1917766 (Refugee)

1917766 (Refugee) [2023] AATA 1119 (2 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917766
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:2 February 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 February 2023 at 1:03pm

CATCHWORDS
REFUGEE – protection visa – Fiji – relative involved in coup – applicant assaulted during coup – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 1 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji (Fiji) and is [age] years old. He most recently arrived in Australia [in] December 2018 travelling on a Fijian passport as the holder of a visitor visa.
On 17 March 2019, the applicant applied for a protection visa.
On 1 July 2019, a delegate of the Minister refused to grant the visa.
On 3 July 2019, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 19 December 2022, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 February 2023 and to provide all documents he intended to rely on to support his case by 25 January 2023. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.
The applicant appeared before the Tribunal on 1 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Fijian and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined that it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf.
The applicant was unrepresented in relation to the review.
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.
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
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details were set out in his application for a protection visa. He is [age] years old and was born in [Village 1], Fiji. At the time he made his application, he stated that he was married with a son and that he had worked as a [Occupation 1] in Fiji.
The applicant provided details about his wife, who lives in Fiji, and his son, who now resides in Australia on a [permanent] visa. He had previously visited Australia in 2009 on a visitor visa.
Country of reference
The applicant claims that he was born in [Village 1], Fiji and is a citizen of Fiji. He provided a copy of the biodata page from his Fijian passport.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the application for a protection visa.
He claimed that his life is in danger and that he could be harmed or die.
He claimed that he had experienced physical harm such as kicking in the body while on the ground, pushing and shoving against the wall and spitting, along with verbal abuse.
He claimed that he did not seek help in Fiji as there was no one who could be trusted, whether civilian or someone in the government, and this could lead to a lot of harm to his life.
He claimed that he tried to move several times to the rural part of the country but that this was not successful as the government has ears and eyes all over the country.
He claimed that he would be tortured slowly if he returned, which would lead to the loss of his life.
He claimed that he would be mistreated by soldiers who are the main support of the government. He claimed that he would be taken into their care, which is where the torture would take place, such as pushing, kicking and shoving against the wall.
He claimed that the authorities would not protect him as he has gone against the leadership of the current government and that the army and government officials work closely together.
He claimed that he was not able to relocate as there is no way to escape and everything links together.
The applicant provided supporting evidence in his application, including copies of his birth and marriage certificate, his son’s birth certificate, notification of his visitor visa and various certificates of participation and attainment.
Assessment of claims and evidence
The applicant is working as a [Occupation 2] at [a location], where he operates [equipment].
At the beginning of the hearing, the applicant said that he stood by the claims he made in his protection visa application. When asked if there were any claims that he wanted to change, he said that he was in fear of the government that has been voted out. A new government has now taken over and he is free from that.
Has the applicant experienced harm?
The applicant claimed that he had experienced physical harm in Fiji.
At the hearing, the applicant said that [a Relative A] of his was involved the CRW when it was in hiding. The [Relative A] asked the applicant to buy some batteries so that he could listen to the news, and also to get his washing done. The applicant did this for about two or three weeks. Then, one day, he was at a kava session on the second storey at the market. He said that he did not realise that there was a soldier among them in the group, and that he did not realise that the man was a spy for the military because he was dressed as a civilian and had a rugged beard. The applicant was approached by some men. He said that he was not sure if they were policemen or soldiers but he could tell they were in one of the defence forces because of the way they were dressed and their haircuts. They asked if he was [applicant name] and he said yes. They asked him to follow them to near the butchers, on the other side of the market, where there was a grey car that had two other men sitting in it. The applicant got into the back seat and a man sat either side of him. They drove him to [location] and, during the journey, he was hit on the right kneecap with an iron bar. He said he does not know what else they did to him because, when he came to, he was back at the market and his leg was quite swollen. He said that, during the trip, the only thing he felt was he got hit in the leg with an iron bar.
The applicant was unclear when this incident happened. He said it was during the coup, when there was a shoot out with the CRW. The Tribunal discussed the country information about coups in Fiji and the applicant said it was probably during the 2006 coup led by Frank Bainimarama. He also said that he cannot remember a lot of things because he is quite forgetful.
When asked, the applicant said that nothing else had happened to him in Fiji.
He said that was what had happened to him. He said that, up to now, he has been seeking medical treatment and he had surgery in Sydney and continued his medical treatment in [town]. He said that he has been telling his doctor that something has happened to him and he is in fear. The Tribunal asked about his surgery in Australia. The applicant said that he was working in a [warehouse] and had a [medical condition], and that was the surgery he had.
As discussed at the hearing, s 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The applicant was asked why his claim about the incident with the iron bar was not included in his protection application. The applicant said that he had dictated to the person helping him write his application and the person had written what needs to be written. He then asked if he could ask a question. He asked if he could plea his case before the Tribunal that, if the decision is unfavourable, he can please stay until Christmas time just to see how this government goes, then he will freely leave.
The Tribunal asked the applicant what claims he stands by. He said ‘that is my plea, the government is not fully settled at this stage and I am asking if I can stay just until the month of December.’
Later in the hearing, the Tribunal asked again why the information about the incident with the iron bar was not included. He apologised for not including it and said he did not check the application because the writing was in English. He said that he did not read the delegate’s decision but he discussed it with a lawyer, who did his application for review. The applicant again said that he wants to return to Fiji but he would like a bit of time to see how the government goes, until Christmas and then he will freely leave. He said it has been five years that he has been apart from his wife and he would really like to return now but he would just like to see this government settle down and then he will leave.
The Tribunal is not satisfied that the applicant has a reasonable explanation for not raising his claim about the incident with the iron bar before the primary decision was made. Based on the information before it, including that the applicant said that this incident was the only harm he had experienced in Fiji, the Tribunal does not accept that the applicant experienced harm in Fiji.
Fear of harm
At the hearing, the applicant was asked why he feared returning to Fiji. He said the incident with the iron bar is the cause of his fear. He also said that there is a new government and he is really happy, and he will see how this government is going and he may be able to return and see his family in Fiji. He said he has been telling his family back home that he’s hoping by Christmas this year they will be together.
When asked what he feared if he returned now, the applicant said that he has been listening to and watching the news and the media, which is saying that the previous government that lost the election is trying its best to get back into government.
When asked what harm the applicant feared happening to him, he said that he was fearing that something might happen to him because he is not quite sure how stable this current government is.
When asked what specifically would happen to him, the applicant said that he had been watching the news and what he has been told is that there are lots of things happening, such as murder and attacking houses, and that is what he fears might happen to him.
The applicant said that, at this stage, Fiji is still quite a dangerous place and he fears being assaulted. He said that the incident with the iron bar might re-emerge and his name might come up again and he might go through the same experience again. He said that he does not know if the men who approached him and the spy from the kava session are still in the military or the police. He said that they might hold a grudge about his activities helping the CRW.
The applicant repeated that, if he could only be given another 12 months until Christmas, then he will freely leave.
As discussed at the hearing, it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicant’s claims are highly generalised and vague, and he did not provide any corroborative evidence to support his generalised and vague claims. The Tribunal is not satisfied that the applicant has any kind of profile in Fiji, nor that purchasing batteries for his [Relative A] and doing his washing for two to three weeks in 2006 would have established a profile that endured to 2023. Seven times during the hearing, the applicant said that he would be willing to return to Fiji by Christmas or by December. Considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior 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 1119

2 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction