1711063 (Refugee) - [2018] AATA 4146

1711063 (Refugee) [2018] AATA 4146 (22 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711063
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Mila Foster
DATE:22 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 October 2018 at 10:33am

CATCHWORDS
REFUGEE – Protection visa –Fiji – political opinion – fears he will be attacked by the regime for assisting a political group – passed messages to the group’s family whilst in jail – assaulted by the military – credibility issues – incorrect answers provided on application form – failure to disclose criminal record in Fiji – false information about siblings – remained as an unlawful citizen after previous bridging visa was cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 424A, 438, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
SZMTA v MIBP [2017] FCA 1055
SZTYV v MIBP [2018] FCA 1076
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 28 February 2017. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1711063 (Refugee)

Details

AGLC: 1711063 (Refugee) [2018] AATA 4146
Case: [2018] AATA 4146
Decision Date: 22 October 2018

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Fijian national. The applicant claimed he feared being attacked by the Fijian regime due to his assistance to a political group, which included passing messages to the group's family while he was in jail and experiencing an assault by the military. The primary issue before the court was the applicant's credibility, particularly in light of inconsistencies and failures to disclose relevant information.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically considering his claims of persecution based on political opinion. This involved assessing the applicant's credibility as a witness and evaluating the evidence presented in light of relevant policy guidelines and country information. The court also considered the applicant's history in Australia, including the cancellation of a previous bridging visa due to non-disclosure of criminal convictions in Fiji and his subsequent status as an unlawful non-citizen.

The court found that the applicant was not a credible witness. This conclusion was based on several factors, including incorrect answers provided on his protection visa application form and his failure to disclose a criminal record in Fiji. The court also noted that the applicant had provided false information regarding his siblings. Applying these findings, the court determined that the applicant did not satisfy the criteria for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. DFAT produced such a report in relation to Fiji on 27 September 2017. BACKGROUND INFORMATION The following background information provides context to the applicant’s claims:a. The applicant arrived in Australia on 2 December 2016 on a visitor which was due to cease on 2 March 2017. b. On 2 March 2017 the applicant was granted a Bridging visa A after lodging his protection visa application in February 2017. c. On 11 August 2017 the applicant’s Bridging visa A was cancelled due to his failure to disclose his criminal convictions in Fiji on his visitor visa application and incoming passenger card. The applicant did not seek review of the decision to cancel his Bridging visa A and hence became an unlawful non-citizen. d. On 18 July 2018 the applicant was placed in immigration detention. e. On 30 July 2018 the applicant applied for a Bridging visa E. He was refused the visa on 1 August 2018. f. On 3 August 2018 the applicant applied to the Tribunal for review of the decision to refuse him a Bridging visa E.[1]g. On 20 August 2018 the Tribunal, differently constituted, affirmed the decision not to grant the applicant a Bridging visa E. [1] Unless specifically indicated, references in this decision to the review or the hearing are references to the review and hearing conducted in relation to the application for review of the decision to refuse the applicant a protection visa rather than the Bridging visa E refusal and review. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the applicant’s credibility. For reasons I give further below after outlining the claims and evidence, I find that the applicant was not a credible witness and that the decision under review should be affirmed.Protection visa application I have before me the Department of Home Affairs (formerly the Department of Immigration and Border Protection) file relating to the applicant’s protection visa application. According to the application, the applicant received the assistance of a migration agent to complete the protection visa application form. According to information provided on the form, the applicant is [an age] year old Fijian national who has not been known by any name other than [Name 1]. He departed Fiji on a Fijian passport issued on [date] 2016 which was obtained legally. He entered Australia[2] as a visitor. He was a Christian. He had never been married or in a de facto relationship, and his family members consisted of his deceased parents, a brother who resided in Australia and a son who was an Australian citizen. He completed high school in Fiji in November [year], and could speak, read and write Fijian and English. In the preceding 30 years he had resided at two addresses in Fiji – one in [Town 1], where he lived from December 1996 until December 2012, and the other in [Town 2], from December 2012 until December 2016. He was [an occupation] prior to arriving in Australia but provided no employment details. In reply to questions on the protection visa application form about any convictions, charges, investigations or crimes committed, the applicant stated that he had not been found guilty or convicted of a crime or offence in any country.[2] See SZMTA v MIBP [2017] FCA 1055 (White J, 5 September 2017) at [52]-[54].

Evidence

Evidence Before The Court

The following background information provides context to the applicant’s claims:a. The applicant arrived in Australia on 2 December 2016 on a visitor which was due to cease on 2 March 2017. b. On 2 March 2017 the applicant was granted a Bridging visa A after lodging his protection visa application in February 2017. c. On 11 August 2017 the applicant’s Bridging visa A was cancelled due to his failure to disclose his criminal convictions in Fiji on his visitor visa application and incoming passenger card. The applicant did not seek review of the decision to cancel his Bridging visa A and hence became an unlawful non-citizen. d. On 18 July 2018 the applicant was placed in immigration detention. e. On 30 July 2018 the applicant applied for a Bridging visa E. He was refused the visa on 1 August 2018. f. On 3 August 2018 the applicant applied to the Tribunal for review of the decision to refuse him a Bridging visa E.[1]g. On 20 August 2018 the Tribunal, differently constituted, affirmed the decision not to grant the applicant a Bridging visa E. [1] Unless specifically indicated, references in this decision to the review or the hearing are references to the review and hearing conducted in relation to the application for review of the decision to refuse the applicant a protection visa rather than the Bridging visa E refusal and review. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the applicant’s credibility. For reasons I give further below after outlining the claims and evidence, I find that the applicant was not a credible witness and that the decision under review should be affirmed.Protection visa application I have before me the Department of Home Affairs (formerly the Department of Immigration and Border Protection) file relating to the applicant’s protection visa application. According to the application, the applicant received the assistance of a migration agent to complete the protection visa application form. According to information provided on the form, the applicant is [an age] year old Fijian national who has not been known by any name other than [Name 1]. He departed Fiji on a Fijian passport issued on [date] 2016 which was obtained legally. He entered Australia[2] as a visitor. He was a Christian. He had never been married or in a de facto relationship, and his family members consisted of his deceased parents, a brother who resided in Australia and a son who was an Australian citizen. He completed high school in Fiji in November [year], and could speak, read and write Fijian and English. In the preceding 30 years he had resided at two addresses in Fiji – one in [Town 1], where he lived from December 1996 until December 2012, and the other in [Town 2], from December 2012 until December 2016. He was [an occupation] prior to arriving in Australia but provided no employment details. In reply to questions on the protection visa application form about any convictions, charges, investigations or crimes committed, the applicant stated that he had not been found guilty or convicted of a crime or offence in any country.[2] See SZMTA v MIBP [2017] FCA 1055 (White J, 5 September 2017) at [52]-[54].

Decision

Reasons for decision

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 criteria in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Mila FosterMember

Ratio Decidendi

Legal Principle Established

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). Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Fiji on 27 September 2017. BACKGROUND INFORMATION The following background information provides context to the applicant’s claims:a. The applicant arrived in Australia on 2 December 2016 on a visitor which was due to cease on 2 March 2017. b. On 2 March 2017 the applicant was granted a Bridging visa A after lodging his protection visa application in February 2017. c. On 11 August 2017 the applicant’s Bridging visa A was cancelled due to his failure to disclose his criminal convictions in Fiji on his visitor visa application and incoming passenger card. The applicant did not seek review of the decision to cancel his Bridging visa A and hence became an unlawful non-citizen. d. On 18 July 2018 the applicant was placed in immigration detention. e. On 30 July 2018 the applicant applied for a Bridging visa E. He was refused the visa on 1 August 2018. f. On 3 August 2018 the applicant applied to the Tribunal for review of the decision to refuse him a Bridging visa E.[1]g. On 20 August 2018 the Tribunal, differently constituted, affirmed the decision not to grant the applicant a Bridging visa E. [1] Unless specifically indicated, references in this decision to the review or the hearing are references to the review and hearing conducted in relation to the application for review of the decision to refuse the applicant a protection visa rather than the Bridging visa E refusal and review. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the applicant’s credibility. For reasons I give further below after outlining the claims and evidence, I find that the applicant was not a credible witness and that the decision under review should be affirmed.Protection visa application