1412062 (Refugee)

[2016] AATA 3889

1412062 (Refugee) [2016] AATA 3889 (29 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412062

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Linda Symons

DATE:29 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 May 2016 at 4:45pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, who claims to be a citizen of Fiji, first arrived in Australia [in] October 1998 as the holder of a subclass 421 Sport visa. She departed Australia [in] October 1998. She returned to Australia [in] September 1999 as the holder of a subclass 676 Visitor visa and departed Australia [in] December 1999. She returned to Australia [in] October 2011 as the holder of a subclass 676 Visitor visa and departed Australia [in] October 2011. She returned to Australia [in] August 2013 as the holder of a subclass 600 Visitor visa which was valid until [date] November 2013. [In] November 2013, she was granted a Bridging visa in association with her application for a Protection visa.

3.    The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] November 2013 and the delegate refused to grant the visa [in] June 2014. [In] July 2014, she applied to the Tribunal for review of that decision.

4.    On 27 April 2015, she appeared before the Tribunal (differently constituted). That Tribunal Member subsequently left the Tribunal and her case was constituted to the current Tribunal Member.

5.    On 18 August 2015, the Tribunal wrote to the applicant and informed her that the previous Tribunal Member was no longer available to review her case and that her case had been constituted to the current Tribunal Member. She was also informed that the Tribunal would write to her if the current Tribunal Member required any further information.

6.    On 30 July 2015, the Tribunal wrote to the applicant and invited her to attend a hearing on 28 September 2015 to give further evidence and present arguments. The applicant declined the hearing invitation.

RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

Refugee criterion

8.    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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Complementary protection criterion

9.    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 a Protection 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 the applicant 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’).

Section 499 Ministerial Direction

10.      In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

11.      The applicant’s claims in her visa application are summarised as follows:

·She left Fiji as a visitor with the secret intention of getting away and escaping from the brutality and ruthlessness of the Fiji Military soldiers and her husband.

·She used to work at the [workplace] in Fiji. While working there she met a female co-worker and formed an intimate relationship with her. They kept their relationship secret as lesbian relationships are taboo in Fiji. Her husband found out about her relationship and physically abused her by punching and kicking her. She ended up in hospital with [injuries].

·A boy in her village was a soldier in the Fiji Military and he relayed the message to the Military. She was picked up from her workplace one day and interrogated for 2 hours. She was warned to discontinue her relationship or suffer more persecution.

·Her relationship with the girl continued. She was taken back to the Military camp in [town], made to strip and was teased about her “private parts being used by a girl and not a man”. She was released and returned home hurt emotionally and physically.

·Her husband found out and raped her many times. She was treated like dirt and garbage by him and his relatives. Her husband hates her for what she did and forces himself on her all the time because of it. She does not like it and hates him for doing that.

·Some of the soldiers decided to capitalize on her vulnerability. She was picked up again with her female partner and driven to a secluded spot where they were raped by four soldiers. They were driven back close to her village and dropped off. They told her that they would continue doing this if she continued to give her private parts to a woman.

·As a result of this she decided to come to Australia with the intention of not returning to Fiji to suffer discrimination, hate and harassment from the soldiers and the community.

·She cannot return to this suffering, embarrassment and harassment by the soldiers, her husband and his relatives.

·She fears that if she returns to Fiji she will be molested, raped and harassed again by the ruthless soldiers, her husband and relatives. She was even stopped at [name] airport on her way to Australia, interrogated for 1 hour and released on her promise to return to her husband and children.

12.      The applicant provided the Department with a copy of the bio date page of her Fijian passport and a letter of support dated [in] March 2014 from the [[Association].

13.      The applicant attended an interview with the Department [in] March 2014. During that interview she re-iterated and expanded on her written claims. She stated that she commenced her relationship with a woman named [Ms A] in January 2012 and her husband found out about her relationship [in] October 2012. She stated that she left her employment at [workplace] in December 2012 and terminated her relationship with [Ms A] at that time. She stated that she terminated her employment to assist her [sibling] who was working at a [business] in [town] and to prepare for her [child]’s wedding. She stated that during the time between leaving her employment and departing for Australia she lived with her husband and [sibling]. She stated that her husband does not work and has not been employed previously. She stated that having a lesbian relationship in Fiji is not allowed and women who are caught are raped. She stated that she was raped by her husband and by soldiers in the Fiji Military once they discovered her relationship with [Ms A]. She stated that she was questioned and warned by the Fiji Military on three occasions to cease her relationship with [Ms A].

14.      The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] June 2014. She has also lodged with the Tribunal country information on domestic violence in Fiji.

15.      [In] April 2015, the Tribunal received pre-hearing submissions from the applicant’s migration agent.

16.      The applicant gave oral evidence to the Tribunal on 27 April 2015 in relation to her written claims. Her evidence is summarised as follows:

She has [number]children from her first marriage. Her first husband died in 1999 and she remarried in 2006. Her second husband was working as a [occupation] when they got married but stopped working after [number] years. He started [questionable habits] and going around with his friends so she had left him in 2013 when she came to Australia. She had tried to tolerate the relationship until her children became independent but it was always her intention to leave him. She was embarrassed about the stories of his [questionable habits]. He has left the family home in the village. He might have gone to his family but she has not given him her telephone number in Australia and they have not been in contact. She does not know his whereabouts. She tried to divorce her husband and had asked her [sibling] to go to the marriage registry in [town]. She will confirm with her [sibling] what to do after the Tribunal hearing. She wants a divorce.

She met [Ms A] when she was working at the  [workplace] in January 2012. They worked in the same department. [Ms A] saw that she was sad because of her relationship with her husband and gave her support. They helped each other and their friendship because more intimate and they became partners. This was her first lesbian relationship. She stopped working at [workplace] in December 2012 because she was embarrassed by the story that was going around.

Having a lesbian or homosexual partner is forbidden in her village. The village head  announced that anyone living in a same sex relationship would not be allowed to stay in the village. She did not know anyone from the village who is homosexual or lesbian. No one in her village has been forced to leave due to their      homosexuality. Sometimes some of the village laws are independent of the laws of the country and there were no homosexuals allowed to live in the village.

When tourists went to the [location] she saw people in lesbian relationships and   wondered about their lives. At the time when she was having difficulties with her husband and her relationship with [Ms A]was close, she thought that it would be a better relationship with a female partner. When asked if she was attracted to men, she responded that when her husband gave her a difficult time she thought it would be better for her to marry a woman. When asked if she was bisexual or lesbian, she stated that at this time she wants a female partner only. She has been in Australia for 2 years and does not have a partner. She intends looking for a relationship with a female partner. When asked how she would find a partner, she stated that she is praying that God will give her a female partner.

When her husband found out about her relationship with [Ms A]he gave her a hard time. He always got drunk and verbally abused her because of her relationship with [Ms A]. Sometimes it was physical abuse. On the day he found out about [Ms A] he hit her. The only injury she had was a [injury]. On another occasion, he hit her and [sustained injuries]. She did not go to the hospital as she treated herself with Fijian herbs. Before coming to Australia, she went to a [professional] and got [specific work done] in March 2013. There are no medical records in relation to her being beaten up as she did not go to any hospital for treatment.

Her husband told her [relative] who was a soldier that she was in a lesbian relationship. He got angry at her. One day he picked her up and warned her to stop the relationship with [Ms A]. He warned her that if she gave her body to a woman he would injure her worse than her husband because he did not want her to have a relationship with a woman. Her [relative] was accompanied by two soldiers who acted very arrogantly. Her [relative] was doing the talking but she thought the others wanted to rape her. The first time her [relative] picked her up he took her close to the village. On the second occasion he took her close to the camp. On the second occasion they told her to strip and said that if she was going to give her body to [Ms A] they would injure her more than what she had already experienced.

When asked what injuries she suffered because of her relationship with [Ms A], she stated that her husband physically and verbally assaulted her and her [relative] verbally abused her. When asked if anything else happened, she stated that her [relative] touched her and warned her that other soldiers could do the same thing.

Nothing happened to her when she was [at workplace]. In November people were staring at her and there were discussions about her relationship with [Ms A]. She felt that people from [workplace] may have sent a message to the people in her village and put her in a disrespectful position. Nothing happened to [Ms A] as she was single. The last time she spoke to or saw [Ms A] was when she left [location] in 2012.

After she left work, she returned to her house in her village and lived there for 7 months. She applied for the Visitor visa in June and was granted the visa in July. She applied for the visa because she wanted to see her [relative] in Australia. However, at the back of her mind she wanted to leave her husband because he continued [with questionable habits]. Also because of her relationship with [Ms A]. When her husband got drunk he tried to force her to have sex with him. She did not leave as soon as the visa was granted because she wanted to attend her only daughter’s wedding.

Other than her [relative] who was a soldier no one else in the village knew about her relationship with [Ms A]. On the morning she left Fiji, her cousin interrogated her and she told him she would visit Australia and return to Fiji.

When asked what she thought might happen if she returned to Fiji, she stated that firstly she is afraid she might meet her husband again, maybe not at her home, but he might come and see her and she is fearful of that. Secondly, she is fearful of her relatives’ views of her because of her relationship. They may look down on her and she is embarrassed. Thirdly, if she can stay in Australia she would want to establish her life so that she can be away from her past life in Fiji. 

The applicant stated that she did not have any involvement in politics in Fiji or Australia and there were no political reasons for her not to return to Fiji. Her claims were about her relationship and not politics.

When asked why she waited for 3 months after her arrival in Australia before lodging her application for a Protection visa, she stated that she thought her husband would look for work and he would learn his lesson from being dependent on her but he continued [with questionable habits] and all he did was muck around in the village so she lodged the application for a Protection visa. When asked if she would have returned to Fiji during that 3 month period if her husband got a job, she answered yes that she probably would have. She stated that if she returned and was told her husband had not changed it would be difficult for her. She stated that now that she has been here for 2 years she cannot go back to him because she does not know where he is.

When asked why she did not report her husband to the Police for domestic violence, she stated that if she told the Police he would have been taken to the Police Station and abused. She stated that she intended coming to Australia and thought that if there was a Police case she may have been prevented from coming to Australia. When asked why she had not been to the Police before that, she stated that if she did her husband would not have been able to write a letter in support of her application for a Visitor visa. She stated that if she returns to Fiji she will seek Police protection from her husband. She stated that she could get another job in another [business] and stay away from her husband and the village. She wants to remain in Australia because Australia is looking after her and she is allowed to work.

17.       [In] September 2015, the Tribunal received further pre-hearing submissions from the applicant’s migration agent together with country information on Fiji and a copy of the DFAT Country Information Report on Fiji dated 14 April 2015. He submitted that the applicant is making claims under the Refugees Convention on the grounds of membership of a particular social group as well as under complimentary protection on the grounds that she will be arbitrarily deprived of her life, tortured, subject to cruel or inhuman treatment or punishment, subject to degrading treatment, punishment and public humiliation, subject to domestic abuse and subject to further rape if she returns to Fiji.

Nationality and third country protection

18.      The Tribunal finds that the applicant is a citizen of Fiji based on her passport which is before the Tribunal and will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

Does Australia have protection obligations to the applicant under the Refugees     Convention?

19.      The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well founded” or is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision‑maker is not required to make the applicant's case for her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (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.)

20.      In this case, the applicant’s written claims are made in the most general terms and they are unsubstantiated. She attended a hearing before the Tribunal (differently constituted) on 27 April 2015. She was subsequently informed that that Tribunal Member was no longer available to review her case and that her case had been constituted to the current Tribunal Member. She was also informed that the Tribunal would write to her if the current Tribunal Member required any further information. The Tribunal wrote to her and invited her to attend a second hearing on 28 September 2015 to give further evidence and present arguments before the current Tribunal Member.

21.      As the applicant did not attend the hearing on 28 September 2015, the Tribunal was unable to obtain further details of her claims or to test their veracity. Had the applicant attended the hearing, the Tribunal would have asked her for further details of her relationship with [Ms A], whether she is currently in a relationship and about her sexual orientation in general. The Tribunal would have asked her about her relationship with her husband, whether she is now divorced from him and whether she is now aware of his whereabouts. The Tribunal would have asked her for further details about the incidents with her [relative] who is a soldier and whether she now fears harm from him. The Tribunal would have asked her about the inconsistencies between her claims in her visa application and her evidence to the Department and the Tribunal as well as the inconsistencies between her evidence during her interview with the Department and her evidence to the Tribunal. In view of the lapse of time since the applicant left Fiji, the Tribunal would have asked her why she now fears harm if she returns to Fiji.

22.      On the evidence before it, the Tribunal is not satisfied that the applicant was in a lesbian relationship with a woman named [Ms A] in Fiji. On the evidence before it, the Tribunal is not satisfied that she was beaten, raped, humiliated and threatened by her husband and soldiers in the Fiji Military for this reason. On the evidence before it, the Tribunal is not satisfied that she was threatened, touched and interrogated by her [relative]. On the evidence before it, the Tribunal is not satisfied that the applicant is a lesbian or bisexual. On the evidence before it, the Tribunal is not satisfied that the applicant was subject to violence at the hands of her husband or members of his family or her [relative] or the community or that there is a real chance that she will be at risk of such violence if she returned to Fiji now or in the reasonably foreseeable future.

23.      On the evidence before it, the Tribunal is not satisfied that the applicant was of adverse interest to the Fiji Military or that there is a real chance that she will be at risk of adverse interest to the Fiji Military if she returned to Fiji now or in the reasonably foreseeable future. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future. 

24.      On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of membership of a particular social group or any other Refugees Convention reason. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable   consequence of the applicant being removed from Australia, there is a real risk that she will      suffer significant harm

25.      As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion in s.36(2)(aa) of the Act .

26.      As the applicant did not attend the hearing on 28 September 2015, the Tribunal was unable to obtain further details of her claims or to test their veracity. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of her life, tortured, subject to cruel or inhuman treatment or punishment, subject to degrading treatment, punishment and public humiliation, subject to domestic abuse and subject to further rape if she returns to Fiji. On the evidence before it, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.

27.      On the evidence before it, the Tribunal is not satisfied that 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 she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

CONCLUSION

28.      For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

29.      There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

30.      The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
         Member