1612442 (Refugee)

[2017] AATA 2646

1612442 (Refugee) [2017] AATA 2646 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612442

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Linda Symons

DATE:15 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2017 at 2:35pm

CATCHWORDS
Protection visa – Fiji – Political opinion – Member of Pacific Indigenous Samaritan Association Inc (PISAI) – Supporter of Christian breakaway States of Nadroga-Navosa and Ra – Indigenous Fijians land ownership – Failed to attend the Tribunal hearing

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169‑70

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. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji, arrived in Australia [in] December 2015 as the holder of a [temporary] visa that was valid until [March] 2016.  He applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] March 2016 and was granted an associated Bridging visa [in] March 2016. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 12 August 2016, he applied to the Tribunal for a review of that decision.

3. On 14 July 2017, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before it on 5 September 2017 to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it. 

4. The Tribunal’s letter dated 14 July 2017 was sent to the applicant’s [representative], by email on 14 July 2017. The email was not returned undelivered. The Tribunal did not receive the Response to Hearing Invitation form as requested. 

5. Neither the applicant nor his representative attended the hearing scheduled on 5 September 2017. The Tribunal was not contacted to request a postponement of the hearing nor was any explanation provided for the applicant’s non-attendance at the hearing. 

6. In these circumstances, the Tribunal has decided to proceed to make a decision on the review.

7. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion. 

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.  

12. 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

13. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

14. The applicant’s claims in his application for a Protection visa is summarised as follows:

    ·He is a strong supporter of the two Christian breakaway States of Nadroga-Navosa and Ra and this is being closely monitored by the Bainimarama regime.

    ·Mr Bainimarama has warned of severe punishment for sedition. He has associated with Ms Oni Kirwin and all those who are involved with Ms Oni Kirwin have been warned that harm awaits them if they return to Fiji.

    ·The government of Fiji is over-militarised. He is at risk because of his involvement with Ms Oni Kirwin, the recent break away of Nadroga-Navosa and the government in exile. The Police do not have any power to protect him. All Ministries in Fiji are controlled by the Military. 

    ·There is Military and Police brutality happening in Fiji. Torture, rape and Police brutality continues unabated in Fiji. Death in custody has increased. He fears that this will happen to him if he returns to Fiji. 

15. The applicant has provided to the Department copies of his Fijian passport and Fijian Birth Certificate.

16. The applicant attended an interview with the Department [in] April 2016. During that interview, he made the following new claims:

    ·The government is mistreating indigenous Fijians and has taken over ownership of land. His mother owned real estate in the west of Fiji and the government refused her entitlement to the lease.

    ·He became a member of the Pacific Indigenous Samaritan Association Inc (PISAI) in Australia because of Ms Oni Kirwin’s political opinion and he is seeking compensation for his mother. His mother will benefit from Ms Oni Kirwin’s attempts to change Fijian law.

17. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [July] 2016.

    Does Australia have protection obligations to the applicant under the refugee criterion?

18. The Tribunal finds that the applicant is a citizen of Fiji, based on his passport which is before the Tribunal, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.

19. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well founded” or is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)

20. The applicant did not attend the hearing on 5 September 2017 and this leaves the Tribunal with claims that are untested and stated in the most general terms. The Tribunal was unable to obtain further details of the applicant’s claims from him. The Tribunal was unable to discuss with him why and how he supports the breakaway States of Nadroga-Navosa and Ra. The Tribunal was unable to ascertain the extent of his association with Ms Oni Kirwin and why this puts him at risk of serious harm or significant harm if he returns to Fiji. The Tribunal was unable to find out from him why the Police in Fiji do not have any power to protect him. The Tribunal was unable to discuss with him why he fears that he will be tortured, raped, subject to Police brutality and possibly death in custody if he returns to Fiji. The Tribunal was unable to ascertain details of his mother’s ownership/lease of land, why the government refused her entitlements under the lease and what steps he has taken to claiming compensation on behalf of his mother. The Tribunal was unable to find out the details of his membership of PISAI.

21. As the applicant’s written claims contain insufficient detail and he did not attend the Tribunal hearing on 5 September 2017, the Tribunal is unable to be satisfied of the genuineness of the applicant’s claims, the basis for his fears and whether they are well founded.

22. In these circumstances, the Tribunal is unable to be satisfied that the applicant has a well- founded fear of persecution for reasons of his political opinion, race or any other reason set out in s.5J(1)(a) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

23. The Tribunal has considered the applicant’s claims under complementary protection.

24. As the applicant’s written claims contain insufficient detail and he did not attend the Tribunal hearing on 5 September 2017, the Tribunal was unable to obtain further details of his claims from him or to discuss them with him.

25. Accordingly, the Tribunal is unable to be 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 is a real risk that he will suffer significant harm. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

26. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
         Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (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.

…

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 family

For 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 family

For 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.

…