1503985 (Refugee)

[2016] AATA 4308

1503985 (Refugee) [2016] AATA 4308 (12 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503985

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Belinda Mericourt

DATE:12 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 August 2016 at 4:09pm

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] October 2014 and the delegate refused to grant the visa [in] February 2015.

3. On 24 March 2015, the applicant lodged an application for review of the Department’s decision with the Tribunal.

4. The applicant appeared before the Tribunal on 10 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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.

    Section 499 Ministerial Direction

19. 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

    Background

20. The applicant was born in [year] in Lautoka, Fiji. He provided his passport to the Department. He stated that he is of Indo-Fijian ethnicity and Islam religion. The applicant’s parents reside in Fiji. He is married and his wife resides in Fiji with her parents. He has no dependents. He completed high school in [year]. He stated that his occupation is [occupation] ([details deleted]).

21. The applicant was granted a visitor visa (subclass 676) on [in] September 2014 and entered Australia [in] October 2014. He lodged his application for protection [in] October 2014.

22. The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s Fijian passport issued [in] 2014, his application for a protection visa, an audio recording of his interview with the delegate [in] January 2015 and a copy of the delegate’s decision record.  The Tribunal has also referred to relevant country information as cited in this decision.

    Claims made in the applicant’s written application dated [October] 2014

23. The applicant stated that he entered Australia for the purpose of visiting family members for a period of four weeks. During his short stay he noticed that Australia is a beautiful and true democratic country which gives its citizens for rights to voice their opinions with no restriction in religious and political beliefs and no corruption. He was amazed at the vast difference in Australia (from Fiji). He decided to claim protection in Australia as he believes that he is a victim and Australia could protect him from further significant harm and help him. He is outside Fiji and unwilling to return due to fear of persecution and abuse. If he is forced to return he will be significantly harmed and be arbitrarily deprived of his life and subjected to inhuman treatment. The authorities in Fiji will not be able to give him the required protection as they do not have the resources to assist him and others in his position as they have many internal and important matters to deal with. He did not claim that he had experienced harm in Fiji.

    Claims made at the interview with the delegate [in] January 2015

24. The applicant stated he came to Australia because the cost of living is high in Fiji and he has to support his family, that is, his aged parents and wife. He has no savings and said he has no chance to earn more money in Fiji. He saw an advertisement in the newspapers about a person helping people obtain work permits to come to Australia to work. The applicant paid this person to lodge a visitor visa application on his behalf to come to Australia. The applicant said it was not his intention to come to Australia to live permanently and does not fear returning to Fiji. He said it was not his intention to seek protection in Australia. His intention was to work, earn money and then return to Fiji. However, the person assisting him did not give him any work when he came to Australia and he feels cheated. This person told him that bridging visas granted in association with a protection application gives him work rights.

25. The applicant provided the delegate with receipts from “[name of recruitment service]” for a total of $[amount] plus the lodgement fees.

26. The applicant also told the delegate that the lease for the land on which his parents reside will expire next year (2016) and they will have nowhere to live. He and his wife lived with his parents. To renew the lease they have to pay a lot of money to the village chiefs and they do not have the funds to do so.

27. The applicant said that he had no problems as a result of his religion or ethnicity. He did not fear returning to Fiji but he would have no job and no money and would find it difficult to survive.

    Department’s decision

28. The applicant provided a copy of the Department’s decision dated [February] 2015 to the Tribunal with his application for review. The delegate made a decision to refuse to grant the applicant protection as he had never experienced harm in Fiji and he did not wish to return to Fiji for economic reasons. The delegate accepted the applicant’s evidence at the interview that it was not his intention to apply for protection and live in Australia permanently. He was satisfied that there is no real risk or real chance that the applicant will suffer significant or serious harm if he returns to Fiji now or in the foreseeable future.

    Claims made at the Tribunal hearing on 10 August 2016

29. The applicant provided consistent evidence to the Tribunal and the Tribunal appreciated the applicant’s honesty about his circumstances.

30. The applicant is currently living with his sister and has done so since his arrival in Australia. He is working as [occupation] at [workplace]. He speaks almost every day with his wife by phone.

    The applicant said that [Mr A] came to Fiji to recruit people to work in Australia and he promised to arrange a visa and work for him. When he arrived in Australia he didn’t know anything about protection visas. [Mr A] made the application on his behalf and he was granted a bridging visa with work rights. However, [Mr A] did not find any employment for him so the applicant contacted an employment agency to find his current position. He felt cheated by [Mr A] who has not applied for an appropriate work visa on his behalf. All he wanted was to work in Australia temporarily.

31. The lease of his in-laws’ land ceased in July this year but they have been given additional time to pay for the renewal lease. It is in a hilly area, not very fertile and it is not possible to grow crops and provide the family with an adequate income. In addition his home was destroyed in the cyclone. The applicant thought that his work in Australia would enable him to rebuild the house and pay for the lease. They were eligible for a voucher to rebuild the house after the cyclone but they have not yet received the funds. In any event it was too small amount to rebuild. The applicant also lost [a relative] in the cyclone.

32. The applicant does not think he could get a work visa to work in Australia as he does not have a certificate as [occupation]. The applicant has worked in Australia for over 18 months and has saved a little money. His priority is to use this money for his house and renew his lease in Fiji.

33. The Tribunal discussed the current employment situation in Fiji and the fact that many people lived in poverty. However, these circumstances on their own were not sufficient to meet the requirements for protection. The applicant claims to have suffered abuse at the hands of indigenous Fijians when they stole his [property] in 2014 just before he came to Australia.

    FINDINGS AND REASONS

34. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

35. 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. 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.)

    Nationality

36. On the basis of the applicant’s Fijian passport provided to the Department, the Tribunal finds that the applicant is a citizen of the Republic 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 applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Claims related to fear of economic harm

37. At his interview with the delegate and at the Tribunal hearing, the applicant stated that he did not seek to live in Australia permanently, but wished to work here. He had been advised that if he lodged a protection application soon after his arrival in Australia he would be granted work rights. He stated that he was unable to obtain work that would provide a sufficient income for him to support his wife and his aged father in Fiji and only wanted to work in Australia to earn sufficient income to rebuild his house and renew the lease for the land before he returned to Fiji.

38. The Department of Foreign Affairs and Trade (DFAT) 2015 Country Report on Fiji states:

    In recent years, economic growth has been subdued by political instability, external shocks and a poor enabling environment for business. Fiji faces constraints typical of other Pacific island economies such as exposure to natural disasters, high transport costs, a small domestic economy, and geographical isolation. GDP growth from 2006 to 2011 averaged 0.45 per cent. The economy has begun to recover, with GDP growth rising from 1.9 per cent in 2011 to a forecast 3.8 per cent for 2014.

    GDP per capita in 2013 was estimated at approximately USD4,700 and Fiji was classified by the World Bank as an upper middle income country. Poverty remains prevalent: in 2009 approximately 23 per cent of the population was estimated to live on less than USD2 per day. [1]

    [1] DFAT Country Report: Fiji, 14 April 2015, p.8

39. The DFAT Country Report also states that in respect of Indo-Fijians, in practice, they are able to access employment, education, healthcare and other government services on the same basis as other Fijians although there is evidence of some discrimination in public service employment. However, the Constitution provides for freedom from discrimination on the basis of race or ethnicity.

    Instances of official discrimination are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

    Overall, DFAT assesses that Indo-Fijians face a low level of official discrimination on the basis of their race/nationality.[2]

    [2] Ibid, p.11

1. The unemployment rate cited by the World Bank decreased to 7.9% in 2014 from 8.3% in 2013. Since 2009, unemployment levels have gradually fallen in line with improved domestic economic growth. During the 2010-2015 period, the Fijian economy grew by 3.5% on average.[3]

   [3] Reserve Bank of Fiji as reported by the Fiji Sun On Line, 29 July 2016, “Unemployment in Fiji”, Accessed 29 July 2016.

2. In terms of societal discrimination the DFAT Fiji Country report states:

   3.19 In certain geographic areas (particularly Suva), relations between the two ethnic groups have been difficult at times of political tension. Political power has been a key driver of division between the two communities. For example, riots followed the 2000 coup (in which Fiji’s first Indo-Fijian Prime Minister was deposed). Indo-Fijian merchants in Suva were targeted with violence and vandalism. The 2000 riots were generally assessed to be the exception to the norm.

   3.20 As of 2014, the treatment of Indo-Fijians by indigenous Fijian communities varies. A range of Indo-Fijians said that treatment had improved in recent years and that there had been a reduction in (reported) crime, including a reduction in theft, robbery, assault, burglary and desecration of temples. A range of contacts said that robberies of Indo-Fijian taxi drivers were frequent, but that these were not necessarily racially based: the majority of taxi drivers in Fiji are Indo-Fijian, and taxi-drivers are a vulnerable, accessible target. More broadly, most contacts assessed robberies to be motivated by income disparity, rather than race or ethnicity per se. Indo-Fijians are sometimes perceived to be wealthier than indigenous Fijians and are therefore more likely to be targeted for economic reasons.

   3.21 State protection for Indo-Fijians is generally assessed to be only partially effective. However, this is because of poor police capacity and there is not a significant disparity between the quality of state protection provided to Indo-Fijians and to indigenous Fijians. Indo-Fijian groups assessed the police to be under-resourced and unresponsive, while the military (despite its overwhelmingly indigenous Fijian make-up) was assessed to be effective and responsive. See more details below at ‘State Protection’.

   3.22 Overall, DFAT assesses that Indo-Fijians face a low level of societal discrimination on the basis of their race/nationality.[4]

   [4] DFAT Country Report: Fiji, 14 April 2015, p.12

3. The Tribunal accepts the applicant’s evidence about the theft of his [property] by indigenous Fijians prior to his departure to Australia. Based on the above report the Tribunal accepts that there is some level of social discrimination against Indo-Fijians in Fiji and this theft may have some basis in discrimination against Indo-Fijians.  However, the country information also indicates the theft could just have easily be motivated by poverty on the part of the thieves. Based on the above evidence the Tribunal is not satisfied that this incident falls into the category of serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) or significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act). 

4. The Tribunal finds that the applicant’s claim to fear returning to Fiji due to his difficulty in finding employment which provides an adequate income has no Convention nexus as he does not have a fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5. The Tribunal is sympathetic to the applicant’s economic circumstances, particularly after he lost his house in the cyclone. Nevertheless, the Tribunal is satisfied that there is no real chance he will suffer serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) or that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his economic circumstances if he returns to Fiji now or in the foreseeable future.

   CONCLUSION

6. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

7. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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

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

   Belinda Mericourt
   Member