearing, and in response to a written direction I issued, the children of [Applicant 1] and [Applicant 8] (with the exception of [Applicant 6] who gave evidence at the hearing, and [Applicant 5], who is aged only [age]) provided statutory declarations to the Tribunal stating that they agreed that their mother and father seek protection because of the parents’ fear of the practice of witchcraft in Fiji.
The Applicants made their application to the then Administrative Appeals Tribunal (AAT) under the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth). The application may continue to be heard by the Administrative Review Tribunal under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). More specifically, the Applicants’ case was remitted to the current Tribunal by a decision of the Federal Circuit and Family Court of Australia made [in] November 2024, as described below.
BACKGROUND
This matter has a long procedural history which it is not necessary for me to describe. It suffices to say that the current proceeding before the Tribunal is due to a decision concerning the Applicants’ application for protection visas by the Federal Circuit and Family Court of Australia made [in] November 2024,[6] which issued a writ of certiorari quashing a previous decision of the then AAT and a writ of mandamus directing the current Tribunal to review the Applicants’ claims for protection according to law.[7]
[6] [Citation deleted]. That decision describes the procedural history which led to that decision.
[7] Paragraph 6 of the Court’s orders.
Because of the change of position of the Applicants at the hearing held on 16 July 2025 to abandon the previous basis for a claim for protection visas, and to proceed on the sole ground that the Applicants would be harmed by witchcraft if they returned to Fiji, I will not consider the grounds previously relied upon for protection visas, and concentrate on the claims of harm due to witchcraft.
Nationality
The Delegate recorded in her decision that each of the Applicants were citizens of Fiji and were all part of the same family. For all the Applicants apart from the eighth Applicant, [Applicant 5], who was born in Australia, on [date], the Delegate was satisfied of those facts by sighting copies of the passports of the Applicants. For the eighth Applicant, the Delegate was provided with her birth certificate. I am satisfied that all the Applicants are citizens of Fiji and are part of the same family and I accept this part of the Delegate’s decision.
The Department which administers the Act (the Department) has provided the Tribunal with the movement records between Australia and Fiji for all the Applicants except for the youngest, [Applicant 5]. Except for her case, the records state that the Applicants last arrived in Australia in either August or September 2010 and they have not left Australia since.
Evidence before the Tribunal
Statutory declaration by [Applicant 8]
The claim of harm because witchcraft would be practised upon the Applicant family if they returned to Fiji was first raised in detail in the statutory declaration of [Applicant 8] made on 11 July 2025.[8] In it, she said that she was raised in [Village 1] [near] Suva. She said her up-bringing was based around the Methodist Church and Christianity was ‘prevalent in our lives’.
[8] Mr Jeremy as the newly appointed representative for the Applicants raised the issue about witchcraft in an email to the Tribunal dated 30 June 2025, prior to the hearing, stating that [Applicant 8] and members of her family have a genuine and well-founded fear of witchcraft. The email also stated that [Applicant 8] was scheduled for a psychological assessment. The Tribunal issued directions to the Applicants that day requiring [Applicant 8] to provide a statutory declaration describing the claim of witchcraft as the basis for protection visas, and for filing of psychologist’s report.
She said that traditional beliefs in Fiji include ‘vakadraunikau' which means witchcraft[9] or black magic, but there is also a strong sense of spirituality and ancestralism attached to its meaning as well. She said that even though she was a Christian, she believed in the power of witchcraft. She said she had a good education which included further studies after school and achieved good employment and had a good income.
[9] For convenience, I will refer to ‘vakadraunikau' in these reasons as 'witchcraft' since that was the terminology used at the hearing.
She said that in Fijian culture, people use witchcraft when they are envious, jealous and do not like to see other people get ahead in life. She said she considered that was relevant to her, and because she was a woman. She said that what was also relevant was that after her family moved into a house they built in the village of [Village 2], she was working as a [occupation 1] at [Location 1] and earning good money. He said that village is in between the [Location 1] and [Town 1] and there is a lot of tourism development and that the land value is very high. She said that she believed that witchcraft was directed at her family for those reasons.
Her statutory declaration continued that in [Village 2], her family experienced illness, the children were sickly, and she had dreams or 'spiritual disturbances’ that included snakes through her house and on her children. She said that she experienced serious swelling around her breast but she did not attend the hospital as she was frightened of an immediate mastectomy. She went to see a traditional healer who was able to heal her with leaves and also provided advice on how she could find out the people who were using witchcraft towards herself and her family.
She continued that she was so worried and afraid about the on-going effects of witchcraft and its practice and its harm on her and her family that she wanted them all to leave Fiji. She said there were also other problems in Fiji at that time. She said that due to Methodist and Christian culture, the discussion and practice of witchcraft was kept secret and that is a reason why she did not discuss or talk about witchcraft and its practice until now.
Further in [Applicant 8’s] statutory declaration, she said that since she has been in Australia, four of her husband [Applicant 1’s] relatives have died relatively young. All of them had good careers and were successful people, and she believed that witchcraft and its practice played a role in the illnesses and deaths. She said she was afraid that 'similar will happen to myself and my family if we were to return to Fiji'.
In Fiji, [Applicant 8] said there is a law that forbids the practice of witchcraft. The church can often dismiss discussions of witchcraft and its practice, or worse, chastise the person who brings it to the attention of the church. She said that witchcraft and its practice operates outside the control of law enforcement and the government. She said that is why it is something of which to be so afraid.
[Applicant 8’s] statutory declaration also responded to some specific questions about the claim of witchcraft contained in the written directions issued by the Tribunal. First, on the question why the Applicants who fear witchcraft being directed at them, would have witchcraft directed at them, [Applicant 8] said that she feared witchcraft being directed at herself and her family because it is directed at them out of jealousy, envy and from resentment of her and her family’s achievements, possessions or perceived advantages.
In response to a question on the names of the specific people the Applicants feared would practise and direct witchcraft at the Applicants, [Applicant 8] said that there were a lot of people they heard doing it, but she named two specific people, whom I will refer to as [Person 1] and [Person 2]. Asked why the specific persons whom the Applicants fear would practise and direct witchcraft at the Applicants would wish to do so, she responded that jealousy was the main reason, jealousy at achievements and that a person has something that 'their children that don't have’.
The final specific question in the directions about witchcraft asked what effects on the Applicants, witchcraft being directed at them would take. She responded:
Sickness, mental illness and death. They will want to kill you for their sacrifice to the devil. They must kill someone or they will be killed by the devil.
Statutory declaration by [Applicant 1]
[Applicant 1] also provided the Tribunal with a statutory declaration on the issue of witchcraft, dated 10 July 2025. He said that he was born in [Village 2]. He said that he went to school and Methodist Church in the village. He said that although he grew up in a Christian village, they believed in witchcraft. Their Christian beliefs and witchcraft were part of their everyday life.
He said in his Fijian culture, witchcraft is often associated with jealousy, envy and the success of other people. He said his wife [Applicant 8] is an educated, intelligent, successful, determined woman. He said he respected [Applicant 8’s] belief and fear of witchcraft and he shared this belief and fears. He said he believed that if if his family and himself had stayed in Fiji, serious harm would have come to them.
Psychologist’s report
On 11 July 2025, the Applicant’s representative filed a report by Registered Psychologist [Psychologist A] dated 10 July 2025. The stated purpose of the assessment was to evaluate the psychological impact of [Applicant 8’s] belief in witchcraft, the associated fear of harm and the potential mental health consequences of being returned to Fiji and specifically to the village of [Village 2].
The executive summary of the report stated that [Applicant 8] presented with:
significant psychological distress rooted in culturally embedded beliefs, familial conflict, and past traumatic experiences.
The score of a test administered to [Applicant 8] by the psychologist indicated 'severe emotional distress’. Based on clinical observations and self-reporting, the psychologist concluded that [Applicant 8’s] fear is sincere, culturally grounded, and causes substantial impairment to her mental health. A return to the [Village 2] region would likely exacerbate her current mental health difficulties, while continued residence in Australia appears to offer psychological stability and safety.
In more detail, the report recorded that [Applicant 8] is educated, holding a [Qualification 1] and for several years worked as [an occupation 2] in the areas of [work areas]. She had no intention or desire to leave what she described as 'paradise' and was well-integrated into the local community and workforce. The report continued that her circumstances changed significantly after she and her husband relocated to his village, [Village 2]. That relocation was driven by familial and practical considerations, including her husband's ties to the village and the construction of a new home on land to which they held rights.
The 'familial considerations’ alluded to there are elaborated upon further in the report, by stating that after [Applicant 8] and her family built a house in Fiji, her brother arrived with a machete and forcefully took possession of the property. As a result, she no longer had access to, or control over that home and it was no longer safe to return there. At the hearing, both [Applicant 8] and [Applicant 1] explained that the house from which they were excluded was in her home village. They explained that they could not complain to the police about [Applicant 8’s] brother forcefully taking possession of the house, because it was on [Applicant 8’s] family’s land.
The report goes on to say that after [Applicant 8 variant] moved to [Village 2],[10] and developed property on the land, she became the target of envy, hostility, and ultimately threats that she attributes to witchcraft. The report states that these threats, she believed, were motivated by jealousy and greed from extended family members and community members who stood to benefit from displacing her and claiming her property. [Applicant 8] stated that people would be jealous of her and her family's achievements, giving the instances of good education, good job and good property. The report states that [Applicant 8] identified the same two individuals described in her statutory declaration as being responsible for orchestrating and supporting acts of witchcraft against her and her family, namely [Person 1] whom she described as [her husband’s] [Relative A] and [Person 2] (also related to [Applicant 1]). [Applicant 8] described the effect of witchcraft on family members to include illness, mental illness and/or death. Those fears escalated following the deaths of four relatives which she attributed to witchcraft.
[10] Which, in evidence that [Applicant 1] and [Applicant 8] gave at the hearing, was [Applicant 1’s] family village, and which is evidence that I accept.
[Applicant 8] also reported to the psychologist that her [Relative B] ([her husband]’s [relative]) was raped by the chief in the village and now has mental illness. [Applicant 8] did not want that to be done to her daughters as no-one would stop it from happening. That factor also contributed to her relocation to Australia. Since relocating to Australia, [Applicant 8] continued to struggle with fear and anxiety related to the events she experienced in Fiji. However, her psychological well-being has stabilised in the safety of the Australian environment, where she feels distanced from the people and cultural forces that once threatened her.
The psychologist reported that the prospect of returning to Fiji, and specifically to the [Village 2] region is experienced by [Applicant 8] as a direct threat to her life and a trigger for significant psychological distress.
In describing the 'Presenting Issues' in the report, the psychologist described [Applicant 8] reporting that the threat of harm had not yet eventuated before leaving Fiji because the house had not yet been built.
The report continues that [Applicant 8] said that her religious beliefs as a Methodist do not alleviate her fear of witchcraft. She believes that the Methodist Church would not protect her as, in her view, the church itself was involved in the practice of witchcraft through its members. She described that as a 'Sunday thing', noting that traditional witchcraft happens in parallel with religious activities.
The psychologist’s report[11] described [Applicant 8] as presenting with symptoms of chronic anxiety, cultural trauma, and depression. She reported social withdrawal, fear of disclosure, somatic symptoms (such as insomnia and fatigue), and emotional numbing. Her psychological distress is exacerbated by the anticipation of being forced to return to a region she believes is unsafe. The clinical opinion the psychologist arrived at was that [Applicant 8’s] reported symptoms are suggestive of the presence of severe levels of anxiety symptoms, and commonly associated with a diagnosis of Generalised Anxiety Disorder.[12] She is likely to continue experiencing anxiety symptoms because of her specific fear that remains deeply rooted in her cultural, social and personal experiences.
[11] Page 5.
[12] Page 5.
[Psychologist A] gave his professional opinion that returning [Applicant 8] to Fiji would lead to a significant deterioration in her mental health, while continued residence in Australia, where she feels safe and protected from these perceived threats, would be stabilising and therapeutically beneficial for her emotional wellbeing.
Statement by [Applicant 6]

The Applicant’s representative also filed with the Tribunal, the statement of [Applicant 6], dated 11 July 2025. She is the [position in the family] of [Applicant 1] and [Applicant 8]. She is identified in the Delegate’s decision as [deleted]. I will refer to her in these reasons as ‘[Applicant 6]’.
In her statement, [Applicant 6] said that she was born in Fiji and came to Australia at the age of [age]. She said she remembers being alone most of her childhood, although at the hearing of this matter, she said she spent time with her [brother] and his friends.
Further in her statement, [Applicant 6] said that she remembered going to play with a girl her age whom her mother did not want [Applicant 6] around. [Applicant 6] said that the lady who lived there was the child’s grandmother, and [Applicant 6’s] mother did not want her going there because she was ‘not good’. [Applicant 6] remembered her mother telling her that the grandmother would be creeping around the bus stop when [Applicant 8] would arrive by bus late at night, and stare at [Applicant 8], which scared [Applicant 8]. [Applicant 6] said she remembers hiding from the grandmother because of what her mother told her about the grandmother.
As a child in Fiji, [Applicant 6] remembers putting salt around the house, but at the time, had no sense of danger.
After coming to Australia, [Applicant 6] remembers attending a [Christian] church with her family, but later her mother took the family to an Australian Presbyterian church. She remembers her mother telling her that the Fijian women did not like them and they were there for themselves and had no sense of care or love to extend to the family, compared to attending the Australian Christian church where they did show love and care for the Applicant family. [Applicant 6] said that for her that severed any tangible and intangible connections to the family’s Fijian culture or people.
Moving on to high school, [Applicant 6] said in her statement that she remembers not being able to fit in with anybody at school, but she had connections with some islander girls who became her friends. However, her mother also did not approve of them as she told [Applicant 6] she was ‘under powers of witchcraft’ and that they were ‘bad friends. At the time, [Applicant 6] said, she had a strong will to disobey her and the church who cared and wanted the best for her. [Applicant 6] said that her mother would go to elders of the church the family were attending to pray for the power of ‘witchcraft' to be broken. As a teen, [Applicant 6] said she faced many life endangering experiences hanging around those ‘bad friends’.
[Applicant 6] said in her statement that at the age of [age] she had finally come to believe in God. She said that during the COVID lock down, it was easy for her to let go of the other girls her mother said were 'bad friends'.
In her statement, [Applicant 6 variant] said that her personal knowledge and understanding of witchcraft is its spiritual dark powers which can be performed out of anger, jealousy, ‘envyings’ or hate to inflict upon the person or people those who practise it, want to cause harm or loss to. Witchcraft can be done by the person who felt these strong feelings against the person it is felt for. It can be done out of ignorance or not, by the person who felt it (anger, jealousy, hate and so on) but it is the pure intent of dark spiritual forces that work through the person in the physical to cause harm.
She said:
as Christians we pray for deliverance and power from God to overcome and conquer against the power of ‘witchcraft’ and have a strong belief in the spiritual realm which is a common basis of religion in general.
As to the adverse effects of witchcraft, [Applicant 6] said in her statement that the physical symptoms would be the outcome of the spiritual dark forces that is worked, to cause harm in the physical realm. The person experiencing harm or loss would essentially be 'under witchcraft'.
[Applicant 6] said that for her mother to return to Fiji after ‘all the trials and efforts to be able to progress life in Australia', she believed would cause 'tremendous spiritual, mental and physical affliction leading to the demise of my mother'.
In her statement, [Applicant 6] said that her mother secretly worked alone without her father knowing, to make seven passports, one for her father, herself and all her five children at the time to fly to Australia, to take them away from all the toxicity she experienced in the village, and perceived ‘witchcraft’ [Applicant 8] believed was over her and her family whilst living in the village. [Applicant 6] said that she believed that her mother worked hard for the family because her belief in the power of God was greater than the power of 'witchcraft', hence the ability to leave Fiji.
Articles on witchcraft in Fiji submitted by the Applicants
Several articles were also attached to the Applicant’s email dated 11 July 2025 which raised the detail of the claim of witchcraft. First, there was an article from The Fiji Times, dated 6 December 2016 which described that the Methodist Church in Fiji was urging its congregation and members of the public to be cautious of what they read on social media. That article concerned a teenager known as 'Rosi Kei Viti' who claimed on social media to have killed 7,000 people and that she was possessed by mythical gods of the 14 provinces in Fiji.
Second, the Applicants provided an article entitled 'Discovering Fiji: Wizards and Black Magic in Old Fiji' published in The Fiji Times dated 19 September 2021. The article referred to the writings of an anthropologist, Basil Thomson, and a 19th-century Christian missionary, Thomas Williams, on what they had observed and heard about the practice of witchcraft in Fiji. The article also referred to an earlier story in The Fiji Times, from November 2020, of a chief who pleaded with his people to stop witchcraft.
The article refers to the practice of witchcraft being punishable by law, with the maximum penalty to be a five-year imprisonment term. The relevant offence is contained in s 263 of the Crimes Act 2009 (Fiji) which is as follows:
Witchcraft and sorcery
263 A person commits a summary offence if he or she –
(a) holds himself or herself out as being able to cause by supernatural means, fear, annoyance or injury to another person in mind, person or property; or
(b) pretends to exercise or who practises, whether on an isolated occasion or otherwise, witchcraft or sorcery.
Penalty - imprisonment for five years.
There is no other offence in that Act concerning witchcraft or sorcery, for example, making it an offence to discuss witchcraft or sorcery.
The third article is entitled ‘Turning the spirits into witchcraft: Pentecostalism in Fijian villages'.[13] In summary, that article recites the history of the Methodist church in Fiji, and the more recent introduction of Pentecostalism in Fiji. Whilst the Methodist churches in the villages often tolerated pre-Christian beliefs and practices, including witchcraft, Pentecostal churches share the message that all pre-Christian beliefs and practices should be eradicated and the villages should be cleansed and purified from the taint of these traditions, aligning them with witchcraft.
[13] Lynda Newland, University of Newcastle, Oceania, 1 September 2004.
While the chiefly system was normalised by the British colonial administration, Pentecostalism represents a challenge to that system and for that reason it has been bitterly opposed by Methodist chiefs and the villagers who follow them. Many of the leading converts to Pentecostalism seem to be women and young people, neither of whom have much status in the chiefly system.
At the hearing of this matter on 16 July 2025, Mr Jeremy representing the Applicants provided the Tribunal with two additional articles on the practise of witchcraft in Fiji:
·‘Societal Beliefs in Witchcraft and Fear in Fiji: Cultural Foundations and Manifestations’;[14]
·‘Anthropological Studies on Witchcraft in Fiji: Academic Research and Expert Analysis’.[15]
[14] No citation or source provided.
[15] No citation or source provided.
In summary, the first of these articles recognises that some aspects of witchcraft and the like are still practised in private in Fiji. Two of the ways in which fear of witchcraft manifests itself, relevant to the present case, is illness attribution and protective practices.
That article recognises that one of the ways in which witchcraft accusations typically emerge, relevant to the present case, is economic disparities, in that success, wealth, or advancement often triggers suspicion and accusations from less fortunate community members who attribute achievements to supernatural assistance rather than natural ability. Although [Applicant 8] and [Applicant 1] claim that they at risk from witchcraft because they have been successful, they do not claim to have achieved success through supernatural means. Conversely, the article relevantly states that community members believe witchcraft has been used when they achieve success that others resent. Further, the article states that, relevantly, one of the traditional violations that may provoke supernatural retaliation includes intermarriage or cultural boundary-crossing.
The article also discusses measures which Fijians may take to protect themselves against produced evil is by surrounding their homes with a perfect unbroken circle of salt.
Healing and counter-magic is also discussed in the article. In traditional Fijian therapeutics, in the case of disease, sorcery was assumed and steps were taken to find the sorcerer and 'counter his spell with another, more potent'. Relevantly, protection systems include consultation with traditional healers and counter-magic to neutralise harmful effects.
The second article referred to above, on ‘Anthropological Studies on Witchcraft in Fiji’, refers to the studies that have been done on the cultural significance of witchcraft beliefs in Fiji, including the work of Basil Thomson writing in 1908, and the article by Dr Newland summarised above.
Evidence at the hearing by [Applicant 1]
Claim of witchcraft generally
At the hearing, I asked [Applicant 1] what he said he feared if he had to return to Fiji now or in the foreseeable future. He said that if he went back to Fiji he would fear death because of the effect of witchcraft. He confirmed he had no other fears, and that he no longer relied on the claim he made when making the application for the protection visa in a statutory declaration by him accompanying that application in 2013 when he was concerned about being returned to Fiji because of his support for the democracy movement in Fiji. He confirmed that the only claim for protection visa he now relied upon was because of the effect of witchcraft.
He confirmed that he had arrived in Australia in 2010 and had not returned to Fiji since then. That is confirmed by the record of movements for [Applicant 1] between Australia and Fiji as supplied to the Tribunal by the Department which administers the Act (the Department). He also confirmed that the family’s application for a protection visa was a combined application on behalf of each of his children.
On the claim for protection based on witchcraft, he said that the witchcraft is real. He said that the family left Fiji because they were fearful and were afraid of devil worship and witchcraft. He feared that he could personally die because of witchcraft. He also feared witchcraft for all of his family. He said some group would practise witchcraft against his family because they were a low-caste family that had succeeded. He said that [Applicant 8] was well-educated, [an occupation 2], and was able to take on a lot of good jobs. He said that the family built a family home, and there were a lot of good things they did to 'lift themselves up'. However, there were a lot of people who wanted to 'bring us down'. He said that those people did not want the Applicant family to be uplifted.
I asked [Applicant 1] why anyone did not practise witchcraft against former Prime Minister Bainimarama? [Applicant 1] said he was very different from the former Prime Minister, and there are those ‘high up' in the leadership in Fiji who would also practise witchcraft. When I asked [Applicant 1 variant] why anyone would want to practise witchcraft against him, he said he did not know and he did not want to blame specific people. He said that there are laws against witchcraft in Fiji. He said that he did know who it was that practised witchcraft against him, but it is against the law to say so. However, he said he had not read the Fijian law about witchcraft. I note that s 263 of the Crimes Act, the text of which is set out above does not make an offence of discussing the practice of witchcraft, and indeed, the article in The Fiji Times dated 19 September 2021 provided to the Tribunal by the Applicants’ representative describes a chief pleading with his people to stop practising witchcraft. Also, rhetorically, how could the offence of practising witchcraft under s 263 be enforced, and evidence given about it, if it was an offence in itself to talk about who practised witchcraft?
The Applicants’ application for a protection visa stated that [Applicant 1’s] religion was as a Methodist. I asked [Applicant 1] whether he thought that his belief as a Christian would prevail over a belief in witchcraft? He responded that as the family’s faith was lifted up as Christian, there is also a force of darkness that comes with it. I also asked him that since his wife was also a Methodist, did her belief in Christianity prevail over any fear of witchcraft? He said that Christianity and faith is stronger than witchcraft, but he could not really explain why witchcraft would still have an effect. He said that there is a strength that comes from witchcraft. He said that he believed that God brought his family to Australia and they kept on praying.
I asked [Applicant 1] if he was subjected to witchcraft in Fiji before the family left in 2010? He said that the family could feel it - the children were getting sick and they were getting sick because witchcraft was practised against them. He said that the reason people would practise witchcraft against the family was because of jealousy of his family. He said that was because of his wife's job in [Public Agency 1] and they built their own home.
[Applicant 1’s] wife no longer had a job in the [Public Agency 1] and the family no longer had a house in Fiji. Given those facts, I asked him why anyone would be jealous of them now? He said that the act of witchcraft is such that 'you would not be able to excel or do better'. I asked him why anyone would practise witchcraft against his family now? He said that his siblings do not have any children. He said that his younger brother has passed away and it was his belief that witchcraft was the cause of death. He said that one of his [relatives] has mental illness and the other sibling has left Fiji to live in New Zealand.
I asked [Applicant 1] what that had to do with the practise of witchcraft against him? He said that witchcraft is a real thing and that what happened to his siblings is proof of that. In response to a question from me on why someone would want to practise witchcraft against him and his siblings, he responded that because as soon as you ‘rise up', they practise witchcraft against people in Fiji. He said that his family was 'uplifted’. His brother had built a house and was married. He said his [relative] was a beautiful lady but she just stayed at home. He said that one of his neighbours was a chief. His [relative] was uplifted by being schooled and educated. I asked [Applicant 1] if anyone who was educated in Fiji can have witchcraft practised against them? He responded that it could be anyone, including himself, who was not well-educated.
I asked [Applicant 1] why his wife had not made the claim for protection on the grounds of witchcraft since 2010, when the Applicants arrived in Australia, until recently? He responded that he believed that once [Applicant 8] was in Australia, she started to believe in witchcraft based on things that were happening to the family. Prior to coming to Australia, [Applicant 1] said that he believed he and his family were subject to witchcraft and his wife did as well, but only since coming to Australia.
As to whether [Applicant 1] believed in witchcraft in the same way that his wife does, he said that the family believed in witchcraft as a family. He said that in Australia, he dreamt of things that were terrifying nightmares. He said that if he did not pray, things would happen and he would see things like a man coming to strangle him. In response to a question from me about what evidence he has of anyone threatening to use witchcraft against [Applicant 8], he said that her breast started to swell up. He said he did not believe that she had suffered from witchcraft in Australia. He said that in Fiji, threats were made in that he said he would dream of warriors coming to him, but no threats were made by anyone to the family to practise witchcraft against the family.
[Applicant 1] said that his wife had suffered from anxiety as long as he had known her. I asked him if he thought that his wife’s anxiety is the cause of her belief in witchcraft, as something on which to blame her anxiety. He agreed that it was.
In [Applicant 8’s] statutory declaration rated 11 July 2025, she mentioned the names of two specific people who she thought would practise witchcraft against [Applicant 1] and his family, [Person 1] and [Person 2]. I asked [Applicant 1] if he thought they were the people who [Applicant 8] was afraid would practise witchcraft against him and his family. He replied that [Applicant 8] dreamt that these were the people who were against his family. He said that [Person 1] is his [Relative A] and [Person 2] is his [Relative C]. He said that they were jealous of him and his family. They are the leaders of a group that practise witchcraft. He said that the group that practises witchcraft in Fiji are in different tribes and different clans.
[Applicant 1] agreed that witchcraft loses its power if the person concerned is in Australia. I also asked him if a person has to believe in witchcraft in order for it to hurt them? He said that a person has to believe that the practice of witchcraft in Fiji is real.
I raised with him that there were many people who were opposed to former Prime Minister Bainimarama so why someone did not practise witchcraft against him so that he would become sick and die? He said that Bainimarama and he were very different. First, he said that they were from different places in Fiji. Second, there are those who are well dressed who practise witchcraft and maybe because the former Prime Minister was part of a group that practises witchcraft, he was not affected, but he did not know.
As to whether it is possible to gain immunity from witchcraft, [Applicant 1] said that the only thing you can do is to go away from Fiji. He said that God had taken he and his family away from Fiji. I asked if his wife believed that if anything bad happens to someone or someone does something bad is because of witchcraft, and he agreed that was the case. He also believed it. I said it seemed that his daughter [Applicant 6] who provided a statement to the Tribunal also appeared to believe in witchcraft as well, to which he also agreed.
I referred [Applicant 1] to that part of [Applicant 8’s] statutory declaration that stated that [Applicant 1’s] [Relative A], [Person 1] and another relative, [Person 2], practised witchcraft on [Applicant 1’s] family and I asked if he believed that? He said he did, and believed that they caused bad things to happen to his siblings.
Page 3 of the psychologist’s report recounts a claim made by [Applicant 8] where she says her brother arrived at the family house with a machete and forcibly took possession of the house. [Applicant 1] confirmed that was correct. He said he could not take any action about that, because the house was in his wife’s village, [Village 1]. He did not report the incident to the police because of the family’s Fijian culture. He said that it was after that that they build another house, on land in his village, [Village 2]. Since he and his family moved to Australia, he had not sold the house and it is still there. He said that his [relatives] were using it. He said that his father’s [relative] lives there, but that is not [Person 1] or [Person 2]. I asked [Applicant 1] if the [relatives] who were now occupying the house in [Village 2] had witchcraft practised on them since they had occupied the house? [Applicant 1] said that they had experienced witchcraft in the house and it happened when they first moved in. He said that those [relatives] did not have children but they have not shared with him what harm they suffered. He said that they only speak to [Applicant 8].
Claim of witchcraft causing early death of [Applicant 1’s] relatives

On [Applicant 8’s] belief described in her statutory declaration dated 11 July 2025 that witchcraft had played a role in the early illnesses and deaths suffered by four of [Applicant 1’s] relatives, [Applicant 1] said he believed that. The Applicants had provided certificates of death for each of these relatives, in the Applicants’ email dated 11 July 2025. I asked [Applicant 1] about each of them.
First, for [Relative D], who was a male who died at the age of [age] in February 2024, the cause of death described in the certificate was negative 'bacilli septicemia’ and a likely malignant 'mass of esophagus dysphagia’. I put to [Applicant 1] that was not witchcraft? He said that he believed it was witchcraft and that witchcraft can cause death which can be practised with curses.
The death certificate for another relative, [Relative E], records her as dying at the age of [age] in 2021, due to ‘cardiogenic shock, critical mitral stenosis, multi organ dysfunction’. I put to [Applicant 1] that this was not witchcraft, but instead, heart disease? He responded that it was witchcraft that caused those diseases. He did not know if [Relative E] was receiving medical treatment.
The third relative for whom the Applicants had provided the Tribunal with a death certificate [was Relative F], and [Relative F] died in 2021 at the age of [age]. The certificate of death states that he died from septic shock secondary to bilateral pneumonia. [Applicant 1] also said that witchcraft caused that disease.
The final relative had the initials [Relative G] and she died at the age of [age], in 2019. [Applicant 1] said that she was the wife of [Relative F].[16] The death certificate stated that the cause of death for [Relative G] was 'diabetes foot sepsis, diabetic mellitus type 2, hypertension and chronic kidney disease'. I asked [Applicant 1] if [Relative G] knew of those diseases. He said that [Relative G] died of witchcraft. He did not know if she was receiving medical treatment for diabetes.
[16] In evidence given by [Applicant 8] which I will set out below, she said that [Relative D] was [Applicant 1]’s brother. The rest of the deceased, were a husband ([Relative F]) and wife ([Relative G]), and their daughter ([Relative E]) who were also related to [Applicant 1].
I gave [Applicant 1] the opportunity to provide any additional evidence that he wished to, but he did not wish to add anything else. I also gave the Applicant’s representative, Mr Jeremy, the opportunity to ask any additional question of [Applicant 1], but he did not wish to ask any further questions.
Evidence at the hearing by [Applicant 8]
Claim of witchcraft generally
When [Applicant 8] commenced her evidence at the Tribunal, I pointed out that she had only very recently made a claim to fear harm if she returned to Fiji because of witchcraft, and I asked her why she had not made that claim before? She said in making the original application for a protection visa, she spoke to a person whom she named, who was a Fijian person, but not a migration agent. That person told [Applicant 8] what the family should write when they first arrived in Australia. The statutory declaration that she made in 2013 did not mention witchcraft. She responded that it is taboo to talk about witchcraft in her culture. Despite the claims made in the Applicants’ application for a protection visa, she said she only wished to rely upon the witchcraft claim.
On whether the harm she feared from witchcraft only happens in Fiji and not in Australia, she said that it was more prevalent in Fiji. In Australia, she does not have to associate with Fijian people and does not post anything on social media, so they do not see what her family does in Australia. Witchcraft loses its power if the Applicants are away from Fiji and do not associate with Fijian people. She said that there are Fijian people in Australia who practise witchcraft. She said that no-one in Australia from the Fijiian community had threatened to use witchcraft against the Applicant family.
As to whether the effect of witchcraft applies on every island in Fiji, [Applicant 8] said that the Applicant family come from the main island in Fiji and witchcraft is practised in most of the Fijian cultures and traditions. She agreed that a person has to believe in witchcraft in order for it to hurt them. However, on whether witchcraft will only hurt a person if they believe in it, she said that it can still hurt a person even if the person does not believe in witchcraft.
I then asked [Applicant 8] if witchcraft can hurt a person if they do not believe in it, since there were so many people opposed to Prime Minister Bainimarama, why someone did not practise witchcraft on him, so that he would become sick and die? She did not know - maybe because he was in power. In a village, if someone does not like a person they can practise witchcraft on them. She said that Bainimarama is a man and is supposed to be in power. Men and women in a village are both subject to witchcraft. She said in Nadi, if a person lives in the town, then maybe they are not threatened by witchcraft.
If that was the case, I asked [Applicant 8] why she did not move to the city to get away from witchcraft? She said it was expensive, and the family lived for a while in Nadi when they had two children, but then they moved to the village to build a house.
[Applicant 8] confirmed that one of the reasons that people would have practised witchcraft against the Applicants was that they were envious, jealous and do not like to see other people get ahead in life. This was because she was earning good money and those who wanted to practise this witchcraft against her did not want a woman to have power over them. She married a villager, and the people in the village who would practise witchcraft against her do not want her, as an outsider, to build a house in the village. They did not want her to be successful. [Applicant 8] and [Applicant 1] built the house in [Applicant 1’s] village. I asked [Applicant 8] if there were not other people working as [occupation 1s] so why did someone not practise the same witchcraft on them? She said that she was the only one from the village working in [her occupation].
