1817431 (Refugee)

Case [2022] AATA 2981

1817431 (Refugee) [2022] AATA 2981 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817431

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Jane Marquard

DATE:7 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act;

(ii)that the second named applicant satisfies s 36(2)(aa) of the Migration Act; and

(iii)that the third named applicant satisfies s s36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 July 2022 at 10:37am

CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – ethnicity – Indo-Fijian – discrimination and harassment – no real chance of serious harm – particular social group – women in Fiji – culture and attitudes towards women in Fiji – husband’s lack of acknowledgement of own behaviour – no effective police protection – real chance of serious harm in the form of family or domestic violence – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2, r 1.12

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZEPZ v MIMA (2006) 159 FCR 291

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

  1. The first named applicant is [an age]-year-old woman from [Town 1] in Fiji. The second named applicant is her son, aged [age] years. The third named applicant is her daughter, aged[age].

  2. The first named applicant’s husband, [an age]-year old man from [City 1], Fiji, arrived in Australia on a visitor visa [in] October 2014. His application for review has been considered separately. The applicants arrived in Australia [in] January 2015 on visitor visas.

  3. The applicants applied for protection visas under s 65 of the Migration Act 1958 (the Act) on 12 January 2015. The applicants sought protection on the basis of discrimination, violence and harassment against Indo-Fijians. A delegate of the Minister for Immigration and Border Protection…

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Details
AGLC
1817431 (Refugee) [2022] AATA 2981
Case
[2022] AATA 2981
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by applicants from Fiji of Indo-Fijian background who sought protection visas. The Federal Circuit Court had remitted the matter for redetermination by the Tribunal. The applicants claimed they had left Fiji due to discrimination and harassment based on their ethnicity, and that they faced a real chance of serious harm, particularly in the form of family or domestic violence.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa, specifically whether they had a well-founded fear of persecution or serious harm in Fiji. This involved assessing whether they constituted a "particular social group" and whether the alleged discrimination and potential for domestic violence amounted to a real chance of serious harm, considering the effectiveness of police protection in Fiji. The Tribunal was also required to consider the evidence presented, including Department of Foreign Affairs and Trade (DFAT) country information, and to determine the matter based on the facts as they presented at the time of its redetermination.

The Tribunal considered the evidence of discrimination and harassment faced by the applicants, including issues related to land ownership and demands for money. It also examined the cultural context in Fiji regarding women and domestic violence, noting the husband's lack of acknowledgement of his own behaviour. The Tribunal applied the principles that it is inquisitorial but not required to seek evidence to support an applicant's claim, and that while Departmental policy is not binding, it should be had regard to for consistency. The Tribunal found that there was a real chance of serious harm in the form of family or domestic violence, and that the applicants constituted a particular social group.

The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

By way of background, the recent DFAT Report notes that Fiji is comprised of 300 islands and has a population of 940,000. The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. About a third of the population are Indo-Fijians, following large-scale emigration. The current Prime Minister Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’etat in 2006. He later introduced the 2013 Constitution that abolished race-based voter rolls and quotas on parliamentary seats. His FijiFirst party won the 2014 and 2018 elections. The World Bank defines Fiji as an upper-middle income country, which was badly affected by the COVID-19 pandemic. About 30 per cent of the population live in poverty.[8][8] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022Summary of evidence in Department files The applicants provided details of their claims in application forms provided to the Department, as well as supporting documents. The first named applicant and her husband also attended interviews with a delegate of the Department. A summary of their evidence follows. The applicants are from Fiji and of Indo-Fijian background. They are Sunni Muslims and speak Hindi. The first named applicant’s father, brother and sister live in [Town 1], Fiji. She also lived in [Town 1] from [year] to 2001, and then in [City 1]. At the Department interview, she said that her brother was working and had [children]. Her sister was not working and looked after [a number of] children. Her husband lived in [City 1] until he came to Australia. His mother and one sister live in Fiji, one sister lives in Australia and another sister lives in [Country 1]. Her husband completed [College] in 1991 and then a course in [an institution] of Fiji. He worked at [at a workplace] between 1999 and 2000 and then as [an Occupation 1] [at a workplace] between 2002 and 2005. The first named applicant attended [College] in 1996. She then completed a [qualification] at [an] Institute in 2001. In 2013 she completed [another qualification] at [university]. She worked as [an Occupation 3] in [City 1] from 1996 to 2001 then was self-employed as a tailor until 2014. The first named applicant and her husband married in November 2002 in [City 1]. They rented a house in the squatter settlement in [City 1] from 2002 until they left for Australia. They paid rent to indigenous landowners. The first named applicant said that they are practising Muslims, who pray, donate, celebrate festivals, contribute to zakat and go to the mosque. The applicants stated in their applications that they left Fiji because of discrimination against Indo-Fijians. They said there were ‘problems’ in the squatter settlements. They said that they were unable to own land. The first named applicant said that her parents had land problems with Fijians. Her father was a casual labourer. She said that at the wedding invited Fijians asked for more food after dinner, but it was ‘forcefully done, which was fearful’. She said that they had to pay rent for land but her husband’s income was low and they could not afford to pay. She said that locals would often come to her house asking for money if there was a funeral. If she refused to give money to the Fijians they would tell her to move from the area.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836). Mandatory considerations In accordance with Ministerial Direction No.84[1], made under s 499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’[2] and ‘Complementary Protection Guidelines’[3] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4] [1] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019[2] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs[3] Policy – Refugee and humanitarian – Complementary Protection Guidelines, Department of Home Affairs[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Member 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 spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).What information can be considered on remittal? Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time. [5] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015)[6] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50]