1606574 (Refugee)

[2017] AATA 1658

1606574 (Refugee) [2017] AATA 1658 (14 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606574

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:14 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2017 at 2:15pm

CATCHWORDS

Refugee – Protection Visa –Fiji – Threats from father’s ex-wife – Request to postpone hearing refused – Non-attendance at hearing

LEGISLATION

Migration Act 1958, ss 5H(1), 5J(1), 36, 48A, 48B, 426A, 499

Migration Regulations 1994, Schedule 2

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. The applicant is [an age] year old boy born in Australia, a citizen of Fiji. His parents are in Australia, and his mother has acted on his behalf during this review.

2. The applicant applied for a Protection (Class XA) visa [in] November 2015. [In] December 2015, a delegate of the Minister refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant was invited to a Tribunal hearing on 13 September 2017, but did not attend.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims, through his mother, that his father’s ex-wife and her family members have sent text messages to his parents warning them not to return to [Fiji]. These messages including insulting language towards the applicant (and his sister). The application does not spell out exactly what harm the applicant’s parents fear the applicant will be subject to if he goes to Fiji. They claim that protection is unavailable. His father’s ex-wife and her family have connections with the current government. The police failed to respond when his mother sought protection in the past. At the Department interview, she explained that she spoke to the police on three occasions. The police had promised to email her a form to fill out, but they had not followed up. She has therefore not lodged any formal complaint.

   Background

8. The applicant is [an age] year old boy born in Australia. His parents are [his father] a Fijiannational born in [year], and [his mother] a Fijian national born in [year]. Although the applicant’s name appears on the review application form as the applicant and the authorised recipient, his mother acted on his behalf during this review.

9. The applicant’s parents claimed at the time of application that he was stateless, as he was in the process of having his Fijian citizenship approved.

10. The applicant has a brother and a sister. His [sister] was included in the protection visaapplication as a member of the same family unit, who does not have her own claims for protection. The Department advised [in] November 2015 that her protection visa application was invalid. She had previously applied for a protection visa (she was included in an earlier protection visa application in which her parents had presented claims); that this was refused [in] March 2015; that s.48A of the Act prevented her from making a subsequent protection visa application while still in Australia; and that the Minister had not exercised his power to allow her to apply again: s.48B. Consequently, neither the delegate’s decision nor the review application includes the sister.

11. The protection visa application states that the applicant’s brother was born in [Country 1], has [Country 1] citizenship and was in Australia (at least in November 2015, when the primary application was lodged). The Tribunal does not have further details, such as his age and current whereabouts.

    Evidence

12. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form, which includes the mother’s brief handwritten claims made on the applicant’s behalf.

    §  Copies of the applicant’s birth certificate and the biodata page of his mother’s Fijian passport.

    §  The applicant’s mother attended a protection visa interview (‘Department interview’) [in] April 2016, a recording of which is on the Department file.

    §  The protection visa application assessment (‘delegate’s decision’) [in] April 2016 is also on file.

    §  The review application contains no new claims or evidence.

13. On 24 August 2017, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. (The review application named the applicant as the authorised recipient and the person to whom correspondence should be addressed. In practice, the applicant’s mother acted as his guardian throughout the review.) The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 13 September 2017. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence as indicated in the review application.

14. The Tribunal initially received no reply to the hearing invitation.

15. On 12 September 2017, a Tribunal officer telephoned the applicant’s mother to enquire whether she intended to appear the following day on the applicant’s behalf.

    §  She initially stated that she did not intend to appear before the Tribunal. She explained that the family has an ongoing request for Ministerial intervention, which included the applicant as a family member. They expected to learn the outcome of that request shortly. She flagged that they might contact the Tribunal about a hearing once the outcome of their request to the Minister was known. The Tribunal officer alerted her that, if they did not attend the hearing scheduled for the following day, the Member may proceed to make a decision without taking any further action (or without waiting to see the outcome of the ongoing request for Ministerial intervention).

    §  In a second telephone call, the Tribunal officer again explained the possible consequences of non-attendance, and the process if she wished to request a postponement of the hearing. She signalled her interest in seeking a hearing postponement, and the Tribunal provided her with its email address.

    §  Just after 9:00 am on 13 September 2017, the Tribunal received an email with the following message:

    As discussed with one of the officers yesterday I sincerely wish to request a postponement for the above hearing.

    Sir, we ([the applicant’s] parents and sister) are now in the final lap of our request to the Minister and according to our case officer our request has been forwarded to the Minister for a decision. Whether the imminent response is positive or not we have do NOT know but Sir our application also includes [the applicant]. 

    We are very sorry Sir for the inconvenience caused and we sincerely hope that you will hear us another time convenient to you.

