1816670 (Refugee)

[2023] AATA 1914

1816670 (Refugee) [2023] AATA 1914 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Rajendra Chaudhry (MARN: 1571586)

CASE NUMBER:  1816670

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Frank Russo

DATE:20 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 April 2023 at 11:04am

CATCHWORDS

REFUGEE – protection visa – Fiji – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424A

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

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 16 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of Fiji, applied for the visas on 21 July 2017.

2. The primary applicant is [an age]-year-old Fijian national. The second-named applicant is the first-named applicant’s wife and the third, fourth and fifth-named applicants are the first-named applicant’s children, all of whom are Fijian nationals.

3. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims of the first-named and second-named applicants

4. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

5. So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

6. The Tribunal notes that in response to a pre-hearing outreach conducted by the Tribunal on 8 March 2023, the applicant’s representative provided a completed ‘Hearing information form’ on 15 March 2023. This form was attached to an email from the applicant’s representative which noted that the applicants wished to attend a hearing by audio visual link as ‘they’ are in [Country 1].

7. Movement records indicate that the primary applicant and second-named applicant are not in Australia. It appears that they both left Australia [in] August 2021, which is also the date when their Bridging visas ceased. They currently do not have valid visas to re-enter Australia.

8. The Tribunal wrote to the applicants on 27 March 2023 using the procedure set out in s.424A of the Act, advising that its records showed that the primary applicant and second-named applicant are not in Australia and therefore could not be granted protection visas. The Tribunal also advised that s.36(2) of the Act requires that an applicant for a protection visa must be a non-citizen in Australia, which means that an applicant can only be granted a Protection visa if the applicant is in Australia.

9. The Tribunal invited the applicants to comment on the information by 14 April 2023. The Tribunal informed the applicants that if it did not receive their comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain their views on the information and they would lose any entitlement which they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicants did not respond to the information by 14 April 2023 and no request for an extension of time was received. No response has been received by the Tribunal as at the date of this decision.

11. The Tribunal is satisfied from the circumstances set out above that the primary applicant and second-named applicant are not in Australia. Therefore, the primary applicant and second-named applicant do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

12. Having reached this conclusion, it is not necessary to consider the primary applicant and second-named applicant’s substantive cases for the grant of the visa.

    Claims of the third, fourth and fifth-named applicants

13. In the visa application, the third, fourth and fifth-named applicants all declared that they were not making their own claims for protection. The only applicant who declared that they were making claims of their own was the primary applicant, who referred to an attached statement. In the attached statement, the primary applicant outlined his claims regarding having left Fiji because he was caught up in a military investigation into the operations team of his place of employment, [named], as part of which he witnessed colleagues being threatened and assaulted by military personnel. He also claims that he experienced degrading conditions of employment, including having privileges and benefits taken away and being forced to work overtime. He claims that he was denied the right to free speech and assembly, and experienced economic hardship. He claims that he risked losing his job and was racially abused. He claims that he witnessed the death of a fellow [Occupation 1] due to work pressures. He claims that he fears becoming unemployed, being investigated and disciplined by the military, and being denied social freedoms if he returns to Fiji.

14. The Tribunal has carefully considered the claims set out in the statement attached to the application and finds that all of the claims are those of the primary applicant. The Tribunal notes that in the response to Question 96, the applicant briefly states, in response to the question ‘Do you think you would be able to relocate within that country(s)?’ that his children will be victimised by society because ‘they do not know how to live the rural type of lives’. I note however that this information was provided as an explanation for why the primary applicant could not relocate within Fiji to avoid the harm he claims and does not represent a claim for protection by the third, fourth or fifth-named applicant.

15. The Tribunal received with the application for review a copy of the delegate’s decision and the notice of the decision from the Department. The Tribunal also received a completed ‘Hearing information form’ on 15 March 2023, which was not accompanied by any additional claims or documents. The Tribunal has not otherwise received any other documents in support of the claims of the third, fourth or fifth-named applicants.

16. In the s.424A letter sent on 27 March 2023, the Tribunal put to the applicants that the information about the primary applicant’s departure from Australia is also relevant to the claims for protection of the third, fourth and fifth applicants as these applicants have not made any claims to protection of their own, but claim to be members of the same family unit as the primary applicant. The Tribunal put to the applicants that as the primary applicant is not in Australia, he cannot be granted a Protection visa, and therefore the third, fourth and fifth-named applicants cannot be members of the same family unit of a person that holds a protection visa. As noted above, the applicants were invited to comment or respond to this information by 14 April 2023 and were advised that if the Tribunal did not receive their comments or response by this date, or within any period as extended, the Tribunal may make a decision on the review without taking any further action to obtain their views on the information and they would lose any entitlement to appear before the Tribunal. No response was received by that date, nor as at the date of this decision.

17. Having reviewed the visa application form and the attached statement carefully, I find that the third, fourth and fifth-named applicants have not made any claims of their own to being persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act, nor any claims that they there is a real risk that they will face significant harm as outlined in s.36(2)(aa) of the Act. Having reviewed the Tribunal and Department files, the Tribunal is satisfied that to date, the third, fourth and fifth-named applicants have not raised any claims to protection of their own, but rather their applications for visas are on the basis of being members of the same family unit as the primary applicant.

18. As the primary applicant does not satisfy s.36(2) on the basis that he is not in Australia, the Tribunal finds that the third, fourth and fifth-named applicants do not satisfy s.36(2) of the Act on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants protection visas.

    Frank Russo
    Member