1615866 (Refugee)

1615866 (Refugee) [2019] AATA 4809 (25 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615866
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Ms Christine Long
DATE:25 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 June 2019 at 3:39pm
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – association with Oni Kirwin – member of Pacific Indigenous Samaritan Association (PISAI) – sedition – separatist movement in Nadroga-Navosa and Ra – opposed to the current Bainimarama government – race – indigenous Fijian – police brutality – delay in mentioning claim – purpose of conduct in Australia – strengthening of claim – real risk of harm – returned to Fiji on two occasions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Fiji, applied for the visa on 1 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
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.
CLAIMS AND EVIDENCE
The Tribunal has before it the applicant’s departmental file which includes a copy of the front page of the applicant’s passport issued in Fiji in April 2014, the applicant’s application for protection visa and the delegate’s decision record dated 29 August 2016. The Tribunal also has before it the applicant’s application for review to this Tribunal.
Claims in Application for Protection Visa
In the application the applicant indicates that she was born in [City 1] in Fiji in [year]. She provides one address in [Town 1] where she has lived in Fiji. She indicates that she was married in [Town 1] in Fiji in 2004. She indicates that she is a native Fijian, is Christian and is unemployed; she states she has never worked. The applicant indicates that she entered Australia as a visitor and last arrived in Australia [in] July 2015; she indicates that her visitor visa was issued on 1 July 2015 and expired on 12 October 2015. The applicant indicates that since arriving in Australia on the first occasion that she did so, she has left Australia and returned to Fiji. She states that she left Australia in January 2015 and returned to Fiji and she re entered Australia in April 2015. Her passport, which was produced to the Tribunal at the hearing, indicates that she has returned to Fiji from Australia on two occasions since first arriving in Australia; entries in the passport shows that she left her country and first arrived in Australia [in] October 2014; she then left Australia and returned to her country in January 2015 returning to Australia from Fiji [in] April 2015; she left Australia again and returned to Fiji [in] July 2015 returning to Australia from Fiji [in] July 2015.
The applicant claims that she left her country and cannot return there as her safety is at risk because of her involvement with Oni Kirwin and the two Christian breakaway states of Nadroga-Navosa and Ra. She claims that she is a follower of Oni Kirwin and a member of her association, PISAI (Pacific Indigenous Samaritan Association Inc.). She claims that the Prime Minister, Bainimarama, has warned those involved with Oni Kirwin and warns of severe punishment for sedition. She claims that she cannot get protection in Fiji as all ministries are controlled by the military. The applicant claims that the government of Fiji is over militarised and that there is military and police brutality in Fiji and also deaths in custody have increased.
The applicant was interviewed by the delegate about her claims on 26 August 2016. She claimed that she could not return to Fiji including because she is against the Bainimarama government and she voted for the Social Democratic Liberal Party (Sodelpa) at the elections, she has supported Oni Kirwin and is associated with her, she is a member of PISAI, Bainimarama has taken rights from native Fijians including land rights and removing the Great Council of Chiefs and Fiji has become a secular state.
Claims in Application for Review
In her application for review the applicant makes no new claims.
Tribunal Hearing
The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments in support of her application. The Tribunal also spoke with Ms Oni Kirwin who appeared at the Tribunal hearing as a witness for the applicant. At the Tribunal hearing the applicant produced her Fijian passport issued in Fiji [in] 2014. She also produced copies of eleven receipts showing payments that she has made during 2016, 2017 and 2018, while she has been in Australia, to a group associated with Ms Oni Kirwin called Pacific Indigenous Samaritan Association Inc (PISAI) /Fiji Native Government in Exile. The receipts are for the payment of various amounts of $20, $25, $50, $100, $ 150 and $200, last payment being made 15 August 2018, first payments being made 24 and 25 May 2016, the 24 May 2016 being the date that the applicant signed her application for protection visa.
The Tribunal spoke with the applicant about her background and her claims, including, that her husband is a [Occupation 1] in [Town 1] and she has a [age] year old daughter still living in Fiji attending school there; that she first came to Australia in October 2014 and stayed for a few months to visit friends and then she returned home to Fiji; that she returned to Australia in April 2015 because she has a sister/half sister in Brisbane who is an Australian citizen; that she has not had any trouble leaving or returning to her country and had no difficulties obtaining her Fijian passport; that she (the applicant) made the decision that she would stay in Australia and not return to her country, in September 2015 when she had a miscarriage in Australia as her doctor told her she could not travel for a few months; that she was without a visa to remain in Australia from October 2015 until June 2016 when she applied for a protection visa; that she learned about protection visas from the internet before she met Oni Kirwin and asked friends how they went about getting the visa; that friends told her Oni Kirwin was helping them to get visas; that the receipts produced to the Tribunal were for monies paid to Oni Kirwin /her association so that she (the applicant) could join the organisation to get a visa to stay in Australia; that she joined the organisation, PISAI, on the date of the first receipt she gave the Tribunal, namely at the end of May 2016 around the time she made the protection visa application; that she joined the organisation/s so that she could get a visa and Oni Kirwin told her she could help her (the applicant) get the visa; that she attended some meetings of PISAI so that she could get evidence to get the visa; that she attended some meetings in 2015 and in 2016 but in October 2016 Oni Kirwin moved interstate and then she (the applicant) did not attend the PISAI meetings anymore; she called Oni Kirwin maybe every three months to ask her what she should take part in so that she could get the visa; that she did not become involved in other political activities apart from joining PISAI and attending some meetings; that she (the applicant) was taken by police in her area in Fiji in 2014, and ill treated by police, because she made rude comments following a neighbourhood dispute she had with [a senior official], who supported the Fiji First party, and her husband; that the claim about the police taking her is not in her visa application because the application had already been prepared by Oni Kirwin when she arrived to meet her; that she did not mention the claim about being taken by police to the delegate either as she was worried there was a risk telling him about it; that the first time she has mentioned the assault by police in 2014 following the neighbourhood dispute with the couple is at the Tribunal hearing; that the government of Fiji does not care about people unless they want to be part of the government and what the government is doing is not fair to indigenous Fijians. The applicant told the Tribunal that she did not want to say anything more about the militarisation of Fiji and she said that she has not had land taken from her by the government as her family land is on the islands.
The Tribunal spoke with the applicant’s witness, Ms Oni Kirwin. She told the Tribunal that while there is no physical torture and raids like there were previously in Fiji the Constitution in Fiji has taken away all the rights of Fijians; land has been taken away and sold to the Indian government, freedom has been taken away from people, leaders of opposition parties are stopped and spoken to at the airport and even if you “like” someone on Facebook you are questioned if there is something there against the government. The witness said that she is banned from returning to Fiji and had been told she will be imprisoned on terrorism charges if she returns there. There is a cloud of fear there in Fiji and no one will talk about it. There are 500 people now in PISAI. People here in Australia do not know what happens in Fiji. The witness said that although land rights is not an issue for the applicant it is an issue for Fijians as a race as the land register/registration has been abrogated and land has been given to the Indians.
Country Information
In addition to the country information referred to by the delegate in the delegate’s decision record, the Tribunal considered DFAT Country Information Report, Fiji, 27 September 2017. Paragraphs 3.51 to 3.56 of that report indicates that DFAT is unaware of any interest by Fijian authorities in persons associated with PISAI or the Fiji Democracy and Freedom Movement (FDFM) apart from Oni Kirwin who is reportedly banned from entering Fiji due to her attempts to form a Christian state in Ra and Nadroga under the banner of PISAI and FDFM. The report makes reference to a number of individuals in Fiji who have been charged on sedition charges for attempting to form a separate Christian state in Ra and Nadroga provinces. Overall however DFAT assesses that individuals associated with the FDFM and/or PISAI are at a low risk of harassment/arrest/detention by the government “solely for being a member or supporter”. Paragraphs 3.11 to 3.16 of the report refer to the situation for indigenous Fijians in Fiji and the report concludes that overall there is no official discrimination against indigenous Fijians and there is low level societal discrimination against indigenous Fijians. Paragraphs 2.45 to 2.49 of the report refers to the land rights and land tenure in Fiji noting that a trust board now holds all indigenous land in a statutory trust in accordance with the iTaukei Land Act, and the land is administered on behalf of the owners.
The above country information was discussed generally with the applicant at the hearing.
Clearly the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a well founded fear of persecution pursuant to s.5J of the Act in her/his country or, whether, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
FINDINGS AND REASONS
Essentially the applicant claims that she cannot return to her country, Fiji, because she fears she will be harmed there, including being severely punished for sedition by the Bainimarama government, due to the following- because of her association with Oni Kirwin and her groups including PISAI and the Fiji Native Government in Exile and because she is a supporter of the two Christian breakaway states of Nadroga-Navosa and Ra promoted by Oni Kirwin; she is a member of PISAI and has attended PISAI meetings in Australia; she has been taken by police and ill treated once previously in 2014 following an argument with neighbours/a neighbour who was [a senior official] and a supporter of Fiji First party because she said bad/rude words about the neighbour/s and she fears being taken again by the police/authorities and harmed; she is against the current Bainimarama government and has voted for Sodelpa; the current government is not fair to, and does not care about indigenous Fijians and has taken away their rights, including their land rights, and turned Fiji into a secular state; Fiji is over militarised and there is police and military brutality in Fiji.
Identity and country of reference
The Tribunal accepts that the applicant is who she claims to be; she produced her current passport to the Tribunal issued by the Immigration Department of Fiji [in] 2014 (expiring [2024]). A copy of the passport is placed on the applicant’s Tribunal file.
The Tribunal finds that the country of reference for this application for review is Fiji.
Applicant’s travel to Australia and return travel to Fiji
Having regard to the applicant’s evidence before the Tribunal and the details in her passport which was produced to the Tribunal at the hearing the Tribunal finds that the applicant has returned to her country on two occasions since first arriving in Australia. The Tribunal finds that the applicant left her country and first arrived in Australia [in] October 2014; she then left Australia and returned to her country [in] January 2015 returning to Australia from Fiji [in] April 2015; she left Australia again and returned to Fiji [in] July 2015 returning to Australia from Fiji [in] July 2015.
The Tribunal finds that the applicant did not leave her country and/or did not return there because she feared or suffered harm there. The applicant’s evidence to the Tribunal was that she first came to Australia in October 2014 to visit relatives and then she went home to Fiji. She said that she came to Australia the second time in April 2015 because her half sister is in Brisbane and she is an Australian citizen. She said that she did not return to Fiji from Australia after she came again in July 2015 because she had a miscarriage and the doctor told her she could not travel. She told the Tribunal that she did not intend to remain in Australia when she left Fiji the last time, in July 2015, but she decided to stay in Australia when she was admitted to hospital in September 2015 because she had a miscarriage and the doctor said that she could not travel for some months. She said that after she was out of hospital she met a lady who told her she could get her a bridging visa and her uncle paid the women $500 but there was no feedback from that woman and she did not get the visa. The applicant told the Tribunal that she has not had any difficulties exiting or re entering her country using her passport at any time for any reason and that she had no difficulties getting her passport in Fiji.
Member/supporter of PISAI and/or FDFM and association with Oni Kirwin
The applicant claims that she cannot return to Fiji because she will be harmed there, including being punished by the government for sedition, because in Australia she has joined PISAI, has attended PISAI meetings, been associated with Oni Kirwin who has promoted the formation of the Christian states in Nadroga-Navosa and Ra and the Fiji Native Government in Exile/PISAI.
When the Tribunal spoke with the applicant about her association with Ms Kirwin and her organisations and her membership of PISAI and attendance at that association’s meetings the applicant said that she knew about the availability of protection visas in Australia before she met Oni Kirwin in Australia as she was “on the news” in Fiji and also friends told her that Ms Kirwin was helping them. The applicant said that when she attended the office of Ms Kirwin she paid her the first amount of money on the date of the first receipt (in May 2016). She said that she understood that the payments were for membership and the paperwork for the visa. When the Tribunal asked the applicant why she joined the organisations the applicant said that it was “whatever she was saying, to be part of my visa application”. When the Tribunal asked the applicant if she paid the money to help her get a visa to stay in Australia she said “yes”. She told the Tribunal that she was without a visa to stay in Australia from October 2015 when her visitor visa expired until June 2016 when she applied for her protection visa. The applicant said that Ms Kirwin told her she could help her get the visa; “I paid the money just for the visa; that was what I was after”. The applicant repeated that she joined PISAI and paid money to Ms Kirwin/PISAI to get the visa to stay in Australia. When the Tribunal asked her about the meetings that she had attended, and when she attended the meetings of PISAI, the applicant said that she joined PISAI at the date of the first receipt, that is, in May 2016. The applicant said that she attended some meetings of PISAI in 2015 and in 2016 but in 2016 Ms Kirwin moved to another suburb and she did not attend the meetings after that and then Ms Kirwin moved away to Queensland. The applicant said that she used to call Ms Kirwin every three months to get updates about the visa and she asked Ms Kirwin what she should take part in for the purpose of getting the visa. She agreed that the reason that she attended the meetings was to get evidence to obtain the visa. She agreed that she joined PISAI in Australia and went to the meetings in Australia to get a protection visa. The applicant told the Tribunal that she has not participated in any other political activities.

It is clear that subject to subsection 5J(6) of the Act a person may be a refugee in circumstances where the well founded fear of persecution is a consequence of events that have occurred since the person has arrived in Australia. Subsection 5J(6) provides that any conduct engaged in by the person in Australia must be disregarded in determining whether the person has a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker (or the Tribunal on review) that he/she engaged in the conduct, otherwise than for the purpose of strengthening his/her claim to be a refugee.
The Tribunal generally explained subsection 5J(6) of the Act to the applicant.
The Tribunal finds that the applicant joined PISAI, attended its meetings and became associated with Ms Oni Kirwan and her associations, including Fiji Native Government in Exile, promoting/supporting the Christian “breakaway states” in Nadroga-Navosa and Ra, and that the sole reason for this conduct was to strengthen her claim to be a refugee. As the Tribunal is not satisfied that the applicant engaged in this conduct in Australia otherwise that for the purpose of strengthening her claim to be a refugee the Tribunal disregards this conduct in determining whether the applicant is a refugee for the purposes of the refugee criterion.
Subsection 5J(6) of the Act does not apply to the Tribunal’s determination in relation to the complementary protection criterion. Given the country information consulted by the Tribunal and referred to above which indicates that DFAT is unaware of any interest by Fijian authorities in persons associated with PISAI or the Fiji Democracy and Freedom Movement (FDFM) apart from Oni Kirwin who is reportedly banned from entering Fiji due to her attempts to form a Christian state in Ra and Nadroga under the banner of PISAI and FDFM, and that overall DFAT assesses that individuals associated with the FDFM and/or PISAI are at a low risk of harassment/arrest/detention by the government “solely for being a member or supporter”, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm on return to Fiji, including being charged with sedition, because in Australia she joined PISAI, attended some of its meetings in 2015 and 2016 and became associated with Ms Oni Kirwan and her associations, including Fiji Native Government in Exile, promoting/supporting the Christian “breakaway states” in Nadroga-Navosa and Ra. The Tribunal finds that the applicant had or has no involvement or role with PISAI or with Ms Kirwin or her associations other than as a member of the organisation/s.
Ill treatment and detention by police in 2014
At the Tribunal hearing the applicant told the Tribunal that she feared returning to Fiji because in 2014 she was taken and ill treated by Fijian police after an argument with a neighbour who was [a senior official] and who campaigned for the Fiji First party. The applicant said that she feared she could be taken by police and harmed again if she returns to Fiji. She told the Tribunal that she mainly argued with the husband of the [senior official] about the noise from a sound system and she reported the incident to the police. She said that after she said “bad words “ about the neighbour the police took her, laid hands on her, kicked her and warned her not to say the bad words about the neighbours again. She said that the injuries she received were the cause of her miscarriage in Australia in September 2015; the doctor spoke to her about the miscarriage and “it was where they kicked me”.
The Tribunal does not accept as true that the applicant was taken by police, warned, ill treated and/or assaulted by police in 2014, or at any time, as she claims. The Tribunal does not accept as true that the applicant fears harm in her country because she might be taken by police and/or ill treated by police if she returns to Fiji or that there is a real chance or real risk that she will suffer serious harm or significant harm in her country for this reason if she returns there. The applicant told the Tribunal that she first made this claim at the Tribunal hearing. The Tribunal considers that, given the seriousness of this claim, if it were true she would have made this claim before she did so, or mentioned this fear about returning to her country before, especially given that she was without a visa to stay in Australia from about October 2015 until June 2016. Further the applicant returned to her country on two occasions in 2015, that is after 2014 when she claims the assault by police took place, which in the Tribunal’s view is not consistent with the claim that she now makes before the Tribunal, namely that she fears she will be taken by police and ill treated in her country if she returns there because that has happened to her before, in 2014. The Tribunal spoke with the applicant about this claim and told her that the delay in her making this claim caused the Tribunal to have concerns that the claim is true. The Tribunal considers that the applicant did not give a reasonable explanation for the delay in her mentioning this claim before she did so. When the Tribunal asked the applicant why she had not made this claim previously or included it in her protection visa application if it had occurred in 2014 the applicant said that this claim is not in her protection visa application made in June 2016 because when she went to see Ms Kirwin about getting help with a visa to remain in Australia she (Ms Kirwin) had already prepared the application for the visa when she arrived to see her. The applicant agreed however that she knew what claims were contained in her protection visa application before she signed the application. She said that she also did not tell the delegate when she was interviewed about her protection visa application about the claim in relation to being ill treated by the police in 2014 because she did not know if she could mention the claim to the delegate. She also said that she did not feel safe making the claim, that she did not want to make the claim, that she did not make the claim until the Tribunal hearing and that she is “still scared”. She agreed that she made the claim before the Tribunal to give her a better chance to remain in Australia.
Anti current Bainimarama government which is not fair to Indigenous Fijians
The applicant claims in her application for the visa that she is opposed to the current government in Fiji and has voted at the elections for an opposition political party, Sodelpa. The applicant told the Tribunal that one of the reasons that she cannot return to Fiji is that the current government in Fiji does not care about people who do not want to be part of the government and that the current government is not fair to indigenous Fijians and nothing is equal in Fiji; “they” (Fijian authorities) tell Fijians to be silent and indigenous Fijians have no rights/no human rights. She said that she has talked about this including in Fiji since the time of the incident in 2014 when she was assaulted by police; the government is not operating for the benefit of Fiji and Fiji has become a secular state and is over militarised.
The Tribunal does not accept that the applicant has any political profile in Fiji as a person opposed to the current government or that she has been, or would be of any interest to Fijian authorities for the reasons that she claims including because she voted for Sodelpa in the elections or because she has spoken about the current government in Fiji or in Australia. When the Tribunal asked the applicant at the hearing whether she had participated in any political activities at all apart from joining PISAI and going to some of its meetings in 2015 and in 2016 in Australia, which she agreed she did so that she could get a visa to remain in Australia, she said, “no”. When the Tribunal asked her whether she wished to say anything about her claim that Fiji is over militarised she did not wish to do so. When the Tribunal asked her what she did to speak against the Fijian government she gave the Tribunal few details stating generally that she has talked about it from the date of the incident in 2014 and she has talked about it in Australia and in Fiji. She then said nothing is equal in Fiji and the government does not run for the benefit of Fiji. Given the applicant’s responses about what she claims she did to speak out against the Fijian government the Tribunal does not accept as true that the applicant has spoken out against the Fijian government at any time in either Fiji or Australia. The Tribunal considers, and finds, that there is not a real chance or real risk that the applicant will suffer serious or significant harm in Fiji because of her claims that Fiji is over militarised, because there is police brutality in Fiji, increased deaths in custody in Fiji or because Fiji is a secular state.
The Tribunal finds that there is not a real chance or real risk that the applicant will suffer serious or significant harm in Fiji because she is an indigenous Fijian, to the extent that she makes that claim. Country information referred to by the Tribunal about indigenous Fijians which was discussed with the applicant at the hearing concludes that overall there is no official discrimination against indigenous Fijians and there is low level societal discrimination against indigenous Fijians. Further the applicant has returned to her country on two occasions since first arriving in Australia remaining in Fiji just over three months on the first occasion she returned there and remaining for about ten days on the second occasion she returned to Fiji; she has not claimed that she was harmed or threatened with harm in Fiji during those return visits. As noted above she told the Tribunal that she has not had any difficulties exiting or re entering her country using her passport at any time for any reason and that she had no difficulties getting her passport in Fiji.
While the applicant’s witness referred to changes to the system of land tenure for indigenous Fijians in Fiji and to land being taken from indigenous Fijians and given to Indians/the Indian government the applicant told the Tribunal that land tenure/ownership is not a problem for her/her family as they are from the islands.
CONCLUSION
For the purposes of the ‘refugee’ criterion the Tribunal finds that the applicant does not have a well founded fear of persecution in her country; the Tribunal does not accept that she fears being persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion on return to Fiji and the Tribunal finds that there is not a real chance that she would be persecuted for one or more of those reasons, if she returns to her country.
Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ms Christine Long
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.
…

[2019] AATA 4809

25 June 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies