1600957 (Refugee) - [2017] AATA 2736

1600957 (Refugee) [2017] AATA 2736 (25 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600957
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:25 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 September 2017 at 7:28pm

CATCHWORDS
Refugee – Protection visa – Fiji – Domestic Violence – No genuine fear of harm – Credibility issues – Inconsistencies in protection visa application – Second applicant (child) – Member of the same family unit – Australian born – Fears societal discrimination
LEGISLATION
Migration Act 1958, ss 5AAA, 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 441A(5), 426A, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
VSAB v MIMIA [2006] FCA 239
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] January 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants (a Fijian citizen mother, hereafter referred to as “the applicant” and her [child] born in Australia) applied for the visas [in] July 2015. The delegate refused to grant the visas on the basis that although there were concerns with the evidence presented, even in giving the applicant the benefit of the doubt and accepting her claims, the delegate was not satisfied that the applicant could not access effective protection from the police force and the judicial system in Fiji.
The Department
The Departmental file
The Departmental file contains documents including the “first” protection visa application forms (lodged [date] July 2015, subsequently found to be invalid) and the “second” protection visa application forms” (lodged [date] July 2015, accepted as valid, and considered by the delegate), a copy of identity page of the applicant’s passport, a recording of the interview with the applicant (to which the Tribunal has listened), identity and supporting documents, and the delegate’s decision record.
The Tribunal
The applicants lodged an application for review with the Tribunal, providing an email address and telephone number, agreeing to accept correspondence by email, and acknowledging that the applicant would inform the Tribunal of any change to her circumstances, understanding that if she changes her contact details and does not inform the Tribunal, then it may proceed to make a decision on the case. They provided a copy of the delegate’s decision record and comments disagreeing with some of the decision record, as well as some other documents.
The Tribunal also has…

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 1600957 (Refugee)

Details

AGLC: 1600957 (Refugee) [2017] AATA 2736
Case: [2017] AATA 2736
Decision Date: 25 September 2017

CaseChat Overview and Summary

This matter concerned an application for protection visas by a mother and her child, both nationals of Fiji. The applicants failed to attend a scheduled hearing before the Tribunal. The Tribunal, having reviewed the file and being satisfied that the applicants had been properly invited to the hearing, proceeded to make a decision without their attendance, pursuant to section 426A of the Migration Act 1958 (Cth). The primary applicant claimed a fear of harm in Fiji, while the second applicant, born in Australia, claimed fears of societal discrimination.

The central legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). This required determining if either applicant was a refugee within the meaning of section 5H, or if they qualified for complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal to Fiji. The Tribunal also considered whether the child, as a member of the same family unit, could satisfy the criteria through the primary applicant.

The Tribunal affirmed the country of reference as Fiji for both applicants, accepting the primary applicant's Fijian nationality and the child's eligibility for Fijian citizenship by birth to a Fijian national parent, despite the applicant's assertions to the contrary. Crucially, the Tribunal found that the applicants had not satisfied the criteria for a protection visa. This was based on the absence of evidence demonstrating a well-founded fear of persecution or significant harm, and the fact that the applicants did not appear before the Tribunal to present their case. The Tribunal concluded that the applicants did not satisfy the criterion in section 36(2) as they did not demonstrate they were members of the same family unit as a person who held a protection visa and satisfied section 36(2)(a) or (aa).

Consequently, the Tribunal affirmed the decision not to grant the protection visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Christine CodyMemberANNEXURE A - 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 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. 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

Ratio Decidendi

Legal Principle Established

The applicants did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants have been properly invited to a hearing in accordance with s.441A(5) and the invitation has not been returned to sender. 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 applicants to appear before it.CONSIDERATION OF CLAIMS AND EVIDNECE, FINDINGS AND REASONSCountry of reference The applicant produced her passport issued on [date] 2014 by the Fijian authorities. She claims that her citizenship at birth was Fijian. She travelled to Australia on her Fijian passport. The Department accepted that the applicant is a national of Fiji, and assessed her claims against Fiji. The Tribunal is prepared to accept that the applicant is a national of Fiji, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Fiji. Concerning the applicant’s daughter, the Tribunal notes that she was born on [date] in [Australia]. The applicant provided the birth certificate of the child to the Department; she did not list the father’s details on the birth certificate; the applicant is listed as the mother. The Tribunal accepts that the applicant is the mother of the second named applicant and that they are members of a family unit. The delegate noted in the decision record the evidence of the applicant at interview that the father of the child is a [age] year old [whom] she met [in Fiji] and that he is in another relationship and does not know about the child. The Department accepted that the child is a Fijian national for the purposes of the consideration of the claims. In her response, the applicant suggested that it is “heartbreaking” that the delegate considered the child to be a Fijian national; the child will not be recognised as a Fijian national even though the applicant herself is a Fijian national; the child will be considered as an “overseas”. The applicant did not provide any further information to support her claims in this regard, nor did she suggest that the father of the child is not Fijian. According to the DFAT Report: Fiji Citizenship is governed by the Citizenship of Fiji Decree 2009. This was promulgated in July 2009 and deemed to have come into force on 10th April 2009. Fiji citizenship can be acquired by birth, registration and naturalization. The registration of births, deaths and marriages in Fiji is regulated by the Births Deaths and Marriages Registration Act [Cap 49] and the Marriage Act [Cap 50]. The Births Deaths and Marriages registrar (BDM) is responsible for all dealings pertaining to the registration of births, deaths and marriages. There are no timeframe requirements to register the birth and it can be registered verbally. Birth certificates can be amended easily with fathers regularly added at later dates. A child of an unmarried parent is normally registered under the care of the mother. The birth registration system is irregular in its application: for example, children are often not registered until school age when a birth certificate is required to enrol the child for school.[1] The Tribunal notes that the Fijian government website states that a child can be registered as a citizen if a child is born overseas on or after 10 April 2009 if at the date of the child’s birth either of the child's parents was a citizen (section 8(1) of the Citizenship of Fiji Decree 2009) [2]. [1] Paragraphs 5.42, 5.44-5.50 DFAT Report.[2] accessed 22 September 2017