Mrs Joey Bich Chau Tam - [2024] ARTA 514

2211884 (Refugee) [2024] ARTA 514 (22 October 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mrs Joey Bich Chau Tam
Respondent:Minister for Home Affairs

Tribunal Number: 2211884
Tribunal:General Member John Kotsifas
Date:22 October 2024

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

Statement made on 22 October 2024 at 1:59pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – race – Indian background – political opinion – Fiji First supporter – opposing political views to the iTaukei/SODELPA supporters – was not an active political supporter of the Fiji First party – mental health condition – applicant does not have a well-founded fear of persecution – strong compassionate circumstances – occupation is in high demand –referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994, Schedule 2
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 Minister for Home Affairs on 2 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man who claims to be a citizen of Fiji. He first arrived in Australia on [date] February 2017 holding a Visitor (Subclass FA 600) visa. He departed Australia on [date] February 2017. He then arrived in Australia for a second time on [date] December 2019 holding a Visitor (Subclass FA 600) visa which expired on 26 January 2020. He applied for his protection visa on 13 January 2020.
On 2 August 2022, the delegate refused to grant the applicant’s visa on the basis that he is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate's decision on 15 August 2022.
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. Apart from the applicant’s evidence, the Tribunal also received oral evidence from the following witnesses on that day:
·Mr [A]
·Ms [B].
A further hearing was held by video on 20 June 2024 in order to hear evidence from Mr [C], Director, [Company 1] Pty Ltd.
The applicant was represented in relation to the review. The representative attended both the Tribunal hearings.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant’s personal background
The applicant was born in [Fiji]. He is married and has two daughters and one son. One daughter and his son reside in Australia on student visas whilst completing their studies. His wife resides in Fiji with his youngest daughter.
The applicant was educated in Fiji and has completed a trade [certificate]. Prior to arriving in Australia, he was employed in his relevant trade and has held numerous positions [since] 1998.
Since arriving in Australia, he has continued to be employed in his trade. On 15 March 2021 he began employment with [Company 1] Pty Ltd as an [Occupation 1] in NSW and was subsequently promoted to [a senior role] and moved to Melbourne to take up this position. He earns approximately $1,400 per week from his current employment.
The applicant’s wife lives in [Fiji] with the applicant’s youngest daughter, who is completing her high school education.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s initial claims for protection
The applicant’s initial claims can be summarised as follows:
Fear of harm because of race, political opinion and corruption
·He came to Australia for a holiday, and this was his second visit to Australia as a holder of an FA600 Visitor visa.
·He applied for protection because of torture, intimidation and threats he received on a daily basis from iTaukei, Social Democratic Liberal Party (SODELPA) supporters and National Federation parties.
·He was attacked by supporters of the above-mentioned groups because he is a Fiji First supporter and because he is of Indian background despite being married to and having children with an iTaukei woman.
·He stated that he was brutally assaulted on two occasions, with the first being in 2014 during the general election by SODELPA supporters because he was not a supporter of this political party, and he believes that there was an expectation that he would support SODELPA because he is married to an iTaukei woman.
·He cannot move anywhere else and protect his family as the same thing also happened to him during the 2018 General election. He was physically assaulted to the point where he became unconscious but could not go to hospital for fear of being attacked.
·His wife nursed him and advised him not to report the assault as it might create trouble. His aunt’s restaurant was also burnt down.
·He fears for his and his family’s lives as tensions have escalated where people are openly chanting against the current government.
·He supports the Fiji First party as the current government and did not think that he would become a victim.
·He voiced his political opinion to landowners/people (SODELPA supporters) in the [villages] and he fears them.
·It is no longer safe for him to return to his homeland due to predictions by political experts that something terrible will happen to the current government.
·He has been a ‘political victim’ and has experienced the wrath of landowners whom he lived amongst and due to his involvement with the Fiji First Party.
·If there is conflict due to politics in Fiji, he thinks that most Fijians with an Indian background will be targeted just like the 1987 coup, whereby most Indo‑Fijians were targeted, displaced and forced to flee overseas (to Australia).
