1701518 (Refugee)

1701518 (Refugee) [2022] AATA 3821 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701518

COUNTRY OF REFERENCE: Fiji
MEMBER:Nathan Goetz
DATE:13 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2022 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – SODELPA Youth – fear of detention – fear of torture – advocating for landowner rights – opposition to military rule – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 426, 499
Migration Regulations 1994, Schedule 2; r 1.12
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision under s 65 of the Migration Act 1958 (Cth) (the Act) made by a delegate of the Minister to refuse to grant the applicant a protection visa.
BACKGROUND
The applicant identifies as [an age]-year-old male citizen of Fiji presently located in Australia.
[in] February 2016 the applicant arrived in Australia holding a [Temporary] [visa] that had been granted on 23 October 2015 while the applicant was offshore. That visa ceased on 6 March 2016.
On 24 November 2016 the applicant applied for the protection visa that is the subject of the review. On 11 January 2017 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 30 January 2017 the applicant applied to the Tribunal for review of the decision.
On 22 August 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a three-hour Tribunal hearing scheduled to commence at 10:00am on 13 September 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal decided that it should not decide the review in the applicant’s favour based on the material it had.
Attached to the hearing invitation was a ‘Response to hearing invitation form’ that the applicant was directed to complete and return to the Tribunal within 7 days. The applicant did not do so. The Tribunal also sent SMS hearing reminders on 6 and 12 September 2022 to the applicant’s telephone number which was provided in the review application form.
By 1pm on 13 September 2022 the applicant failed to appear at the Tribunal hearing. As the applicant did not provide a completed ‘Response to hearing invitation form’ or provided the Tribunal with any evidence of submissions after being invited to appear at the Tribunal hearing, the Tribunal determined that the appropriate course was to make a decision on the review without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing: s 426A(1A)(a) of the Act.
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 (Cth) (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 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).
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Mandatory considerations
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.
The most recent DFAT country information report on Fiji is dated 20 May 2022.
CONSIDERATION OF Claims and evidence
According to the protection visa application form which was completed with the assistance of a person who was identified as [Pastor A], the applicant was born in [Town 1], [Province 1] province/state, Fiji. He identified his ethnicity as South Pacific Islander, his religion as a Methodist Christian and his occupation as [occupation 1]. He detailed one residential address in Fiji from 10 October 2014 until 2 February 2016. He detailed a mother, [an specified family members] in Fiji.
He departed Fiji from Nadi international airport [in] February 2016 and arrived in Australia at Sydney airport the same day holding a Fijian passport that was issued [in] 2015. He obtained this travel document from the Fijian Immigration Department and attached a copy of the data page of the passport. He left Fiji lawfully.
The form asked the applicant’s reasons for claiming protection. The applicant wrote that he was seeking protection in Australia, so he did not have to return to Fiji. He was raising his own claims for protection and was not claiming protection based on membership of the same family unit.
He claimed that he left Fiji to play [a sport] in Australia at the [named event] as part of the [named sporting group]. The applicant claimed that he was ‘trying to find a way to get out of the (Fiji) due to his involvement with SODELPA Youth.’
The applicant claimed that ‘in [his region] of Fiji’ where the applicant is from, the Chief of the [people group] had appointed him as youth leader for the [named] district prior to the 2014 elections. He indicated he travelled to villages to organise youth ‘get togethers’ and that his cousin, whom he identified, ‘always speaks at our meetings.’
When asked what he thought would happen to him if he returned to Fiji, the applicant claimed he would be arrested or tortured. He did not claim to have previously experienced harm in Fiji.
When asked if the applicant moved or tried to move to another part of Fiji to seek safety, he wrote that he did not, but then wrote that he was ‘moving from place to place’ which was ‘due to (his) fear of being taken into the military camp.’ The applicant wrote that like his former leader, who he named, ‘he has the call of the land and it is (his) God given duty to follow it like his forefathers.’
He believed he would be harmed or mistreated if he returned to Fiji because ‘Fiji is getting worse by the day’ and the ‘military are targeting the chiefs and the youths’ who want to ‘stand up for our rights as landowners.’ He claimed that in the lead up to the 2018 election SODELPA and other parties were not allowed to stage meetings without permission. The applicant claimed that ‘(his) name is surely with them.’ The applicant indicated he opposed the Fiji First Party and its leaders.
He did not believe that the Fijian authorities could and would protect him because the authorities were run by the military. He claimed that the authorities ‘protect the government instead of the people.’ He claimed that he would not be able to relocate within Fiji because ‘(he) only stay with his sister in [Town 2] but most of the time he would be at his village in [Province 1]. (He) will have no other place nor family anywhere in Fiji to rely upon.’
Included on the department file were news articles from ABC news online dated 11 September 2016, the Fiji Times online dated 23 November 2016, the Guardian online dated 19 August 2015, and Fijileaks online dated 23 November 2016. The department file does not identify whether those articles were provided by the applicant or were sourced by the delegate, but the Tribunal assumes that it was the former. The applicant is not mentioned in any of the articles.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee,’ or a person who meets the requirements for ‘complementary protection,’ or a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
What is the applicant’s identity and country of reference?
On the basis of the applicant’s Fijian passport and the fact that there is no evidence to suggest that the applicant has citizenship of another country or a right to enter and reside in another country, the Tribunal is satisfied that the applicant is [name] and that the country of reference is Fiji.
Can the Tribunal give any weight to the applicant’s claims?
The Tribunal is not satisfied that it can give any weight to the applicant’s claims for the following reasons.
First, the Tribunal has not had the opportunity to examine the applicant at a Tribunal hearing. The reason that the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing was because the Tribunal decided that it should not make a decision favourable to the applicant on the basis of the material it had: s 425(2)(a). Plainly, if the Tribunal was satisfied that the applicant should receive a favourable outcome (namely, the Tribunal being satisfied that the applicant met the criteria for a protection visa) on the basis of his material, there would be no need for the applicant to appear at a Tribunal hearing: s 4425(3) of the Act.
Without the applicant speaking to his claims, the Tribunal cannot give them any weight.
Second, the applicant arrived in Australia [in] February 2016 but delayed applying for a protection visa until 24 November 2016. The Tribunal struggles to accept that if the applicant was genuine in his claim that he was ‘finding a way to get out of (Fiji) due to his political involvement with SODELPA youth’ he would delay applying for a protection visa until 9 months after his arrival in Australia. The applicant provided no information to explain the delay or reconcile how he claimed to fear harm in Fiji or that he would be harmed in Fiji but delayed applying for a protection visa until 24 November 2016.
The Tribunal does not accept that if the applicant’s claims were true, he would delay making a protection visa application until 9 months after his arrival in Australia.
Third, the applicant claimed that he was ‘involved with SODELPA youth,’ but provided no evidence to demonstrate his membership of that organisation, such as membership records or written statements from that organisation. Nor did he detail the ‘instructions’ he was given by his cousin or provide specifical details about the number of meetings he claimed to have held, the locations and frequency of those meetings, or any other specifics that a person recalling their own lived experiences would be able to detail. The applicant provided no evidence about his current political activities.
The Tribunal does not accept that if the applicant’s claims were true, the claims would lack detail.
Fourth, the applicant was unable to explain why there was a risk he would be harmed in Fiji despite ‘never previously experiencing harm in (Fiji).’
The Tribunal does not accept that if the applicant’s claims were true, he would not have experienced past harm in Fiji.
Fifth, the applicant claimed on one hand that he did not move to another part of Fiji to seek safety (and provided one residential address in Fiji from October 2014 until 2 February 2016) yet also claimed that he moved from ‘place to place, Suva to village, and never remain in one place due to fear of being taken into the military camp.’ The applicant provided no explanation about this inconsistent evidence.
The Tribunal does not accept that if the applicant’s claims were true, there would be inconsistency about something as basic as whether he moved or tried to move to another part of Fiji to avoid harm.
Sixth, the applicant’s evidence about the ‘call of the land’ is vague and not accompanied by any meaningful detail. The applicant identifies as a South Pacific Islander and the DFAT country information report identifies that land rights are controversial in Fiji (at 2.24) but the applicant did not present any evidence that he faces a risk of harm due to land rights. It is not the Tribunal’s task to make the applicant’s case for him.
CONCLUSION
Considering the case as a whole, the Tribunal does not accept that the applicant left Fiji because he feared harm in Fiji, that he did not return to Fiji because he feared harm in Fiji, that he engaged in any political activity inside or outside of Fiji, that he is related to any cousin or relative, or associated with, any person who engaged in political activity in Fiji, or that he will be arrested or detained or taken to a military camp if returned to Fiji for any reason.
The Tribunal is not satisfied that there is any truth to the applicant’s claims. The Tribunal rejects them in their entirety. The Tribunal is not satisfied that the applicant is of adverse interest to any person, group or authority in Fiji.
The Tribunal is not satisfied that the applicant is a member of the same family unit as a person who is a refugee or meets complementary protection requirements on the basis that the applicant made no claim to satisfy this criteria.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Fiji due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real chance he will suffer significant harm.
Therefore, the applicant is not is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Membership of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
(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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2022] AATA 3821

13 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice