1720093 (Refugee)

1720093 (Refugee) [2022] AATA 4899 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720093
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Tamara Hamilton-Noy
DATE:30 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Migration Act.

Statement made on 30 November 2022 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from government, military and police – occupation, relationship with foreign agencies and occupational activities during coups – arrested and tortured – no application for protection during previous visit and delay in applying after current entry – deported from third countries after working there – continued work in sector and departures on own passport – no profile of interest – physical and mental health – returned failed asylum seeker – country information – member of family unit – partner’s application for protection decided separately – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (b)(i), 65, 91WB, 438
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] February 1999 and departed Australia [in] March 1999.
The applicant arrived in Australia [in] March 2015 and applied for protection on 9 June 2015.
On 28 August 2017 a delegate of the Department found that the applicant was not owed protection.
The applicant applied to the Administrative Appeals Tribunal on 31 August 2017 for an independent review of that decision.
Claims and evidence
Evidence before the Department
The applicant claimed in his written protection application to have been born in Suva, Fiji. He stated that his father is a Fijian citizen and his mother an Australian citizen. The applicant stated he is of Christian faith. He stated that he was married in 1983 and divorced in [2014] in Suva. He stated that his family members include [daughters], his mother, stepfather, [brothers], sister and [nephews].
In the written protection application, the applicant stated that he had worked from 1987 to 2006 as a [journalist], during 2006 as a cameraman, editor and [another role], and from October 2006 ‘to current’ as a business owner in [Work sector 1]. The applicant stated he had left Fiji to visit his mother and brother in Australia. As to what he thinks will happen if he returns to Fiji, the applicant stated that he worked for several years as a journalist and was a target of persecution because of his radical stance in reporting. He worked as a local journalist for many years with foreign journalists which angered certain elements of the military establishment who wanted him eliminated. The harassment and intimidation led to him no longer able to continue working for fear of being killed.
The applicant stated he had experienced harm in Fiji, in October 1987 when he was arrested by military police in [Location] in [Village] Township. He stated he was taken to [Village] police station and was tortured by having his cell flooded with cold water and being left alone until morning. He stated he had been arrested because it was alleged he had broken curfew rules and as a journalist they believed he was working undercover for foreign intelligence; they alleged he was with the CIA and with Australian intelligence. He was released the next morning with a warning that he was being watched and was on a blacklist for being a traitor. During his arrest, he was working for [Employer 1]. He stated he did not seek help from authorities because he was scared for his life and his family’s. He did not try to relocate because there is nowhere to hide.
The applicant stated he fears he will be harmed or mistreated if he returns to Fiji. His stated reasons were that in the 2000 coup he was the only cameraman who was allowed [to] cover the coup by George Speight and since then he has been marked by all Fiji military regimes as an enemy of the state. The harassment has continued until he has been forced to abandon working as a [journalist]. He has had strange people intimidate him and make threats against him and his former wife. He does not believe the authorities would protect him because he is seen as their enemy and the police take orders from the military and are not there to protect citizens.
A delegate of the Department found that the applicant’s claims related to his work from the 1980s and in the early 2000s and, given that he continued to live and work in Fiji for another 30 years, the delegate had serious doubts that the applicant had been tortured by authorities. The delegate found that the applicant remained in Fiji for ten years after his last claimed contact with authorities. The delegate found that the authorities had no ongoing interest in the applicant or his work. Country information suggests that media restrictions have been significantly relaxed and, given the applicant was a cameraman and editor and not a writer or reporter, the delegate did not expect him to have any profile of interest to the authorities. The delegate found that the applicant had waited three months to apply for protection. The delegate was not satisfied the applicant was or would be persecuted because of working for the media in Fiji or that he was owed complementary protection for this reason.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
The Tribunal was provided a statement prepared by the applicant on 30 August 2017, the relevant parts of which are referred to further below.
On 8 July 2022, the Tribunal wrote to the applicant stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 9 August 2022.
On 18 July 2022 the applicant wrote to the Tribunal requesting an adjournment on the basis that his representative no longer was acting for him. The Tribunal considered this request but denied the request on the basis that the information provided by the applicant did not indicate he was unable to attend the Tribunal to give evidence and present arguments on 9 August 2022, and on the basis of the Tribunal’s objective of providing a mechanism of review that is quick and informal and is proportionate to the complexity of the matter.
On 28 July 2022, 29 July 2022 and 1 August 2022, the applicant provided to the Tribunal photos, letters in support of his application and letters relating to his work in Fiji, media reports, certificates of study and further media articles. Relevant parts of this further information are discussed further below.
The Tribunal hearing was conducted on 9 August 2022. The applicant was not represented at the hearing and the Tribunal was assisted during the hearing by a Fijian interpreter. The applicant’s responses were appropriate responses to the Tribunal’s questions and the Tribunal considered that the applicant had an opportunity to give evidence and present arguments throughout the hearing.
Following the hearing, on 9 August 2022, 10 August 2022 and 16 August 2022, the Tribunal received from the applicant a media article on the crackdown on pro-democracy activists in 2006; a document headed ‘Tortured’ with no date or internet link cited, a video link and certificates, employment related letters and medical letters relating to the applicant. These are discussed further below.
The 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 (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.
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 Tribunal notes that the most recent DFAT report for Fiji was published on 20 May 2022 and replaced a previous DFAT report that had been published on 27 September 2017. Relevant parts of the current DFAT report are discussed further by the Tribunal below.
Assessment, Reasons and Findings
Country of nationality
The applicant travelled to Australia on a Fijian passport and has at all times maintained he is a citizen of Fiji. The Tribunal accepts the applicant is a citizen of Fiji and has assessed his claims against Fiji as his country of nationality.
s 438 certificate
Contained on the Department file was certificated information which the Department stated should not be disclosed to the applicant on the basis that it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal formed the view that the certificate, dated 2 August 2022, was a valid certificate. The Tribunal decided that, given the source of the information was not disclosed and given the information covered by the certificate did not provide specific details of allegations against the applicant, the Tribunal did not place any weight on the certificated information in making a decision in this matter.
The applicant’s background
The information the applicant gave about his background was consistent with information he has previously given to the Department. He gave evidence to the Tribunal that he was born in Suva and grew up in [Village], a small town of around [Number] people, [outside] of Suva. He stated that the land in [Village] is owned by the village and is shared and that he has a house in [Village]. He stated that his family also owns [property], a [Number] hour boat trip from Suva. He stated that he has three adult children, one in Suva, one in [Country 1] and one in [Country 2]. He has a brother in Melbourne, another brother in Sydney and his mother is also in Melbourne. He stated his father passed away, following which time his mother remarried. He stated that he was divorced, he thinks in 2014 or 2015, and that he is currently in another relationship.
The applicant gave evidence to the Tribunal at the hearing that he has travelled to [Country 2], [Country 1], [Country 3] and [Country 4]. He stated that he was in [Country 2] between 2001 and 2007 and that he was deported from [Country 2] because they found out he was working. He stated that he had also been deported from [Country 1], where he was visiting his cousin, after he was found working.
The applicant told the Tribunal that he first travelled to Australia in the 1990s for two weeks to visit his [brother] and children. He was in [Country 2] from 2001 to 2007 and at other times was back living in Fiji. He confirmed in his evidence to the Tribunal that he was in Australia in 1999, returned to Fiji for a couple of years, was then in [Country 2] from 2001 to 2007, from 2007 to 2015 was in Fiji living mostly back on an island and from 2015 he has been in Australia.
The Tribunal accepted the above evidence as correct.
Claims relating to previous work as cameraman
By way of background, the Tribunal notes that Fiji became independent in 1970 after being declared a British Crown colony in 1874. In 1987, a Labour-National Federation Party was elected, however was removed within weeks after widespread protests and a coup d’etat. An interim civil government also lasted only weeks before a further coup d’etat led to the dismissal of the Governor-General and the declaration of a Republic. Mahendra Chaudry was elected as the country’s first Indo-Fijian Prime Minister in 1999. In 2000, ethno-nationalist businessman George Speight led a further coup d’etat in which Chaudry and his government were held hostage for 56 days and businesses were looted and burned. A fourth coup d’etat was launched by Frank Bainimarama in 2006, leading to his interim Prime Ministership in 2007. His party went on to win the 2014 and 2018 elections, which were judged to be credible by a multinational observer group led by Australia.[1]
[1] DFAT Country Information Report Fiji, 20 May 2022, at 2.1 – 2.4.
A third of Fiji’s islands are estimated to be inhabited. Of the population of 940,000, some 200,000 live in Suva, the capital.[2] The two main ethnic groups are the Melanesian iTaukei who make up two thirds of the population and Indo-Fijians, descendants of colonial sugar cane workers, who make up a third of the population.[3] Fiji is defined by the World Bank as an upper-middle income country, with one of the largest economies in the Pacific region. The pandemic caused significant disruption to its tourism industry, which previously accounted for 40 per cent of its economy. As of 2019, an estimated 30 per cent of the population was living in poverty, although subsistence farming and kin-based wealth redistribution are stated to lead to a lower rate of extreme poverty than might otherwise be expected.[4]
[2] DFAT Country Information Report Fiji, 20 May 2022, at 2.5.
[3] DFAT Country Information Report Fiji, 20 May 2022, at 3.1.
[4] DFAT Country Information Report Fiji, 20 May 2022, at 2.7 – 2.9.
The applicant has made consistent claims about having worked as a cameraman in Fiji in the 1990s and 2000s. The Tribunal spoke to the applicant at some length about his employment history during the Tribunal hearing and has given careful consideration to this evidence, to the documents provided to the Department and the Tribunal and to the evidence of the witness who gave evidence at the applicant’s Tribunal hearing. The Tribunal is prepared to accept from the evidence before it that the applicant worked in the [Work sector 2] in Fiji from the time he was a teenager and that he worked as a cameraman for a range of organisations including [Employer 2] and [Employer 1]. The applicant described that he had worked as a journalist in his written claims. Given the description of his work he gave at hearing, the Tribunal did not accept the applicant was employed as a journalist in Fiji. The Tribunal is prepared to accept that the applicant was working in the [Work sector 2] at the time of the 1987 coup. The Tribunal is prepared to accept that the applicant was detained in a police station where he was mistreated and released the next morning.
However, the Tribunal does not accept the applicant remained of interest to the authorities after being detained overnight. The applicant claimed at hearing that after he was detained there was a ‘fresh investigation’ and they were ‘after him for information and things like that’. When asked what contact he had had from authorities he stated the ‘news going out they were not satisfied with’. The Tribunal observed that it could not see from the applicant’s evidence that he had been specifically targeted by the authorities, to which the applicant stated it is a small place and they come in and ask about the news going out and that this had occurred just after detention. They warned him and threated him a couple of times.
The Tribunal had difficulty accepting the applicant had been contacted, threatened or targeted by authorities after the 1987 coup. The applicant continued to work in the [Work sector 2] and was able to travel to Australia in 1999 using his own passport. The Tribunal asked why he had not applied for protection in Australia in 1999 if he had been threatened by the authorities and he said that from 1987 to 1999 things were a little bit easier because the government ‘was not really up to anything’. The Tribunal finds that the applicant was caught up in the general unrest at the time of the 1987 coup and does not accept that he was of adverse interest to the authorities after being detained overnight in 1987. The Tribunal finds that he was able to continue working in his industry after 1987 without further incident.
The Tribunal is prepared to accept that the applicant was also working in the [Work sector 2] during the 2000 coup, that he was caught up in the general unrest in Suva at the time of the coup and that he observed looting, stealing and offences against civilians. The Tribunal finds that the applicant continued to work in Fiji after the 2000 coup and that he was able to travel out of the country to [Country 2] on his own passport.
The applicant raised for the first time at hearing that the authorities had thought he was transporting guns and the Tribunal asked why this had not been raised previously. The applicant stated that six civilian soldiers wanted to search his house and accused him of undertaking business during curfew hours. The applicant stated that this had been during 2000 and that he had not raised this before because he had paid a lawyer to represent him. He stated this had not been raised with the Department because there was a ‘miscommunication’. The Tribunal noted during the hearing that the applicant was assisted by a representative to prepare the protection application and the applicant’s explanation did not explain why this claim had not been raised earlier. The Tribunal noted that if it was not satisfied there was not a reasonable explanation for not raising this claim earlier, it may not accept the claim, to which the applicant stated that these are true things that he has been through. The Tribunal finds that the applicant was legally represented when preparing his written protection application and was interviewed about his claims by the Department at a time at which he remained legally represented. The applicant’s failure to raise this aspect of his claims at an earlier time, and his inability to explain why he had not raised this earlier, leads the Tribunal to not accept that the authorities accused him of transporting guns or that he experienced any adverse attention from the authorities because they thought he was transporting guns.

