1711438 (Refugee) - [2020] AATA 789

1711438 (Refugee) [2020] AATA 789 (27 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711438
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:27 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(aa) of the Migration Act.

Statement made on 27 February 2020 at 5:29am

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIMA v Gui [1999] FCA 1496
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 and Border Protection on 16 May 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 9 June 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy sub-section 36(2) of the Act.
On 29 May 2017 the applicant lodged an application for review with the Tribunal requesting a review of the Department’s decision to refuse the applicant’s Protection visa.
The applicant appeared before the Tribunal on 24 February 2020 to give evidence and to make submissions and present arguments. At the hearing, the applicant appeared on his own, he did not have a registered migration agent or legal counsel representing him.
The applicant had no witnesses present wishing to provide evidence to the Tribunal nor did he indicate in his response to the Hearing Notice any intention of calling witnesses.
The applicant did not require an interpreter and the Tribunal proceeding were conducted in the English language.
CRITERIA FOR 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…

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.

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Details

Case: [2020] AATA 789
Decision Date: 27 February 2020

CaseChat Overview and Summary

The applicant, a national of Fiji, sought a protection visa in Australia. The applicant claimed to fear harm from the general public in Fiji due to his homosexuality, alleging verbal abuse and violence. He also stated that homosexuality is illegal in Fiji, preventing relocation within the country, and expressed fear of being killed or becoming homeless if returned.

The legal issues before the Tribunal were whether Australia had protection obligations towards the applicant, specifically whether he met the criteria for being a refugee under section 36(2)(a) of the Migration Act 1958, or if there were substantial grounds to believe he would suffer significant harm as a necessary and foreseeable consequence of removal under section 36(2)(aa). This involved considering whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group (homosexual men in Fiji) and whether effective protection measures were available to him in Fiji.

The Tribunal accepted that the applicant was a national of Fiji and had made claims against that country. It considered the applicant's evidence regarding his fear of persecution due to his homosexuality, including allegations of harassment, violence, and the illegality of homosexual acts in Fiji. The Tribunal also had regard to country information and guidelines prepared by government departments. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in section 36(2)(aa) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 The issue in this case is whether Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of Nationality and identity Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (and to its successor, the Department of Home Affairs) (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the material referred to in the delegate’s decision. Disclosure Certificates There are no disclosure certificates on the Department’s file.Applicant’s visa history On 16 May 2014 the applicant was granted a [temporary] visa to travel to Australia. [In] June 2014 the applicant arrived in Australia. [In] July 2014 the applicant departed Australia for Fiji. On 9 December 2014 the applicant applied for and was granted a [temporary] visa and arrived in Australia [in] December 2014. On 9 June 2015, the applicant applied for a Protection (XA-866) visa and was granted the associated Bridging visa. On 26 September 2019 the Department of Home Affairs informed the applicant that it was its intention to cancel his Bridging A visa (which was granted on 9 June 2015) pursuant to section 116(1) (e) (i) of the Act which provided that the Minister could cancel a visa if he was satisfied that the presence of its holder in Australia is, or may be, or would or might be, a risk to (i) the health, safety or good order of the Australian community or a segment of the Australian community. That Bridging Visa A was cancelled by the Department on the 26 September 2019 and the Department’s decision was upheld by the Tribunal (differently constituted) on 6 February 2020 for non-payment of fee – no jurisdiction. Since the determination of the applicant’s Bridging Visa A issue, the applicant has remained in detention. The applicant’s claims for protection The applicant’s claims as expressed to the Tribunal at the hearing were as follows: §He [the applicant] left Fiji to seek protection [in Australia] because he is a homosexual man. He comes from a Fijian/Indian family so it is difficult for him to live the way he desires§He has been harassed by the general public, verbally abused and subjected to violence because he is ‘gay’. §He did not seek help from anyone because he fears being killed. §He cannot relocate to another part of the country because homosexuality is not legal in the country [Fiji]. §If he returns to Fiji, he would be discriminated by the community. Homosexuality is illegal in Fiji and there is a high risk of violence from the public. Many gay persons have been murdered. He could be one of them. §Most families in Fiji are against homosexuality so there is a high chance he could become homeless. §He cannot live in a country where there is no justice.

Decision

Reasons for decision

For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Peter VlahosMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

The issue in this case is whether Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of Nationality and identity Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (and to its successor, the Department of Home Affairs) (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the material referred to in the delegate’s decision. Disclosure Certificates There are no disclosure certificates on the Department’s file.Applicant’s visa history On 16 May 2014 the applicant was granted a [temporary] visa to travel to Australia. [In] June 2014 the applicant arrived in Australia. [In] July 2014 the applicant departed Australia for Fiji. On 9 December 2014 the applicant applied for and was granted a [temporary] visa and arrived in Australia [in] December 2014. On 9 June 2015, the applicant applied for a Protection (XA-866) visa and was granted the associated Bridging visa. On 26 September 2019 the Department of Home Affairs informed the applicant that it was its intention to cancel his Bridging A visa (which was granted on 9 June 2015) pursuant to section 116(1) (e) (i) of the Act which provided that the Minister could cancel a visa if he was satisfied that the presence of its holder in Australia is, or may be, or would or might be, a risk to (i) the health, safety or good order of the Australian community or a segment of the Australian community. That Bridging Visa A was cancelled by the Department on the 26 September 2019 and the Department’s decision was upheld by the Tribunal (differently constituted) on 6 February 2020 for non-payment of fee – no jurisdiction. Since the determination of the applicant’s Bridging Visa A issue, the applicant has remained in detention. The applicant’s claims for protection The applicant’s claims as expressed to the Tribunal at the hearing were as follows: §He [the applicant] left Fiji to seek protection [in Australia] because he is a homosexual man. He comes from a Fijian/Indian family so it is difficult for him to live the way he desires§He has been harassed by the general public, verbally abused and subjected to violence because he is ‘gay’. §He did not seek help from anyone because he fears being killed. §He cannot relocate to another part of the country because homosexuality is not legal in the country [Fiji]. §If he returns to Fiji, he would be discriminated by the community. Homosexuality is illegal in Fiji and there is a high risk of violence from the public. Many gay persons have been murdered. He could be one of them. §Most families in Fiji are against homosexuality so there is a high chance he could become homeless. §He cannot live in a country where there is no justice.