1918783 (Refugee)

1918783 (Refugee) [2024] AATA 2291 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918783
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Linda Pearson
DATE:26 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2024 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions – employment – supporting family education – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 July 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, arrived in Australia as the holder of a visitor visa [in] November 2018, and applied for the visa on 15 February 2019. 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 5 April 2024 to give evidence and present arguments. The applicant had responded to the hearing invitation advising that he was now living in [Town 1] Western Australia, and he appeared by AVL. The applicant did not request an interpreter. The Tribunal was satisfied that the assistance of an interpreter was not required, and the hearing was conducted in English. While there were occasional issues with the technical quality of the AVL link, the Tribunal was able to clarify and confirm the applicant’s evidence.
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.
CLAIMS AND EVIDENCE
Background
The applicant is [an age] year old man born in [a named town in] Fiji. His wife [named] and [children’s names and dates of birth] live in [City 1] Fiji. In his visa application the applicant stated that he is Fijian, and his religion is Seventh Day Adventist. He left school in [specified year] and studied [subject 1] in [specified years], and [subject 2] in [years]. The applicant was employed as [an occupation 1] in Fiji from 2010 until his departure for Australia.
Evidence before the Department
In his protection visa application the applicant stated that he left Fiji as he was granted a visitor visa. He was advised by his boss that if he did not return to Fiji by [a date in] February 2019 he would lose his job. They had agreed before he left Fiji that he would start work on [a date later in] February, and on receiving the email from his boss he decided not to return home and find work in Australia to support his family. The applicant stated that he had no reason to relocate within Fiji, and that he cannot seek protection from the authorities in Fiji as he is already unemployed.
The applicant was not invited to a protection visa interview and the delegate considered the applicant’s claims for protection based on the evidence provided to the Department.
The delegate considered country information about the Fijian economy and social security measures. The delegate found that although the applicant claimed that his salary was low, the country information did not support his claim that he lived in poverty. The delegate concluded that on the information provided by the applicant there was nothing to prevent him from pursuing employment opportunities, and he could avail himself of welfare measures to support his family. The delegate was not satisfied that the applicant would face a real chance of persecution on the basis of economic hardship. The delegate found that effective state protection measures were available, and there was no information before the department that the applicant had a profile with the authorities that would preclude him from accessing state protection. The delegate was not satisfied that there was a real risk of significant harm if returned to Fiji.
Evidence before the Tribunal
The applicant applied to the Tribunal for review on 11 July 2019, providing a copy of the departmental decision record.
The applicant has provided documentation relating to his work and studies in Australia, including a National Police Certificate, first aid certificate, [Qualification 1], and Queensland [vocational] licence. The Tribunal has considered those documents, including the extent to which they provide information relevant to the applicant’s protection claims.
On 4 April 2024 the applicant provided a letter from his employer, [named], a [company] which has employed the applicant since July 2023, expressing support for the applicant. The Tribunal also received a letter from the applicant’s wife, in which she states that the applicant is the family breadwinner and supports her and the family in Fiji.
At hearing the applicant confirmed that his wife and [children] are in Fiji, and that he is the family breadwinner. He worked in [a role] after arrival in Australia, then moved to Queensland where he studied and obtained a [vocational] licence. He moved to Western Australia in 2021, and currently works as [an occupation 2] in a [business]. The applicant stated that he came to Australia on a visitor visa having heard good things about Australia from an uncle, and he applied for a protection visa when he lost his job as [an occupation 1] in Fiji.
The applicant confirmed that his protection claim is based on his economic situation in Fiji, and that he has no other concerns or fears about returning to live there. His only concern is for his family, for his children and their education. His family lives in [City 1], a town area, paying $700 a month in rent. He could earn $100-$150 a week as [an occupation 2] in Fiji. His wife is not working, and is [studying] at [a named university]. She will complete her degree at the end of 2025. The family expenses include her student fees, and the family financial position will improve once she completes her course. There are no other family members who can help them financially. The applicant is paying $400 per week rent in Australia, and he sends approximately $700 per fortnight to his wife.
The applicant stated that the cost of living in Fiji is increasing and wages are going down. Those with higher qualifications are able to earn a higher salary.
Consideration of claims
The issue in this case is whether there is a real chance, if the applicant returns to Fiji, that he would be persecuted for one or more of the reasons of his 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.
Country of nationality
The applicant provided a copy of his passport to the Department with his application which shows he is a Fijian citizen. The delegate was satisfied that his identity, nationality and citizenship was as claimed, and there is no evidence before the Tribunal that would suggest that finding was incorrect. The Tribunal accepts that the applicant is a national of Fiji, which is his receiving country.
Findings on claims
The Tribunal accepts that the applicant came to Australia as a visitor, and that the decision to apply for a protection visa was made when he was informed that he had lost his employment as [an occupation 1] in Fiji. The Tribunal accepts that the applicant has worked and studied while in Australia, and that having completed a [Qualification 1] he is currently employed as [an occupation 2] in a [business] in [Town 1] Western Australia. The Tribunal accepts, based on the letter from his employer, that he is regarded as a valuable asset to that small regional [business], in an industry that is experiencing shortages in skilled [staff] particularly in regional areas.
In that letter the applicant’s employer expressed willingness to support the applicant through the [specified] Agreement, and to look into a sponsorship arrangement. As explained to the applicant at the hearing, the present application for review has to be determined in accordance with the legislative requirements for the protection visa for which the applicant applied, and it is a matter for him and his employer to follow up what alternative options may be open.
The Tribunal accepts that the applicant’s employment in Australia enables him to support himself, and his family in Fiji, from his earnings. The letter from his wife confirms that he is the family breadwinner and supports her and their children in Fiji.
The Tribunal accepts that the applicant’s claim for protection is based on his ability to earn more money here than he can in Fiji, and that that has been his experience since 2019.
DFAT country information reports that Fiji is defined by the World Bank as an upper-middle income country. Tourism dominates, representing 40 percent of the pre-COVID economy, and other key industries include agriculture and natural resources.[1] Personal remittances from overseas Fijians represent a significant source of income, equalling 3.5 percent of GDP in the first five months of 2022.[2] The economy contracted significantly during the COVID-19 pandemic, but has started to recover,[3] and the World Bank estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024.[4]
[1] DFAT Country Information Report Fiji, 20 May 2022, 2.7-2.8.
[2] ‘Asian Development Outlook 2022 Update. Entrepreneurship in the Digital Age’, Asian Development Bank, September 2022 [document created 20/09/2022], pp.19 & 207, 20221129094145.
[3] ‘Fiji’s economy in an election year’, DevPolicy Blog, 5 July 2022, 20230712121615; ‘GDP Growth (annual %) – Fiji’, The World Bank, undated, accessed 9 June 2023, 20230712125041.
[4] COVID-19’s impact on Fiji’, The Borgen Project, 26 March 2023, 20230712121717.
DFAT reports that most Fijians are employed in the informal sector, particularly in tourism, agriculture and aquaculture industries, and that the minimum wage is low, and does not typically provide a decent standard of living for a worker and their family.[5] Poverty rates vary significantly between rural and urban areas.[6] DFAT also reports that some limited social welfare programs are available in Fiji, providing assistance in the form of monthly allowances, vouchers and bus fare concessions, and that in 2023 96,000 people received state social welfare programs.[7]
[5] DFAT Country Information Report Fiji, 20 May 2022, 2.18; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.25, 20230322095436.
[6] ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and
[7] ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.9, 20230712122715; Many don’t deserve assistance’ – Kiran on social welfare recipients’, The Fiji Times, 14 March 2023, 20230712122824.
The Tribunal accepts the applicant’s evidence, which is consistent with the country information, that the economic situation in Fiji makes it difficult to support a family, and that in common with many Fijians his family has been supported from his earnings in Australia. Considering the applicant’s personal circumstances, the Tribunal accepts that he has skills, having taken advantage of the opportunity to undertake training in a variety of fields while in Australia, and a record of stable employment in Fiji. The Tribunal accepts that his financial position should he return to Fiji would likely be difficult, however there is no indication on the evidence before the Tribunal that he would be unable to find work should he return to Fiji.
Assessment against refugee criterion
To meet the definition of a refugee, a person must fear persecution for one or more of the reasons mentioned in s5J(1)(a), namely race, religion, nationality, membership of a particular social group, or political opinion, and that reason must be the essential and significant reason, or reasons, for the persecution: s 5J(4)(a).
The Tribunal is satisfied that the economic harm feared by the applicant is not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. He does not meet the criteria in s 5J(1)(a) of the Act, and accordingly is not a refugee as defined in s 5H of the Act.
Assessment against complementary protection criterion
The Tribunal has considered whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
“Significant harm” is defined in s 36(2A) of the Act to mean:
(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.
The Tribunal accepts that the economic situation in a country impacts differently on different people according to their circumstances. The Tribunal accepts, based on the DFAT country information, that that is the case for Fiji. As noted above, on the evidence before the Tribunal the applicant’s family is based in an urban area, and that he has skills and a record of stable employment both in Australia and in Fiji. The applicant does not suggest that any economic harm he might suffer in Fiji would be such as to constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture; nor is it suggested that he is at risk that the death penalty will be carried out upon him.
Further, the risk of harm to the applicant arising out of the state of the Fijian economy is one faced by the population of Fiji generally, rather than the applicant personally. In those circumstances, even if the feared economic harm could be said to meet the definition in s 36(2A), s36(2B) has the effect that there is taken not to be a real risk that the applicant will suffer significant harm.
The Tribunal does not accept that any economic harm to which the applicant may be subjected if removed from Australia and returned to Fiji would meet the definition of “significant harm” as that term is exclusively defined in s 36(2A). The applicant does not meet the criterion in s 36(2)(aa) of the Act.
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.
Linda Pearson
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.
…

Expenditure Survey’, The World Bank, undated, accessed 9 June 2023, 20230712122405.

[2024] AATA 2291

26 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction