1907714 (Refugee)

1907714 (Refugee) [2023] AATA 3795 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michele Clayton
CASE NUMBER:  1907714
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Catherine Carney-Orsborn
DATE:6 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 06 September 2023 at 2:21pm

CATCHWORDS

REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – minor child – imputed political opinion – parents’ anti-government views and mother’s claimed unfair dismissal from public sector job – interrogation, harassment and surveillance by army – mother’s claim not accepted and adverse finding on credibility – concession of no fear of harm for applicant on political grounds – complementary protection – mother’s mental health, child abuse, community services intervention and criminal charge – violence by father and older brother – father now deceased, with father’s family blaming and threatening mother, brother and applicant – family members’ influential positions – country information – violence against women and lack of mental health services – real risk of significant harm – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(6), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
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 Immigration and Border Protection (‘the Department’) on 4 January 2016 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 national of Fiji is a minor. His parents applied for the visa on 3 June 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia owes protection obligations.
On 5 February 2016, the applicant’s parents applied to the Tribunal for a review of the refusal decision. The first Tribunal (differently constituted) affirmed the delegate’s decision on 1 June 2018 in case no 1601317. [In] September 2018, the applicant’s parents applied for judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia in [deleted]. The matter was remitted to the Tribunal [in] March 2019 by consent.
The Court found that the first Tribunal had fallen into jurisdictional error by disregarding the applicant’s parents’ activities in Australia following s 5J(6) of the Act in that the application of the provision applied to the applicant directly and not the applicant’s parents as it was evident from the first Tribunal’s reasons. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant’s mother appeared before the Tribunal on 5 September 2023 to give evidence and present arguments on behalf of the applicant who is a minor.
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-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.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has before it the Department files, past Tribunal file and present Tribunal file.
Applicant’s background
The applicant’s mother on behalf of the applicant provided the following information on his Protection visa application.
He is a minor, born in Australia. He is Christian and Fijian by descent. His mother is from [Part of country]. His father was Fijian.
Applicant’s claims for protection
The applicant’s mother on behalf of the applicant claimed in his Protection visa application that the applicant feared harm because of imputed political opinion by descent, that his parents supported the Qarese government. He claimed he feared economic hardship.
The applicant was under [Age] years of age at the time of application and interview. The applicant’s claims were based on his mother’s claims. The applicant’s mother claimed that because of her past employment conflict regarding her dismissal from her government job, and her perceived political views against the Bainimarama government, her son, the applicant, would suffer harm in Fiji.
Evidence submitted to the Department
The applicant’s mother provided the Department the following evidence relevant to the applicant’s claims for protection.
a.Applicant’s NSW birth certificate dated [Date]
b.Representative submissions dated 16 October 2015. It was argued that the applicant had a well-founded fear of persecution because of his imputed political opinion and because his membership of a particular social group being a child of parents with anti-Bainimarama government views and being an asylum seeker in Australia. Caselaw, past RRT decision relating to Fijian applicants, independent and general media articles reporting on the Fijian political situation were extensively quoted to support the arguments in favour of Australian protection obligations towards the applicant.
c.[Organisation 1] report on the psychological assessment of the applicant’s mother for the period of mid-2012 to mid-2013.
d.29 July 2014 letter from [Mr A]. The author talked about their experience working at [Employer 1] during the 2006 coup.
e.2 July 2014 letter from [Mr B]. The author stated they are from the same region and ethnic group the applicant’s mother comes from. They stated their dissatisfaction with the September 2013 Fijian constitution.
f.5 September 2013 letter from [Mr B]. The writer detailed that the applicant’s mother was removed from her position at [Employer 1] because of her perceived anti-government opinion. That the applicant’s mother was interrogated and under surveillance by the army.
g.23 April 2015 letter from [Local Health district]. The letter stated that the applicant’s mother had been a client of the local health district and treated against mental health issues. The letter stated that she in turn has indicated that the origin of her deteriorated health was the unfair treatment she suffered in Fiji.
Department interview
The applicant's parents attended an interview with the Department on 19 October 2015 on behalf of the applicant.
Delegate’s decision
The delegate was of the view that the applicant’s mother’s claimed political profile and the claimed adverse attention she received from the military appeared to intensify and increase as her application for a Protection visa progressed without a positive outcome.
The delegate found that there was no evidence supporting the claim that the army would want to target the applicant’s mother, kill her, or imprison her. She travelled to [Country] in 2009 and then to Australia in 2012 without suffering harassment or difficulties from the authorities on those occasions.
In light of the applicant’s mother indicating at Department interviews that she was not seriously harmed by the military and that she had not faced official charges, there was a direct and significant indicator that the applicant's mother was not targeted by the military.
The delegate found that there was no evidence supporting that the applicant’s mother would be targeted or harassed because ].
The delegate did not accept that the applicant's mother had any political profile or would be seen as a genuine threat to the military led government. There was no reason or evidence indicating that she would come to the adverse attention of the authorities on return to Fiji.
The applicant's mother had submitted that the Fijian authorities may know that she has applied for a Protection visa in Australia; however, she did not have a significant political profile, she had not been accused of sedition, she had not been accused of holding firearms, and to have engaged in military style training. There was no evidence and based on country information at the time of decision, the applicant’s mother would not suffer harm because she did not have a high political profile in Fiji or in Australia.
The delegate did not accept that if the applicant's parents were to be taken away from him that the applicant would be homeless and subject to harm in Fiji. The delegate did not accept that none of the applicant’s parents’ relatives in Fiji would not take guardianship of the applicant, that he would be a financial burden on them for an extended period of time, and that without their support the applicant would become homeless.
Evidence submitted to the first Tribunal
The applicant’s parents submitted the following evidence in support of the applicant’s claims for protection to the first Tribunal.
a.Statutory declarations from each of the applicant’s parents dated 29 January 2018. The applicant’s mother stated that she feared her son would face bullying, ostracism, and harassment if he returned to Fiji because she supported Mereoni Kirwin and the Christian states of Ra and Nadroga. She stated that due to the political situation in Fiji she became so distressed she abused her son physically to the point FACS got involved, she was listed to appear before a judge [in] March 2019. She stated she took medication. She stated that because her mental health condition, her son would face discrimination and bullying in Fiji as there is social stigma about mental health issues. She stated her son would not be safe with relatives as he would likely be forced to work and not enjoy his childhood. She stated that her husband was violent in the past and would not be a fit person to care for her son, the applicant.
b.The applicant’s father stated that his wife and son would face discrimination and mistreatment in Fiji as they would be vulnerable in the then Fijian political climate. He stated that he and his wife were supporters of the SODELPA party. He stated that his wife would continue to voice her political views in Fiji. He stated that because of his wife’s mental health state, his son, the applicant, would not have a carer; he stated that his wife had emotional relapses from losing her other two sons and feared she would experience the same with the applicant should they be separated in Fiji. He stated that his other two sons had adapted well to Australian life and sports where he claimed they had shined. He claimed that as a family they had the required healthcare and support from [various organisations]. He stated that his wife had been on file for child abuse as a result of her mental health issues. He reiterated that her wellbeing, the applicant’s interest and his human rights would be at risk if returned to Fiji.
c.DFAT's Country Information Report on Fiji of 27 September 2017, as well as reports from Amnesty International, the United Nations Human Rights Council, the Law Society Charity and the media regarding the political and security situation, healthcare, mental health and child abuse in Fiji.
d.Photographs purporting to be of the applicant's mother in unidentified political protests.
e.A letter from the president of SODELPA NSW, dated 22 January 2018 confirming that the applicant's parents were members of the organisation.
f.An undated (looseleaf) copy of ‘Agreed Facts’ narrating an altercation between a minor and an adult where the minor resulted with two chipped teeth and the adult/mother attended [Suburb] police station [in] September 2017 to be questioned about child abuse. The parent was placed under arrest, had her rights read and explained. She was later ‘charged with the matter before the Court’.
g.Reports from [Organisation 1] in 2018 regarding counselling of the applicant's mother regarding her PTSD condition.
h.A letter from NSW Family and Community Services in 2017 to Centrelink regarding childcare benefits for the applicant and other documents related to the children's safety.
First Tribunal’s hearing
The applicant's parents appeared before the Tribunal on 30 January 2018. The present Tribunal has had access to the recording of the hearing.
The applicant’s mother’s evidence
The applicant’s mother confirmed that she was fit to give evidence at hearing, that she had not taken medication that morning. She said she arrived in Australia [in] March 2012 holding a Visitor visa following her husband, the applicant’s father, with their three children in 2012. She previously worked as a civil servant in Suva. She said she never had political associations or involvement while in Fiji. She said that once in Australia, in or around June-July 2015, she and her husband commenced political support for the SODELPA party and the PISAI movement. She said that in Australia she was a homemaker. Three of her children were residing in [Country] and that they left for [Country] on the same day she and the applicant came to Australia. She said that if she returned her political involvement coupled with her previous conflict of opinion with government would give her a profile or a seditious individual who could face imprisonment and torture in Fiji. This would result in her son, the applicant, losing his mother and carer. She said that her mental health condition would trigger bullying and ostracisation for her son in Fiji.
She said that she claimed her son, the applicant, would suffer significant harm because of her political profile and because of her mental health issue.
Regarding her claimed political profile, she said that she was anti-Bainimarama government, that she was an active supporter of opposition and campaigned strongly pro-PISAI & Government in Exile movement. She said that she was a member of SODELPA, that she joined SODELPA in 2016 and that she joined the Mereoni Kirwin group in 2015. She said she joined these groups to show her opposition to the Bainimarama government actions. She said that she was a financial member and joined protests in [City]. She said the last event she attended was the fundraiser event for SODELPA and in November she joined an event for the other group.[1] She claimed that she joined SODELPA and PISAI because she believed in self-determination of indigenous peoples, protecting their sovereignty and their land, and their Christianity.
[1] At 00:21:00
In terms of the harm she had suffered, she said that she was pregnant with her daughter in Fiji when she was asked to report to the army and answer their questions. She was [Job title] at [Employer 1] then. On one occasion, she was sexually harassed during this questioning. She was threatened to be imprisoned in 2009 if she did not release missing files. She was terminated from [Employer 1] and then re-employed at [Employer 2] where she claimed she was unfairly dismissed by the Prime Minister’s office in September 2011. She said that in 2009 she experienced difficulties and faced threats at work because she challenged the status quo for the proposed Charter the government intended to implement. She said that she suffered emotional, mental and psychological harm coming from the military camp, FICAM and the Prime Minister’s office. She said that she had contacted her previous employer in Fiji requesting a reference letter in 2009 to apply for jobs. She was told that it was not possible to provide her with a reference letter. She said that her previous run-ins with the government and her activities in Australia represented the possibility that her son would suffer or witness harm upon her.
She claimed that she feared her son would witness harm to her as his primary carer. That Bainimarama had declared that Fijian overseas voicing concerns or opposing views would be targeted. So, she claimed her son would see her suffering through imprisonment or torture or rape.
Regarding her mental health issues, the applicant’s mother said that she feared relapse and not having appropriate support in Fiji to treat her. She said that she had a Court case in Australia for using excessive discipline upon her son. She was prescribed with medication and with psychological treatment. She feared she would neglect her son, the applicant, upon her return to Fiji. She claimed that her son, the applicant, would suffer bullying because of her mental health issues and he would be ostracised.
The applicant’s father’s evidence

The applicant’s father also gave oral evidence at hearing. He confirmed what the applicant’s mother had stated, that she had not been politically involved in Fiji. That they both were members of SODELPA and PISAI groups. He confirmed his wife, the applicant’s mother, had been dismissed from her government employment in 2009, that his understanding what that she was related to the former Prime Minister and accused of something and was taken by the army but not charged. He said that his wife started her involvement with the SODELPA party in 2015 and the Mereoni Kirwin’s movement too. He said he joined the parties because he wanted the government in office changed. He said that he contributed financially, and he did not attend the meetings, that his wife attended because she did not travel like he did. That they both attended a dinner in [Venue] the night before the hearing to support the party. He said he came to Australia originally holding a [Specified] visa in 2010 and that after his wife lost her job in Suva he brought her and their children to Australia.
