1836269 (Refugee) - [2023] AATA 4357

1836269 (Refugee) [2023] AATA 4357 (22 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Benjamin Maurice Vevers (MARN: 1067816)
CASE NUMBER:  1836269
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christine Cody
DATE:22 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 September 2023 at 10:31am

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – anti-government – detained and assaulted – delay in applying for protection – insufficient evidence – credibility issues – unique or exceptional circumstances – biological father of Australian citizen child – serious, ongoing and irreversible harm and continuing hardship to an Australian citizen – child’s best interest – invaluable asset to remote community – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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
Summary

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 24 June 2018. His claims can be summarised as follows:
·He is an anti-government political campaigner/demonstrator.
·He claims to have been harassed, harmed and detained by military officers for information he knows about the [then] present government.[1]
·He was taken to [Location 1] in 2007 where he was harmed (punched and assaulted) and threatened by soldiers.
[1] The claims were made before the change in government in December 2022.
The delegate refused to grant the visa on the basis that, even if the applicant’s claimed detention in 2007 is plausible, this does not indicate that he subsequently remained of adverse attention to the Fijian authorities, having regard to country information. Reference was made to country information from the Department of Foreign Affairs and Trade: ‘high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention’[2]. The delegate did not consider there was reason for this to apply to the applicant.
[2] As set out in the delegate’s decision record
The applicant was represented in relation to the review.
On 15 August 2023 the Tribunal wrote to the applicant advising that it had considered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1836269 (Refugee)

Details

AGLC: 1836269 (Refugee) [2023] AATA 4357
Case: [2023] AATA 4357
Decision Date: 22 September 2023

CaseChat Overview and Summary

The applicant, a Fijian national, sought a protection visa in Australia. The dispute concerned whether the applicant met the criteria for a protection visa, either as a refugee or under complementary protection provisions. The decision was made by the Tribunal.

The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of imputed political opinion, given his claims of detention and assault by military officers in Fiji for information relating to the government. It also had to consider whether there was a real risk of significant harm if the applicant were removed from Australia, as a consequence of being returned to Fiji. The Tribunal also had to assess the applicant's migration history, including the significant delay between his last arrival in Australia and his protection visa application.

The Tribunal affirmed the decision not to grant the protection visa. While acknowledging the applicant's claims of past harm and fear of future persecution, the Tribunal found insufficient evidence to establish a well-founded fear of persecution for refugee status. The Tribunal also noted the delay in lodging the application and the lack of evidence to support claims of ongoing threats or inability to relocate within Fiji. However, the Tribunal agreed to refer the matter for Ministerial intervention, acknowledging unique or exceptional circumstances, including the applicant being the biological father of an Australian citizen child, and the potential for serious, ongoing, and irreversible harm and continuing hardship to that child, as well as the child's best interests and the applicant's value to a remote community.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, the applicant requested that the Tribunal refer the matter for Ministerial intervention. The Tribunal agrees to do so, for the reasons discussed below.CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. Relevant law is set out in Annexure A. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Country of reference The applicant produced his passport to the Department, who accepted that he was a Fijian citizen and national, and assessed his claims against Fiji. The Tribunal was also provided with a copy of his passport and accepts that he is a national of Fiji, and that the appropriate country of reference for the assessment of his refugee claim, and the receiving country for the purposes of his complementary protection claims, is Fiji. The applicant’s migration history As set out in the delegate’s decision record provided to the Tribunal by the applicant:·The applicant was granted a Visitor (Subclass 600) visa on 11 December 2014. He arrived in Australia on [date] December 2014, departing on [date] January 2015. ·The applicant was granted a second Visitor (Subclass 600) visa on 12 November 2015, valid until 4 September 2016. He arrived in Australia on [date] December 2015, departing on [date] January 2016. He again arrived on [date] March 2016 and departed [date] April 2016, and arrived again on [date] April 2016 and departed [date] May 2016. He arrived (for the last time) on [date] June 2016.·The applicant was granted a further Visitor (Subclass 600) visa on 8 September 2016. This visa was valid until 22 November 2016. The applicant did not depart and remained unlawfully present from 23 November 2016 until he lodged his Protection (Subclass 866) visa application on 24 June 2018. Claims made to the Department The applicant provided protection visa application forms and supporting documents. According to his protection visa application forms, the applicant is a [age]-year-old ethnic Fijian whose religion is Seventh-day Adventist. His parents and brother reside in Fiji and he is in contact with them. He is unmarried. In Fiji he was educated until 2009, and he was employed firstly as a [Occupation 1], then as a [Occupation 2] between 2012 and 2016. His claims as set out in his protection visa application are:·Provide reasons why this applicant left that country or those countries: I left Fiji in fear of my life and to start fresh in a country away from my oppresses. I was harrassed, harmed and detained without my will by military officers in Fiji for information I knew about the present government.·Did the applicant experience harm in that country?: Yes. I was one of the many taken to [Location 1] in 2007 where I was harmed (punched & assaulted) and threaten by soldiers. The people responsible for this are soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.·Did the applicant seek help within the country or those countries after the harm?: No. I couldn't seek redress because the military had imposed the emergency decree which meant that their actions were reasonable during that time. The Emergency Decree is still in force now in Fiji. Also government have their puppets in all government departments and statutory department.·Did the applicant move, or try to move, to another part of that country or those countries to seek safety?: No. I believe that you know that Fiji is a very small country and even if I attempt to move I can be relocated within days by the authorities.·Explain what the applicant thinks will happen to them if they return to that country or those countries?: I can arrested, detained and harmed since government are rounding up people or public figure who are trying to rise against government. ·Does this applicant think they will be harmed or mistreat if they return to that country?: Yes. As I have mentioned above that I was harmed and it can happen to me again should I go back to Fiji for information I know. The people responsible for this are police & soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.·Does the applicant think the authorities of that country can and will protect this applicant if they go back?: No. They are only following orders and cannot protect me even though some are distant relatives or people who I know. If they don't follow orders then they can lose their jobs.·Does the applicant think they would be able to relocate within that country to an area where they would not be harmed?: As I have mentioned above that Fiji is a very small country and relocating to another part is not safe or good option. The option is to look for refuge oversea like here in Australia.

Decision

Reasons for decision

The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in Departmental policy, ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Christine CodyMemberANNEXURE A – 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 (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. 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 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). 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–5LA, which are extracted below. 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 below.Mandatory considerations

Ratio Decidendi

Legal Principle Established

The applicant produced his passport to the Department, who accepted that he was a Fijian citizen and national, and assessed his claims against Fiji. The Tribunal was also provided with a copy of his passport and accepts that he is a national of Fiji, and that the appropriate country of reference for the assessment of his refugee claim, and the receiving country for the purposes of his complementary protection claims, is Fiji. The applicant’s migration history As set out in the delegate’s decision record provided to the Tribunal by the applicant:·The applicant was granted a Visitor (Subclass 600) visa on 11 December 2014. He arrived in Australia on [date] December 2014, departing on [date] January 2015. ·The applicant was granted a second Visitor (Subclass 600) visa on 12 November 2015, valid until 4 September 2016. He arrived in Australia on [date] December 2015, departing on [date] January 2016. He again arrived on [date] March 2016 and departed [date] April 2016, and arrived again on [date] April 2016 and departed [date] May 2016. He arrived (for the last time) on [date] June 2016.·The applicant was granted a further Visitor (Subclass 600) visa on 8 September 2016. This visa was valid until 22 November 2016. The applicant did not depart and remained unlawfully present from 23 November 2016 until he lodged his Protection (Subclass 866) visa application on 24 June 2018. Claims made to the Department The applicant provided protection visa application forms and supporting documents. According to his protection visa application forms, the applicant is a [age]-year-old ethnic Fijian whose religion is Seventh-day Adventist. His parents and brother reside in Fiji and he is in contact with them. He is unmarried. In Fiji he was educated until 2009, and he was employed firstly as a [Occupation 1], then as a [Occupation 2] between 2012 and 2016. His claims as set out in his protection visa application are:·Provide reasons why this applicant left that country or those countries: I left Fiji in fear of my life and to start fresh in a country away from my oppresses. I was harrassed, harmed and detained without my will by military officers in Fiji for information I knew about the present government.·Did the applicant experience harm in that country?: Yes. I was one of the many taken to [Location 1] in 2007 where I was harmed (punched & assaulted) and threaten by soldiers. The people responsible for this are soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.·Did the applicant seek help within the country or those countries after the harm?: No. I couldn't seek redress because the military had imposed the emergency decree which meant that their actions were reasonable during that time. The Emergency Decree is still in force now in Fiji. Also government have their puppets in all government departments and statutory department.·Did the applicant move, or try to move, to another part of that country or those countries to seek safety?: No. I believe that you know that Fiji is a very small country and even if I attempt to move I can be relocated within days by the authorities.·Explain what the applicant thinks will happen to them if they return to that country or those countries?: I can arrested, detained and harmed since government are rounding up people or public figure who are trying to rise against government. ·Does this applicant think they will be harmed or mistreat if they return to that country?: Yes. As I have mentioned above that I was harmed and it can happen to me again should I go back to Fiji for information I know. The people responsible for this are police & soldiers following orders from the coup leader and now Prime Minister Frank Bainimarama. I was harmed for information concerning the local government in [Town 1] which I burnt. My uncle was lord mayor of [Town 1] and told me to burn some information which I didn't know but the military wanted.·Does the applicant think the authorities of that country can and will protect this applicant if they go back?: No. They are only following orders and cannot protect me even though some are distant relatives or people who I know. If they don't follow orders then they can lose their jobs.·Does the applicant think they would be able to relocate within that country to an area where they would not be harmed?: As I have mentioned above that Fiji is a very small country and relocating to another part is not safe or good option. The option is to look for refuge oversea like here in Australia.