1906078 (Refugee) - [2023] AATA 1995

1906078 (Refugee) [2023] AATA 1995 (22 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rajendra Chaudhry (MARN: 1571586)
CASE NUMBER:  1906078
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Sheridan Lee
DATE:22 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 March 2023 at 4:13pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – persecuted in Fiji as an indigenous Fijian – could not fully develop talents and abilities in Fiji – would not receive the same level of care from extended family – could not support themselves and the state would not support them – susceptible to assault and abuse – would not be free to express identity – 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant [is] an [age]-year-old indigenous Fijian. The second and third named applicants[are] his younger siblings. The three siblings first arrived in Australia [in] November 2008 on Subclass 676 Tourist visas with their [parents]. The children returned to Fiji in 2008 until their most recent arrival in Australia [in] January 2017.
[The first named applicant] applied for protection on 27 July 2017 on the basis that he would be persecuted in Fiji as an indigenous Fijian. [The second and third applicants] applied on the basis that they are members of the same family unit. No independent claims for protection were put forward by or on behalf of [the second and third applicants].
The children’s father[first] arrived in Australia on a Subclass 676 Tourist visa [in] January 2002. He has departed and returned to Australia five times since that date. At the time the children applied for protection visas, [the father] was in Australia and held a Subclass 020 Bridging visa while he awaited the outcome of an unsuccessful application for a student visa.
The children’s mother[first] arrived in Australia with the children in 2008. [The mother] has departed and returned to Australia three times since that date. [The parents] made a combined application for protection visas on 4 May 2018. The applications for protection were refused on 11 March 2019 and [the parents] applied to the Tribunal for merits review of that decision. On 21 February 2023, the Tribunal affirmed the decision not to grant [the parents] protection visas.
I accept that the applicants are citizens of Fiji…

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 1906078 (Refugee)

Details

AGLC: 1906078 (Refugee) [2023] AATA 1995
Case: [2023] AATA 1995
Decision Date: 22 March 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by three children, with the first applicant being the primary claimant. The applicants, who are indigenous Fijians, claimed they would face persecution in Fiji due to their race, asserting they would be unable to fully develop their talents and abilities, would not receive adequate care from extended family if returned without their parents, would be susceptible to assault and abuse, and would not be free to express their identity. The Administrative Appeals Tribunal (Cth) was required to determine whether Australia owed protection obligations to the applicants, which involved assessing the credibility of their claims and applying the relevant legal framework, specifically the criteria for a protection visa under the *Migration Act 1958* (Cth).

The Tribunal was tasked with determining if the applicants met the criteria for a protection visa, specifically whether they were refugees or faced a real risk of significant harm upon removal from Australia. This required an assessment of whether the applicants had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether such persecution would involve serious harm. The Tribunal also had to consider whether effective protection measures were available in Fiji and if the applicants could reasonably modify their behaviour to avoid persecution.

The Tribunal's reasoning affirmed the delegate's decision, finding that the applicants did not satisfy the criteria for a protection visa. While acknowledging the claims made, the Tribunal determined that the evidence did not establish a well-founded fear of persecution for reasons of race or any other protected ground. The Tribunal concluded that the circumstances described by the applicants, including concerns about educational standards, family support structures, and freedom of expression, did not amount to persecution or a real risk of significant harm as defined by the *Migration Act 1958*. Consequently, the Tribunal affirmed the decision not to grant the protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.Claims and evidence At the time of application, all three children were [minors]. [The father] was listed as the authorised recipient on the application for protection form and his details were listed as the person that assisted with the completion of the form. [The first named applicant]’s claims for protection were outlined on the application form as follows:·The applicant could not fully develop his talents and abilities in Fiji. The number of students per class in Fijian schools is too high and teachers are under pressure.·The applicant missed his dad, who was in Australia. This impacted the applicant’s performance at school.·The family live as a nuclear family and rely on their parents rather than extended family. If the children returned to Fiji without their parents, they would not receive the same level of care from their extended family. The applicant listed his religion as Christian, Church [name]. As outlined above, no independent claims for protection were put forward by or on behalf of [the second and third applicants]. Copies of school reports, certificates and photos from [named school] for [the first named applicant] and [the second applicant] were provided to the Department. A certificate for [the second applicant] issued by [a sporting] Club was also provided. The applicants were not invited to participate in an interview with the delegate. On 11 March 2019, the delegate found that the applicants were not people to whom Australia has protection obligations. The delegate’s decision noted that Fijians are not discriminated against in Fiji and there were no identifiable reasons the applicant would be persecuted. On 14 March 2019, the applicant applied to the Tribunal for merits review of the delegate’s decision. A copy of the decision record was provided to the Tribunal with the application for review. The applicants were represented by migration agent Mr Rajendra Chaudhry in relation to the review. The applicants were invited to appear before the Tribunal at a hearing to take place on 7 September 2022. On 17 August 2022, the Tribunal received a request for the hearing to be moved to a date after 30 October 2022 on account of the representative being outside Australia without a visa that allowed for his return. The representative advised that he applied for a Resident Return Visa on 4 June 2022, however he was yet to receive a response from the Department. On 18 August 2022, the Tribunal advised the applicant that it would not adjourn a hearing date unless there were good reasons to justify the adjournment. As stated in paragraph 4.38 of the General Practice Direction, the unavailability of counsel is generally not a sufficient reason for adjournment. As such, the applicant was advised that I had considered the request carefully but decided not to postpone the hearing.

Decision

Reasons for decision

I can confirm that the claims and evidence put forward by [the first named applicant], [the second and third applicants] were assessed on their merits. As outlined, it was determined that the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Sheridan LeeMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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