1728476 (Refugee) - [2023] AATA 1663

1728476 (Refugee) [2023] AATA 1663 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728476
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Lilly Mojsin
DATE:4 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2023 at 9:38am
CATCHWORDS
REFUGEE – protection visa – Fiji – family dispute against traditional custom – volunteer for human rights organisation and protest participant – beaten by military – delay in applying for protection visa – applied after long stay as unlawful non-resident and unsuccessful application for partner visa – separation, new relationship, marriage and children – wife and child’s mental health and developmental condition – work despite claimed injuries – inconsistent claims and evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), (aa), 65, 423A, 424AA
CASES
Selvadurai v MIEA (1994) 34 ALD 347
SZRSN v Minister for Immigration [2013] FMCA 78
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 November 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia in August 2005.
The applicant who claims to be a citizen of Fiji, applied for the visa on 31 May 2017. The delegate refused to grant the visa on the basis that there was not a real chance the applicant would suffer serious or significant harm on his return to Fiji.
The applicant appeared before the Tribunal on 26 October 2022 [T1] and on 28 October 2022 [T2] to give evidence and present arguments.
The applicant attended the Sydney Tribunal, for a hearing, held by video. The Tribunal determined it was reasonable to hold a hearing by video and had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted. No concerns were raised by the applicant in relation to holding the hearing by video.
I am satisfied the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see and that he understood the interpreter. I was able to interact with the applicant and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. I am satisfied that the hearing provided a real opportunity to be heard.
The Tribunal also received oral evidence from [Mr…

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 1728476 (Refugee)

Details

AGLC: 1728476 (Refugee) [2023] AATA 1663
Case: [2023] AATA 1663
Decision Date: 4 January 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Fiji. The applicant arrived in Australia in August 2005 and, after a lengthy period as an unlawful non-resident and an unsuccessful application for a partner visa, applied for a protection visa in May 2017. The applicant claimed he needed protection from Fiji due to a family dispute that was not taken seriously by authorities, and that he feared for his safety due to traditional customs. He also indicated he had been beaten by the military and was a volunteer for a human rights organisation and a protest participant.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had established a well-founded fear of persecution for a Convention reason, or alternatively, whether he faced a real risk of significant harm if returned to Fiji under the complementary protection provisions. This involved assessing the credibility of the applicant's claims, the consistency of his evidence, and the weight to be given to country information regarding the situation in Fiji.

The court considered the applicant's claims in light of the evidence presented, including medical certificates, reports, and various letters of support. It noted inconsistencies in the applicant's claims, including his ability to work despite alleged injuries and the delay in applying for a protection visa. The court also had regard to the applicant's previous unsuccessful applications for other visas and the reasons for their refusal. The court applied the principles of refugee law, including the assessment of risk of harm and the definition of significant harm under the relevant sections of the *Migration Act 1958* (Cth).

The decision under review was affirmed, meaning the applicant's protection visa application was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

See Annexure ACONSIDERATION OF Claims and evidence The applicant arrived in Australia [in] August 2005 as the holder of a transit visa TX771. 12/06/2013 Applied for partner visa UK 820/ BS 801 10/09/2014 Refusal partner visa UK 820/ BS 801 30/09/2014 Applied for MRT review 11/12/2015 Decision MRT affirmed 08/01/2016 Applied for ministerial intervention - s351 11/10/2016 Refusal ministerial intervention - s351 31/05/2017 Applied for protection visa XA 866 In his PV application the applicant stated that he could speak, read and write English. He claimed in his PV application as follows:·seeking protection from Fiji which he said he needed to leave because of a ‘family dispute’. He says he is ‘too scared to return’. When asked if he experienced harm in Fiji, the applicant responded, ‘it was against our traditional custom’. ·In response to the question, ‘did you seek help within (Fiji) after the harm’ the applicant responded ‘traditional custom dispute all regarded as problem only solve by traditional laws of village’. He says that at the time his only ‘option was to come to Australia and try to settle here’. ·He says that he cannot return to Fiji because he ‘just feels that because of the nature of the dispute what the law does not take it seriously my safety is not guaranteed’. He says, ‘previous traditional dispute was not seen by authorities as something required for them to intervene’ and that ‘Fiji is a small country’. He is not sure if the authorities could protect him. Prior to the Tribunal hearing the applicant provided the following relevant documents: Medical Certificate from [Dr D] dated 18 October 2022 X-Ray Report 18/10/2022 Passports for [Ms C], [Master E] and [Miss F] 19/10/2022 Federal Court Orders 23/10/2018 Letter of support from [G], the Deputy Principal of [School] 17/10/2022 Letter of support from [Mr A] 25/08/2022- attesting to the applicant and family as one of his best friends who helps the community, he is trustworthy and peaceful Letter of support from [Pastor H] 12/10/2022 – attesting to applicant being active member of [Church] Letter of support from [Mr I] 18/10/2022 that applicant is faithful Christian, a volunteer for many and is of good character, well mannered family man. Letter from ASIC 08/11/2017 for [Company] A handwritten letter from former spouse signed [Mr J] – Undated requesting forgiveness and advising her son misses the applicant Statement from [Mr B] -20/10/2022 Statement from applicant concerning his protection claims 20/10/2022 Letter of support from [Mr K] of [Organisation 1] -18/05/2005 Photo of the applicant showing his chest - Undated A document titled Affidavit from [Mr C] [applicant’s spouse] dated 19/10/2022 attests to the couple having 2 children. Their daughter has been placed on the watchlist, in accordance with Federal Circuit orders. The couple live in a house owned by the deponent and have a car loan, mortgage loan and an investment loan. She attests to the children and herself being emotionally dependant on the applicant. She was a victim of domestic violence and sexual assault and suffers depression. Their daughter suffers [Condition] and other medical issues. She attests to their numerous community activities and the affect separation will have on her family.

Decision

Reasons for decision

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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), which are extracted in the attachment to this decision.Mandatory considerations