He said that he feared his son, the applicant, would face emotional, physical and psychological harm in Fiji because of the mental health condition his mother suffered and because of his mother’s conflict of opinion with the government as she was unfairly dismissed from her public servant position.
He said he and his wife attended SODELPA’s meetings in 2016 and in 2017 they joined the Mereoni Kirwin’s parties which campaigned for Indigenous rights in Fiji. His wife went to marches and dinners, which he could not partake in, as he was usually busy. He said he and his wife also contributed financially to these organisations.
He said he and his wife intended to stay in Australia where his kids had settled in school and in sports, and where they felt, they could continue having the support they had access to in Australia. He said that he intended for his family not to return to Fiji, that he hoped that his kids could obtain citizenship in Australia just like his other kids had succeeded at in [Country].
He said that he feared that due to his wife’s mental health his son, the applicant, would suffer neglect. They both would be vulnerable within the violent Fijian society if they had to return. He said that rape was happening in his family. He said that his wife had hit his son and had a court appearance in March and that maybe something would happen to his wife, taken back to the camp because of the previous government issues in 2009 and therefore the applicant would be neglected. He said that he would not be able to care for the applicant because he would be working at the farm and focused on providing for the family.
The Tribunal’s concerns
The first Tribunal put to the applicant’s mother at hearing that the delegate’s refusal to grant her a Protection visa on 4 January 2016 and that it seemed that she joined the political movements she claimed she did in 2015-16 purely to strengthen the protection claims for her son, the applicant. The applicant’s mother said that she joined those political parties because it was a way for her and her husband to voice their opposing views to the government in office at the time of hearing, that she felt joining these parties was a way to stand up for indigenous rights. That she joined SODELPA in 2016 for the same reasons.
The first Tribunal put to the applicant’s mother at hearing that she previously claimed to the Department that her dismissal from her government job was due to a missing document and that it was due to personal differences, conversely to her claims to the prior Tribunal (her own Protection visa review) about her dismissal being due to political reasons. It was concerning that she changed substantially the reasons for her dismissal from her government job in Fiji. She replied that she was emotionally distraught and could not really discuss all her real claims with the Department at first and that when she appeared before the prior Tribunal for her case, she was mentally fit to raise all claims including new ones not included in her original Protection visa application.
The first Tribunal put to the applicant’s mother at hearing that it would have to consider whether the applicant’s mother’s claims of being a public servant who lost her job amounted to being a high-profile political activist or leader in Fiji opposing the government, according to DFAT reports, and therefore whether that would amount to her facing significant risk of harm for her and in turn for the applicant.
First Tribunal’s decision
The first Tribunal was of the view that the applicant’s parents had offered conflicting oral evidence. In the first Tribunal’s decision record it was noted that in their submissions and evidence to the first Tribunal, the applicant’s parents had introduced new claims, not previously mentioned to the Department: that they would be detained and charged with treason because of their involvement in Australia with the SODELPA party, the Mereoni Kirwin’s PISAI movement and the Native Government in Exile. That according to the Department’s decision, the applicant’s mother had initially claimed that she was fired from her job by a senior official over the disappearance of a [document] as a scapegoat for his relatives, but later presented it as a dismissal by the military for political reasons.
There was evidence before the first Tribunal that the applicant’s parents were members of SODELPA, but it did not accept that this low profile would amount to persecution from the state in Fiji. There was no evidence to support the claims that the applicant’s parents were members of the Mereoni Kirwin’s PISAI movement or of the Native Government in Exile; or that the applicant’s mother had been blacklisted by the Fijian government for attending the [City] marches in 2016 and 2017. It was unclear why the applicant’s parents did not join the SODELPA party earlier, in 2013, when the SDL party dissolved, and the applicant’s parents were already in Australia and claimed to have already political views since. The first Tribunal, therefore, found that the applicant’s mother would not be actively involved at a high profile in politics in Fiji or in Australia.
The first Tribunal did not accept that the applicant’s parents had a high or even a low political profile in Fiji. They said that they were not associated with any party or group when they lived in Fiji before coming to Australia. The applicant’s parents did not provide evidence to the first Tribunal to support their argument that the applicant’s mother had either been dismissed by an army officer due to her familial relationship with former Prime Minister, or, that the applicant’s parents were members of SODELPA and Mereoni Kirwin's PISAI movement and the Native Government in Exile in Australia.
Evidence submitted to the present Tribunal
On 17 November 2021, the present Tribunal received the following material.
a.Statutory declaration from the applicant’s mother dated 12 November 2021. The applicant’s mother narrates the difficulties she had in her marriage and with familial relationships with her Fijian in-laws while in Australia. She details how her eldest son became violent since 2020 towards her and her other two sons (including the applicant) at home. She details her husband is now deceased. She talks about her own mental and emotional struggles in efforts to cope with her eldest son’s case while raising her other two sons and dealing with family relationships in Fiji. She states, and attaches evidence, that her husband’s [Relatives] hold high ranking positions in Fiji ([Specified positions]). She claims that if they returned to Fiji, she and her sons would face family harassment and emotional harm as they would be blamed for the applicant’s father’s death and for the extended family not being entitled to the applicant’s father’s superannuation money. The applicant’s mother claims that even though they face difficulties as a family in Australia, they have the support and protection from organisations, government and police which they would not have access to in Fiji if they returned.
b.Copies of two Fijian press articles referring to the applicant's paternal [Relatives], who have high ranking positions in Fiji as described by the applicant's mother in her statutory declaration
c.Copy of a NSW AVO against the applicant’s elder brother dated [August] 2020 and other related legal and community documentation.
The present Tribunal hearing
The following is a summary of the oral evidence taken at hearing.
As the applicant is a minor his mother elected to give evidence and discuss issues on his behalf. The Tribunal explained the process before it and that the matter had been sent back to the Tribunal to be dealt with.
The Tribunal explained it had the previous files and previous evidence and would consider that evidence. The Tribunal discussed with the applicant’s mother that previously there had been an adverse finding on her credibility in relation to her claims to fear harm due to her political opinion.
The Tribunal discussed with the applicant’s mother (the applicant) that it must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
The Tribunal asked the applicant’s mother to discuss why her son could not return to Fiji. The applicant’s mother stated that the applicant had grown up watching his father perpetrate violence against family members and if returned to Fiji she will be subjected to violence at the hands of her deceased husband’s family.
She claims that the applicant’s father had recently died from a heart attack while beating the applicant’s older brother. The applicant’s mother stated that the applicant’s brother had suffered psychological damage however after receiving help from various support services in Australia he is now proceeding well. He is working at a [workplace] and has moved out of home.
The applicant’s mother claims that her husband’s family in Fiji are blaming her and the older brother for the death of her husband.
She claims they are spreading rumours that she and the older boy poisoned the father.
The applicant’s mother provided detailed evidence about the years of family violence she and her children had suffered at the hands of the deceased husband and father.
She claims that his death was examined in Australia, and it was found that he died of cardiac arrest. She claims she had the coroner’s report and death certificate however her husband’s family in Fiji will not accept this as there was no post-mortem. She claims they are stating to others that he was too young to die, and she killed him to access his superannuation.
She claims that they have threatened her that the superannuation belongs to them.
She claims that they have threatened they will start a court case against her and the eldest boy when they return to Fiji.
The applicant’s mother stated that if the applicant returns to Fiji, he will be subject to the shame and guilt that his father’s family are laying at her and her children’s feet.
She claims that the eldest boy suffered from the abuse of his father and the applicant will suffer from the father’s family. She claims she wants to save the applicant from suffering the same psychological problems she and the applicant’s older brother have suffered.
The applicant’s mother stated that she will be targeted by her deceased husband’s family. The applicant who has just turned [Age] will suffer due to his mother being put in a position where she is targeted, she will be unable to work or care for her children.
The applicant provided information from Independent Sources that his deceased father’s family members occupy high [positions]. The applicant’s mother claims they will use their position to punish her and the applicant.
The applicant’s mother is concerned about her own and the applicant’s mental health
She claims that the eldest boy suffered and has only now been provided with some security and stability. She claims that the services that assisted the eldest boy in Australia are not available in Fiji.
The applicant’s mother provided evidence of her own psychological issues and problems. She claims this is due to the family violence inflicted on her and her children. She has been prescribed medication and has undergone psychological counselling. She has now educated herself and is currently working [in] a regional area in Australia.
The applicant’s mother states that the services which have been provided to herself and her children will not be available in Fiji.
The applicant’s mother indicated that she was concerned about the family violence and the effect of it on the applicant if he is sent back to Fiji and the abuse she will suffer from her deceased husband’s family.
The Tribunal discussed with the applicant’s mother that the political situation in Fiji has changed and went through the latest country information from DFAT. The applicant’s mother indicated that she was not so concerned about the political situation in Fiji and how that impacted on the applicant. She agreed that there has been some stability however she felt things could get unstable.
The Tribunal discussed that it was looking at the situation in relation to the applicant. The Tribunal discussed with the applicant’s mother that there is no evidence that a child would be targeted for an imputed political opinion of its parents. The applicant’s mother agreed he would not be targeted due to her political beliefs.
FINDINGS and REASONS
The Tribunal has considered the country information and DFAT reports on Fiji.
The Tribunal accepts that the political situation in Fiji is now stable. The Tribunal has considered all the evidence provided by the applicant’s parents to previous Tribunal’s and the Department. The Tribunal after considering all that evidence is satisfied that the party the applicant’s parent’s claim to support has now a majority of seats in the Fijian parliament.
The Tribunal finds that the applicant’s parents did not in the past and his mother does not have a high profile as supporters of a political party or opponents of any political party and therefore, finds they would not be targeted for their political opinion.
Therefore, the Tribunal is not satisfied that the applicant would suffer any serious harm from any imputed political opinion if he was to return to Fiji now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant would suffer serious harm if returned to Fiji for any imputed political opinion, membership of a particular social group, or any other convention reason.
Having considered the applicant’s claims individually and cumulatively, 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant meet the complementary protection provisions?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered whether he meets the complementary protection criterion in s.36(2)(aa). This criterion is met if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
The applicant provided a detailed statutory declaration from his mother outlining the family violence his deceased father perpetrated on the family. The applicant provided copies of court orders and reports which support the claim that the family was in a dysfunctional situation and the Tribunal accepts this was caused by the abuse perpetrated on the family by the applicant’s father. The applicant’s mother had previously given evidence about the family violence to a differently constituted Tribunal.
The Tribunal accepts that the applicant’s father’s family have blamed and targeted the applicant’s mother in relation to the death of the father. The Tribunal accepts that they have spread rumours about his early death and have made threats in relation to his superannuation and court cases in Fiji.
The Tribunal accepts that the applicant’s father’s family have influential positions in Fiji and may use their influence to inflict harm on the applicant’s mother and therefore the applicant being a minor will suffer due to this harm and shame which he will be forced to carry.
The Tribunal has considered the latest DEFAT report May 2022 on Fiji and independent information on the position of women, violence against women and the lack of mental health services.
The Tribunal accepts that the applicant’s mother would be at risk from threats made by her deceased husband’s family and the applicant would suffer as a result of his only caregiver being in a position where her mental health would deteriorate, and she would not be able to care for the applicant.
The applicant is currently able to access services in Australia in relation to the trauma he has witnessed, he is in school, and his mother is in employment.
If returned to Fiji under the current circumstances as accepted by the Tribunal at the time of decision, he is at risk of suffering significant harm due to the cruel and degrading treatment his mother will be at risk of suffering at the hands of her deceased husband’s family.
Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does satisfy the criterion in s.36(2)(aa) of the Act.
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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Catherine Carney-Orsborn
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.
…

[2023] AATA 3795

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Jurisdiction

Statutory Construction