·There are rumours of military and police corruption and referenced lack of action for victims of sexual assault.
·He does not believe that the police or military will protect him from the landowners.
The interview
Department records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
In relation to the applicant’s claimed fear of persecution due to his race and corruption, the delegate accepted that the applicant may have experienced mistreatment, harm and harassment in 2014 and 2018 due to his race and opposing political views to the iTaukei/SODELPA supporters; however, the delegate noted the applicant will be able to obtain protection from the state authorities if required. The delegate was not satisfied there was a real chance the applicant will face harm in Fiji as a result of corruption and was not satisfied that the applicant would face any persecution in Fiji as lndo-Fijian.
In relation to the applicant’s claim to fear harm because of his political opinion in Fiji, the delegate found that there was no evidence to suggest that the applicant was a member of any political group, but rather he was merely a supporter and he did not participate in political activities in support of any political group. As a low-level supporter, the delegate found that the applicant would not be specifically targeted in Fiji by the SODELPA, its supporters or the Fijian authorities for his support of the Fiji First Party and Prime Minister Bainimarama.
The delegate was not satisfied there was a real chance that, if the applicant was returned to Fiji, he will be persecuted for one or more of the reasons in s 5J(1)(a) of the Act and found that the applicant is not a refugee as defined in s 5H(1) of the Act. With respect to complementary protection, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Evidence before the Tribunal
The Tribunal received the following documents prior to the hearing:
·Applicant’s statutory declaration sworn 30 January 2024.
·Statutory declaration of Mr [A], NSW Human Resources Manager, [Company 1] Pty Ltd sworn 2 April 2024.
·Statutory declaration of Ms [B], consulting psychologist, sworn 15 April 2024 including her report and associated medical documents.
·Statutory declaration of [name], the applicant’s wife, sworn 24 May 2024.
·Statutory declaration of Mr [D], pastor, sworn 8 February 2024.
·Statutory declaration of Mr [C], Director, [Company 1] Pty Ltd sworn 24 May 2024.
·Written submissions from the applicant’s legal representative.
The Tribunal asked the applicant whether he had prepared his own protection application. He indicated that Pastor [D] had assisted him to prepare and lodge his protection visa application.
The Tribunal notes that apart from the applicant’s initial claims that are related to his support of the Fiji First party and his fear of harm from SODELPA supporters particularly during the 2014 and 2018 general elections, the statutory declaration of Ms [B], consulting psychologist, sworn in April 2024 and the applicant’s legal representative’s submissions raised a further claim about the applicant’s mental health and his access to mental health services in Fiji. This additional claim did not form part of the applicant’s claim that was lodged in January 2020.
The Tribunal also notes that the statutory declaration of Mr [C] sworn in May 2024 and the applicant’s representative’s submissions also raised a further claim regarding the applicant’s inability to own land in Fiji. This claim was also not part of the applicant’s initial claim that was lodged in 2020.
The Tribunal asked the applicant whether he was just a supporter of Fiji First or an active member involved in political campaigning, and he stated that he was just a supporter and did not campaign during the 2014 election.
The Tribunal asked the applicant about his claim that he had been assaulted by SODELPA supporters in 2014. The applicant stated that the supporters came to his house and asked him to sign a petition of support for SODELPA. He told the Tribunal that he refused to sign the petition, and the villagers were unhappy with his response and on one occasion they started throwing stones at him and abusing him. The Tribunal asked the applicant if he had been assaulted as claimed and he stated that he was not physically assaulted in any way in 2014 despite his claim that he was physically assaulted in 2014. He told the Tribunal that the abuse was verbal and not physical.
The Tribunal also asked the applicant about the 2018 election and whether he had been assaulted as claimed. The applicant told the Tribunal that during the campaign he happened to be at a school where the Fiji First supporters were campaigning. He stated that the SODELPA supporters did not like the fact that the Fiji First supporters were actively campaigning at the school and there was a scuffle and a fight that broke out. The applicant stated that he was not actively campaigning at the school but happened to be in the middle of what occurred, and he was punched and kicked and sustained injuries. The applicant confirmed that this was an isolated incident during the 2018 election campaign.
The Tribunal asked the applicant whether he reported the matter to the police and he stated that as the police were one‑sided, he did not think they would assist him, so he did not report the assault. He stated the police were corrupted by the landowners who were SODELPA supports and who also paid the police money for support.
The Tribunal questioned the applicant about his claim that his aunt’s restaurant was burnt down. The applicant stated that this occurred during the 2018 election campaign, but he did not know why his aunt’s restaurant was targeted, whether it was politically motivated or whether anyone was arrested or charged over the incident.
The Tribunal asked the applicant whether he ever discussed politics with others and he stated that he did not discuss politics openly in any way. He confirmed with the Tribunal that he had never had any problems with the Fiji police, military or any other government agencies in any way.
The Tribunal asked the applicant whether he has ever been critical of the current Fijian government online, such as on social media and he indicated that he has never expressed any political views online and that he has never received any attention by the Fijian government for any reason.
When the Tribunal sought evidence from the applicant about what his main concerns were about returning to Fiji now, given the Fiji First party is now in opposition and the SODELPA party in now in Government following the 2022 elections, the applicant stated that he did not fear any harm any longer and that he was in Australia when the 2022 elections took place. He told the Tribunal that he was no longer interested in politics or political campaigns. He stated that there will always be a problem with land rights and that he has a family home on land that he can never own.
The Tribunal asked the applicant if he was respected in his village, and he stated that he was respected by the younger generation and the elders. He stated that his father-in-law was the village chief and at the time, he accepted the applicant as a Fijian Indian man marrying his daughter who is an indigenous Fijian woman (iTaukei), but he passed away seven years ago. He told the Tribunal that he did not fear any immediate threat or harm if he was required to return to Fiji.
The Tribunal asked the applicant what discrimination he has faced over his lifetime in Fiji and what discrimination his children have faced, if any. He stated that there is a village custom that prevents him from taking part in certain village ceremonies and meetings and that he cannot plant anything on his land without the permission of the village chiefs. He stated that his children are referred to as “vasu”, which refers to a child’s maternal ties to a village and despite his wife being an iTaukei woman, his children are regarded as having temporary and not permanent ties to their village.
The Tribunal questioned the applicant about his wife’s statements which referred to the fact that in 2019/2020 some unknown men in the village were looking for him. The Tribunal asked the applicant why anybody would be looking for him and he stated that he did not know, and they may have been looking for him for work‑related purposes as a [Occupation 1].
The applicant told the Tribunal that he had been suffering from anxiety and depression as a result of his worry about being away from his wife and family and his desire to have them join him in Australia.
Ms [B], who is the applicant’s psychologist, told the Tribunal that the applicant had over eight counselling sessions with her and that she had diagnosed the applicant as suffering from post‑traumatic stress disorder (PTSD) as a result of the physical assaults he had suffered at the hands of the Fijian majority and that his symptoms had become worse from his anxiety about the Tribunal hearing and the outcome of his application for protection. She told the Tribunal that there is a serious lack of mental health resources in Fiji to deal with the applicant’s disorder and that the treatment he is receiving in Australia may not be available in Fiji.
Mr [C], the applicant’s employer, told the Tribunal that he is also of Indian Fijian ethnicity and is a permanent resident of Australia. He confirmed that he is the director of [Company 1] Pty Ltd. He stated that he came from the same township as the applicant and that he had met the applicant during the course of his employment in Fiji as they were both working for competitor companies in the [industry]. He described to the Tribunal the level of discrimination that applies to land ownership in Fiji villages. He told the Tribunal that whilst the applicant was able to build a house on land owned by the indigenous landowners, they controlled whether he could plant crops or develop the land in any way. He stated that iTaukei land cannot be bought and sold but with permission of the traditional landowners, a house could be built on the land on a leasehold basis.
Mr [C] also gave the following evidence to the Tribunal:
·That the applicant converted his Fijian trade qualifications to Australian standards.
·He offered the applicant employment as he was aware from working together in Fiji that the applicant had much needed skills and technical expertise.
·The applicant set up the company’s Victorian branch in 2022. He was the [Position 1] for Victoria and that meant he oversaw [managers]. His company is [details deleted].
·The applicant helped set up the Brisbane office in 2023 where he was based for 6 months before returning to Melbourne.
·His company [provides services to a specified client] in addition to a further 100 commercial and retail clients. He employs over 100 staff.
·[Details deleted]. The applicant is involved in preparing the tender documents and is a key person in the tender process. The company has also been invited to tender for [another ] contract nationally.
·If the tenders are successful, he will need to double his workforce that are predominantly Australian citizens.
·The applicant is crucial to the company’s expansion plans and to the tenders that must be prepared. He does not think that the company will be successful in its tenders without the applicant being part of the process and he fears that the tenders may fail without the applicant’s continued employment with the company. If the tenders are successful, new work contracts will be entered into for a 6‑year period and this would guarantee the company’s long-term future and continued success.
·The applicant is also [a senior role].
Mr [A] told the Tribunal that he is the Human Resources Manager at [Company 1] Pty Ltd and that the company wanted to sponsor the applicant because of his skills and extensive experience in the industry. He told the Tribunal that the applicant resides in company‑owned accommodation and that he has also been provided with a company vehicle along with other work-related benefits. He told the Tribunal that the applicant is a very highly regarded member of the company and that he brings great strengths to the company and its operations as a result of his many years of [experience].
The statement of Pastor [D] indicates that he has had three sessions with the applicant to address his depression and anxiety about his future and despite the stable political situation in Fiji following the 2022 election, he fears that in future there could be another coup resulting in further political turmoil in Fiji and uncertainty for the applicant.
The statement of the applicant’s [wife], stated that her husband has been subjected to verbal abuse and physical assaults as a result of marrying an indigenous Fijian woman and is not involved in certain village ceremonies and decisions made by the village elders because of his Indian Fijian ethnicity.

On 26 June 2024 the Tribunal received the following additional documents:
·Further legal submissions from the applicant’s legal representatives, which referred to the Tribunal exercising its discretion to refer the applicant’s matter to the Minister for intervention should the Tribunal decide to affirm the decision to refuse the applicant’s protection application.
·Employment contract for the applicant dated 30 June 2023 with [Company 1] Pty Ltd.
·Additional witness statement of Mr [C], Director of [Company 1] Pty Ltd, dated 25 June 2024.
·Copy of the applicant’s [qualification] and academic transcript issued by an Australian Education provider.
·Copy of the applicant’s [trade]licence issued by [an] Authority.
Country information
Relevantly, the most recent Department of Foreign Affairs and Trade (DFAT) report[1] and other sources of information provides the following:
[1] DFAT Country Information Report Fiji, 20 May 2022.
Race and nationality[2]
[2] Ibid at 3.1–3.5.
The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei.
lndo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service. Since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls.
Seventeen of the 51 Members of Parliament (MPs) elected in November 2018, and twelve ministers and assistant ministers in the 23-member Cabinet, are Indo-Fijian.
The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.
Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de‑segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
DFAT assesses that Indo-Fijians face a low level of societal discrimination. This affects most Fijians as some people of each major ethnic group perpetuate racist stereotypes against the other. Because of traditional land ownership, most Indo-Fijians are unable to buy land outright, but rather lease it. DFAT is not otherwise aware of evidence of official discrimination against Indo-Fijians based on race/nationality.
Land rights[3]
[3] Ibid at 2.24–2.27.
Almost all Indo-Fijian farmers must lease land from indigenous landowners; many lndo-Fijians believe that their limited access to land ownership and consequent dependence on leased land is discriminatory. Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.
About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years, but land is usually leased for 30 years. Residential leases are longer, and leases can be bought and sold.
lndo-Fijians are eligible to access employment, education, healthcare and other government services on the same basis as other Fijians: lndo-Fijians at the 2007 Census were 38 per cent of the population, and at a 2018 estimate could constitute 37 per cent of voters. Indo-Fijians were reported in 2017 to comprise approximately 35 percent of the civil service overall and one-third of the police force. There are numerous Indo-Fijians at senior levels of the public service. However, the military and prison services were estimated in 2017 to be more than 95 percent indigenous Fijian.
Political matters[4]
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law.
Mental health services[5]
The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic, and medication might be unavailable.
Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
[4] Ibid at 3.25–3.41.
[5] DFAT Country Information Report Fiji, 20 May 2022 at 2.13–2.15.
In May 2022, DFAT assessed that politics in Fiji today is no longer characterised by the unrest of the past[6] and that the 2018 election was calm and orderly. International observers considered the election to be credible and the outcome ‘broadly represented the will of Fijian voters’.[7] While SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election, he was released on bail and later cleared.[8] Sitiveni Rabuka is the current prime minister.
[6] 2022 DFAT Report, [3.32].
[7] Ibid.
[8] Ibid.
In relation to the current political situation in Fiji following the 2002 general election, DFAT[9] noted:
(a)   following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form government. After ten days of inter-party negotiations, a coalition of three parties (The People's Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government.
(b)   it is unaware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022.
(c)   it is unaware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022; and
(d)   it is not aware of any credible reports that the new government in Fiji has harassed or ill‑treated any supporters of former Prime Minister Bainimarama.
[9] See ‘Fiji 20230621135833 - Country Information - Political Update’, Department of Foreign Affairs and Trade, 2 August 2023, 20230803112036.
On 24 December 2022, People’s Alliance Party leader Sitiveni Rabuka was sworn in as Prime Minister after parliament gave him 28 votes to 27 for his opponent, former Prime Minister Bainimarama. The Australian- and Indonesian-led Multinational Observer Group agreed the outcome broadly represented the will of voters.[10]
[10] Ibid.
The new Fijian government under Prime Minister Rabuka has committed itself to democratic government and governance, including appropriate standards of conduct for Ministers and listening to a wide range of political views. The government has also made a specific commitment to media freedom and the part it plays in Fiji’s democracy. The reinstatement of the Great Council of Chiefs has occurred.[11] Country information indicates that the transition of power from the Fiji First Party to the People’s Alliance has been peaceful.
[11] ‘Fiji Parliament approves reinstatement of Great Council of Chiefs’, PINA, 24 November 2023; ‘Banned for almost two decades, Fiji’s Great Council of Chiefs is back and pushing for greater influence’, ABC News, 4 March 2024.
Country information indicates that the Rabuka government has taken some steps to facilitate the return to Fiji of several critics of the former Bainimarama government. In March 2023, the Australian Institute of International Affairs (AIIA) stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former Fiji First government are being granted permission to return, and are doing so.[12]
[12] ‘Cautious Optimism for Fiji’s Coalition Government’, Australian Institute of International Affairs (AIIA), 8 March 2023, 20230619104244.
While it is accepted that Fiji has endured several coups in the past (two in 1987 and one in 2006), country reports indicate that the country has been politically stable in recent years, with the past elections in 2014 and 2018 being deemed credible, and that the outcome ‘broadly represented the will of Fijian voters’.[13] The election in 2018 was orderly and free from violence.[14] Further, former Prime Minister Bainimarama, when commenting on the outcome of the 2022 elections, stated: ‘This is democracy and this is my legacy’.[15] Of great significance, as outlined above, is that in July 2023, the head of the armed forces, Major General Kalouniwai, and additionally the head of the navy, who is second in command of the armed forces, are quoted in various news articles as saying there is no threat of a military takeover and affirming a commitment to work with the new government
CONSIDERATION OF CLAIMS AND EVIDENCE
[13] DFAT Country Information Report Fiji, 20 May 2022.
[14] Ibid at 2.34.
[15] ‘Sitiveni ‘Rambo’ Rabuka confirmed as Fiji’s new prime minister’, Al Jazeera, 24 December 2022.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT at the time of hearing was the Country Information Report for Fiji dated 20 May 2022.[16] The Tribunal has considered this report, together with other relevant country information referenced in this decision.
[16] DFAT Country Information Report Fiji, 20 May 2022.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Fiji they will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than his own country of origin – Fiji. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which is contained in his Departmental file.[17] He has at all times stated that he is a citizen of Fiji and has been assessed on that basis by the Department. Accordingly, the Tribunal finds that the applicant is a Fiji citizen and has assessed his claims against Fiji as the country of nationality and the receiving country.
[17] Department File: BCC2019/883327, AAT Case: 2211884.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[18]
[18] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, and nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[19]
[19] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994)
The Tribunal has taken into consideration all of the content in the written statements that have been provided to the Tribunal as well as the applicant’s representatives detailed submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Applicant’s political opinion
The applicant has not claimed, nor is there evidence before the Tribunal to suggest, that they were a member of any particular political group rather than merely a supporter, or that they participated in political activities in support of any political group. The Tribunal is not satisfied that the applicant has expressed a political opinion, or taken part in political activity, which would be of adverse interest to the Fijian authorities. There is also no information before the Tribunal to indicate that the applicant is a high-profile public figure or is a leader of an organisation which may attract adverse attention. For these reasons, the Tribunal is satisfied that the applicant would be able to express his views freely, within the limits of the law, without being subject to harm for doing so.

Based upon the country information set out above, the Tribunal put to the applicant that the political landscape in Fiji had changed significantly, particularly since the December 2022 elections without Bainimarama in power, and that the applicant’s claims about his fear of harm from SODELPA supporters as a result of his political opinion may no longer be relevant given that the Fiji First party was not elected to power at the 2022 elections.
The applicant told the Tribunal that he was not an active political supporter of the Fiji First party and was not a formal member of that party. He told the Tribunal that he no longer has any interest in politics and does not wish to be involved in Fijian political matters. He told the Tribunal that he did not fear any harm from anyone as a result of his previous political opinions and upon return to Fiji, he had no intention of publicly expressing any political views.
Having considered the applicant’s evidence, the Tribunal finds that the applicant is not politically active in any way. The applicant’s evidence was that he would not seek to express his views on any other political matter in any public manner that might attract adverse attention from Fijian authorities or any other parties upon his return to Fiji. The Tribunal further finds that the applicant otherwise possesses no characteristics that would lead to a real chance of him being deprived of human rights in any way that might amount to serious harm or significant harm if he returned to Fiji.
The Tribunal has considered the country information set out above about political matters in Fiji contained in the DFAT report as well as more recent country information, taking into account the change of government in Fiji following general elections in December 2022. Having regard to this country information, the Tribunal finds there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022. Accordingly, the Tribunal finds that there is no real chance that the applicant will suffer any harm on the basis of his political opinion.
The evidence before the Tribunal was that the applicant supported the Fiji First party, as did most Indian Fijians, but that he was not a member of the Fiji First party and not actively involved in any political campaigns of that party. The Tribunal accepts that in 2018 he was assaulted when he happened to be at a school where the Fiji First party was campaigning and that he and others were assaulted by SODELPA party supporters when a fight broke out and that he sustained injuries as a result of that assault. The Tribunal accepts that there was friction during the 2018 election campaign between the Fiji First party and SODELPA supporters; however, having regard to country information that has been referred to above and the Tribunal’s analysis of it, the Tribunal finds that, if the applicant returns to Fiji now or in the reasonably foreseeable future, he will not face interrogation, arrest, detention, harassment, torture, death or harm amounting to serious or significant harm.
Discrimination on the basis of race and ethnicity and access to land rights
When asked to describe instances of past discrimination, the applicant stated that he cannot take part in certain village ceremonies without the permission of the village chiefs and that he cannot own the land where his house is built.
Land has always been a sensitive issue in Fiji. Many Indo-Fijians believed their dependence on leased land constituted de facto discrimination against them.[20] Conversely, many ethnic iTaukei Fijians believed the rental formulas prescribed in national land tenure legislation discriminated against them as the resource owners.[21] By law, all ethnic iTaukei Fijians were automatically registered upon birth into an official register of native landowners, the Vola ni Kawa Bula. The register verified access for those in it to communally owned Indigenous lands.[22]
[20] Fiji Human Rights Report – 2023 – United States Department of State ( Ibid.
[22] Ibid.
The Native Lands Act provides the legal and institutional framework for dealing with all matters relating to native land in Fiji (Fiji 1978). It also provides for the establishment of a Native Lands Commission which has the power to determine what lands in Fiji are the ‘rightful and hereditary property of native owners’.[23] The Act provides that native land shall be held by indigenous Fijians who cultivate the land according to their custom and tradition.
[23] ‘Getting Property Rights ‘Right’: Land tenure in Fiji’ (>
According to country information, about 6% of land is freehold and able to be purchased and sold.[24] Approximately 4% is state-owned land and the remaining 89.75% is iTaukei land, belonging to communal groups, known as ‘land-owning units’, which cannot be bought or sold by anyone including individual iTaukei. This land is often leased to others through a government-coordinated leasing system, usually for a duration of 30 years. Both iTaukei and Indo-Fijians lease land from traditional owners.[25] Most Indo-Fijians have been obliged to lease land and have had limited ability to own land. The Fijian constitution explicitly acknowledges and protects the iTaukei relationship to and rights in its land, stating that any land acquired by the State must be done in accordance with the law, only when necessary for a public purpose, and must revert back to iTaukei when the public purpose ceases.[26]
[24] ‘Land reform in Fiji’ (2023) 91 Critical Perspectives on Accounting 5, citing R R Nayacakalou, Leadership in Fiji (OUP, 1975).
[25] DFAT Report at 2.25–2.26’
[26] Constitution of the Republic of Fiji 2013 (Fiji), preamble and sections 27–28.
The Tribunal does not accept that the applicant is deprived of any right to own land because of his Indian Fijian ethnicity. The applicant told the Tribunal that he and his wife have a house on land which is leased. The applicant is married to an iTaukei woman whose father was a village chief. Presumably, the applicant’s wife has full rights of inheritance and rights to property ownership.
Whilst the Tribunal acknowledges the applicant’s concern that as an Indian Fijian, he cannot own freehold land where his house has been built, the Tribunal finds that any discrimination perceived by the applicant because of this does not rise to the level of serious harm.
The applicant’s claim that he is excluded by the village chiefs in the village decision‑making process or certain ceremonies lacked detail. There was no evidence about how often such meetings take place and what decisions are made at such meetings. Apart from the applicant’s claim that he was excluded from such meetings or ceremonies, there was no evidence before the Tribunal that by being excluded from such meetings, the applicant suffered any harm.
The Tribunal notes that while country information suggests that some low‑level societal discrimination exists that may affect Indian Fijians, on the basis of the very limited evidence available to it, the Tribunal is not satisfied that the applicant’s inability to own indigenous land and attend meetings or ceremonies of his village would amount to there being a real chance of serious harm to the applicant for this reason if he returns to Fiji now or in the foreseeable future.
Access to mental health services
The Tribunal has given some weight to Ms [B]’s report and her evaluation of the applicant’s mental health condition. The Tribunal accepts that the applicant was assaulted in 2018 when he was in attendance at a political gathering and at the time this would have caused the applicant significant stress and anxiety. The applicant’s evidence before the Tribunal was that the anxiety and stress that he suffers from is primarily caused by the uncertainty about the outcome of his application and not knowing what the future holds for him and his family. The applicant indicated that he was assaulted in 2018 and that he did suffer from PTSD following the assault, but his current stress and anxiety is more related to the uncertainty about his future and not because of the assault that took place more than 6 years ago in Fiji.
Country information before the Tribunal indicates that mental health care can be hard to access in Fiji, but services are available. The Tribunal discussed this country information with the applicant and outlined that the information before it appears to indicate he would have access to mental health treatment and support in Fiji. Whilst the treatment in Australia is more readily available and of a higher standard, the Tribunal finds that the country information does not indicate he would be intentionally denied access to treatment, medical services or medication for his mental health for any reason upon his return to Fiji.
The information before the Tribunal does not indicate that the applicant would be precluded from accessing mental health services for any reason should he wish to avail himself of mental health support services. The Tribunal does not accept the applicant would face a real chance of serious harm or significant harm given the availability of mental health care support in Fiji. The Tribunal does not accept the applicant faces a real chance of serious harm were he to return to Fiji now or in the reasonably foreseeable future.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Fiji in the reasonably foreseeable future. After carefully considering the cumulative effect of these factors, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returned in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
In this case, the Tribunal has found that the applicant is a national of Fiji, and the Tribunal therefore finds that Fiji is his ‘receiving country’ for the purposes of s 5(1).
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal asked the applicant whether there was any other reason, apart from what he had already told the Tribunal, why he would fear harm if he returned to Fiji. The applicant indicated that there was no other reason apart from the reasons he had already explained to the Tribunal.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Fiji. In Minister for Immigration andCitizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face significant harm if returned to Fiji on account of his political opinions, his inability to own indigenous land or be involved in meetings of village chiefs because of his ethnicity, his access to mental health services in Fiji or for any of the above reasons, whether taken individually or cumulatively.
The Tribunal is not satisfied that the applicant meets the requirements of s 36(2)(aa).
Family unit member assessment
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Referral to the Minister
The applicant has requested that the Tribunal refer this case to the Department for consideration by the Minister pursuant to s 351 of the Act, which gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
Having considered the Ministerial Guidelines relating to the Minister’s discretionary powers, the Tribunal considers that this case should be referred to the Department to be brought to the Minister’s attention as it involves unique and exceptional circumstances as described by the guidelines. The Tribunal has decided to do so for the following reasons:
- The applicant’s employer, [Company 1] Pty Ltd, has given strong and compelling evidence to the Tribunal of their need to have the applicant continue working for them. The applicant’s employer has told the Tribunal that it wishes to retain the applicant in his current employment because of his high‑level skills as a \ [Occupation 1].
·The applicant has converted his Fijian trade qualifications to Australian standards.
·The applicant has been instrumental in setting up the company’s Victorian branch in 2022. He was the [Position 1] for Victoria, and he oversaw [managers]. His company [details deleted].
·The applicant was also instrumental in setting up the Brisbane office in 2023.
·The applicant’s employer services [large clients] nationally in addition to a further 100 commercial and retail clients. He employs over [number] staff. The company has been invited [to] tender for the [other] stores in April 2025. The applicant is involved in preparing the tender documents and is a key person in the tender process. The company has also been invited to tender for [another] contract nationally.
·There will be considerable employment opportunities for Australian citizens if the company tenders are successful. The applicant’s employer gave evidence that it will need to double its workforce if the tenders are successful.
·The applicant’s employer gave strong evidence to the Tribunal about how crucial the applicant is to the company’s expansion plans and to the tenders that must be prepared. The company director told the Tribunal that he did not think that the company will be successful in its tenders without the applicant being part of the process and he fears that the tenders may fail without the applicant’s continued employment with the company.
·If the tenders are successful, new work contracts will be entered into for a 6‑year period and this would guarantee the company’s long-term future and continued success. It would also guarantee ongoing and long-term employment for its Australian citizen employees.
·The applicant also holds the position of [a senior position]. The applicants extensive experience means that new employees are able to be trained quickly and at a high level.
·There are obvious and significant benefits to the applicant’s employer, [by] having the applicant remain in Australia. The applicant’s continued employment with [Company 1] Pty Ltd has the potential to double its Australian workforce if the upcoming tenders are successful, however, the applicant’s employer has indicated that the continued employment of the applicant is crucial to achieve this outcome.
·According to Powering Skills Organisation, the Jobs and Skills Council for the Energy Sector, “[details deleted].”[27]
[27] [source deleted].
·The occupation of [an occupation] is on [a] list of occupations and is an occupation that is in high demand and short supply in Australia.
John Kotsifas
Member
ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.