1611139 (Refugee) - [2019] AATA 3207

1611139 (Refugee) [2019] AATA 3207 (18 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611139
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Paul Noonan
DATE:18 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 18 March 2019 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Fiji – race – ethnic Indian – political opinion – political instability – particular social group – failed asylum seeker – employment – land resumption – fear of physical assault – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
SZRSN v MIAC [2013] FCA 751
SZRTN v MIAC [2013] FCCA 583
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 and Border Protection 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 on 15 July 2014 and the delegate refused to grant the visa on 4 July 2016.
The Department conducted an interview with the applicant in respect to his protection claim on 28 June 2016. The applicant has provided the Tribunal with a copy of the Departments subsequent decision, made on 4 July 2016, to refuse the applicant’s claim for protection.
The applicant appeared before the Tribunal on 1 February 2019 to give evidence and present arguments. The applicant also appeared before the Tribunal in a further hearing on 4 March 2019.
The Tribunal noted that the applicant presented a medical note, without a letterhead or medical registration number, dated 16 January 2019 at the commencement of the first hearing. The letter from [a named doctor] stated that the applicant has been attending her medical clinic since March 2018 for the purpose of receiving ongoing treatment for anxiety and depressive symptoms. The Tribunal confirmed this information with the applicant and asked if he was in a fit state to continue with the hearing. The applicant confirmed that he considered he was in a fit state to continue with the hearing. The Tribunal proceeded with the hearing and was mindful of the applicant’s stated conditions. The Tribunal found the applicant to be lucid and cognisant throughout the hearing.
At the commencement of the second hearing the applicant noted that he is receiving treatment for anxiety and depression and seeing a doctor every two…

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 1611139 (Refugee)

Details

AGLC: 1611139 (Refugee) [2019] AATA 3207
Case: [2019] AATA 3207
Decision Date: 18 March 2019

CaseChat Overview and Summary

The applicant, a national of Fiji, sought protection in Australia after his bridging visa expired. He lodged his claim for protection in July 2014, having arrived in Australia in February 2012 on a temporary visa. The Tribunal was required to assess his claims against Fiji as his country of nationality and the receiving country.

The legal issues before the Tribunal included whether the applicant had a well-founded fear of persecution based on race or ethnicity, political opinion, or membership of a particular social group. Specifically, the applicant claimed that as an Indo-Fijian, he had experienced persecution and hardship following a coup in Fiji, including land resumption and the demolition of houses, leading to physical and verbal abuse. He also expressed a fear of further harm, including physical assault, should he return to Fiji, particularly in light of an upcoming election and the possibility of another coup, and expressed doubt about the authorities' ability to protect him.

The Tribunal considered the applicant's background, including his difficult childhood, struggles with alcohol, and periods of homelessness, as well as his subsequent efforts to gain qualifications and maintain good character in Australia. It also took into account the applicant's written claims regarding his reasons for leaving Fiji, his experiences of persecution as an Indo-Fijian, and his fears upon return. The Tribunal was required to assess these claims in accordance with Ministerial Direction No. 56, which mandates consideration of relevant guidelines and country information assessments.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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 EVIDENCEThe Applicant’s Background It is not in dispute that the applicant is a Fijian national and he has produced to the Department a copy of his Fijian passport. The Tribunal finds that the applicant is a citizen of Fiji and has assessed his claims against that country as his country of nationality and the receiving country. Nor is it in dispute that the applicant travelled to Australia on a [temporary] visa valid arriving [in] February 2012. The applicant subsequently applied for a further [temporary] visa and eventually a bridging visa expired on 16 August 2012 and he became an unlawful non-citizen until 15 July 2014 when he lodged his claim for protection. The applicant informed the Tribunal that he had what he considered to be a difficult childhood. His parents both suffer from alcoholism. He suffered abuse as a child. His parents separated when he was a child. He left high school in year [number] and moved from [his town] to Suva. There he worked odd jobs and also started having problems with alcohol. However in 2004 he commenced [a specified college] course in [an industry] by correspondence and achieved a Certificate Two qualification. He continued to struggle and spent time as a homeless person. He also worked for a few months as [an occupation]. He also was in a relationship from 2006 to 2012, when his girlfriend left him. In 2012 his [relative] who lives in Australia, together with his family and himself made arrangements financially for him to travel to Australia. The applicant informed the Tribunal that the purpose of him travelling to Australia was to get away from his past. At this time he was also baptised a Pentecostal Christian. He has continued to pursue his religion in Australia. The Tribunal also noted written submissions presented in the evidence attesting to the applicant’s good character while he has been in Australia. The Tribunal accepted this evidence as true in respect to the applicant’s ethnicity, place of origin, background and good character while being in Australia. The applicant informed the Tribunal that he was in a car accident about a year ago. At that time he lost his job and his girlfriend and it was these events that caused him to become depressed. However the applicant noted that he has since resumed work as [an occupation] in a [business] and he also works [in this occupation] at [a named agency].Claims for protection In his original written claim for protection the applicant provided the following information:·In respect to the question asking why did he leave Fiji the applicant wrote that: “he left due to the situation in Fiji at that time. It is so hard to make a living. The rise in prices and also it is hard looking for a job so I can support my family. The cost of living is so expensive and it is unaffordable. So I decided to come to Australia to find a job so I can support my family back home. I find Australia a place to earn and make a living and for a bright future for my family”. ·In respect to the question have you experienced harm in Fiji the applicant wrote that: “ as an Indo-Fijian we have experienced a lot of persecution and hardships after the coup. They take back the land that belong to us and demolished out houses. We have been abused physically and verbally. I have no choice because of my safety and also for my future and my family I have to move to Australia. For a safer future”.·In respect to the question asking what does he fear may happen to you if you go back to Fiji the applicant wrote: “There is an upcoming election and I fear that there might be another coup and there will be more harm for me”.·In respect to the question asking who he thought may harm/mistreat him if he went back the applicant wrote: “The military and landowners”.·In respect to the question asking why do you think this will happen to you if you go back the applicant wrote: “If this is what has happened in the past there is no doubt it can happen again”.·In respect to the question asking do you think the authorities of that country can and will protect you if you go back the applicant wrote: “There is a new constitution now that we have to forgive those that are involved in the coup and that clearly guarantees that anyone can do the coup because they know they will be forgiven. But it cannot guarantee us that we will be protected if we go back”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.