1833535 (Refugee)

[2023] AATA 4118

1833535 (Refugee) [2023] AATA 4118 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833535

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Mara Moustafine

DATE:15 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2023 at 6:15pm

CATCHWORDS
REFUGEE – protection visa – Fiji – unfair ruling of the current government – no right of freedom and expression of choice – fears detention and intimidation by police and military regime as asylum seeker in Australia – unable to relocate – no harm experienced – applicant married to Australian permanent resident – tribunal unable to provide migration advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is a citizen of Fiji and is [age] years old. He first arrived in Australia [in] November 2017 as a holder of a multiple entry Visitor (subclass 600) visa, which was valid until 11 May 2018. He departed [in] December 2017 and returned to Australia [in] February 2018. The applicant applied for a Protection visa on 8 May 2018 and was granted an associated Bridging visa.

   CLAIMS AND EVIDENCE

   Protection Visa Application

2. According to his Protection visa application, the applicant was born on [date] in Labasa, Fiji. He identified his ethnicity as Fijian, and his religion as Christian. The applicant speaks, reads and writes in Fijian. He completed year 12 in [year] and worked for [Employer 1] as a casual labourer from February 2016 to February 2018. He has not travelled to any other country. He legally left Fiji from Nandi International Airport with his own passport (copies of the biodata pages were submitted with his application). He indicated that he was engaged to be married in Sydney [in] 2018 and that he had [a] sister.

3. In summary, the applicant’s protection claims, as set out in his application to the Department, were as follows:

   ·He left Fiji to escape the unfair ruling of the current government and because there is no right of freedom and expression of choice practised.

   ·He fears that if he returns to Fiji he will be detained and may be subjected to intimidation by the police and the military regime because he has applied for protection in Australia. 

   ·He will not be able to relocate as the whole country is ruled by the Government and does not have democracy and thinks that if he returns to Fiji, he will never get his job back.

   ·He did not experience harm Fiji.

4. On 12 November 2018, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.

   Review Application

5. On 15 November 2018, the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which he provided for the purpose of the review on 7 August 2023.  The applicant was not represented in relation to the review.

6. The applicant appeared before the Tribunal on 14 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

7. The Tribunal discussed with the applicant his background in Fiji, his reasons for leaving and why he fears returning there. At the beginning of the hearing the applicant confirmed that his written claims were true and correct but added that his claims related to the period of the former Bainimarama government, which had lost the election in December 2022.

8. At the hearing the applicant told the Tribunal that he first came to Australia as a visitor and on his return visit began a relationship with a Fijian woman who was a permanent resident in Australia. They married in Australia in 2019 and now had a [child]. He had applied for a Protection visa because he wanted to stay in Australia and could not afford to apply for a partner visa, although he had tried to save money for it. He had been working variously in [two work sectors] and, after completing a training course, was now working in [a particular] sector.  

9. In Fiji he had been living in a village and doing missionary work for his church group and had also worked as a casual labourer for [Employer 1] before coming to Australia. The applicant confirmed that he had never suffered serious harm in Fiji.

10. He had applied for protection when the Bainimarama government was in power in Fiji. At that time he feared that if he returned to Fiji he might be questioned because he had been in Australia and applied for protection.  Since the change of government Fiji was now a democracy. He did not believe anything adverse would happen to him if he now returned to Fiji. He stated several times that he was pleading with the Tribunal to be able to remain in Australia as he had been living here for five years, had established himself, had a young family, steady employment and was able to support his family here, as well as sending money to support his [sisters] in Fiji.

11. CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

13. 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.

14. 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 themselves 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).

15. 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.

16. 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

17. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, Findings and Reasons

18. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

19. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

20. On the basis of his Fijian passport presented at the hearing, the Tribunal accepts that the applicant is a national of Fiji and considers Fiji as the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    The applicant’s claims

21. The applicant stated in both his written and oral evidence that he never suffered serious harm in Fiji. At his hearing he told the Tribunal that his written claims for protection were made at the time of the previous Bainimarama government and that he no longer feared that anything adverse would happen to him if he returned to Fiji as it was now a democracy.

22. The applicant told the Tribunal that before the change of government, he feared returning to Fiji because he might be detained and questioned because he had been in Australia and applied for a Protection visa. As discussed with the applicant, many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities. The only way they would know that the applicant had applied for protection would be if he told them.

23. The Tribunal accepts that the applicant may not get back his job as a casual labourer with [Employer 1] after an absence of 5 years. However, given his evidence to the Tribunal about his varied job experience in Australia, the applicant should have no difficulty finding employment in Fiji, one of the most developed and connected economies in the Pacific Islands region. 

24. On the evidence before it the Tribunal is not satisfied that there is a real chance that the applicant will face serious or significant harm if he returns to Fiji now or in the reasonably foreseeable future. It does not accept that the applicant will be subjected to detention and intimidation by the police and the military because there is no democracy or freedom of expression under the government in Fiji or because he has applied for protection in Australia, as claimed earlier.

25. As discussed with the applicant, the Tribunal understands that he wishes to remain in Australia with his wife and [child].  However, the Tribunal’s remit is limited to assessing whether or not he is owed protection by Australia as a refugee or under complementary protection. By his own evidence, the applicant has never faced serious or significant harm in Fiji in the past and does not fear such harm in Fiji if he returns now. Under the circumstances, the Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations. The Tribunal told the applicant that it was unable to provide advice as to what options might be open to him in his circumstances, such as ministerial intervention or a partner visa application but has forwarded to him a copy of the Tribunal’s free legal services information sheet, also available on its website.   

    CONCLUSION

26. 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).

27. 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).

28. 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

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

    Mara Moustafine
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)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.

    (2)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.

    (3)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 the 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.

    (4)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.

    (5)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.

    (6)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

    (1)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.

    (2)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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …