1600957 (Refugee)

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.