1500156 (Refugee)

[2016] AATA 4866

1500156 (Refugee) [2016] AATA 4866 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500156

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Luke Hardy

DATE:27 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 27 June 2016 at 1:16pm

CATCHWORDS

Refugee – Protection Visa – Fiji – Complementary protection – Economic adjustment in returning to home country after long period – Claims do not include risk of significant harm

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48A, 65, 417, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

SZGIZ v MIAC (2013) 212 FCR 235

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of Fiji. The main applicant and her husband first entered Australia on [temporary] visas [in] December 1999. They applied for protection visas [in] April 2000 and were refused [in] May 2000. The Refugee Review Tribunal affirmed the primary decision on 14 May 2001. The applicants unsuccessfully sought Ministerial intervention under s.417 in 2001. They were part of an unsuccessful [litigation]. There was also a separate unsuccessful protection visa application for their son, affirmed on review by the Refugee Review Tribunal. The applicants remained in Australia.

3. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

4. Relevant to the current application, s. 48A of the Act 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. However, 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.

5. In light of SZGIZ, the three applicants lodged a fresh protection visa application [in] April 2014. The Minister’s delegate refused to grant the visas [in] December 2014.

6. The delegate purported to determine the application on refugee grounds as well as on complementary protection grounds. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

7. On 1 July 2015, the Refugee Review Tribunal merged into the MRD of the AAT.

8. The applicant wife and husband appeared before the Tribunal on 27 June 2016 to give evidence and present arguments. They were accompanied by the applicant son on whose behalf they spoke at the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

9. The issue in this case is whether or not the applicants are entitled to protection on complementary protection grounds.

10. For the following reasons, I have concluded that the decision under review should be affirmed.

    The claims

11. Essentially, the applicants claim that they have lived so long away from Fiji that they would have difficulty starting from scratch economically and socially there and that this would be detrimental to their son’s development. They confirmed at the hearing that their problem is one of adjustment to life in Fiji and that they do not face a real risk of significant harm.

12. The applicants formerly owned a house on leased land. They deserted the house and the land and ceased contributions owing to their landlord around sixteen years ago. They claimed that in view of having been away from Fiji for over ten years they have no legal claim on the house or the leasehold or anything at all connected with the property they effectively rented in the past. They told me they could not move in with parents or siblings still living in their home village as they are married and are expected according to Indian culture to live on their own.

13. I raised with the applicants a number of claims they had made in the past, including a claim about an indigenous Fijian [Mr A] who had moved into the house they had vacated and claimed it as his own after they had been away from it for over ten years. They told me they had asked him if they could reclaim the house and he had said no. I put to them that the evidence so far, including evidence of this particular exchange appeared to fall far short of indicating a real risk of significant harm as exhaustively defined in the Migration Act and they agreed.

14. The applicant husband occasionally said he had bought the land on which their house stood from his uncle, who had inherited it from his, the uncle’s, father who in turn had inherited it from his own father, the applicant’s husband’s great grandfather. However, examining this evidence in detail, I found that the applicant husband was talking about leases of what was originally crown land, not ownership of the same. The applicant husband told me his great grandfather had leased the land from an indigenous Fijian but had ultimately failed to pay the agreed amount or instalments for the lease. He said the land reverted from the uncle who “inherited” it to the owner who was long owed the money. In any event, the evidence before me clearly indicates that [Mr A] is evidently legally occupying a house built on land evidently legally owned by someone else.

15. I drew to the applicants’ attention that they appeared to be claiming fear of economic adjustment whereas in the past they had claimed that [Mr A] had threatened to kill them the moment they set foot in Fiji in order to stop them trying to take back the house he had occupied. Quite clearly in response, the applicants said this was no longer the case. They acknowledged that under the law in Fiji they have no possible legal right to challenge occupancy of the land or house they used to occupy.

16. The applicants said they expect their son’s application for Australian citizenship will be granted in October 2016. They said they have another son who has been granted citizenship. They asked for Ministerial intervention on compassionate grounds, in the event of an unsuccessful protection visa application. On the information before me I indicated I was not in a position to refer or recommend in such a matter.

    Findings

17. If a person is found not to meet the refugee criterion in s.36(2)(a), as is the case with the present applicants, 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’).

18. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33.

19. ‘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.

20. 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.

21. Having considered all of the evidence in this matter, I give no weight to past claims about the threats from [Mr A] or any other party. I find that the applicants have no legal right to any of the property they deserted sixteen years ago in Fiji. I find that they have no legal contracts with anyone in respect of any property in Fiji. On the evidence before me, this is clearly a case of three applicants who face some social and economic adjustment in the event of removal to Fiji. Even in the case of the minor applicant, the difficulties indicated do not evidently rise to significant harm as exhaustively defined in the Migration Act. On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, the logical and only receiving country in this case, there is a real risk that any of them will suffer significant harm.

22. For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

24. 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.

25. 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).

26. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

27. 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’).

28. 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.