1513596 (Refugee)

[2016] AATA 4370

1513596 (Refugee) [2016] AATA 4370 (29 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513596

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Tania Flood

DATE:29 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 August 2016 at 3:41pm

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 [in] September 2015 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] February 2015. The delegate refused to grant the visa on the basis that he did not attend the hearing and therefore his claims were unable to be verified.

   CRITERIA FOR A PROTECTION VISA

3. 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, 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.

4. 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.

5. 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 themself 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).

6. 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.  

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

9. The issue in this case is whether the applicant has a well-founded fear of persecution in Fiji or alternatively whether there are substantial grounds for believing there is a real risk he will suffer significant harm if he is removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

10. In his application for a Protection visa, the following claims are made:

11. He had some problems with the military.  He was working for [a local project] and his life was in danger. 

12. Due to lack of security, violence  and racism he was locked in a cell. 

13. He lost his job and he has no family and friends in Fiji. 

14. He was mentally disturbed and suffering from [a condition].  Now his health is improved.

15. He fears he will be killed or locked away for a long time and he cannot think of going back.  If he goes back he will suffer from [the condition] again and die.

16. He fears harm from country authorities and police.  Due to racism there is no help available to him.

17. In a statutory declaration dated [in] February 2015 it is claimed:

18. He has made a Protection visa application due to fear of persecution in his country for reason of his political opinion and his involvement in anti-government activities.

19. During the period 2006-2009 he was heavily involved in opposition political activities against the military ruler.  He started getting threats over the phone from unknown figures attached to government authorities and directly to the military regime.

20. He could not make any complaint to the authorities or the police because his life was in danger and the police and other authorities are under the control of the military ruler.

    Review application

21. On 6 October 2015 the Tribunal received the application for review.

22. By letter dated 4 August 2016 the Tribunal advised the applicant that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited the applicant to give oral evidence and present arguments at a hearing on 29 August 2016 at 1.30pm.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  The applicant did not respond to that letter. The Tribunal twice sent SMS reminders about the scheduled hearing to the applicant, on 22 and 26 August 2016, on the mobile phone number provided by the applicant.  The applicant did not respond to either message. 

23. The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about the failure to attend.  The Tribunal is satisfied the applicant was properly notified in the manner indicated on his application for review.  The Tribunal is satisfied that the applicant was offered the opportunity to appear before the Tribunal but that he did not do so. He failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time.  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

24. The applicant claims to be a citizen of Fiji and attached to the Department file is a copy of a Republic of Fiji passport with [number] which confirms his claimed identity, date of birth and nationality.  In the absence of any information to the contrary the Tribunal finds he is a national of Fiji and has assessed his claims against Fiji.

25. The mere fact that an applicant claims to fear harm 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/s claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1]  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making[2], the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.  The Tribunal is not required to make an applicant’s case for them[3], nor is it required to accept uncritically any and all of the allegations made by an applicant[4].  The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, it is satisfied it is also materially applicable to the assessment of complementary protection claims.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 AT 596

    [2] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

    [3] Prasad v MIEA (1985) 6 FCR 155; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451

26. The Tribunal observes the information contained in the applicant’s written evidence is substantially lacking in detail in respect of key aspects of his claims.  For instance, the applicant provided no detailed information about his claimed political opinion or extensive involvement in anti-government activities.  Nor did he provide information about the nature of the problems he had with the military or when and why this occurred.  Nor has he provided detailed information about any violence he has experienced including when and where it occurred or by whom.  Further, the applicant has not provided any detailed information about when, where or why he was imprisoned or the circumstances of his release.  Nor has he provided information about the claimed threats he received over the phone from unknown figures attached to the government and/or the military.  Similarly, he has provided no detailed information about when or why he lost his job or what caused his [condition].  Lastly he has not provided any detailed information about the claimed racism he has experienced or why he could not or would not be able to seek protection from the authorities or the police. 

27. The Tribunal has considered country information, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account DFAT’s Country Report Fiji dated 14 April 2015.  Had the applicant attended the hearing the Tribunal would have discussed relevant sections with the applicant.  On the evidence before it, the Tribunal is not satisfied that the DFAT report (or the PAM Guidelines) change the Tribunal’s findings in the below paragraphs. 

28. Without more evidence from the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why he cannot or will not return to Fiji for the reasons claimed.  If he had attended the hearing the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.  The Tribunal would have used the opportunity of the hearing to discuss these issues with him and given him the opportunity to explain the particular details of what he fears would happen if he returns to Fiji now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letter dated 4 August 2016 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.  The Tribunal considers it has insufficient evidence to be satisfied that any of the events and circumstances the applicant raised are factual.

29. On the evidence before it, the Tribunal does not accept his claims. The Tribunal is not prepared to accept the applicant had, or has, political opinions which did, or are likely to bring him to the adverse attention of the Fijian authorities or anybody else.  The Tribunal is also not prepared to accept the applicant was heavily involved in opposition political activities or that he would be in future.  Nor is the Tribunal prepared to accept the applicant received threatening phone calls related to his political involvement.  Further, the Tribunal is not prepared to accept he had problems with the military that endangered or will endanger his life or that he was subjected to violence, racism and locked in a cell.  Nor is the Tribunal prepared to accept the applicant lost his job for reasons related to these events or for any other reason or that he suffered [the condition] for reasons related to any of the claimed events. Nor is there sufficient information before the Tribunal to satisfy the applicant will be unable or unwilling to seek protection from the Fijian authorities for any reason. 

30. For these reasons, the Tribunal is not satisfied that there is a real chance the applicant will be persecuted if he returns to Fiji for reasons of his race, religion, nationality, membership of a particular social group or political opinion.  Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

31. Having concluded that the applicant does not meet the criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act.  On the same evidence, 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 he would suffer significant harm in the form of arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.   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.

32. 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) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Tania Flood
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …