1823705 (Refugee)

1823705 (Refugee) [2019] AATA 1134 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1823705
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Susan Hoffman
DATE:15 January 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 January 2019 at 9:59am

CATCHWORDS
REFUGEE – protection visa – Fiji – membership of social group – member of sports club – credibility concerns – overstayed sports visa – wife and child key motivation for staying – alleged feud with uncle and sports team – decision under review affirmed
LEGISLATION

Migration Act 1958, ss 5, 5J, 5k-LA, 36, 65, 424A, 499
Migration Regulations 1994 Schedule 2

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 on 7 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Fiji applied for the visa on 10 July 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for protection.
The applicant appeared before the Tribunal on 1 November 2018 and 18 December 2018 to give evidence and present arguments. A witness gave evidence at the second hearing.
The Tribunal hearings were conducted with the assistance of interpreters in the Fijian and English languages.
The applicant was not represented at either hearing.

CRITERIA FOR A PROTECTION VISA

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, 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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background, protection claims, and the delegate’s decision.

The applicant entered Australia using a Fijian passport [in] December 2014 as the holder of a [temporary] visa which was granted on 16 October 2014. The Department was satisfied as to his identity.
The Tribunal accepts that the applicant is a Fijian national and that Fiji is the country of nationality and receiving country. The Tribunal is satisfied on the evidence that the applicant does not have the right to enter and reside in another country.
The applicant, who was born [date], claimed that he arrived in Australia to play [sport] and was a member of [a club]. He did not return to Fiji when his visa expired and claims that this impacted significantly on the community and they threatened him. The applicant claimed that he would be harmed if he returned to Fiji as, because he overstayed his visa in Australia, other players from that club are not being chosen to attend tournaments internationally and this has impacted his village.
The applicant was interviewed by the delegate on 24 July 2018. According to the delegate the applicant claimed that he feared harm from members of his community and members of the [club] should he return to Fiji, and also that he wanted to remain in Australia to be with his partner and child.
The delegate entertained doubts about whether the applicant was a member of the [club] as his answers to questions about the club were vague and lacking in detail but she recorded that as he was granted a visa on the basis of being a member of that club, she would accept that he was a member of the [sport] club or at least had an affiliation with it.
The delegate decided that the applicant’s claim of fear of being harmed was not for one of the five refugee reasons (race, religion, nationality, membership of a particular social group or political opinion) as it was essentially to do with a personal matter and therefore could only be considered under the complementary protection provisions.
The applicant claimed that he did not get his visa in time to play in the particular game in October 2014 for which the visa was sought, but he came to Australia anyway as he had the visa. He said he was supposed to be here for three months. He was here by himself and was a bit shocked. Asked why he did not go back to Fiji when the three months were up, the applicant did not give a clear response although he spoke about trying to get an extension for his visa and wanting to study and did not know what to do.
The applicant told the delegate that he applied for a protection visa and was told he could not get that but could apply for other visas. The delegate recorded that the applicant had made an application for a protection visa which was invalid as he did not provide any claims.
The delegate referred to a letter from the applicant’s mother and that she had referred to other [players] from the same club not returning in 2014.
The applicant was asked why him overstaying his visa in 2015 meant the rest of the club was punished and he responded that he did not know that would happen. He said that he was messaged on [social media] by the management after he had been in Australia for a year and was told that what he did was affecting people.
The delegate wrote that the applicant claimed that the [club] got an invitation every year to play in [a competition] but after he overstayed his visa, they cancelled the [club] and it was because of him. The delegate put to him that there was a high rate of non-return by Fijians from Australia and was asked why his non-return would cause the problem. According to the delegate the applicant responded that they would not come under the [club] anymore and they always got an [invitation]; that is, he repeated what he had already said.
Asked what he thought would happen to him if he returned, the applicant said the community would look at him in such a way and put him down and harass him. The applicant claimed if he was assaulted, he did not think the police would help as it was not their problem.
The applicant said at interview that as far as he knew he was the only one from that club who overstayed his visa but did not know if anyone else had done that.
The delegate recorded that the applicant arrived in Australia [in] December 2014 ([a few] months after the game he was supposed to play in) and that the applicant claimed he was fearful after receiving a [social media] threat a year later, but that did not prompt him to lodge a second protection claim. He did not do that until 10 July 2018 by which time he was detained in immigration detention.
The delegate also recorded that the applicant, when asked why he did not want to return to Fiji, said he wanted to continue his study in Australia and that there were heaps of opportunities here in Australia. She also recorded that when asked why he decided to apply for protection now, the applicant responded that he knew if he went back to Fiji, he would not settle down there and he wanted to apply for protection because he has a small family here.
The delegate recorded that the applicant’s answers as to why he wanted to stay in Australia tended to focus on his need to stay in Australia to earn money, and provide for his partner and child here, and that she had significant credibility concerns with the applicant’s story and was not satisfied that his protection claim was genuine or credible.

