1832684 (Refugee)

Case [2019] AATA 3744

1832684 (Refugee) [2019] AATA 3744 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832684

DIBP REFERENCE:  CLF2015/55809

COUNTRY OF REFERENCE:                  Fiji

MEMBERS:Deputy President Jan Redfern (Presiding)

Member Darren Renton

DATE:6 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa.

Statement made on 06 September 2019 at 5:21pm

CATCHWORDS:

REFUGEE – Protection (Class XA) (Subclass 866) visa – application for protection on basis the basis of the refugee and complementary protection criterion – applicant purportedly witnessed a murder by military men in Fiji in circumstances where the applicant was a child, the assailants took his identification card and made threats – evidence about the incident not previously provided by the applicant due to concerns regarding disclosure of the information and traumatisation – consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – applicant found not to have a well-founded fear of persecution for reason of being a member of a particular social group nor actual or imputed political opinion – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – no substantial grounds for believing that as a necessary and foreseeable consequence of removal to Fiji there is a real risk the applicant will suffer significant harm – no real risk applicant will be killed or harmed by former assailants or parties associated with them – no real risk applicant will suffer serious psychological harm amounting to significant harm within the meaning of s 36(2A) of the Migration Act – applicant found to not be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – recommendation for Ministerial Intervention – decision under review affirmed

CASES:

1514384 (Refugee) [2015] AATA 3899

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CHB16 v Minister for Immigration and Boarder Protection [2019] FCA 1089

CKX16 v Minister for Immigration and Anor (No.2) [2018] FCCA 2894

COH17 v Minister for Immigration & Anor [2018] FCCA 1656

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v RespondentsS152/2003 (2004) 222 CLR 1

MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620

MZZES v Minister for Immigration [2014] FCCA 758

NAVK v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 1695

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZRSN v Minister for Immigration and Anor [2013] FMCA 78

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

SZTAL v Minister for Immigration and Border Protection [2017] HCA…

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AGLC
1832684 (Refugee) [2019] AATA 3744
Case
[2019] AATA 3744
Decision Date

CaseChat Overview and Summary

The applicant, who sought protection in Australia, claimed to have witnessed a murder in Fiji in 2002 and feared persecution upon return. The dispute before Deputy Jan Redfern P of the Refugee Tribunal concerned whether the applicant met the criteria for a protection visa, specifically the refugee criterion under section 36(2)(a) of the Act, or alternatively, the complementary protection criterion under section 36(2)(aa).

The Tribunal was required to determine if it accepted the applicant's account of the 2002 incident, whether he possessed a well-founded fear of persecution for reasons of membership in a particular social group or imputed political opinion, and if not, whether there were substantial grounds to believe he would suffer significant harm upon removal to Fiji, either from former assailants or through serious psychological distress. The applicant contended that any harm would emanate from state authorities, rendering internal relocation within Fiji unviable.

The Tribunal accepted the applicant's claims regarding the 2002 incident, finding his account detailed and credible. However, it concluded that the applicant did not meet the refugee criterion under section 36(2)(a). The Tribunal then considered the complementary protection criterion, examining submissions that the applicant faced a real risk of arbitrary deprivation of life or cruel, inhuman, or degrading treatment from former assailants, and that anticipated psychological harm from removal to Fiji, where he had previously experienced trauma, would engage the criterion. The Tribunal was not satisfied that there was a real risk of physical harm from former assailants. It also noted a concession that the act of removal itself, and any resulting psychological harm, would not engage complementary protection.

Ultimately, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act. The Tribunal's consideration of the complementary protection criterion also did not lead to a finding that the applicant met those criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Having regard to these submissions, the relevant issues for determination are as follows:(1) Does the Tribunal accept the applicant’s claims about the events that are alleged to have taken place in 2002?(2) If so, does the applicant meet the ‘refugee criterion’ in s.36(2)(a) of the Act? In particular, does he have a well-founded fear of persecution and is this for reasons of him being a member of a particular social group or his actual or imputed political opinion?(3) If the applicant does not meet the refugee criterion, are there substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm? In particular, is there a real risk he will be killed or harmed by his former assailants or parties associated with them and, if not, is there a real risk he will suffer serious psychological harm and would this harm amount to ‘significant harm’ within the meaning of s.36(2A) of the Act? CONSIDERATION OF CLAIMS AND EVIDENCEDoes the Tribunal accept the applicant’s claims about the incident in 2002? Consistent with the findings of the previous Tribunal, on balance, despite some reservations referred to below, we accept the applicant’s claims about the incident that he alleges took place in Fiji in 2002. At the hearing before us, the applicant gave a detailed and credible account of what he says occurred in 2002. According to the applicant, he was making his way home from school along a bush track near his father’s house and came upon three persons attacking a fourth individual who was on the ground. One of the attackers was an older man in military uniform. He was the main protagonist. He was accompanied by two others who were soldiers. The fourth man was being restrained on the ground by the two soldiers. The applicant said that he was forced to the ground by one of the soldiers. The fourth man’s throat was cut by a machete and the applicant witnessed this. After the murder of the man, the main protagonist, who was armed with a machete, threatened him. The applicant took him to be a senior person because the other soldiers appeared to defer to him. His wallet and identity card was taken from his school bag. They read the card and did not return the card or the wallet. The main protagonist said words to the effect “go, don’t say anything and don’t ever come back”. After this the assailants let him go and the applicant walked back to his father’s house. He did not run because he was scared they may chase him. He was in shock and did not tell his father what had happened to him. He was afraid to discuss the event with his father because of the threat and made arrangements with his parents for him to return to Australia as soon as possible. The applicant gave evidence that he did not discuss the incident with anyone in his family because he was fearful of what might happen if this information became known. He was concerned for his father and for himself. He was also concerned about what may happen to his family if they returned to Fiji, which they did on a regular basis. The applicant said he did not speak about the incident and found it difficult to settle down when he returned to Australia. He could not forget the incident. The applicant says he did not settle into school and left. The applicant stated that he “felt lost in life” and fell into the wrong crowd of people. He began to drink and take drugs to help him deal with the issues. The applicant says he did not tell his family about his problems. He started to get into trouble with the police and was convicted of offences in 2006, 2009 and 2014.

Decision

Reasons for decision

When an applicant has a representative and there is a submission of this nature raised after the hearing that was not the subject of a specific claim before, during or after the hearing, it would seem unduly speculative for the Tribunal to consider and attempt to formulate such a claim to establish a refugee nexus. For instance, would the claim that has not been made be that the applicant is a member of a particular social group within the meaning of s.5L or some other particular social group or is there a claim that such stigmatisation, together with the applicant’s mental health issues, is racially based? As stated by Allsop J, this not only requires the discovery of the potential claim but would require the Tribunal to undertake further analysis and enquiry to assess the legitimacy of any such claim. Under funding and stigmatisation of mental health issues is not an uncommon problem. The submission was originally made during the hearing in support of the contention that the applicant was vulnerable. In the post hearing submissions there were no contentions made or evidence provided making the claim, or about the basis for such a claim and any relevant refugee nexus. The submissions were based on the complementary protection criterion and we have therefore confined our consideration to this claim, which is referred to later in our reasons.Conclusions 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) of the Act.Does the applicant meet the complementary protection criteria? Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criterion in s.36(2)(aa). It is submitted that the complementary protection criterion is engaged on three bases. The first and second grounds were the subject of submissions before and during the hearing. The third ground was raised in post hearing submissions. First, it is submitted that if the applicant returns to Fiji there is a real risk he will face arbitrary deprivation of life or cruel, inhuman or degrading treatment and punishment through an attack or threats by his former assailants. For the reasons already outlined, we are not satisfied that there is a real risk of this. Secondly, it is submitted that psychological harm feared by the applicant would engage the complementary protection criterion because the harm is not attendant on the applicant’s removal but rather his removal to the receiving country where he previously faced harm and trauma. It was conceded by the applicant’s representative that the act of removal, and any psychological harm resulting from this removal, would not engage complementary protection.[19][19] See submissions dated 7 March 2019 at p.18 referring to the decisions of COH17 v Minister for Immigration & Anor [2018] FCCA 1656; MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620 and SZRSN v Minister for Immigration and Citizenship [2013] FCA 751.

Ratio Decidendi

Legal Principle Established

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.Mandatory considerations In accordance with Ministerial Direction No.56,[2] made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian – Complementary Protection Guidelines’ and Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian – Refugee Law Guidelines’ – and relevant 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. [2] Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa applications, 22 June 2013. The most recent report from DFAT is the Country Information Report for Fiji dated 27 September 2017. We have considered this report and other country information referred to by the applicant’s representatives. We have also considered the Department guidelines, such as the Complementary Protection Guidelines which contain the Department’s interpretation of the Act and provide examples of the circumstances which may or may not fall within the criteria set out in ss.36(2)(a) and (aa). To the extent that the Guidelines were relevant to the consideration of the decision under review, they were of limited assistance in the circumstances. Our analysis of this information and any relevant Guidelines is set out later in these reasons.OUTLINE OF CLAIMS AND ISSUES FOR DETERMINATION The applicant claims he has a well-founded fear of being persecuted under the refugee criterion in s.36(2)(a) as a member of a particular social group, being a witness to military atrocities, and on the grounds of his actual or imputed political opinion. The basis for this latter claim is said to arise from the political opinion of the assailants involved in the incident in 2002 and their assurance of military authority in Fiji, where there is a ‘culture of impunity’ according to country information from Amnesty International.[3] The applicant claims he would not be able to access protection from the State given any harm would emanate from State authorities, namely the military. The risk of harm identified extends throughout Fiji and as such, relocation within Fiji is not a viable option for the applicant. The harm identified is both physical and psychological; physical because of the risk that the assailants involved in the 2002 incident will harm him and psychological because of the fear he will face with the risk of this harm. It is contended the applicant’s subjective fear has an objective basis, supported by country information and the applicant’s evidence about what happened to him in 2002. In other words, there is a real chance he will be persecuted if he returns to Fiji and that risk extends to all areas in Fiji.[3] See generally, Amnesty International, ‘Beating Justice: How Fiji’s security forces get away with torture’ (2016) Constitution of the Republic of Fiji (2013).