    §  The Tribunal considered the request for a hearing postponement, but decided not to grant it. In its view, a pending request for Ministerial intervention involving the applicant (and other family members) is not a good reason to delay the processing of his review application. In any event, the Minister’s Guidelines on Ministerial Powers state that the exercise of his public interest powers can only proceed if there is an appropriate existing decision from the Tribunal (AAT or its predecessor tribunals), in other words, once any ongoing review applications have been finalised. The Tribunal also takes into account that the applicant’s mother had not replied to the hearing invitation letter, or taken steps to request a postponement. When contacted, she initially said that she did not intend to attend the hearing. The Tribunal formed the impression that she was not familiar with migration processes generally, but in any event, not committed to presenting the applicant’s case at a Tribunal hearing. 

    §  Shortly after receipt of her request, a Tribunal officer called the applicant’s mother to advise that the Member had not agreed to her request for a postponement, and that the hearing remained scheduled for that morning. In reply, she stated that she would not have been able to attend in any case, as she was looking after her two children, and was not at home. The Tribunal notes that childcare responsibilities may, in some circumstances, form a good reason to grant a request to postpone a hearing. However, the applicant’s mother did not request a postponement on these grounds, or explain how these prevented her from appearing before the Tribunal. Moreover, for the reasons stated above, the Tribunal is not satisfied that she intended at any time to attend the hearing.

    §  The applicant (his mother) did not appear before the Tribunal at the scheduled time and place. A Tribunal officer again contacted her to advise that the Member intended to proceed to make a decision, without offering a further or rescheduled hearing. However, he would not do so before 12:00 noon on 14 September 2017, and he would have regard to any written submissions received before finalising the matter.

16. The Tribunal has received no further submissions - in relation to the applicant’s non-appearance at the hearing, any additional reasons for seeking a rescheduled hearing, or on the substance of the applicant’s protection claims. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant (his mother) to appear before the Tribunal.

    Receiving country

17. The applicant was born in Australia of two Fijian citizens. Section 8(1) of the Citizenship of Fiji Decree 2009 provides that children born outside of Fiji where either of the parents were Fijian citizens are eligible for citizenship by registration. The Tribunal is satisfied from the available evidence that the applicant’s parents are both Fijian citizens, and that they have commenced the process of registration. The Tribunal finds that Fiji is the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

18. The Tribunal has before it only the very brief statements recorded on the protection visa application form, and a few explanatory comments that the applicant’s mother provided at the Department interview. The information is vague and ambiguous, lacking in detail in significant respects, and unsubstantiated. The applicant’s appearance at a hearing (that is, one or both of his parents on his behalf) would have been an opportunity to address the various gaps, and seek further details and/or supporting evidence. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    §  Details of the applicant’s family, in particular, his father’s former marriage, and his relationship with his ex-wife and her relatives.

    §  Background to the claimed hostility between the applicant’s father on the one hand, and his ex-wife and her family on the other.

    §  Details of and, if available, supporting evidence for the claims that his father’s ex-wife (and his ex-in-laws) have sent threatening text messages to the applicant’s parents, such as the timing of these threats, whether they occurred in Fiji and/or Australia, and if in Fiji, their location; their content, and confirmation that they also included threats towards the applicant (and/or his sister).

    §  Details of the complaints that the applicant’s mother made to the police, including further elaboration of her evidence at the Department interview that she telephoned the police on three occasions, but that she never filed a formal written complaint because the police did not follow through on their promise to send her the required form by email.

    §  Details of the applicant’s mother’s dissatisfaction with the police response to her approach after she ‘made a report’, and their failure to follow-up (as stated in the written claims), the basis for her claim that the ex-wife’s family has political connections with the Bainimarama-led government that would render her requests for assistance futile; and/or any other concerns she may have about the availability of State protection.

19. On the limited available material, the Tribunal is unable to be satisfied that the applicant (or other family members) has been subject to threats, harassment or other adverse treatment from his father’s ex-wife or her family; that his mother sought protection for family members; or that the Fiji authorities have declined to assist them (whether due to political connections, family links or any other reason. No other claims for protection arise from the material before the Tribunal.

20. In sum, the Tribunal is unable to be satisfied that the applicant has been subject to any credible threats that have caused his parents to fear for his safety, or that there are any other circumstances to indicate that has ever been at risk of harm that amounts, individually or cumulatively, to ‘serious harm’ amounting to persecution (for the reasons set out in s.5J(1), or for any reasons at all). Similarly, it is also unable to be satisfied that he has been subject to any threats or other circumstances that involve ‘significant harm’.

    Refugee criterion

21. In light of the above findings (and the Tribunal’s lack of satisfaction about the applicant’s and his family’s circumstances), the Tribunal is also not satisfied that he faces a real chance of serious harm amounting to persecution, for any reason, from any sources, if he goes to Fiji with his parents. Is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) if he goes to Fiji.

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

    Complementary protection

23. 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). However, based on the information before the Tribunal, and the assessment of facts above, 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 would be a real risk that he will suffer significant harm.

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

25. 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

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

    James Silva
    Member

    
    

    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

    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.