In her statutory declaration dated 11 July 2025, [Applicant 8] said that the land on which she and [Applicant 1] had built their house in [Village 2] had a very high land value because it was near [Location 1] and she thought that witchcraft was practised on her because of that. I asked her about other people who owned land in the same area? She replied that she was a female and an outsider and built a house. [Village 2] was a 'chiefly village’ where the people are there to serve the chief. She said there were people there who wanted to impose harm on her family. The people who practise witchcraft have to kill a person as a sacrifice. A person who wants to practise witchcraft has to kill a person as a sacrifice, or the person wanting to practise witchcraft would die.
[Applicant 8] said that when her family was in Australia, they heard about the deaths of four of [Applicant 1’s] relatives in Fiji, his [relative] who died in 2024, and a father, mother and daughter in the same family.
In her 2025 statutory declaration, [Applicant 8] provided the names of two people who she thought practised witchcraft against her, [Person 1] and [Person 2]. On the connection between them and [Applicant 8], she said that they were related to her husband. [Person 1] is her husband's [Relative A] and [Person 2] is his [deleted]. [Applicant 8] said that she saw [Person 2] in a dream and that [Person 2] was trying to kill her, when she had swollen breast. She said that she prayed about whether to go to the hospital for that condition. However, she was told in a dream not to go, because her breast may be removed in hospital. She said she saw a 'seer’. She could not sleep and went to this person in [Town 1].
When she saw this person, whom she also referred to as a 'diviner', the person treated [Applicant 8] with leaves. The diviner said that if the swelling burst and gave out pus, it is cancer. If not, the diviner told [Applicant 8] to come back to see them. The diviner said that [Applicant 8] would dream and see the person who is trying to kill her. She said that in a dream, [Person 2] came to her and tried to strangle her. At the same time, [Applicant 8] said that a lady was looking after their baby daughter had a dream that a snake was coming to bite the daughter.
[Applicant 8] said she was breastfeeding her daughter at the time. I asked her if she had ever heard of the condition 'mastitis’? She said she had not heard of the condition until I asked her about it.
She said that [Person 2] was known in the village for practising witchcraft. She speaks to the graves, and [Applicant 8] said she tells people to sprinkle salt where [Person 2] had walked. I asked [Applicant 8] if the people she had identified had told her that they were practising witchcraft against her? She said no, they do it secretly. She had not confronted them about that, but it is taboo, and out of respect. Also, the diviner cannot help her with getting rid of the witchcraft. [Applicant 8] said that she thinks that [Person 2] had killed someone to get the power to practise witchcraft, but she did not know whom, because it is secret.
[Applicant 8] said in her statutory declaration of July 2025 that she was brought up as a Methodist. She said in evidence at the hearing that she goes to church every Sunday. I asked her, when she first thought that someone was practising witchcraft on her, did she go to see a Methodist pastor about that problem? She did not, and did not think it would help. On whether it was not possible to get a blessing from a Methodist pastor which would remove the effect of witchcraft, she said that witchcraft does not work like that. Many people who practise it also go to church. On whether the traditional healer that she went to see, and who healed the problem she had with a swollen breast, could also relieve her of the effect of witchcraft, she said that a healer does not have that power.
[Applicant 8] said she had suffered anxiety for most of her adult life, starting after she got married and then after having children, and when she believed she was subject to witchcraft. She had not received medical treatment for anxiety and had not been prescribed medication for anxiety. I asked her if she thought that her belief in witchcraft was because of her anxiety, and a need to identify a cause of that anxiety? She said that she was anxious about witchcraft after the family moved to [Village 2] when the children started getting sick and when she got sick from inflammation of her breast.
Psychologist’s report
[Applicant 8’s] evidence generally confirmed the evidence given by [Applicant 1] about her brother forcibly removing [Applicant 8] and her family from the house in her village, as described in the psychologist’s report. She said that occurred between 1998-1999. She and her husband built the family home in [Village 2] between 2005-2006.
I asked [Applicant 8] if [Person 2] and [Person 1] would practise witchcraft against [Applicant 1’s] [relatives] who now live in the house that she and her husband built in [Village 2], since they might be jealous of her husband’s [relatives] living in the house? She said that she did not know, and [Person 2] and [Person 1] would have less to be jealous about of her husband’s [relatives], because they do not have a good job or a good education.
The Psychologist’s report said that the witchcraft would have an effect on [Applicant 8], particularly if she was to return to [Village 2]. I asked if the witchcraft would not have the same effect if she was to return to Fiji and live in a different place, for example Nadi? She said she did not have any family or land in Nadi.

100. If [Applicant 8’s] brother forcibly took control of the family house in her village, I asked her if she could return to live there anyway? She said she could not, since being chased out of the house. She has not talked to her brother again since then. Her mother and father were not alive.
101. The psychologist’s report[17] said that the threat of harm from witchcraft did not eventuate before the family left Fiji because the house had not yet been built, and I asked [Applicant 8] to comment on that. In her evidence at the hearing, [Applicant 8] offered something of a correction to that version and said that before they built the house there was no witchcraft practised against them. She and her husband moved to live near [Location 1] when their house was being built in her husband's village, and they rented a small place. The witchcraft only commenced when their house was being built. The family started having problems when her [Relative B], who had mental health problems, started wrecking furniture when they rented the house near [Location 1]. Her father-in-law told her husband and her to leave the village. Her husband's family did not like her because she was an outsider. She and her husband paid for the house to be built in her husband's village.
[17] Page 4.
102. [Applicant 8] said that the reason people would practise witchcraft against her was because they were jealous. I asked her, if she went back to Fiji, she would not have her job in [the agency] and would not have her house. In that case, why would they be jealous? She said they would be jealous of her children. [Person 1] and [Person 2] did not want [Applicant 1] to have children. Her husband's [relatives] who live in the house now do not have any children. [Person 1] and [Person 2] would still see her as an outsider.
103. If [Person 1] and [Person 2] practised witchcraft on [Applicant 8] because she and her husband were successful, I asked her why she said that witchcraft caused the early death of her husband’s relatives? She said that they were also successful. They had a big house and worked for the government. [Relative F] was her husband’s relative, and [Relative G] was his wife and [Relative E] was their daughter. [Relative D] was her husband's [relative] and owned a house as well and was working and successful. [Applicant 8] said that in Fiji, her husband was the manager of a [business 1] as a landowner and [Person 1] practised witchcraft against staff at the [business 1].
104. On whether [Applicant 8] thought that [Person 2] and [Person 1] would practise witchcraft against anyone who owned a house in the village, she said that was possible. As to whether they would practise witchcraft against the chief, she said no, because they respected the chief. They only do it to 'common people’ who want to make a living. Other people in the village also talk about [Person 1] and [Person 2] practising witchcraft. She said the whole village knew about this. She did not know what benefit [Person 2] and [Person 1] get out of practising witchcraft against the villagers.
[Applicant 1’s] relatives dying young

105. I also asked [Applicant 8] about the death certificates for [Applicant 1’s] relatives, whom [Applicant 8] and [Applicant 1] claimed to have died young because of witchcraft. For [Relative G], whose cause of death stated in the death certificate to be attributed to diabetes foot sepsis (or blood poisoning), diabetes type 2 and chronic kidney disease, I asked [Applicant 8] if [Relative G] was unaware of having diabetes type 2? [Applicant 8] said she did not know that [Relative G] was sick. She was working in the government in Suva and moved to the village when her family had bought a house in Suva. [Applicant 8] did not know if [Relative G] was receiving medical treatment.
106. The death certificate for [Relative E] recorded that she died due to a carcinogenic shock, critical mitral stenosis (heart disease). I asked [Applicant 8] if she was saying that [Relative E] was not aware of having heart disease? She said that she did not know whether [Relative E] was aware of having heart disease.
107. [Relative F] was aged [age] at the time of death and the death certificate for him stated that he had acute or chronic kidney disease. [Applicant 8] did not know whether [Relative F] was unaware of having kidney disease. He got sick straight away and died once he got to the village ([Village 2]). [Applicant 8] confirmed her belief that the early death of her husband's relatives was because witchcraft was practised against them. [Person 2] and [Person 1] have to practise witchcraft, or they will die. She said that they do that because witchcraft is passed on to them from their older relatives.
Comment on the articles submitted by the Applicants’ representative

108. I asked [Applicant 8] about the article 'Discovering Fiji: Wizards and Black Magic in Old Fiji' published in The Fiji Times as described above and whether the writings from the missionary in the 19th century and Basil Thomson writing more than 100 years ago have any significance now? She said she had not read that article.
109. On the article ‘Turning the spirits into witchcraft: Pentecostalism in Fijian villages', about the success that the Pentecostal church had in denouncing witchcraft, [Applicant 8 variant] said that the chief in [Village 2] would not allow the Pentecostalists into the village.
[Applicant 8’s] fear for her daughters

110. Page 3 of the psychologist’s report, stated that [Applicant 8] feared for her daughters because her [Relative B] was raped by the chief. [Applicant 8] responded that it occurred when she was a teenager. She is the one who suffers from mental health problems. She had not been to a doctor about that mental illness. She had a son who died and [Applicant 8] said was killed ‘by the devil'.
111. I asked [Applicant 8] if anyone made a complaint to the police about the rape? She said no, because he was the chief. The people in the village do what he says. The people are made to stay in the village and do the work for him. She acknowledged that rape is a criminal offence in Fiji. On whether the chief was still alive, [Applicant 8] said that he died but two of his children are alive. She did not think that removed the danger to her daughters, and his sons would do the same.
Comment on statement by [Applicant 6]

112. [Applicant 8] had read the statement by [Applicant 6]. She agreed that [Applicant 6] had lived in Australia since she was [age] years old. [Applicant 6] said in her statement that as a child she remembered putting salt around the house and I asked [Applicant 8] why she would do that? [Applicant 8] said that [Person 2] used to walk by the family house to 'talk to the graveyard'. [Applicant 8] said that she would tell whoever was in the house to sprinkle salt where she had stepped, to remove the evil.
113. On whether [Applicant 8] thought that people from Fiji were able to exercise powers of witchcraft in Australia, remotely from Fiji, she said that if people in Fiji see you on social media or communicate with them, she did not know whether the power can come to Australia. Since the family moved to Australia, the children had no more sickness, they are healthy, if they stayed away from people from Fiji.
114. [Applicant 6’s] statement included that [Applicant 8] did not approve of [Applicant 6’s] friends at high school who were Islander girls and [Applicant 6] said that [Applicant 8] told [Applicant 6] that she was ‘under powers of witchcraft’. [Applicant 8] agreed with that. As to who would have been practising witchcraft against her daughter, she replied that it was anyone with a 'bad intention’ if they do not believe in God. She said if something bad is happening to her, it is bad magic or a spell. She said that was something she was anxious about, and was superstitious. A wrong crowd is a curse ‘or something like that’.
115. I asked [Applicant 8 variant] if she thought that [Applicant 6] was just being rebellious because she was a teenager? She said that not all teenagers are rebellious, but she only knew that maybe [Applicant 6] was doing bad things because of witchcraft.

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.
…