Findings and reasons

The Tribunal, in considering the evidence before it, took into account the difficulties faced by an applicant in a formal hearing, which include giving evidence via an interpreter, and recalling events from years past. The applicant attended the first hearing in person and the second hearing via video conference. Broadly if an applicant’s account is credible, the Tribunal will extend the benefit of the doubt with regard to specific claims the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it.
The applicant was not represented at either hearing. The Tribunal informed him that it was open to him to make further written submissions after the hearing and checked that he knew how to do this (ie. that he knew the email address).
Issue with interpretation
A second hearing was held as the applicant submitted further evidence after the first hearing. The Tribunal checked at the start of this hearing that the applicant understood the interpreter. About 90 minutes into the hearing, the applicant said there was a problem with the interpreter. He said that the interpreter was not accurately conveying what he was saying. He asked for another interpreter. He said what she was saying was not quite right; some words she used did not accurately represent what he said. The applicant did not give a specific example of what concerned him about the interpretation although he was asked to do so. The Tribunal observed that he raised his concerns about the interpreter after the Tribunal asked him to clarify a particular point. This was in connection with a claim that the applicant’s uncle accused the applicant of cheating the uncle after selling the uncle’s [goods] as agreed, but not passing on all of the money earned from the sales. The applicant’s evidence at the second hearing was initially interpreted as if the applicant had stolen money from his uncle, rather than him being wrongly accused of withholding money from the uncle.
The Tribunal understood the applicant’s concern to be that the interpreter was abbreviating or summarising what he was saying, and some of the meaning of what he was saying was being lost.
The Tribunal asked the applicant, who had sufficient command of English to hold a conversation, if he wanted the opportunity to re-present his evidence at another hearing. He said the Tribunal should go ahead and make its decision; he was adamant on this point. There was some discussion around the Tribunal disregarding or ignoring the evidence given at the second hearing, as if it did not happen. It was made clear to the applicant that the evidence given at the second hearing could not be disregarded. The applicant said that the evidence he gave at the second hearing was correct but some of the words used in translation were not good for him.
The Tribunal notes that the applicant’s English was sufficient to point out he believed there was a problem with interpretation and to hold a conversation in English. In considering the evidence given at the second hearing, the Tribunal has made allowance for any evidence that was unclear that may have been due to problems with interpretation; it has given the benefit of the doubt to the applicant in this regard. The Tribunal has not identified any inconsistencies of note between the evidence given at the second hearing with that previously provided, apart from that recorded at the end of paragraph 31.
In considering the evidence, the Tribunal has made allowance for poor interpretation during the second hearing and notes that the applicant refused the opportunity of a third hearing to answer questions again that had been put to him at the second hearing.
Applicant’s competence to give evidence
Most of the submission sent in by the applicant after the first hearing comprised his medical records from his time in immigration detention. According to these, which are discussed in more detail below, he had no mental health issues in June 2018 but was experiencing mental health problems by October 2018.
The applicant was assessed by a [medical professional] on or around [October] 2018. Her assessment was that the applicant was suffering anxiety related to his situation (that is, of being in immigration detention and his visa status unresolved) which was manifesting in panic attacks and perceptual disturbances. The Tribunal accepts that the applicant has been experiencing mental health problems.
At the second hearing the applicant said that he was taking medication to help him sleep and had been taking other medication at the time of the first hearing. He was very clear that his neither his mental health nor his medication affected his ability to give evidence at either hearing. There was nothing in his presentation that suggested the applicant’s mental health affected his ability to give evidence. He presented as being courteous, decisive, clear thinking and alert. He was coherent and responsive to questions.
The mental health assessments undertaken in immigration detention before the applicant lodged his application for a protection visa do not include any reference of past harm suffered by the applicant or that he feared harm in the future. Mental health assessments undertaken after the applicant lodged his protection visa do include reference to claims made by the applicant as to what occurred in the past and what he feared might happen in the future if he was returned to Fiji. The clinicians reported what the applicant said. They did not offer an opinion as to whether the claims were truthful.
There was no medical evidence or opinion before the Tribunal that suggested the applicant was unable to give reliable evidence or that his mental health affected his ability to give evidence.
The Tribunal was satisfied that the applicant was mentally competent to give evidence at both hearings.
Written submissions
Prior to the first hearing, in addition to the applicant’s statement, the following submissions were made:
·     A letter from [Coach A], coach of the [team]
·     A letter from the applicant’s mother, [Ms B].
·     Two letters from the applicant’s de facto partner, [Ms C].
·     A letter from [Ms C’s] mother, [Ms D].
·     A letter from [Mr E], Minister of Religion.
·     A letter from [Ms F], a friend of [Ms C] and through her, of the applicant.
Some of the letters are essentially character references and/or are about the applicant’s life in Australia or other issues and do not address any elements of the protection claims raised by the applicant. These are the letters from [Ms C], [Ms D], [Mr E] and [Ms F]. While not definitive, the Tribunal considers that if the applicant’s claims of fearing harm if he returned to Fiji were genuine, the letters from people supportive of him would have at least referenced them. That they do not, adds to the perception that the claims are not genuine.
Prior to the hearing, the applicant submitted a statutory declaration dated 23 October 2018, appended to which was a six-page statement in which he raised the new claim to do with a dispute with his uncle over [goods]. The applicant claimed that his uncle accused the applicant of cheating him or stealing from him after the applicant harvested and sold his uncle’s [crop], which the applicant said he did with his uncle’s permission. This had not been raised at the delegate’s interview. The applicant said he was not given as much opportunity to put his case at the delegate’s interview as he was at the hearing.
As already noted, after the first hearing on 21 November 2018, the applicant submitted further evidence, comprising medical records from his time in immigration detention. He also submitted a decision made on 18 September 2018 by the AAT (differently constituted) with regards to an application for a bridging visa so he could be released from immigration detention.
When asked why he sent them in, the applicant said that it was because he had problems. The Tribunal also understood from the applicant that he wanted the Tribunal to be aware of his current situation. He did not identify what in particular in the bridging visa decision, if anything, was relevant to this review. The Tribunal considers that the only parts of the bridging visa decision relevant to this review are those that set out evidence concerning the health of the applicant’s daughter. The Tribunal was presented with more details about her health and these are considered later in this decision statement. The Tribunal notes that the member who made the bridging visa decision found the evidence of the applicant to be frank and honest. The Tribunal is satisfied that the applicant has been truthful in giving evidence regarding his relationship with his partner, and the responsibility he feels for her and their [child]. However it was not satisfied that the applicant was truthful with regard to claims he has made about serious or significant harm he might face from other people if returned to Fiji.
The applicant’s main claims and current situation
The applicant confirmed at hearing that his reasons for seeking protection were because of hostility from the [team] and his local community as he overstayed his visa and affected the [team’s] ability to obtain visas to play internationally; and he was scared that his uncle would report him to the police over the [goods] matter, and he was scared of the brutality of Fijian police if he was taken in for questioning.

In relation to these two claims, the Tribunal is satisfied that the applicant does not meet the criteria for protection as a refugee because his claims are not based on reasons of race, religion, nationality, membership of a particular social group or political opinion. His protection claims arise from personal issues and as such, can be considered against the complementary protection criteria which are set out above.
The applicant wrote that he is [age] years old. This means when he came to Australia at the end of 2014, he was [age] years old. He claimed that he grew up in [Village 1], [a number of] miles from the capital of Fiji, Suva. He is [from] a family of [several children]. The applicant claimed that his father passed away [in] July 2017 and his daughter was born [date].
The applicant is currently detained in [a] detention centre as he does not have a visa that allows him to be in Australia lawfully. The applicant said he was detained for the first time in March 2018 after he was found with [an illegal substance]. He thought he would be transferred to [City 1] detention centre. He was with two officers in a hotel room and had a shower. When he came out of the shower, they were not there so he left the hotel. After a few weeks he was stopped by police again and they found [an illegal substance] on him again. One of the officers knew him and he was detained again.
The delegate recorded that the applicant was referred to the Department by [State 1] police on [in] March 2018 and absconded from immigration custody [in] March 2018. He was referred to the Department by [State 1] police again [in] June 2018. The Tribunal understands he has been in immigration detention since that time.
Before addressing the main claims, to do with the [team] and the sale of [goods], the Tribunal considers the medical records in more detail and the credibility of the applicant’s evidence in light of them.
The medical records and credibility
The medical records cover a period from [June] 2018 to [November] 2018. Reports from June 2018 indicate that the applicant had no medical issues, apart from a problem with his toe nail. A referral to podiatry was made [in] June 2018. He requested to see a doctor [in] September 2018 as he had an ingrown toe nail, and [in] September 2018 and [in] October 2018 as he was not feeling well.
An Integrated Health and Medical Services (IHMS) record dated [in] June 2018 which was made following a mental health consultation includes the following:
Stated he got caught with [an illegal substance] and had overstayed on his visa
…
Stated he came here 3.5 years ago and has been working [since] then
He has a partner and a [age] old daughter
Stated he is fighting to stay in Australia and will do what he can as he wants to be with his partner and child
He states that if he is not successful and has to return to Fiji he will go back to his family including his mother and siblings
The Summary Formulation section of a mental health assessment dated [in] June 2018 reads as follows:
Summary and Formulation
Future orientated – wants to go back to Fiji and get on with his life – study, get a job and reapply to come back to Australia to be with his partner and daughter
States he is strong and focused on this
An IHMS record dated [in] June 2018 records that the applicant was “accepting that he should go back home to Fiji as he states he does not want to stay in detention for a long time waiting.”
During October 2018, the applicant requested to see a therapist because of his mental health. An IHMS record dated [October] 2018 records that the applicant had been in detention for [a number of] months and was feeling more and more worried, and missing his family in [State 1].
An IHMS record dated [October] 2018 stated the applicant believed he had [a medical condition], had taken [substances] before coming to detention, and he kept seeing a man he believes will harm him. The applicant acknowledged feeling increasingly more anxious about his visa process. He feels a sense of panic at times, was anxious about the future and feared going home to Fiji in case he was killed by his uncle or the [players] from the team he used to play for.
A mental health assessment report dated [November] 2018 includes the following, in the same order as in the report:
History of presenting problems
[Age] year old man from Fiji
…
Came to Australia in December 2014. Came on a sport visa. He was playing [sport]. Visa expired after 1 month. Then met his partner and just stayed in Australia…
Immigration Status / Legal issues
Nil visa
Possession of [illegal substance]
Doesn’t want to leave his daughter in Australia.
Will fight for his visa. Has applied for a protection visa.
Developmental and personal history
Born and raised in Fiji
….
March 2018: [Possession of substance, fined]
No other charges
Says the police are waiting for him in Fiji – has criminal charges outstanding related to stealing his uncle’s [goods] plantation. Says some “boys” did it with him, [information deleted]. Says he did this because he needed the money for food. His uncle declined to help them. Says the uncle said he could harvest the [goods] but then he skimmed money off the top from the profit. Uncle said, “you played me on money”.
Thought Content
Reporting that he is suffering from anxiety. At times he feels fearful of his life in detention centre “I feel like people are out there to get me. Sometimes I jump out of the bed scared. I do get nightmares as well. The medication is not working. I need something higher or something different.”
Summary and Formulation
Presenting with [medical condition].
Was prescribed , [medication by] the [medical professional].
Client complaining of medication side effects and the medication not working.
Requesting for medication with sedating effects…
Reporting that he is suffering from anxiety…
Anxiety about the future – fearful of going back home and be killed by his uncle or his [players] from his team that he played for.
A report dated [October] 2018 included most of the above. In addition, relevant to this review, it recorded as follows:
Says the nightmare are related to stress of having to go back home
Says he will be tortured if he goes back home, “by the community back home because I overstayed my community [sport] visa”. Says they will be angry because it affects other kids’ chances of continuing their sporting careers.
Uncle recently called his mother to say if he goes back to Fiji he will try to get him to go to jail for stealing his [goods] plants.
Doesn’t want to leave his [child] in Australia.
Will fight for his visa. Has applied for a protection visa.
The Tribunal observes that the records from June 2018 make no mention of the applicant being fearful of returning to Fiji. To the contrary, they refer to the applicant speaking about returning to Fiji and reapplying to come to Australia, and accepting that he should go back home to Fiji.
At the second hearing the Tribunal asked the applicant why he sent in his medical records. His response was essentially that he wanted the Tribunal to know he was having a lot of problems, was finding it hard to sleep and was very anxious. He said that he kept visualising what would happen to him when he sets foot in Fiji. He said that he imagines big black men who will get him. He said that he thinks about his child and his family.
The applicant confirmed what appeared to be the case from the medical records. He had no history of mental health problems in Fiji, or in Australia before being detained in immigration detention. His mental health problems started about three to four months after he was detained.
The applicant claimed that he worried a lot about Fiji and what would happen to him if he goes back there. He said he was afraid to go back there.
The Tribunal asked the applicant to comment on the June 2018 entries in his medical records where he was reported to have said as follows, with no mention of him being scared of going back to Fiji:
·     that he was fighting to stay in Australia and would do what he can as he wanted to be with his partner and child;
·     if he is not successful and has to return to Fiji, he will go back to his family including his mother and siblings
·     he wants to go back to Fiji and get on with his life – study, get a job and reapply to come back to Australia to be with his partner and daughter
The applicant said that he was not asked about what he feared if he went back and only spoke about what he would do if he did go back. The applicant also said that it had changed since June 2018.
The Tribunal asked the applicant what had changed between June 2018 and October 2018. It was not until October 2018 that there was an IHMS record which referenced the applicant talking about his fears of returning to Fiji because of the [goods] and [sport] issues.
The applicant said that what changed in this period was that he was threatened. He was contacted and that was why he applied for a protection visa. The applicant said that he was planning to go back to Fiji but then he got the letters from his coach and his mother.
The applicant lodged his protection visa application on 10 July 2018. The letters to which he referred from his mother and coach were written in support of his protection application. Therefore it does not make sense – because of the timing – that these letters were what prompted him to lodge an application for a protection visa.
The Tribunal asked the applicant when he first knew there was a problem arising from the [sport’s] team and he said it was in 2015 after his visa expired. When asked again why he did not mention this at the June 2018 health assessment, the applicant said that he did not know then there was a problem with him going back to Fiji. He said he did not know there was a problem until there was a call during which he was told what they would do to him when he returned to Fiji. When he was asked when they called him, the applicant said between June and October 2018.
