1415788 (Refugee)

[2016] AATA 3606

1415788 (Refugee) [2016] AATA 3606 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415788

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Chris Thwaites

DATE:18 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2016 at 1:55pm

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, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] August 2014.

3. On 19 September 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application.

5. Departmental records indicate the applicant made her first protection visa application [in] March 2001, and that application was refused [in] March 2001.

6. The applicant made the current protection visa application [in] August 2013. The Department noted the applicant’s first protection visa application was refused [in] March 2001, prior to the implementation of the complimentary protection criteria on 24 March 2012, and in light of the decision in the SZGIZ v Minister for Immigration and Citizenship the Department accepted the current application as valid.

7. The applicant’s written reasons for claiming protection are contained in her protection visa application form. The applicant states she fears that she will face family violence from her former husband and the conservative Fijian society as a single mother. The Fijian society is still conservative and discriminates and harasses single women. Due to her personal circumstances she fears she will face significant harm including torture, degrading and inhuman treatment, either from her former husband or from the society. She fears as a single woman she cannot get State protection in Fiji. She fears even if she moved to other parts of Fiji she will continue to face harm because Fijian society is a male dominated conservative society. The applicant also refers to a detailed statement to follow.

8. Departmental records indicate the applicant attended an interview with the delegate [in] July 2014 and submitted a letter from the Fiji Democracy and Freedom Movement dated [in] October 2013 confirming the applicant’s membership since 2012.  

9. The delegate’s decision record indicates that during the delegate’s interview with the applicant, her then representative stated Fijian society may perceive the applicant as a morally corrupt woman due to her separation from her husband. The representative also raised concerns that the applicant has been in Australia for more than a decade and therefore Fijian society might perceive her as a woman with extreme wealth and persecutors may attempt to extract wealth from the applicant.

10. The Tribunal notes there were no further written submissions from the applicant’s representative were made, and no further written claims or statutory declaration or written statement from the applicant were provided to the Department.

11. [In] August 2014 the delegate refused to grant the applicant a protection visa because the applicant’s evidence did not suggest that her race, religion, nationality, political opinion or membership of a particular social group were relevant factors in the harm feared. The delegate was also not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk that she will suffer significant harm. Accordingly the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

12. On 19 September 2014 the applicant applied to the Tribunal for review of that decision.

13. On 23 December 2015 the Tribunal wrote to the applicant via her then representative and authorised recipient, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 March 2016. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

14. On 17 February 2016 the representative wrote to the Tribunal advising that they no longer act for the applicant and confirming they notified the applicant regarding the hearing by post and by telephone on 30 December 2015.

15. On 18 February 2016 the Tribunal posted a copy of the hearing invitation to the applicant’s last known address. The Tribunal did not receive a response to this letter.

16. On 9 and 16 March 2016 the Tribunal sent an automated SMS hearing reminder to the mobile telephone number the applicant had provided to the Tribunal.

17. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    FINDINGS AND REASONS

    Nationality

18. On the basis of the identity information and the copy of the applicant’s Fijian passport provided to the Department with the visa application, the Tribunal finds that the applicant is a national of Fiji. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Fiji.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Fiji, the Tribunal also finds that Fiji is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

    S.48A Bar

19. As noted above, Departmental record indicate the applicant made her first protection visa applicant [in] March 2001, and that application was refused [in] March 2001.

20. The Tribunal has taken into consideration the cover letter to the Department enclosing the current visa application forms for lodging dated [in] August 2013. The letter is from the applicant’s then representative and addresses the operation of s.48A, and notes the applicant’s previous protection visa application was assessed under the Refugee Convention, and submits the applicant’s claims have never been assessed under the complementary protection criteria. The letter submits s.48A only prevents an application being made if the grounds relied on were available in the past. It submits that s.48A does not prevent an application being made in reliance on the complementary protection grounds if a prior application was made and finalised before those grounds were available for consideration.

21. On the evidence before it the Tribunal finds that the applicant made her first protection visa application [in] March 2001, and that application was refused with reference to the Refugee Convention criteria [in] March 2001, prior to the commencement of the complementary protection provisions on 24 March 2012.

22. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

    Complementary protection criterion: s.36(2)(aa)

23. This criteria is met if the Tribunal is satisfied Australia has protection obligations because there are 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.

24. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. 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 himself 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 him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

25. In this particular case, the applicant’s claims are unsubstantiated and without further detail amount to mere assertions. If the applicant had attended the hearing, the Tribunal would have had the opportunity to discuss the applicant’s claims with her in more detail and test their veracity. The Tribunal would have asked the applicant for further details about her fear that she will face family violence, and about her relationship with her former husband and if she had experienced any family violence in the past; whether she had any recent contact with her former husband, and why she thought he might harm her if she returned to Fiji. The Tribunal would have also asked the applicant about her fears of being a single mother in Fiji, and about conservative Fijian society and her claims that Fijian society discriminates and harasses single women. The Tribunal would have asked the applicant about her fears she will face significant harm including torture, degrading and inhuman treatment, either from her former husband or from society. The Tribunal would have also asked the applicant about her fears that as a single woman she will not get State protection in Fiji, and her claim that if she moved to other parts of Fiji she will continue to face harm because Fijian society is a male dominated conservative society. The Tribunal would also have asked the applicant about the concerns raised by her then representative, noted in the delegate’s decision record, that Fijian society will perceive the applicant as a morally corrupt woman due to her separation from her husband; and that the applicant has been in Australia for more than a decade and therefore Fijian society might perceive her as a woman with extreme wealth and persecutors may attempt to extract wealth from her. The Tribunal would also have asked the applicant about her membership of the Fiji Democracy and Freedom Movement noted in the letter she provided to the Department dated [in] October 2013. The Tribunal would have asked the applicant if she had any fears of harm if she returned to Fiji, in relation to her membership of that movement or for any political opinion she may hold or activity she may have, or will, undertake. The Tribunal would also have asked the applicant about any other fears she has in relation to returning to Fiji.

26. The letter inviting the applicant to the hearing put the applicant on notice that the Tribunal had considered all the material before it and was unable to make a favourable decision on that information alone. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear, and no request for a postponement was made or granted.

27. The evidence before the Tribunal is not sufficiently detailed for it to be satisfied there is a real risk the applicant will suffer significant harm for the reasons that have been raised. On the evidence before it the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm, or harm of any kind, due to family violence from her former husband and the conservative Fijian society. The Tribunal is not satisfied there is a real risk the applicant will be discriminated and harassed as a single woman by society in Fiji. The Tribunal is not satisfied there is a real risk the applicant will face harm including torture, degrading and inhuman treatment either from her former husband or from society in Fiji. The Tribunal is not satisfied the applicant will not get State protection in Fiji, or that there is a real risk she will be harmed because Fijian society is a male dominated conservative society.  The Tribunal is not satisfied there is a real risk the applicant will be perceived as a morally corrupt woman due to her separation from her husband and therefore suffer harm or significant harm. The Tribunal is not satisfied there is a real risk the applicant will be perceived as a wealthy woman because of the time she has spent in Australia and therefore be persecuted in an attempt to extract wealth from her, or suffer significant harm for that reason. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm due to her membership of the Fiji Democracy and Freedom Movement.

28. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if she is returned to Fiji.

29. On the evidence before it, the Tribunal is not satisfied there are 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 the applicant will suffer significant harm. Therefore the applicant does not satisfy the criteria under s.36(2)(aa).

    CONCLUSION

30. 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)(aa).

31. 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 the criterion in s.36(2).

    DECISION

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

    Chris Thwaites
    Member  18 March 2016

    
    

    RELEVANT LAW

    Complementary protection criterion

33. A applicant meets this criterion 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’).

34. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

35. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.