1616203 (Refugee)

[2019] AATA 521

1616203 (Refugee) [2019] AATA 521 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616203

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Shane Lucas

DATE:28 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 February 2019 at 1:39pm

CATCHWORDS

REFUGEE – protection visa – Fiji – political opinion – member of Pacific Indigenous Samaritan Association (PISAI) – supporter of separatist movement in Nadroga-Navosa and Ra – particular social group – young women – gender-based violence – vague non-specific claims – motivated to achieve migration outcome – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA  (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 8 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a Fijian national born on [date]. She applied for the visa on 28 April 2016.

3. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant would face a real chance of persecution should she return to her receiving country now or in the foreseeable future for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Accordingly, the delegate determined that the applicant is not a refugee as defined by section 5H(10) of the Act or a person in respect of whom Australia has protection obligations under sections 36(2)(a) or 36(2)(aa) of the Act.

4. The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments.

5. The applicant was not represented in relation to the review by a registered migration agent.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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 them self 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).

8. 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; if there is a real chance they would be persecuted for one or more of those reasons; and if 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.  

9. 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

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this review is whether the applicant has a well-founded fear of being persecuted in Fiji for one or more of the five reasons set out in s.5J; and, if not, whether 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 she will suffer significant harm.

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

    Identity

13. The applicant provided a copy of her Fijian passport to the Department of Home Affairs (Home Affairs). On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, and that she is a national of Fiji, which is also her receiving country.

    Claims

14. In her application for a protection visa made on 28 April 2016, the applicant provided the following written responses in the section Your reasons for claiming protection at pp.20-22 of Form 866C [Application for a protection visa]:

    [Q89 – Why did you leave that country(s)?]

    I am a strong supporter of the 2 Christian breakaway states of Nadroga-Navosa and Ra, and this is being closely monitored by the Bainimarama regime. Bainimarama warns of severe punishment for sedition. And also, I associate myself with Ms Oni Kirwin and all those who are involved in Oni Kirwin have been forewarned by Bainimarama of the harm that awaits us if we go back to Fiji.

    [Q90 – What do you think will happen if you return to that country(s)?]

    There is military and police brutality happening in Fiji. The torture, rape and brutality continues unabated in Fiji. Death in custody has increased. I fear that this will happen to me if I return to Fiji.

    [Q91 – Did you experience harm in that country(s)? – NO]

    [Q92 – Did you seek help within the country(s) after the harm? – NO RESPONSE]

    [Q93 – Did you move, or try to move, to another part of that country(s) to seek safety? – NO]

    The government of Fiji is over-militarised. My safety is at risk because of my involvement with Oni Kirwin and the recent breakaway of Nadroga-Navosa and Ra, the government in exile.

    [Q94 – Do you think you will be harmed or mistreated if you return to that country(s)? – YES]

    I am a citizen of the Fiji Native Government in Exile, the breakaway Christian state of Nadroga-Navosa and Ra. I fear that I will be crushed by the Bainimarama Government because I am a follower of Oni Kirwin and also a member of the Pacific Indigenous Samaritan Association.

    [Q95 – Do you think the authorities of that country(s) can and will protect you if you go back? – NO]

    The Bainimarama government is over-militarised. The police does not have any power to protect me.

    [Q96 – Do you think you would be able to relocate within that country(s)? – NO]

    No source of protection from the police. All ministries in Fiji are controlled by the military.

15. On 29 August 2016, Home Affairs received a submission in support of the applicant’s claims from Ms Oni Kirwin, Executive Director, Pacific Indigenous Samaritan Association Inc. (PISAI), Executive President, Fiji Native Government in Exile, and Advocate for Indigenous Peoples, Pacific Forum Member-States. The submission detailed the objectives of the PISAI and stated inter alia that the applicant is a registered member of the association. This submission was considered in the making of this decision.

16. The Tribunal engaged with the applicant’s claims at the hearing on 12 February 2019 at which the applicant gave oral evidence, expanding on and clarifying her written claims.

17. In oral evidence, the applicant confirmed that she first travelled to Australia in December 2006 on a Tourist (Class TR) (Subclass 676) visa. The applicant returned to her home country [in] January 2007. The applicant subsequently travelled to Australia again, arriving [in] December 2009 on a Tourist (Class TR) (Subclass 676) visa. The applicant returned to her home country [in] January 2010. The applicant most recently returned to Australia [in] January 2014, travelling on a Visitor (Class FA) (Subclass 600) visa. The applicant applied for a Child (Class BT) (Subclass 802) visa on 31 March 2014, and was granted an associated Bridging Visa A (Class WA) (Subclass 010). The Child visa application was refused by Home Affairs on 22 July 2014 and the applicant applied for review of that decision to the former Migration Review Tribunal (MRT) on 5 August 2014. On 28 August 2015, the MRT affirmed the decision to refuse the applicant’s Child visa application. On 25 September 2015, the applicant’s associated Bridging Visa expired and she became an Unlawful Non-Citizen. On 28 September 2015, the applicant requested that the Minister for Immigration exercise his power under s.351 of the Act. On 14 October 2015, the applicant was granted a Bridging Visa E (Class WE) (Subclass 050) associated with her request for Ministerial intervention. On 31 March 2016, Home Affairs assessed the applicant’s request as not meeting the Minister’s guidelines for referral and the matter was finalised. On 28 April 2016, the applicant applied for a protection visa and was granted an associated Bridging Visa E (Class WE) (Subclass 050).

18. The applicant stated that she travelled to Australia on three occasions (most recently arriving in January 2014) to visit her parents and [siblings] residing in this country. The applicant stated that she had previously returned to Fiji in order to care for her elderly grandmother, now deceased. The applicant stated that she has [a] sister residing in Fiji and that her sister is married with young children.

19. In oral evidence, the applicant affirmed that she is a member of the PISAI and a supporter of the breakaway Christian states of Nadroga-Navosa and Ra. The applicant confirmed that she joined the PISAI in Australia and had never undertaken any political activities in Fiji. In response to questions from the Tribunal, the applicant demonstrated little knowledge of the PISAI and its objectives or of the aspirations and objectives of the secessionist movement in Nadroga-Navosa and Ra. However, the applicant reiterated that she believed her political opinions will put her at risk in Fiji, as the government is opposed to the PISAI and does not support the efforts by some political actors within Nadroga-Navosa and Ra to secede from the Fijian state.

20. In oral evidence, the applicant stated that she wished to remain in Australia as there is no-one to “look after” her in Fiji. The applicant stated that she would not be able to live with her sister, as there was conflict between her sister and her brother-in-law. The applicant stated that her grandparents had both passed away. The applicant stated that Fiji was a dangerous place for young women and that there are many rapes that are not prosecuted by the police. The applicant stated that she now lives with her father in [Australia], as her parents have separated. The applicant stated that she wants to remain in Australia to care for her father and that she has no place to go in Fiji where she would feel protected and safe.   

21. At the conclusion of the hearing on 12 February 2019, the Tribunal afforded the applicant the opportunity to provide further evidence in support of her application within 14 days (i.e. by 26 February 2019). On 26 February 2019, the applicant provided the Tribunal with a personal statement; a letter of support from her sister residing in Fiji; and a number of publicly available news items regarding the political situation in her home country. In her written statement, the applicant advised:

    “I [the applicant]… would like to inform you that I wish to stay in your beautiful country permanently. There are numbers of reasons why I am reluctant to return to Fiji. I am [age] years old with no tertiary education nor any qualification that would help me get well paid job. I am greatly troubled by the fact that I may follow the norm in my country and get married just so that I can have financial security. Evidence has shown that a great number of domestic violence are reported by unemployed women who depends on their spouse for their livelihood. Survey has shown that 64% of women in Fiji are subjected to unacceptable violence. I have found that here in Australia, I will be able to get a good paid job and live independently. Even though we love the justice system and officers of the law there have been incidents reported that make many questions their faith in our justice system. I have seen news from Fiji about police officer assaults citizens reported and even a military officer assaulting his wife. I find it troubling that females are being raped by their own relative or an individual they known and trust. It is frustrating that these rapists are not given harsher punishment and some claims that they were mentally ill so they get a lesser punishment. I believe that these issues are well dealt with here in Australia. I find that women and children are well cared for and are of great importance in your country. I hope you will kindly take my humble request into consideration.”

22. In her letter of support, the applicant’s [sister] stated:

    “I [the applicant’s sister] am writing in regard to my younger sister [the applicant’s] case as per your request. I would like to inform you that I will not be able to look after her if she is sent back to Fiji. I am [age] years old with [children] and I am currently [pregnant]. I am married but have been separated from my husband on and off for more than 2 years now. Even though he visits us sometimes, he does not contribute financially to the welfare of our children. I work as [an occupation]. I get a net pay of [amount] fortnightly and this is enough to cater for the needs of my children and I. Also, I do not own a house nor am I able to afford rent on my own. Therefore we have been living with my uncle, his wife and [children] for the past 2 years. I will not be able to pay for [the applicant’s] tertiary education as she needs qualifications to get a well-paid job so she can contribute financially to our everyday living. Also, since she has left school for a long time it will be hard to get a scholarship for her. I hope you will kindly take my letter into consideration. I sincerely believe that your country will be able to provide more opportunities for my sister and if given chance she will be able to work hard and financially support herself.”

23. These statements and the additional documentation provided to the Tribunal were considered in the making of this decision.

    Credibility

24. In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear; that the fear is “well-founded”; or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 examiner 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 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 169-170.)

25. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

26. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA  (1998) 86 FCR 547).

    Findings

27. In considering the claims made by the applicant, the Tribunal finds that the applicant made no claims relating to a fear of persecution in Fiji until lodging an application for a protection visa on 28 April 2016, having exhausted other avenues in her efforts to secure a migration outcome in Australia. The applicant travelled to Australia on two previous occasions, being December 2006-January 2007 and December 2009-January 2010, and at no time advanced any claims to fear persecution in her home country, nor did she make an application for protection. At hearing, the applicant made vague, non-specific claims relating to her political opinions and demonstrated little knowledge of the objectives of the organisation of which she claims to be a member (i.e., PISAI). The applicant confirmed that she had undertaken no political activities in Fiji in support of PISAI or the separatist movement in Nadroga-Navosa and Ra.

28. The applicant made vague, non-specific claims relating to violence against women in Fiji, yet advanced no claims that she had been personally harmed or threatened with harm in any way by any person or persons for any reason. The applicant confirmed that she travelled to Australia in order to visit her parents and siblings residing in this country, and that she does not want to return to Fiji because she does not know where she would live or with whom she would live, now that her grandparents are deceased. In the written statement provided to the Tribunal on 26 February 2019, the applicant stated “I have found that here in Australia, I will be able to get a good paid job and live independently… I find that women and children are well cared for and are of great importance in your country.”

1. On the basis of the evidence before it, the Tribunal reasons that the applicant’s motivation for lodging an application for a protection visa on 28 April 2016 was to seek a migration outcome that might enable her to remain in Australia. The Tribunal reasons that the applicant’s oral evidence regarding her application for a protection visa suggests that her initial motivation for coming to Australia was to be with her parents and siblings residing in this country. The Tribunal reasons also that the applicant has affirmed that she has undertaken no political activities in Fiji and that her motivation for joining PISAI was to strengthen her claims to a protection visa. The Tribunal notes also that the applicant has advanced no claims to have taken part in any activities in support of the separatist movement in Nadroga-Navosa and Ra.

2. In the view of the Tribunal, these factors compound to suggest that the applicant’s motivation at all times has been to achieve a migration outcome in Australia and has not been driven by an intention or requirement to seek protection from persecution in Fiji. The Tribunal notes also that the applicant has made no claims to have personally experienced harm or to have been threatened with harm perpetrated by any person or persons for any reason. The Tribunal notes also the applicant’s statement provided on 26 February 2019, and the letter of support provided to the Tribunal by the applicant’s sister, in which the applicant’s determination to remain in Australia is explicitly linked to her desire to achieve a migration outcome for family and/or employment and/or financial reasons. The Tribunal also notes that country information provided by DFAT states:

   “The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISA and FDFM) and supporting some persons now in custody… Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.” [DFAT Country Information Report: Fiji, 27 September 2017, at 3.51 and 3.56, p.18-19)

3. On the basis of the DFAT information and other publicly available material provided by the applicant, the Tribunal finds that persons such as the applicant are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter of PISAI. The Tribunal finds also that persons who organise and take actions to create Christian separatist states within Fiji may be at a moderate to high risk of harassment and arrest by authorities. However, the applicant has stated that she has never undertaken political activities in Fiji in support of the separatist movement in Nadroga-Navosa and Ra. The applicant has also provided vague, non-specific claims relating to her support for the separatist movement, and demonstrated little knowledge of the issue or the related movement. On the basis of the evidence before it, the Tribunal therefore gives the applicant’s claim to fear persecution on account of her political opinion little weight in determining whether she is likely to face harm should she return to her home country.

4. The applicant has also claimed that Fiji is a dangerous society for women and that she would be at risk of harm or mistreatment due to being a young woman. The applicant advanced non-specific claims relating to incidents of violence and rape experienced by women in Fiji. The applicant made no claims to have experienced any incidents of harm or to have ever been threatened with harm directed against her by any person for any reason. In considering the applicant’s claims in this regard, the Tribunal is cognisant of country information provided by DFAT that states:

   “The Family Law Act 2003 and a range of recently enacted decrees including the Domestic Violence Decree 2009, Criminal Procedure Decree 2009, Crimes Decree 2009, and Family Law (Amendment) Decree 2012 provide legislative protection against violence. These decrees have improved the legislative framework for preventing and responding to violence against women, including by expanding authority for police to undertake investigations; providing for Domestic Violence Restraining Orders; expanding the definition of rape including spousal rape); and increasing penalties for trafficking in women or children.

   In practice however, Fiji continues to have very high levels of physical and sexual violence against women… The Fiji Police Force has ostensibly had a “no-drop” policy for domestic violence cases since 1995, meaning that cases cannot be dropped by police or withdrawn by the victim and must be investigated. Nonetheless, few cases reach the courts, and those that do are frequently dismissed or light sentences handed down. Due to societal norms, only around a quarter of victims seek official protection. Several shelters are available in Fiji, as well as counselling services. Several women’s rights NGOS are active in policy formation and service provision, particularly in the area of violence against women.

   In September 2016, the Ministry of Women and the Fiji Women’s Crisis Centre (FWCC) launched a national 24-hour toll-free hotline. The FWCC has operated a hotline previously; however, victims were required to pay for the calls. During the toll-free line’s first week of operation, over 100 calls were received from women. The FWCC has emphasised that a host of support services will need to be mobilised and prepared for referrals.

   In practice, police protection is reportedly inadequate to protect women at risk of violence. Families sometimes turn to traditional and religious reconciliation practices in both indigenous and Indo-Fijian communities to mitigate sentences in domestic violence cases. Women who are victims of domestic or sexual violence rarely report the incident due to distrust in authorities’ ability to support them, and for fear of shaming their families or village…

   Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination. DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. Credible sources reported that women often feel pressured to accept village compensation and remain in the abusive relationship.” [DFAT Country Information Report: Fiji, 27 September 2017, 3.70-3.74, p.21)

5. In considering the evidence provided by the applicant and the information detailed above, the Tribunal notes that there is a legislative framework, services and support in Fiji to assist women at risk, and that the applicant could avail herself of these if required. The Tribunal notes also that the applicant advanced no claim to fear harm or persecution in Fiji on account of violence or the threat of violence perpetrated against her by any person or persons, stating only that sexual and family violence occurs in Fiji and that the justice system is inadequate.

6. On the basis of the DFAT information and other publicly available material provided by the applicant, the Tribunal accepts that services available to women experiencing family violence in Fiji may not be of the same standard as those available in Australia; however, services and supports are available in the event that the applicant required them. The Tribunal also accepts that societal norms and cultural practices in Fiji may not provide a conducive environment for women needing support due to family violence; however, a legislative framework to assist women experiencing family violence is in place, and the applicant has advanced no claim to have experienced family violence or the threat of family violence. On the basis of the evidence before it, the Tribunal therefore gives the applicant’s claim to be unable to seek support in Fiji should she be harmed or threatened with harm on account of being a woman little weight in determining whether she is likely to face harm should she return to her home country.

7. The Tribunal therefore finds on the evidence before it - including the applicant’s oral evidence – that the applicant would not face harm should she return to Fiji. The Tribunal finds no credible evidence indicating any extant or ongoing adverse interest in the applicant demonstrated by any persons for any reason. 

   Does the applicant have a well-founded fear of persecution if she returns to Fiji?

8. On the basis of the information before it, the Tribunal finds no evidence indicating any extant or ongoing adverse interest in the applicant by the Fijian authorities or by any other persons on account of her political opinion. It follows that the Tribunal finds no evidence indicating any extant or ongoing adverse interest in the applicant by the Fijian authorities or by any other persons. The Tribunal notes also that the applicant has advanced no credible claim to fear harm or persecution in Fiji on the basis of her gender, and that supports and services are available in her home country were she to experience such harm or the threat of such harm.

9. On the basis of the evidence, the Tribunal finds that the applicant would not face serious harm amounting to persecution should she return to Fiji now or in the reasonably foreseeable future. On consideration of the above findings, the Tribunal finds that the applicant does not have a well-founded fear of persecution should she return to Fiji. The Tribunal therefore finds that the applicant is not a refugee.

10. 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).

    Are there substantial grounds to believe that the applicant will suffer significant harm if she is returned to Fiji?

11. In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. This applies equally to s.5J of the Act.

12. As detailed above, the Tribunal has found that there is no real chance that the applicant will be harmed by any persons on account of her political opinion; no real chance that the applicant will be harmed by any persons on account of her gender; and no real chance that the applicant will be harmed by any persons for any other reason now or in the reasonably foreseeable future.

13. It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for any reason or for any other reason evident on the claims or material as a necessary and foreseeable consequence of her being removed from Australia to Fiji. 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).

14. 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).

    Conclusion

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion for a protection visa set out in s.36(2)(a) or (aa).

16. There is no suggestion that the applicant satisfies s.36(2)(b) or (c) 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. It follows that the applicant cannot be granted the visa.

    DECISION

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

    Shane Lucas
    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.

    …