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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Fiji, applied for the visa on 19 December 2018. On 5 July 2019 the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant applied for review of the delegate’s decision on 18 July 2019.
The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1919535 (Refugee) [2024] AATA 4319
Case
[2024] AATA 4319
Decision Date
CaseChat Overview and Summary
The applicant, a national of Fiji, sought review of the delegate's decision to refuse his application for a protection visa. The delegate had found that the applicant did not face persecution or significant harm upon return to Fiji due to economic hardship, mental health issues, or his status as a failed asylum seeker. The applicant's claims included that he was deprived of education and employment opportunities in Fiji, that his past employment involved "slave labour," and that he suffered psychological harm due to a lack of future prospects.
The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee with a well-founded fear of persecution, or under section 36(2)(aa), as a non-citizen facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Fiji. The Tribunal was required to consider the meaning of "persecution" and "significant harm" as defined in the Act and relevant guidelines, and to assess the applicant's claims in light of the evidence presented.
The Tribunal affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also found that the applicant had not demonstrated a real risk of suffering significant harm upon return to Fiji. The applicant's claims regarding economic hardship and mental health issues were not considered to constitute persecution or significant harm in the context of the Act. The Tribunal noted that the applicant had provided limited evidence beyond his passport, a divorce certificate, and a statement of attainment from a course, and that his account of his employment history and financial difficulties was not sufficiently substantiated to meet the required legal thresholds.
Consequently, the Tribunal was not satisfied that Australia had protection obligations towards the applicant under either section 36(2)(a) or 36(2)(aa) of the Migration Act 1958. The applicant also did not satisfy the criteria under section 36(2)(b) or (c) as a family member of a protection visa holder. Therefore, the Tribunal affirmed the decision not to grant the applicant a protection visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
On 5 July 2019, the delegate refused to grant the applicant a protection visa. The delegate found that the economic hardship and the mental health issues the applicant may face in the future would not amount to persecution. The delegate did not accept that the Australian government would disclose information about protection applications to the Fijian government and was not satisfied the applicant faced a real chance of serious harm as a failed asylum seeker if he returned to Fiji. The delegate also did not accept the applicant faced a real risk of significant harm on return to Fiji as a failed asylum seeker, or because of the economic conditions, or because of his mental health.Evidence before the Tribunal The applicant applied for review of the delegate’s decision on 18 July 2019 and provided a copy of the delegate’s decision record with his review application. At the hearing before me on 23 August 2024 the applicant provided the following documents (copies of which were placed on the Tribunal file):a.His Fijian passport issued [in] 2023 and expiring [in] 2033.b.A Certificate of Dissolution of Marriage from [Court 1] in [City 1], dated [in] December 2021.c.A Statement of Attainment from [College 1] for a course of study the applicant undertook, dated 18 April 2024. No other written evidence or material has been provided to the Tribunal in support of the applicant’s claims for protection. At the hearing the applicant gave the following relevant evidence. He did his primary and secondary education at several different schools in Fiji. His mother was [an occupation 1] and they moved around Fiji in connection with her work. He completed high school at [School 1] in [Province 1] in [year]. After high school he studied to obtain his [occupational registration] at [College 2] in [City 1]. He studied for a year or two but did not complete the course because he had to go and help in his father’s [business 1]. He claimed their business was ‘squeezed out’ by big Indian businesses and their commission went from 6% to 2.5%. Between 2009 and 2012 he worked at [Employer 1], which was his uncle’s company. He was [an occupation 2], [with specified duties]. From 2012 to 2015 he was [occupation 3] in [City 1]. He wasn’t a qualified [occupation 3] but had been working on [related tasks]. He met up with a friend who was paralysed and so went to help in this friend’s [business 2]. He said that he worked in this [business 2] without pay. When I queried how the applicant was able to work for free when he had a family to support, the applicant then said he also [fixed equipment], and sold them, and also did some [deliveries]. Between 2015 and 2018 he tried to run his own [business]. This business was not very profitable and he couldn’t find jobs. He is currently working in a [business 3] in [Town 1] as [an occupation 2] and has worked there for a little over a year. He has previously worked in a factory in [Sydney], and in a [business 4] in [Town 2].
Decision
Reasons for decision
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no evidence that the applicant satisfies s 36(2)(b) or (c) 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.Xanthe EmeryMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is [an age]-year-old man from Fiji. He was born in [Province 1], Fiji in [specified year]. He was married in December 2005 and has [number] children of this marriage. He was divorced from his wife in December 2021. His ex-wife and [children] reside in Fiji. [A number] of his children are currently residing with his mother (their grandmother) is [City 1], while [one child] resides with [specified family members]. The applicant’s father recently passed away. The applicant has [specified siblings] in Fiji. He also has extended family in Fiji and Australia. According to the delegate’s decision record, the applicant was granted a Visitor (Subclass 600) visa on 29 November 2017 and travelled in and out of Australia on that visa on multiple occasions. He last arrived in Australia [in] September 2018 and has not returned to Fiji since. Evidence before the Department of Home Affairs The applicant applied for a Protection (Subclass 866) visa on 19 December 2018. Together with his visa application form, the applicant provided the following documents:a.A copy of the biodata page of his Fijian passport, issued [in] 2013 and expiring [in] 2023.b.A copy of his Fijian birth certificate.c.A copy of his marriage certificate, evidencing his marriage in Fiji [in] December 2005. In his visa application, the applicant claimed that he left Fiji because of the economic situation and the inability of the government to help young people develop. He claimed he was deprived of an education and the opportunity to secure worthwhile employment. Depriving a young person of education and employment is persecution, and being paid $2.68 per hour was slave labour. He was psychologically harmed by way of a deep depression, knowing he had no future. He won’t be able to support himself as he ages and will finish up being granted a ‘beggar’s license’, which would be insulting and harmful. He did not seek help in Fiji or try to move because the cost of moving away from home for work for low pay would leave him in poverty.