The Tribunal asked the applicant if the issue with the [goods] was a problem for him before June 2018, and he responded “Yes”. The applicant said he thought his uncle would forget about the [goods] but in her letter his mother wrote that his uncle will report the applicant to the police if he returns to Fiji.
The applicant said that if he returns to Fiji the police will arrest him, take him to a police station, interrogate him and abuse him, to get the information about the other people involved with the [goods].
The Tribunal put it to the applicant again that he did not raise any issue at the June 2018 interview about having a problem with the [good’s] or anything else if he were to go back to Fiji. The applicant replied that he was responding to the questions they were asking him which were about the plans he had if he was to go back. They did not ask what would happen to him if he went back. The Tribunal does not consider this to be a satisfactory explanation and finds that the applicant did not mention concerns he had about returning to Fiji during the June 2018 interview as he did not hold such concerns at the time. The Tribunal notes that at that time he was not experiencing any mental health problems.
The applicant lodged an application for a protection visa on 20 January 2015 which was found to be invalid as no claims were made on the form. No further protection claim was made until after he was detained in immigration detention.
The applicant first made the claim about his uncle and [goods] shortly before the Tribunal’s hearing. This had not been raised at the delegate’s interview. The applicant said he was not given as much opportunity to put his case at the delegate’s interview as he was at the hearing.
The Tribunal also notes that the applicant told the delegate he wanted to stay in Australia to study, for the opportunities here and to stay with his partner and child.
Given the foregoing, and for reasons set out in more detail below, the Tribunal has significant concerns about the credibility of the applicant’s claims and was not satisfied that his claims for protection are genuine.
Claim relating to [a club]
The applicant said he was living at home in [Village 1] and studying [at a] [University]. He said that his village is well known for [sport] and in 2014, it had been looking for players to take part in a tournament scheduled for October 2014. His application for a visa was made so he could play in the tournament but his visa was issued too late for it. He said he was studying at the time and timed his travel to Australia to coincide with the university holidays. He travelled to Australia on his own in December 2014.
The applicant said that the [sport] team applied for visas in 2015 to play in the same tournament for which they had got visas in 2014 but they did not get visas, and that was because the applicant overstayed his visa.
The applicant claimed that after about a year, the players, supporters and managers of the [Club] were very upset and went to his house and threw stones at it. He said if he was to return to Fiji they would torture him and beat him up as he was the one who caused them to suffer by overstaying his visa in Australia. His evidence (apparent from his written statement) was that the stone-throwing incident happened in 2015.
The letter from [Coach A], the [sport] coach, refers to the applicant’s skill at playing [sport]. [Coach A] stated in his letter that after the applicant failed to return to Fiji, he tried to contact him via [social media] to no avail. [Coach A] wrote that he contacted the applicant’s brother and learned that he was in Australia and not coming back. [Coach A] wrote that because of people’s actions, including the applicant’s, the team has been banned and cannot play internationally again.
[Coach A] wrote that players, supporters and other officials were upset and that he could attest that no-one who stayed in Australia can come back to Fiji as they will be ill-treated and even tortured and most likely put in jail for no reason as this was a consequence of the applicant’s and other’s actions. He referred to an incident when rocks were thrown at the applicant’s house. [Coach A] did not mention the [goods] issue in his letter. The Tribunal accepts that stones, rather than rocks, were thrown at the applicant’s home in 2015 when people learnt that he had overstayed his visa.
The Tribunal gives little weight to [Coach A’s] claim that “no-one who stayed in Australia can come back to Fiji”. He gave no examples of people who had overstayed visas in Australia being harmed upon return to Fiji, or that they had been jailed for that. The Tribunal also noted DFAT’s assessment about the Fijian police force at 5.4. It stated that for most ordinary citizens, the police and military are effective and impartial.[1]
[1] DFAT Country Information Report Fiji dated 27 September 2017
The DFAT report states that there have been confirmed cases and credible allegations of police involvement in beatings and assault, of people in police custody, and that there were credible reports of political activists in 2011 being tortured. In relation to torture, at 4.10 DFAT assessed that individuals critical of the government now face a low risk of torture.
The Tribunal asked the applicant if he was involved with politics while he was in Fiji, or if he was making a claim to do with having a political profile, or if he was a political activist, or if the police had an interest in him as a political activist. The applicant answered in the negative to these questions.
The Tribunal finds that the applicant does not have this profile (that is; of a political activist). There was no claim that he broke Fijian law by overstaying his visa in Australia, or any evidence that this is the case. The Tribunal does not accept that there is a real risk from the police that the applicant would be jailed, ill-treated or tortured if he returned to Fiji because he overstayed a visa in Australia. The Tribunal concluded that [Coach A’s] comments that people who return to Fiji having stayed in Australia might be “tortured and most likely be put in jail” to be exaggerated and therefore gives little weight to these claims.
[Coach A] also wrote that because of the actions of people, including the applicant, who overstayed visas in Australia, the team has been banned and will never be able to play in an international tournament. The Tribunal does not accept this to be true as there are photos on the [club’s social media] account that appear to show the team was in Australia in December 2016 and January 2017. The Tribunal is therefore not satisfied as to the reliability of the claims made in [Coach A’s] letter.
The applicant’s mother, in her letter, mentioned certain things that differed to evidence given by the applicant. As set out later in this decision record, when giving evidence about his claim to do with [goods], the applicant referred to the police coming to his home and his father telling him about that at the time. In her letter the mother wrote that her husband never told the applicant about that.
The applicant had claimed that stones were thrown at his parents’ home after about a year from when he failed to return to Fiji, which would make it 2015 or 2016. His mother referred to stones being thrown at the home and seemed to be suggesting this has happened within the last few months.
When some of the boys here in our community heard that my son is held in your department custody they know he is coming back home and some of the nights we heard some boys throwing stones at our house.
This contrasts with evidence given by the applicant at hearing who said that nothing else had happened to his father’s house since 2015. The Tribunal concluded that little weight should be given to the mother’s letter because of the inconsistencies between it and the applicant’s evidence; and that as his mother, she would be strongly motivated to make assertions in favour of the applicant even if they were not accurate.
The Tribunal asked the applicant what he feared might happen to him because of the [sport] issue. He said that there was anger towards him from the whole community of [Village 1] not just the [sport’s] club which was a well-known team of which the local community was very proud. He said he believed they would beat him up. When asked to be more specific, he said they would punch and kick him and he would end up in hospital, or might even be dead.
The delegate recorded that when she asked the applicant what he thought would happen to him if he returned to Fiji, he responded that the community would look at him in such a way and put him down and harass him.
The Tribunal observes the difference in the applicant’s answer to the same question put to him at different times and concludes that his answer to the Tribunal’s question was made to strengthen his protection claim rather than being an honest answer. This adds to the Tribunal’s concerns as to the applicant’s credibility.
The applicant said that while he has been in immigration detention, they (being a reference to the people in the community who were hostile to him) said they would wait for him to be deported. The applicant at this point referred to that part of his mother’s letter quoted above. As the Tribunal has determined to give little weight to the applicant’s mother’s letter, it does not find this to be credible.
Asked if anyone else had overstayed their visa in 2014 or 2015, the applicant said he did not know. The Tribunal notes that the coach, in his letter, referred to other people overstaying their visas.
Asked if members of the [sports] team were able to come to Australia in later years, the applicant said that as far as he knew, no other team has been to Australia again. He said that while he has been in detention, people said they would wait for him when he was deported. He referred to what his mother wrote in her letter in this regard.
The Tribunal referred the applicant to the coach’s letter where he wrote that “the team has been banned and will never be able to play in international tournaments.” The applicant said “yes” and that the Australian embassy was not letting them into Australia.

Pursuant to s. 424AA of the Act, the Tribunal informed the applicant that it had particular information that might be the reason, or part of the reason, why the Tribunal might decide the decision to refuse him a protection visa was correct. The applicant was informed that after he learned of this information, he could choose to respond straightaway, or might want a short adjournment to consider his response or might elect to respond after the hearing.
The Tribunal told the applicant that there were photos posted to the [club’s social media] account dated [in] December 2016 and [in] January 2017 that appeared to show that the players in Australia on those dates. Both photos were captioned [caption deleted]. Given the applicant’s claim that his actions in overstaying his visa had prevented the players from being able to travel to Australia, the [social media] posts casted doubt over the applicant’s credibility in relation to this claim.[2] The Tribunal showed the photos to the applicant. The applicant said he fully understood the relevance of this information and wanted to respond straightaway.
[2] [Source deleted].
The December 2016 photo shows a group of [Fijian] men in shorts and t-shirts which are not necessarily sporting gear. The January 2017 photo is of [a number of] Fijian men, most of who appear to be dressed in sports gear. In the latter photo, they are positioned in three rows (standing at the back row, seated on chairs in the middle row and on the ground for the front row), a formation often used when photographing sporting teams.
The applicant agreed that the photos showed members of the team were in Australia in December 2016 and January 2017. He said that they came to Australia as individuals and not as a team, and that the last and only time they came as a team was in 2014. The applicant said, to illustrate the importance of [sport] to his community, that the whole of the [Village 1] community was involved in [sport] through fundraising and having a feast. The Tribunal accepts that [sport] is important to the [Village1] community.
The applicant said that the men in the photos were members of the [Village 1] team but they did not come to Australia as members of the team. He said again that they came here as individuals.
The Tribunal observes that visas are issued on an individual basis, not to teams. Even if members of a team are intending to come to Australia to participate in, for example, a sporting event and an agent might organise their visas for them, they are individually assessed for a visa. In his written statement attached to his statutory declaration dated 23 October 2018, the applicant wrote:
One month before the tournament was held we lodged our visas and upon good and bad news some of us have to come after the tournament and some was lucky enough to time the tournament.
This shows that when visa applications were made in 2014, they were issued on an individual basis not to the team per se, as some were issued in time for the tournament and some were not.
As the Tribunal has established that members of the [Club] were in Australia in December 2016, it follows from that they were most likely granted these visas in 2016. That negates the applicant’s argument that team players and other persons associated with the [sport’s] club were refused visas to enter Australia because he overstayed his visa. On this basis the Tribunal does not accept the applicant’s claims that persons associated with the [sports] club seek to do him harm should he return to Fiji, now or in the foreseeable future.
Referring back to the delegate’s decision, she wrote that the applicant claimed he was fearful after receiving a [social media] threat a year later, which would be in late 2015 or some time in 2016. The Tribunal has not found the applicant to be honest in other aspects of his evidence. It does not accept that he was threatened via [social medial] after he had been in Australia for about a year and does not accept that his community would put him down and harass him, as he claimed at the delegate’s interview.
The Tribunal is not satisfied that the applicant’s claim for protection in relation to him overstaying his visa and the [club] is credible or genuine. In particular, the applicant based his claim on team members not being able to get visas to play in Australia because of his actions. Yet it is apparent from the [club’s social media] posts that they have been able to get visas to play in Australia since the applicant overstayed his visa.
The Tribunal has already recorded that in his early days of being detained in immigration detention, the applicant spoke of returning to Fiji and reapplying to come to Australia, and made no mention of fearing harm should he go back to Fiji.
The Tribunal does not find the applicant’s claims to be genuine and it does not accept that he is at real risk of significant harm at the hands of members of the community, other players, team managers or the police or any other person in relation to the [team].
Claim relating to the applicant’s uncle and [goods]
About his claim associated with [goods] and his uncle, the applicant said that after his grandfather died, he stayed with his grandmother from December 2013 to June 2014. His uncle and his wife also lived there. As there was an economic problem and it was hard to buy food, the applicant suggested to his uncle that he harvest the [goods] grown by his uncle and sell it to raise funds. His uncle agreed and this is what he did. After he gave the proceeds of the sale to his uncle, his uncle thought the applicant had swindled him. The applicant said he had gone to the port area where passengers disembarked from boats and sold the [goods] to passers-by. The applicant wrote that his uncle was really angry and reported the applicant to the police.
The applicant said that his uncle called the police about the [goods] when he was still at his grandmother’s home. The police said it was a family matter and they should sort it within the family, and only if it could not be resolved within the family would the police become involved. He claimed the police tried to get him and his uncle to resolve their differences but this did not work.
The applicant explained that his grandmother together with his uncle lived on a different Fijian island to his parents. The applicant stayed at his grandmother’s home for about two weeks after the disagreement with his uncle started. His uncle involved the police during this period.
The applicant claimed his father told him to leave there and return home which he did. Some [weeks] later (about July 2014), the police came to his father’s place and told his father they had to arrest the applicant as his uncle had reported him. The applicant said he was not home at the time, as he was at school. His father was angry and told the police he would bring the applicant to them later. The applicant claimed that when he got home and found out what had happened, he was really scared. His father, a school teacher, did not take the applicant to the police that day and said he would sort it out. The applicant said his father would not allow him to go the police station as he feared for the applicant’s safety as the police are well known for what they do to people.