While the Tribunal has accepted the applicant was involved in the [Work sector 2] at the time of the 1987 and 2000 coups, for the following reasons, the Tribunal finds that the applicant is not at risk of harm if he returns to Fiji now or in the reasonably foreseeable future, because of his work as a cameraman in the 1980s through to the early 2000s.
Firstly, the applicant gave evidence at hearing that he had obtained a passport in his own name in Fiji in 1999. He gave evidence that he had obtained a further passport in 2015 and that he had not had any problems renewing his passport and believes that it was an automatic renewal process. The applicant claimed that leaving Fiji on his own passport was ‘tricky’. When asked to explain why, he stated that this is because he was tracked and threatened and was playing ‘hide and seek’ at that time. He confirmed in his evidence to the Tribunal that he had left Fiji on a passport in his own name and using a ticket in his correct name and, when asked again to explain how leaving had been tricky, he stated that at times it was very difficult and at times it was easier; it had been tricky for him because of the information he had and he thought it would be tough for him. The Tribunal did not accept that the applicant had any difficulty leaving Fiji in his own identity, on the basis that the applicant was unable to explain in any detail what difficulties he had had when leaving Fiji. The applicant’s ability to leave Fiji in 2015 on his own passport causes doubt for the Tribunal that he is of adverse interest to any authorities in Fiji because of his previous employment.
Secondly, the applicant claims that the last time he received attention from the authorities was in 2006 and 2007. The applicant’s ability to remain in Fiji for a further nine years before returning to Australia and seeking protection causes further doubt for the Tribunal that he left Fiji because of attention from the authorities arising from his work as a cameraman.
Thirdly, the applicants claims to be of ongoing risk of harm from the authorities is inconsistent with country information considered by the Tribunal, which states that the leader of the 2000 coup, George Speight, remains in prison. People involved in historic coups will likely have already been punished for any crimes relating to the coups and many have enjoyed successful careers after the coups.[5] The Tribunal discussed this country information with the applicant during the hearing and observed that it suggested that people had not remained of adverse interest to the authorities because of their involvement in previous coups. The applicant stated in response that the government are liars and have killed journalists and a lot of people from the outside world don’t know because of pressure from the media.
[5] DFAT Country Information Report Fiji, 20 May 2022, at 3.40.
Given the events raised by the applicant occurred 22 and 35 years ago, given the applicant’s ability to leave Fiji and return to Fiji and to remain working and living in Fiji for a period of time, and given country information does not support that the applicant would be at risk now because of his employment at the time of the 1987 or 2000 coups, the Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Fiji now or in the reasonably foreseeable future, because he worked in the [Work sector 2] between the 1980s and up to the 2000 coup.
Claims relating to health
The applicant gave evidence to the Tribunal at hearing that he attended a counsellor in Australia two years ago and that he had been prescribed antidepressant medication through his GP. He stated that he has been diagnosed with diabetes and high blood pressure and is taking medication for these conditions.
The most recent DFAT report for Fiji stats that healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas. Specialist health care is also generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability is described as varying and the range of medications is less than what are available in Australia. Health care is free but an increasing number of individuals are taking out private health insurance which allows them to access a wider range of health services.[6]
[6] DFAT Country Information Report Fiji, 20 May 2022, at 2.11, 2.12.
The law provides for public mental health care but in mental health care may not be available in practice. Some support is available from nursing stations, health centres, general practitioners and hospitals and there is a public psychiatric hospital in Suva. There are an inadequate number of mental health professionals to meet demand and online resources from Australia and New Zealand may be used by Fijians. Sources have advised DFAT that facilities and treatment are basic and medication might be unavailable. There can be social stigma against mental health conditions, which may limit support options from family. DFAT describes that there are an increasing number of counsellors and non-government organisations which provide counselling services, although in practice counselling services are not available in more remote areas.[7]
[7] DFAT Country Information Report Fiji, 20 May 2022, at 2.13 – 2.15.
The Tribunal discussed the above country information with the applicant during the hearing and he responded to the information by stating that he does not agree with the information, that people are suffering and are reliant on AusAid.
The Tribunal finds from the country information set out above that the applicant would be able to access medical treatment needed for diabetes and high blood pressure, on the basis that general health care is described as generally available to those who need it. The Tribunal finds that the applicant is not currently accessing counselling and that he is prescribed antidepressant medication through his GP. While access to mental health services is variable, the Tribunal finds that the applicant would return to Suva where he previously resided and where public mental health care is more available than in rural areas. The Tribunal finds that the applicant would not be denied access to mental health care for any reason. The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Fiji now or in the reasonably foreseeable future, because of his medical conditions or because he is prescribed antidepressant medication or may need to access counselling again in the future.
Claims relating to being a returnee to Fiji
The Tribunal accepts that if the applicant returns to Fiji, he would return as a failed asylum seeker. DFAT states that it is not aware of any official or societal discrimination against failed asylum seekers and that many begin their journey by responding to advertisements that promise a job and a Medicare card in Australia, which are scams with the organisers later making asylum claims on behalf of applicants. DFAT describes that emigration and return to Fiji are common, that many Fijians have cultural and family links to Australia and that a return to Fiji would be unlikely to be seen as unusual or to attract attention from authorities.[8]
[8] DFAT Country Information Report Fiji, 20 May 2022, at 5.28.
The Tribunal summarised and discussed the above information with the applicant at hearing and invited him to comment on the information. The applicant stated that it would open up old wounds for him to return and there are things that he knows he is scared of. He is scared he will be killed, his wife has remarried and his family is scattered, things are very expensive and the military rule Fiji.
The Tribunal has found, above, that the applicant was able to leave Fiji on his own passport without any issue through the airport. The country information considered by the Tribunal, and discussed with the applicant at hearing, indicates that individuals returned to Fiji as failed asylum seekers are not at risk of harm upon return to Fiji and that a return is not viewed as unusual given the movement of people between Fiji and Australia. The Tribunal finds there is not a real chance the applicant faces serious harm in Fiji, if he returns now or in the reasonably foreseeable future, as a failed asylum seeker.
The Tribunal has considered the cumulative claims of the applicant – including his claims that he will be killed because of unspecified things that he knows, that his wife has remarried and his family is scattered, that things are expensive and that the military is ruling Fiji, in addition to the other claims he has raised as discussed above – but finds there is not a real chance he faces persecution in Fiji for any reason.
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).
Complementary protection
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). This requires the Tribunal to consider whether there is a real risk the applicant faces significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
For the same reasons as those set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm if removed from Australia to Fiji.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 to include a de facto partner. An individual is in a de facto relationship with another person if they are not in a married relationship but they have a mutual commitment to a share life to the exclusion of all others; the relationship between them is genuine and continuing; they live together, or do not live separately and apart on a permanent or indefinite basis; and they are not related by family.
The applicant gave evidence at the Tribunal hearing that he has been in a relationship with another Fijian national for seven years and that they have been living together for five years. The applicant gave evidence that they have had a discussion about the relationship continuing and that they would like to be married. The applicant gave evidence that he and his partner have separate bank accounts but that he is not currently working and is reliant on his partner’s income in addition to Red Cross assistance and assistance from their church. He gave evidence that they are sharing a bedroom, have both names on the lease for their current property, have met each other’s families through Facebook and that his partner has met his mother who is residing in Australia.
The Tribunal finds that the applicant is in a relationship with another individual where they have a commitment to share their lives together to the exclusion of others and the relationship between them is genuine and is continuing. The Tribunal finds that the applicant and the other individual live together and have done so on a long-term basis. The Tribunal finds that the applicant and the other individual are not related by family. The Tribunal finds that the applicant and his current partner are de facto partners. The Tribunal has decided the applicant’s de facto partner’s claims for protection separately and has found that she is owed protection under s 36(2)(a). As such, the Tribunal is satisfied that the applicant is a member of the same family unit as an individual who is owed protection.
Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WB. Section 91WB applies to a non-citizen who applies for a protection visa and is a member of the same family unit as a person who has been granted a protection visa. It provides that the Minister must not grant a protection visa on the basis of s 36(2)(b) or (c) (family member of a person granted a protection visa) unless the applicant had applied for the visa prior to the relevant family member being granted a protection visa.
The Tribunal is satisfied that the applicant applied for the protection visa prior to his de facto partner being granted a protection visa. As such, the Tribunal remits the matter for reconsideration with the direction that the applicant is a member of the same family unit as an individual who is owed protection and that the grant of the visa is not prevented by s 91WB.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Migration Act.
Tamara Hamilton-Noy
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 4899

30 November 2022

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Immigration

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Natural Justice

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