1514384 (Refugee) - [2015] AATA 3899

1514384 (Refugee) [2015] AATA 3899 (1 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514384
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Sean Baker
DATE:1 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 December 2015 at 6:42pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa [in] September 2015. The delegate refused to grant the visa on the basis that the applicant had not provided enough detail about his claims for the delegate to be satisfied that the applicant had a real chance the applicant would be subject to persecution on return to Fiji, nor that there was a real risk the applicant would suffer significant harm on return to Fiji.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1514384 (Refugee)

Details

AGLC: 1514384 (Refugee) [2015] AATA 3899
Case: [2015] AATA 3899
Decision Date: 1 December 2015

CaseChat Overview and Summary

The case concerns an individual from Fiji who applied for a protection visa in Australia, fearing return to his home country. The matter was reviewed by the Tribunal under the Migration Act 1958, specifically considering whether the applicant met the criteria for a refugee or faced significant harm upon return. The Tribunal was required to assess the applicant's claims of persecution and significant harm against the statutory definitions and ministerial guidelines.

The central legal issues revolved around whether the applicant had demonstrated a well-founded fear of persecution as defined in section 5H of the Act, or if there was a real risk of significant harm as outlined in section 36(2A) and (2B). The Tribunal needed to evaluate the applicant's assertions without detailed substantiation, the relevance of his criminal history, and the adequacy of the information provided about the current situation in Fiji.

After reviewing the evidence, the Tribunal found that the applicant had not provided sufficient detail to substantiate his claims of persecution or significant harm. The applicant’s statements lacked specifics and were largely speculative. The Tribunal noted the absence of credible evidence linking the applicant to any persecution or significant harm upon return to Fiji. Additionally, the applicant had not shown that there were no effective protection measures available to him in Fiji. The Tribunal concluded that the applicant had not met the criteria for a protection visa.

In affirming the decision not to grant the applicant a protection visa, the Tribunal emphasised the need for clear and detailed substantiation of claims to meet the statutory requirements for refugee status or complementary protection. The Tribunal found that the applicant's general assertions were insufficient to meet the necessary legal standards.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CLAIMS AND EVIDENCE The issue in this case is whether the applicant has established a basis for finding either that there is a real chance the applicant would be subject to persecution on return to Fiji, or a real risk the applicant would suffer significant harm on return to Fiji.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In his application for protection the applicant states that he is of Fijian ethnicity and Christian faith. He seeks protection so he does not have to return to Fiji. He states that he left that country for a better life, and he thinks that if he returns he does not feel safe at all because he’s afraid he will be killed. He states he thinks he will be harmed or mistreated on return but does not give any details. He thinks the authorities will not protect him but does not give any details. He states that he experienced harm in that country but does not give details. The applicant was interviewed by the delegate and said that if returned to Fiji he will be dead, intimated that it was of a personal nature but did not provide any further details. At hearing I explained to the applicant the tests I must apply in considering his application for review. He confirmed that he had come to Australia on [a visa] when he was [age]. His mother is an Australian citizen and his siblings are all permanent residents. His father passed away [number] months ago and he has no other relatives in Fiji. He returned briefly to Fiji in 2001 to spend some time with his father and completed Year [level] there and then returned to Australia in 2002 and has not returned to Fiji since then. He confirmed that he had been convicted in Australia of a number of criminal offences. He said that since he has got out of jail he has been working ever since, doing [occupation]. He confirmed that his [visa] had been cancelled. He was detained and taken to [a detention centre] and was then taken to [another detention centre] about a month and a half ago. We discussed why he had been unable to apply for a bridging visa. I asked the applicant why he feared return to Fiji. He said that he could not return to Fiji. I asked him if he could tell me about that. He said that he had had an interview with the delegate and told him the same thing; if he has to go back it’s pretty much his head. He had told the delegate he couldn’t go back. I asked if he could give me any further detail and he said not really.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a protection visa.Sean BakerMemberATTACHMENT - Extract from Migration Act 19585 (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.…5H Meaning of refugee(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well‑founded fear of persecution, see section 5J.(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or(b) the person committed a serious non‑political crime before entering Australia; or(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 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.CLAIMS AND EVIDENCE The issue in this case is whether the applicant has established a basis for finding either that there is a real chance the applicant would be subject to persecution on return to Fiji, or a real risk the applicant would suffer significant harm on return to Fiji.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In his application for protection the applicant states that he is of Fijian ethnicity and Christian faith. He seeks protection so he does not have to return to Fiji. He states that he left that country for a better life, and he thinks that if he returns he does not feel safe at all because he’s afraid he will be killed. He states he thinks he will be harmed or mistreated on return but does not give any details. He thinks the authorities will not protect him but does not give any details. He states that he experienced harm in that country but does not give details. The applicant was interviewed by the delegate and said that if returned to Fiji he will be dead, intimated that it was of a personal nature but did not provide any further details. At hearing I explained to the applicant the tests I must apply in considering his application for review. He confirmed that he had come to Australia on [a visa] when he was [age]. His mother is an Australian citizen and his siblings are all permanent residents. His father passed away [number] months ago and he has no other relatives in Fiji. He returned briefly to Fiji in 2001 to spend some time with his father and completed Year [level] there and then returned to Australia in 2002 and has not returned to Fiji since then.