The applicant claimed his father and uncle sorted the problem out between themselves. Asked if anything happened between July and December 2014 that caused him concern, the applicant said no there was not, and he resumed his [course] in that period.
The applicant claimed that although everything had been sorted out between his father and his uncle around July 2014, when his uncle heard that the applicant had come to Australia, he rang the police to say he wanted the case reactivated if the applicant returned to Fiji. The applicant said his father told him not to return home because of his uncle and that he would be put in jail.
The applicant’s claims made at hearing reflect claims made in his written statement: that his uncle heard he was in Australia and went to the police station to say he should be arrested if he returned to Fiji; and that when he left Fiji, his father told him not to return as he knew what would happen to him. The applicant wrote that he tried to apply for protection after he was in Australia for a few months but that was refused.
The applicant’s mother’s letter refers to the [goods] and the dispute between the applicant and his uncle because of it. She also wrote about other relatives taken into custody by the Fijian police who were “beaten and tortured some end up in hospital beds some have died”. The applicant claimed was scared in case the police got him as police in Fiji torture and beat people.
The Tribunal accepts that there was conflict between the applicant and his uncle because of the [goods]. The Tribunal notes that the dispute had been resolved by the applicant’s father in or about July 2014, and nothing of concern happened between then and the applicant leaving Fiji for Australia in December 2014. The Tribunal further notes that the uncle did not himself directly cause harm (in the sense of physically injure or attack) to the applicant who said he remained in the same house as the uncle for two weeks after the disagreement about the sale of the [goods] started. The Tribunal asked the applicant if he feared harm at the hands of his uncle. He responded that he feared his uncle would involve the police. The Tribunal does not accept the applicant’s evidence on this point to be truthful, for the following reasons.
The applicant first lodged an application for a protection visa on 20 January 2015. This was found to be an invalid claim as he did not specify any claims. That is, he did not mention any problem with his uncle at this time. As noted, when he was in detained in June 2018 he spoke about returning to Fiji and reapplying to come to Australia, and made no mention of a problem with his uncle or the police. The applicant did not raise this issue prior to or at the delegate’s interview which took place on 24 July 2018.
The Tribunal also notes that in the applicant’s written submission of 23 October 2018, he wrote about the day he left Fiji, stating that it was very sad and his father told him not to come back. The applicant claimed he and his mother were crying, and his father did not want to see him in prison. Yet at the first hearing the applicant said the issue with his uncle had been resolved between the uncle and his father, and nothing untoward happened during the period from when the dispute was resolved (around June or July 2014), to when the applicant left Fiji in December 2014. The applicant claimed it was only after the uncle realised the applicant was in Australia, that he wanted the matter reactivated.
At the second hearing the Tribunal asked the applicant about leaving Fiji in December 2014 and if he was excited when he left. The applicant said that he was happy to come to Australia for a new life. He said that when his flight number was called, his father took him away from the gate to a corner and said he did not want to see him in jail, and the applicant should leave Fiji and not return. He said he was surprised that his father told him this.
The applicant’s claim in his letter that he and his parents were upset when he left Fiji, and the suggestion that he left Fiji as he was at real risk of harm at that time, is inconsistent with the evidence he gave at the first hearing in particular.
Both of the applicant’s main claims have been in relation to what he claimed occurred after he left Fiji; that because he overstayed his visa, people associated with the [sport] club and the broader community were angry with him, and that his uncle was angry that the applicant had left Fiji and wanted the police to look at the [goods] matter again.
Self-evidently, at the time the applicant left Fiji he had not yet overstayed his visa so there was no reason for anyone to be angry at him because of that. The problem to do with the [goods] had been resolved between the applicant’s father and uncle in or around July 2014. The applicant’s visa to enter Australia had been granted on 16 October 2014, and he waited until December 2014 to leave Fiji because he wanted to wait until the term ended. If the applicant was concerned for his safety, it does not make sense that he would delay leaving Fiji to complete that semester’s study. As noted above the applicant said that it was only after his uncle heard the applicant was in Australia, that he wanted the [goods] matter reactivated. The Tribunal therefore does not accept that when he left Fiji in December 2014, the applicant or his parents were concerned about the applicant’s safety. It does not accept that his father told him, on the day he was leaving, not to return. The Tribunal does not accept that the applicant’s parents were upset when he left Fiji [in] December 2014.
The Tribunal does not find the applicant to be credible with regard to this claim. It does not accept that the applicant’s uncle wants a matter reactivated some four years after it was resolved with the applicant’s father in or around July 2014. The Tribunal has already recorded information from the applicant’s June 2018 medical records that indicate at that time he had no concerns for his safety should he return to Fiji.
In relation to complementary protection, there has to be 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 a person will suffer significant harm.
The Tribunal does not accept that there is a real risk of harm to the applicant as a consequence of him returning to Fiji in relation to the [goods] matter.
Other submissions made by, or in support of, the applicant
The applicant’s partner referred to their daughter [missing] her father, and that since he has been detained, [his daughter] has been unwell and has been hospitalised twice, including because she had [a medical condition] although the doctors did not know what caused them. [Ms C] wrote that [the daughter] cries every day for her father and when the applicant calls them, [the daughter] screams for him.
In a second letter [Ms C] referred to [the daughter] having a serious seizure and the doctors being unable to work out why. She wrote that the doctors have concluded that [the daughter’s] seizure was stress-related because she was not seeing her father since he was detained. There was no medical evidence provided to support this claim. The Tribunal considers it credible that [the daughter] is missing her father but this is because he is detained and living apart from his partner and their child.
The Tribunal invited the applicant to comment on a letter written by his partner, [Ms C] that he submitted just prior to the second hearing. She wrote about how difficult it was for her and her daughter, and how much they miss the applicant when he is not there.
The applicant said that his partner is waiting for him to return so she can go back to work and he can stay home and look after their daughter. The Tribunal understood that this was in connection with him being issued with a bridging visa, should that occur.
Prior to the second hearing, the applicant had requested that the Tribunal take evidence from his mother, [Ms B], and his partner, [Ms C]. It was agreed that the Tribunal would contact [Ms B], who is in Fiji, towards the end of the hearing. The applicant said that [Ms B] would need the assistance of an interpreter to give evidence. Because of the issue with the interpreter at the second hearing, the Tribunal was unable to take evidence from her as planned. The applicant said from his perspective that it was not necessary for the Tribunal to take evidence directly from [Ms B] and that if she did give evidence, she would be saying the same things as she wrote in her letter. The Tribunal determined it was not necessary for it to take evidence from [Ms B]. It has already recorded that it gave little weight to that letter.
[Ms C] did give evidence by telephone. She did not require an interpreter. She gave evidence as to their daughter’s health including that she has been hospitalised a few times. She spoke of the difficulties she faced as a single mother and how it hurt her to see her daughter and the applicant suffering.
[Ms C] did not raise concerns about the applicant’s safety should he be removed to Fiji until asked by the Tribunal asked her if she had any such concerns. She said that the applicant’s mother had called his sister and she heard that teenagers have been to the mother’s house, threatened the applicant’s brother and thrown rocks at the house. She also said that the applicant had been threatened on [social medial] which she had seen. She said that they had tried to get proof but the applicant could not remember the password.
[Ms C] said that the applicant was threatened with being bashed if he returned. She said that there was also a message from a cousin that the uncle would press charges about the [goods], that he was not happy with him, and that he disowned him. She said that the threats on the [social media] page asked why he had not gone back to Fiji, and that what the applicant had done had lost them the opportunity to go to Australia, and they would bash him. She said that the applicant’s mother had been threatened and he would have to go through a village punishment.
[Ms C] said that she feared for the applicant’s life if he was sent back to Fiji. She also said that is was not safe for her or their child if they were to go there. [Ms C] also said that they – being the applicant, her and their daughter – were planning to go to Fiji before the applicant’s father passed away.
The Tribunal notes that the applicant’s father passed away in July 2017. It is not credible that the applicant would have been planning to go to Fiji around that time if he feared serious or significant harm as he has since claimed. Regarding the timeline, the applicant had claimed his father told him in December 2014 not to return to Fiji; and that he became aware of the problem to do with [the] Club about a year after he overstayed his visa which was in 2016. This is inconsistent with plans to return to Fiji in 2017 if the applicant feared for his safety there at that time.
About this timeline, the applicant claimed in his statutory declaration that he had not told his partner of his visa problems or of his fear of returning to Fiji until July 2017, after his father passed away. He claimed that at this time he was depressed because he feared if he returned to Fiji he might never see her again as his life was at risk.
The Tribunal does not accept that in or around July 2017 the applicant feared for his safety if he returned to Fiji as he did not mention any such concerns during his mental health assessments in June 2018, and told the Tribunal he became aware that there were people wanting to harm him between then and October 2018. As recorded earlier, the applicant said that he was threatened in this period which was what prompted him to apply for a protection visa; and that he was planning to go back to Fiji until he got the letters from his coach and his mother.
The Tribunal was concerned that [Ms C] did not speak about any risk of harm that the applicant might face should he return to Fiji until she was prompted to do so. As with her written submissions, her focus was the health of the child. The Tribunal accepts that the applicant and [Ms C’s] daughter has a medical problem for which she is being treated.
As the Tribunal does not accept the applicant fears for his safety should he return to Fiji, it does not consider that [Ms C’s] evidence to do with this can be relied upon. It gives little weight to her evidence regarding a real risk or a real chance of serious or significant harm to the applicant if he returns to Fiji. The Tribunal notes that the applicant did not himself claim that his mother had been threatened or that he feared a village punishment, although he could have been referring to that when he claimed he feared that he would be beaten up, punched, kicked and/or end up in hospital, or might even be dead. The Tribunal did not find these claims to be credible and does not accept the witness’s evidence with regards to what the applicant might face should he return to Fiji to be credible. The Tribunal agrees with the delegate’s conclusion that the applicant is strongly motivated to stay in Australia to be with his partner and child. It is clear from her evidence that [Ms C] also wants him to stay in Australia. The Tribunal is therefore not satisfied that her evidence regarding serious or significant harm he might face should he be returned to Australia can be relied upon.

