1619128 (Refugee)

[2020] AATA 2224

1619128 (Refugee) [2020] AATA 2224 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619128

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Angela Cranston

DATE:12 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 May 2020 at 11:08am

CATCHWORDS

REFUGEE – Protection visa – Fiji – breached the seasonal worker program – fears harm by authorities of his home country –fears harm from residents in his home area – no reports in support of his claims –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 November 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, applied for the visa on 19 April 2016 on the following basis:

Applicant believes that he will be harmed by authorities of his home country. Applicant believes he will be imprisoned, made to pay large financial penalties that he cannot afford and possibly physically harmed. Applicant believes these things will happen to him because he has broken the terms of his agreement under the seasonal worker program by walking off the job and leaving the sponsoring employer who he felt was exploiting him due to a large mismatch between financial projections made by the sponsoring company and actual financial terms. The seasonal worker program has only recently been extended to Fiji and the Fijian government has stressed to participants that they are representing Fiji and the program is very important to Fiji. As well, a representative of the sponsoring company stressed to the applicant and other participants that they would owe $10,000 and face imprisonment if they abandoned the program. The applicant also believes that he will be persecuted by residents in his home area in Fiji who are hoping to participate in future delegations under the program, because current participants have been warned that if they do not fulfil the programs requirements, the program will be shut to the residents of their home areas. As these residents believe the program to be of potentially great financial benefit to them they will be hostile towards participants who break the program’s terms and endanger their own potential to participate. Further details will be provided shortly to the department.

Applicant believes that authorities will themselves cause him the harm outlined above and also that they will not protect him from harm caused by hostile residents of his home area as the government will be annoyed with him for breaching the seasonal worker program. Further details will prove be provided shortly to the department.

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    The applicant consented to appear before the Tribunal on 8 April 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. Due to what the Tribunal perceived to be inaccurate interpreting during the hearing’s preliminaries, the hearing was adjourned and the applicant again appeared before the Tribunal on 9 April 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of another interpreter in the Fijian and English languages.

5.    The applicant confirmed that his statement in his protection visa application was correct and he did not want to change or add anything. He also stated he had not faced any problems prior to his departure from Fiji.

6.    The applicant stated he could not return to Fiji because he had been part of the seasonal workers program in Australia and had been exploited. The applicant stated that a Fijian minister had been sent to Australia to talk to them but the applicant formed the view that the Minister had not listened to their side of the story and told them that if they breached their contract, then when they returned to Fiji they would be required to pay $10 000 or face 3 years imprisonment.  He also stated the company he had worked for had given his name to the government and the company had told them he had run away. He also stated that his province had been banned from participating in the program.

7.    The Tribunal put to him it was not sure why the Fijian government would harm him on the basis that he had been exploited in Australia.

8.    The Tribunal put to him that despite the numerous media reports that said that Fijians on the worker program had been exploited, there was no country information in support of his claims.  He stated because the government had paid for a number of costs such as travel, they would take that money from them when they returned. The Tribunal put to him that the Fijian worker’s situation in Australia had attracted media attention but the Tribunal had found nothing to suggest that those workers would face harm if they returned to Fiji. It also said that if that was the case, there may be ramifications for the visa program which the Fijian government would not want.  He stated their situation could not be reported in the media. The Tribunal put him that if that if Fijian workers faced harm on return to Fiji then it wondered why people would not inform the Australian media since Fijian workers had told journalists in Australia about what had happened on some farms. He stated people in Fiji had said it to others. The Tribunal put to him that it would be difficult to understand why the Fijian government would allow that to happen given that the Australian government could withdraw the seasonal worker visas for all Fijians and that it may be that the Australian government would not support a program whereby exploited workers would then suffer harm by the Fijian government. He stated the Fijian government expected something in return. He stated you could not say anything in the media. The Tribunal put to him that Fijians had approached the Australian media.

9.    The applicant’s adviser said it was difficult to find published information but many applicants had made the same claim. The Tribunal put to her that it would give her the opportunity to find any information that indicated that seasonal workers who had broken their contracts because they had been exploited had then been subjected to sanctions on their return to Fiji.

1. The Tribunal subsequently wrote to the applicant seeking any country information that supported his claims but did not receive a response.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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 themselves 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

Initial consideration

1. While the Tribunal spoke to the applicant by telephone, the Tribunal's observations were that the hearing flowed in an unobstructed manner and the applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant and his adviser a fair opportunity before, during and after the hearing to provide all the evidence and arguments that he wanted the Tribunal to consider.

Substantive issue

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Fjij, there is a real risk that he will suffer significant harm.

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

3. The applicant has stated that he will be harmed by authorities in Fiji because he has broken the terms of his agreement under the seasonal worker program by leaving his Australian employer who he claims has exploited him. He also stated that he will be persecuted by residents in his home area in Fiji who were hoping to participate in the program in the future. As discussed with the applicant at hearing, there are no reports before the Tribunal to support such claims and despite being given the opportunity post hearing, the applicant has provided no reports in support of his claims. While the applicant has stated that their situation could not be reported in the media, the Tribunal finds that it is not unreasonable to assume that if Fijians on worker programs faced harm by the Fijian government, then they could have made those concerns known to the Australian media given that they were prepared to allege that they were being exploited under the program.

4. While the Tribunal accepts that the applicant may have to reimburse the Fijian government for costs they have incurred because the applicant has participated in the seasonal worker program, the Tribunal does not accept that there is any evidence before it that supports the applicant’s claims that participants in the seasonal worker program who broke their contracts because of exploitation will be subjected to sanctions such as imprisonment, large financial penalties or physical harm on return to Fiji. Neither is there any evidence before it to support the applicant’s claims that residents of his home area have been shut out of the program or that he will be persecuted by them because they will be shut out of the program.

5. Given the lack of evidence in support, the applicant’s claims are too speculative to be accorded enough weight to find that the applicant has a well-founded fear of persecution.

6. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution let alone for a refugee reason if he returns to Fiji in the foreseeable future.

7. 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).

8. 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 has found that it is not satisfied that there is any evidence before it that supports the applicant’s claims that participants in the seasonal worker program who broke their contracts because of exploitation will be subjected to sanctions on return to Fiji. Neither is there any evidence before it to support the applicant’s claims that that he will be persecuted by residents in his home area because they will be shut out of the program. Given this, the Tribunal finds the applicant’s claims speculative and is not satisfied that there is a real risk that the applicant will suffer significant harm.

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

10. 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).

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

Angela Cranston
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.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…