1906278 (Refugee) [2024] AATA 1344 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1906278
COUNTRY OF REFERENCE: Fiji
MEMBER:Suseela Durvasula
DATE:22 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 March 2024 at 2:20pm
CATCHWORDS
REFUGEE – Protection Visa –Fiji – does not fear any harm in Fiji – applicant has now married an Australian citizen – separation from his wife and her children – not satisfied that a separation from his wife and her children would amount to serious or significant harm – decision under review affirmed
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 Home Affairs on 20 February 2019 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 16 March 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 7 March 2024 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s wife and Pastor [A].
The applicant was represented in relation to the review.
Background
The applicant is a [age]-year-old iTaukei (Indigenous) Fijian national, born in [Town 1], Fiji.
In his protection visa application, he states that he has never been married and has no children. His most recent residential address was in Suva. He does not provide any information about his family composition, address history or employment history.
The applicant arrived in Australia on [date] June 2017 on a Subclass 408 Temporary Activity visa. He has previously travelled in and out of Australia on 3 occasions on a tourist visa between [date] December 2009 and [date] June 2011. He lodged the protection visa application on 16 March 2018.
With the visa application, the applicant provided a letter of support from Reverend [B] from the Northern Territory, describing the applicant’s previous missionary work and contribution to remote communities in [Area 1] and the Northern Territory. He also provided a letter of support from community members.
After lodging the review application, the applicant provided:
· A marriage certificate showing that he had married [in] January 2022.
· A letter from his wife stating that they live in Queensland with her two children from another relationship, aged [age] years and [age] years.…
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.
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AGLC
1906278 (Refugee) [2024] AATA 1344
Case
[2024] AATA 1344
Decision Date
CaseChat Overview and Summary
The applicant, a national of Fiji, sought review of a decision not to grant him a protection visa. The dispute centred on whether he met the criteria for such a visa, either as a refugee or on complementary protection grounds. The applicant had arrived in Australia in June 2017 and lodged his protection visa application in March 2018. After lodging the review application, he provided evidence of his marriage to an Australian citizen and his cohabitation with her and her two children.
The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, such that Australia owed him protection obligations under the refugee criterion (s 36(2)(a) of the *Migration Act 1958* (Cth)). Alternatively, if he did not meet the refugee criterion, the Tribunal had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Fiji, there was a real risk he would suffer significant harm (s 36(2)(aa), the complementary protection criterion).
The Tribunal found that the applicant had not established a well-founded fear of persecution. His claims in the protection visa application were largely unsubstantiated and, at the hearing, he indicated that the information provided in his application was not true and had been written by an unknown individual. Furthermore, the Tribunal was not satisfied that a separation from his wife and her children would amount to serious or significant harm as contemplated by the Act. The applicant's mother, brother, and sister resided in Fiji, and there was no evidence suggesting he would face persecution or significant harm upon return.
Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy any of the criteria under s 36(2) of the *Migration Act 1958*.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant was represented in relation to the review. Background The applicant is a [age]-year-old iTaukei (Indigenous) Fijian national, born in [Town 1], Fiji. In his protection visa application, he states that he has never been married and has no children. His most recent residential address was in Suva. He does not provide any information about his family composition, address history or employment history. The applicant arrived in Australia on [date] June 2017 on a Subclass 408 Temporary Activity visa. He has previously travelled in and out of Australia on 3 occasions on a tourist visa between [date] December 2009 and [date] June 2011. He lodged the protection visa application on 16 March 2018. With the visa application, the applicant provided a letter of support from Reverend [B] from the Northern Territory, describing the applicant’s previous missionary work and contribution to remote communities in [Area 1] and the Northern Territory. He also provided a letter of support from community members. After lodging the review application, the applicant provided:· A marriage certificate showing that he had married [in] January 2022.· A letter from his wife stating that they live in Queensland with her two children from another relationship, aged [age] years and [age] years. She supports the family financially, as the applicant cannot work due to his visa not giving him any work rights. The applicant is a valued member of the community and is involved with the church and the Indigenous community. · Evidence that the applicant’s wife is an Australian citizen; birth certificates for her children; and a letter from Centrelink showing that she receives Centrelink payments and has 100 per cent care of her 2 children. · Character reference from Pastor [A], a senior pastor at [Church 1], stating that the applicant is a pastor of [Church 1] Church in [City 1]. He looks after the administration and running of the church. He has been doing ministry work with local communities in Sydney, Brisbane and regional areas for the last 5 years. In particular, he and his wife help new settlers from Fiji who have arrived through the Pacific Seasonal Workers Scheme. · Character reference from [a] senior pastor of [an organisation], describing the applicant’s previous work with Indigenous people in [Area 1]. At the hearing, the applicant provided further information about his background. His mother, brother and sister live in Fiji. His brother and sister live and work in Suva. His mother lives in the family home in [Town 1] with extended family. In Australia, he has not been working as his bridging visa does not give him permission to work. He applied online twice for permission to work but it was rejected. He is a senior pastor at his church and works there on a voluntary basis. The applicant has made enquiries about lodging a partner visa application as his wife is an Australian citizen. He was waiting to see what would happen with his protection visa application before lodging an application.
Evidence
Evidence Before The Court
Pastor [A] gave evidence by telephone and told the Tribunal that the applicant is an active and important member of the church in [City 1]. He spoke of his contribution, hard work and good character.Evidence of applicant’s wife The applicant’s wife told the Tribunal that she had met the applicant in [City 1] in 2021 and they married in 2022. She had two children from a previous relationship, aged [age] and [age] years. Her children do not have contact with their biological father and the applicant is like a father to them. She receives Centrelink payments and her children are home schooled. The applicant does not work so her Centrelink payments have to support the whole family. They have obtained some legal advice about lodging a partner visa application but at the current time, they cannot afford to pay the visa application fee. She does not want the applicant to return to Fiji as they may have to wait up to 5 years before he can return to Australia.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). 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-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
Decision
Reasons for decision
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 any of the criteria in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Suseela DurvasulaMemberATTACHMENT - 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
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.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.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether there is a real chance, if the applicant returns to Fiji, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of his passport to the Department, which shows he is a Fijian citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of Fiji and has assessed his claims on this basis.Claims in protection visa application In his protection visa application, the applicant stated that he came to Australia on a tourist visa and his church organisation [lodged] the application for him. He borrowed money to come to Australia and has spent all the money so he does not know how to repay the loan. He does not have a job to support himself and his family back in Fiji. He ‘might end up as a prisoner of not paying all [his] expenses’. He does not know how to pay back his loan. At the hearing, the Tribunal asked the applicant how his protection visa application was prepared. The applicant told the Tribunal that he met a man at church who helped him. He does not know his name. He does not know what was written in the application. About 3 weeks after the application was lodged, the man called him and told him what he had written in it. The applicant had not told him to write those things and they were not true.