The applicant said that if he leaves his family behind, his child is still young and it would be difficult for him to go back to Fiji because of his family.
When asked to expand on that, the applicant said that his father was no longer there. His mother was there by herself and she would worry if the applicant was not able to see his partner and child, and his (the applicant’s) health would not be okay.
As to the effect upon the applicant of being separated from his partner and child should he be removed from Australia, the Tribunal had regard to the reasoning found in SZRSN. The appellant in that case was a New Zealand citizen whose visa had been cancelled. He wanted to stay in Australia to be with his partner and children and contended that he would suffer significant harm if he was separated from his children.
S. 36(2A) sets out that a non-citizen will suffer significant harm if they are arbitrarily deprived of their life or the death penalty were carried out on them or they were subjected to torture; or if they are subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.
S. 5(1) provides interpretations of cruel or inhuman treatment, degrading treatment or punishment and torture. In each of the interpretations, there is reference to intent or intention. There is no intent to inflict pain or suffering or any other form of significant harm upon the applicant by separating him from his partner and daughter. Any pain or suffering he might experience as a result of separation from them will be a consequence of his removal from Australia rather than him being removed to the receiving country, being Fiji.
The Tribunal finds therefore that the applicant being separated from his partner and daughter who live in Australia does not satisfy the criteria for a protection visa.
The Convention on the Rights of the Child (CROC) sets out principles to do with the best interests of the child and references separation from one or both parents. The Federal Court has considered whether such principles apply to the determination of protection visas and concluded they do not.[3] The Tribunal is satisfied that it need not consider any further the impact of its decision upon the applicant’s daughter.
[3] AZAEH v MIBP [2015] FCA 414 (Kenny J, 5 May 2015)
The Tribunal notes what appears to be a deterioration in the applicant’s mental health during the time he has been held in immigration detention. The IHMS records (for example those dated [October] 2018) refer to him feeling more and more worried after five months in detention and missing his family. The Tribunal has accepted that the applicant has been experiencing mental health problems, and consistent with the medical reports, that these are due to his detention and uncertainty regarding his protection application. In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm because of his mental health, country information confirms that mental health services are available in Fiji should the applicant require them up on his return. According to the section on health in the DFAT report, the Fijian government provides generous public health services, including free primary and secondary health care. In 2014 it spent approximately 3% of its GDP on health, which is comparable to regional averages.
The website of Fiji’s Ministry of Health and Medical Services has a webpage on mental health which records the services available should a person be suffering from mental illness. These include Community Mental Health Teams, hospitals which treat patients suffering from distress and a support service for people with mental illness. The Tribunal finds that as these services are available to the general population in Fiji, the applicant does not meet the criteria for a protection visa for reason of his mental health.
The applicant offered his apologies for overstaying his visa. He said the birth of his child made him think about himself, his future, his child and his partner. His daughter is now about [age]. He said that he wants to dedicate his life to them, and look after them.
The applicant said that in Australia he has a child and a partner and believes if he returns to Fiji, he will be dragged down. He said that he was afraid of what would happen to his partner and their child if he goes back to Fiji.
It is clear that the applicant is strongly motivated to stay in Australia, to care for his partner and child. The Tribunal considers that this is the reason he has applied for a protection visa. It does not accept that he fears for his safety should he be returned to Fiji.
The Tribunal does not accept that there are 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 the applicant will suffer significant harm, or that he has a well-founded fear of persecution if removed from Australia to Fiji.

CONCLUDING PARAGRAPHS

The Tribunal considered what would happen should the applicant return to Fiji. There was no evidence before the Tribunal that the applicant meets the criteria for protection under the refugee criteria. The Tribunal does not accept that there is a real risk he would face significant harm, should he return to Fiji now or in the foreseeable future as the Tribunal does not accept that there is animosity towards him from the local community now because he overstated his visa in early 2015, and not does find it credible that the police will become involved now in a family dispute that was resolved four years ago.
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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Susan Hoffman
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.

…

5J Meaning of well-founded fear of persecution

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.
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.
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 them 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.
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.
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.
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

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.
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.

36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 1134

15 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction