1717662 (Refugee) - [2021] AATA 5673

1717662 (Refugee) [2021] AATA 5673 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717662
COUNTRY OF REFERENCE:                   Fiji
MEMBER:James Lambie
DATE:17 September 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 17 September 2021 at 4:05pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – a member of the particular social group – women in Fiji – well-educated qualified women who have been persecuted by the Fiji military authorities –imputed political opinion – a member of the SDL – association through marriage and blood relation to two high profile Fijian politicians– applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 23 December 2011 and the delegate refused to grant the visas on 13 July 2017.
The applicants appeared before the Tribunal on 24 February 2020 and 4 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Dr A], [Dr B], and [Mr C].
The applicants were represented in relation to the review by their legal representative. The representative attended both Tribunal hearings.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party…

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 1717662 (Refugee)

Details

AGLC: 1717662 (Refugee) [2021] AATA 5673
Case: [2021] AATA 5673
Decision Date: 17 September 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman from Fiji and her family unit. The applicants sought review of a decision by the Department of Home Affairs to refuse their visa application. The primary applicant claimed she feared returning to Fiji due to being a member of the particular social group "women in Fiji," experiencing gender violence, and having an imputed political opinion due to her association with high-profile Fijian politicians.

The Tribunal was required to determine whether the applicants were persons in respect of whom Australia had protection obligations under section 36 of the Migration Act 1958 (Cth) and subclause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth). This involved assessing whether the first-named applicant held a well-founded fear of persecution based on her claimed membership of a particular social group and imputed political opinion, and whether any such risk was faced by the population generally rather than personally.

The Tribunal considered the applicants' claims in light of the provisions of section 36(2B) of the Act, which outlines circumstances where a real risk of significant harm is not taken to exist, such as where relocation to a safe area is reasonable, protection is available from authorities, or the risk is faced by the general population. The Tribunal also had regard to relevant guidelines and country information. Ultimately, the Tribunal concluded that the applicants did not have a well-founded fear of persecution, noting credibility concerns and finding that any risks identified were not faced by the applicants personally.

The Tribunal affirmed the decision under review, meaning the protection visa application was refused.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The first-named applicant is a [age]-year old woman from Fiji. The secondary applicants are members of the first-named applicant’s family unit. All secondary applicants except for the first-named applicant’s spouse have made separate claims for protection. The secondary applicants are the first-named applicant’s spouse and four children, who are [age], [age], [age], [age] and [age]-years old respectively. The applicants have a long and complicated immigration history in Australia, the full details of which are set out in the delegate’s decision record. The first-named applicant first arrived in Australia on [date] July 2006 as the holder of a [temporary] visa. The first-named applicant’s spouse first arrived in Australia on [date] March 2006 as the holder of a [temporary] [visa]. The first-named applicant’s children first arrived in Australia on [date] March 2007 as dependents on their father’s [visa]. The applicants lodged a Class XA, Subclass 866 (Protection) visa application on 23 December 2011 with the first-named applicant as the primary applicant, and her spouse and children as members of her family unit. This protection visa application was subsequently refused by the Department in a decision dated 13 July 2017. On 11 August 2017, the applicants applied for merits review of the Department’s decision of 13 July 2017 to refuse to grant their application for a protection visa. Claims: The applicants’ protection claims are set out in their protection visa application, written claims, written submissions from their representative and the delegate’s decision. Claims of the first-named applicant The first-named applicant, [Mrs D], claims she does not want to return to Fiji as she has grave fears for her life and the lives of her husband and children, because she is a member of the particular social group, ‘women in Fiji’. She claims women in Fiji face gender violence and bullying by some men in Fiji. [Mrs D] claims she left Fiji due to the presence of the military near her home. She claims her family lived near her husband’s boss, [Mr E], who became a [government official] in the Bainimarama regime. She claims to have witnessed the patrol vehicle of Bainimarama on his way to his village. She claims that once when they had a family gathering one of the guards asked them what the purpose of their get together was. She claims while he was polite, she considered this an invasion of her privacy. [Mrs D] claims to fear returning to Fiji due to her imputed political opinion and her association through marriage and blood relation to two high profile Fijian politicians. She claims her uncle, [Mr F], is a former [official] who is now residing in Australia under a protection visa and her husband’s first cousin, [Mr G], is a former [official]. She claims both [Mr F] and [Mr G] were implicated in undertaking seditious activities.

Evidence

Evidence Before The Court

Subsections 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 r.1.12 of the Regulations to include the spouse, dependents, and children of the family head. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The first-named applicant is a [age]-year old woman from Fiji. The secondary applicants are members of the first-named applicant’s family unit. All secondary applicants except for the first-named applicant’s spouse have made separate claims for protection. The secondary applicants are the first-named applicant’s spouse and four children, who are [age], [age], [age], [age] and [age]-years old respectively. The applicants have a long and complicated immigration history in Australia, the full details of which are set out in the delegate’s decision record. The first-named applicant first arrived in Australia on [date] July 2006 as the holder of a [temporary] visa. The first-named applicant’s spouse first arrived in Australia on [date] March 2006 as the holder of a [temporary] [visa]. The first-named applicant’s children first arrived in Australia on [date] March 2007 as dependents on their father’s [visa]. The applicants lodged a Class XA, Subclass 866 (Protection) visa application on 23 December 2011 with the first-named applicant as the primary applicant, and her spouse and children as members of her family unit. This protection visa application was subsequently refused by the Department in a decision dated 13 July 2017. On 11 August 2017, the applicants applied for merits review of the Department’s decision of 13 July 2017 to refuse to grant their application for a protection visa. Claims: The applicants’ protection claims are set out in their protection visa application, written claims, written submissions from their representative and the delegate’s decision. Claims of the first-named applicant The first-named applicant, [Mrs D], claims she does not want to return to Fiji as she has grave fears for her life and the lives of her husband and children, because she is a member of the particular social group, ‘women in Fiji’. She claims women in Fiji face gender violence and bullying by some men in Fiji.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.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.Member of the same family unit Subsections 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 r.1.12 of the Regulations to include the spouse, dependents, and children of the family head. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The first-named applicant is a [age]-year old woman from Fiji. The secondary applicants are members of the first-named applicant’s family unit. All secondary applicants except for the first-named applicant’s spouse have made separate claims for protection. The secondary applicants are the first-named applicant’s spouse and four children, who are [age], [age], [age], [age] and [age]-years old respectively. The applicants have a long and complicated immigration history in Australia, the full details of which are set out in the delegate’s decision record. The first-named applicant first arrived in Australia on [date] July 2006 as the holder of a [temporary] visa. The first-named applicant’s spouse first arrived in Australia on [date] March 2006 as the holder of a [temporary] [visa]. The first-named applicant’s children first arrived in Australia on [date] March 2007 as dependents on their father’s [visa].