1920450 (Refugee)

[2023] AATA 1341

1920450 (Refugee) [2023] AATA 1341 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920450

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wayne Pennell

DATE:6 February 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 February 2023 at 4:48pm

CATCHWORDS

REFUGEE – protection visa – Fiji – employment prospects – unfair dismissal – delay in applying for protection – change of government in Fiji – employment contribution to the Australian economy – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 4 July 2019.

2. The applicant who claims to be a citizen of Fiji applied for a protection visa.[2]  The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there was a real risk he would suffer significant harm.  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5] 

   [2]The applicant’s application was received by the Department of Home Affairs on 17 January 2019.

   [3]The delegate’s refusal was made on 24 October 2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant was not represented in relation to the review, and he filed an application with the Tribunal for a review of the delegate’s decision.[6]  Accompanying that application was a copy of the delegate’s decision.  At a subsequent time, the Tribunal wrote to him advising that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[7] 

   [6]The applicant’s review application was filed with the Tribunal on 21/10/2019.

   [7]The Tribunal advised the applicant on 7 October 2022.

4. The Tribunal invited the applicant to give oral evidence and present arguments at an in person hearing scheduled for 13 December 2022.  The applicant’s initial response to that invitation suggested that he would personally attend the review hearing, however on the day prior to the scheduled hearing he advised the Tribunal that he would not be able to personally attend that hearing, but instead asked that the hearing be re-scheduled and listed for 6 February 2023.  His explanation for asking for that alteration to the scheduling of the hearing was because he was living in [Town 1].[8] 

   [8]Email received from the applicant on 12 December 2022 at 10:39am.

5. The Tribunal granted his request, and the review hearing was re-scheduled for 6 February 2023.  At a subsequent time, the applicant requested that given the locality of where he resides, that the Tribunal allow him to appear remotely at the review hearing.[9]  The Tribunal granted the applicant his request.[10]  Notwithstanding that, the applicant later advised the Tribunal that he would take the opportunity to appear in person at the schedule hearing.[11]     

   [9]The applicant advised the Tribunal by email on 28 December 2022 at 9:26am.

   [10]The Tribunal advised the applicant by email on 10 January 2023 at 11:54am.

   [11]The applicant advised the Tribunal by email on 31 January 2023 at 6:09pm.

   CRITERIA FOR A PROTECTION VISA

6. The measures for a protection visa are set out in the Act and the Migration Regulations1994 (Cth).[12] An applicant for the visa must meet one of the alternative criteria as provided in the Act.[13]  That is, the applicant 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.

   [12]Migration Act1958 (Cth), s 36; Migration Regulations1994 (Cth), Regulation 2.

   [13]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

7. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[14]

   [14]Migration Act1958 (Cth), s 36(2)(a).

8. 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.[15]  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.[16]

   [15]Migration Act1958 (Cth), s 5H(1)(a).

   [16]Migration Act1958 (Cth), s 5H(1)(b).

9. The Act also provides that 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, and 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.[17] 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 the Act, which are extracted in the attachment to this decision.[18]

   [17]Migration Act 1958 (Cth), s 5J(1).

   [18]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

10. If a person is found not to meet the refugee criterion in the Act,[19] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[20] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[21]

    [19]Migration Act 1958 (Cth), s 36(2)(a).

    [20]Migration Act 1958 (Cth), s 36(2)(aa).

    [21]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

11. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[22]

    [22]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

12. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[23]

    [23]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Fiji and he provided a copy of his passport to authenticate this claim.[24]   The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[25]

    [24]Applicant’s passport was issued in Fiji [in] 2013.

    [25]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

14. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[26]

    [26]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[27] 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.

    [27]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE

16. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[28]

    [28]Migration Act 1958 (Cth), s 36(2).

17. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed.  Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm.  It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

18. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim.[29]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[30]

    [29]Migration Act 1958 (Cth), s 5AAA.

    [30]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    APPLICANT’S BACKGROUND

19. In regard to the applicant’s background, he is aged [age] and identifies as a indigenous Fijian.  He married his wife in 1997 and they have [number] children, all of whom are now adults.  One of his children lives in [Country 1], another lives in Australia and the remaining [children] live in Fiji. 

20. The Tribunal is aware of the applicant’s travel records held by the Department which shows that he had previous travelled to Australia.  The chronology of his travel details is:

22 December 2003	Granted a tourist visa which expired [in] December 2004.
[December] 2003	Arrived in Australia and stayed for approximately three months.
[March] 2004	Departed Australia.
06 January 2005	Granted a visitor visa.  This visa was to expire on 5 January 2006.  The travel records suggest, and this was confirmed by the applicant, that he did not utilise this visa.
07 July 2006	Granted a visitor visa which expired on 7 January 2007.
[August] 2006	Arrived in Australia and stayed for [period].
[September] 2006	Departed Australia.
07 May 2018	Granted a student visa which expired on 31 January 2019.
[May] 2018	Arrived in Australia.  Remained in Australia for approximately eight months before lodging an application for a protection visa.
29 January 2019	Two days prior to the expiration of the student visa issued on 7 May 2019, lodged an application for a protection visa.
31 January 2019	Student visa issued on 7 May 2019 expired.
14 February 2019	Granted Bridging ‘A’ visa.

1. In respect to his employment circumstances in Fiji, the applicant said that in 2015 he was employed as an [occupation 1] within the [named] section of [Agency 1].  As part of the terms of his employment, he was to maintain a very high standard and his conduct, and his general behaviour were to be impeccable.  Any lapse of those standards would lead to instant dismissal.  In June 2015, he was dismissed from his position within the [named] section. 

2. He told the Tribunal at the review hearing that for the next two years, he worked for his family business.  The business was subcontracted to [an industry 1] company.  In 2017, he secured employment with [Agency 2] and worked as [an occupation 2] at [Location 1].  He claimed that within a month of when he started at [this location], [Agency 1] found out that he had been employed and arranged for him to be dismissed from his [occupation 2] position.

3. The applicant went on to explain to the Tribunal that in 2017, his wife came over to Australia [to study at University 1].  [In] May 2028, he travelled to Australia.  He claimed it was ‘under’ his wife’s student visa that he entered Australia, although the Department’s records show that he entered Australia under the terms of his own student visa.  He said that his wife was suffering a medical condition at the time, and she requested that he travel to Australia to assist her.

4. When he arrived, he landed in Sydney.  At that time, his wife was living in Sydney.  He claimed that his visa allowed him to work for 20 hours per week and he found work in the [industry 1] while his wife continued to study. 

5. The applicant had a [Relative A] living in Perth at that time.  His [Relative A] owned and operated [an industry 1] company and was looking for people to work in Perth.  His [Relative A’s] company also operated in Sydney.  Over the Christmas period of 2018, the applicant and his wife travelled to Perth.  When his wife’s visa expired on 1 January 2019, she returned to Fiji.  The applicant’s visa was not due to expire until 31 January 2019, so he got a job working for his [Relative A].  Two days before the expiry of his student visa, the applicant applied for a protection visa.  The claims relied upon in that application are discussed later in these reasons.   

6. The applicant told the Tribunal that he did not accompany his wife back to Fiji in January 2019.  He decided to stay in Australia because of the status of his employment in Fiji.  He claimed that he did not have any chance of working in Fiji because he had been dismissed from government jobs and the government had influenced the [local site] in having him dismissed from his [occupation 2] role.  The Tribunal does not consider there is any basis to his claim that he could not find employment.  He told the Tribunal that after being dismissed from his [occupation 1] role in [Agency 1], he found employment in the family business at the time it was contracted to [an industry 1] company.

7. The applicant went on to disclose to the Tribunal that in January 2019, he was living in Perth and working for his [Relative A’s] company when he applied for a protection visa.  He stayed in Perth for about three months before returning to Sydney where he continued to work for his [Relative A’s] [industry 1] company as a [a specified role].  He stayed in Sydney until 2021.  He then moved to [Town 2] where he obtained employment as [an occupation 2] at the [Agency 3].  He worked for that [agency] for the first [part] of 2021, before moving to Brisbane where he found employment in [industry 3].  He remained in Brisbane until July 2022 before moving to [Town 1] where he currently lives and works.

   APPLICANT’S CLAIMS

8. In providing his reasons why he left Fiji, the applicant claimed that he left Fiji country with thoughts of not returning due to the continuous unfair treatment he had received within the civil service under the then government of Fiji.  He cited an occasion when he was unfairly dismissed by [Agency 1] which led to the termination of his employment. 

9. He explained that his purpose of travelling to Australia was to gain employment in Australia and meet the financial needs of his family in Fiji.  Prior to travelling to Australia, he had applied to [Agency 2] and was appointed to [an occupation 2 role]. He was posted to various [locations] before being posted to [Location 1], one of the prominent [institutions] in Fiji.  His employment was again terminated which he claimed was because of influence from [Agency 1].

10. He told the Tribunal that ever since then his employment has been by way of short term contracts with wages that was barely enough to meet the needs of his family of [number] children and his wife.  That meant that his was not secure, and this led to threats and bullying of his children at [their] school.  [One child] was also expelled unfairly from the school. 

11. He explained that when he had the opportunity to travel to Australia under his wife's study visa, he was determined not to return.  He claimed that if he did not come to Australia, he would have continued to suffer through the Fiji government's unfair system.

12. He claimed that he would like to remain and work in Australia and contribute towards its economic development, and also support his young family, especially the education of his [children].  He cited and relied upon the United Nations human rights practices and the declaration given in Article 12.2 of the International Covenant on Civil and Political Rights that everyone shall be free to leave any country, including their own.

13. The applicant further claimed that he experienced harm in Fiji.  In describing that harm, he said that the harm consisted of financial harm as his working contract was terminated while he was working with [Agency 1].  He did seek employment in other fields of work in Fiji, but he claimed that he was intimidated by [Agency 1] by directing the termination of his contract with his new employer, [at Location 1].  He went on to claim that [Agency 1] was the sole traitor who undermined his right to work and live freely in Fiji without fear.  He had been attacked and abused emotionally when he reported the unfair dismissal of his son from a [well known] government school in Fiji.  Because his child was told to find another school without any valid reason, this gave the applicant no other option but to publically voice his concerns.  

1. The applicant further claimed that he sought help in Fiji to protect himself by lodging his complaint about [Agency 1] through the reconciliation centre.  He said that his complaint was about the abuse on his career and the threats and belittling which eroded his social competence and self-esteem.  He claimed that he received no response to his complaint as the reconciliation centre is controlled by the Prime Minster Frank Bainimarama’s regime.  He claimed that his freedom to work and live freely in Fiji was hampered by the Frank Bainimarama Fijian government.  That neglect by the government prevented him from providing the basic fatherly needs to his children which affected the overall development of his children.

2. He claimed that he did not relocate within Fiji for his own protection needs because the disaster caused by the Prime Minister’s regime caused more harm than good to the people of Fiji, especially in terms of employment which caused a lot of psychological harm.  He went onto claim that the Frank Bainimarama government is capable of downgrading anyone and is capable of killing people who go against his government’s directives.  He said that the terminating of civil servants was a way to ensure the government’s principles are followed.  He said that this type of ill treatment can be done to anyone irrespective of their race, sex and creed, even if a person hides in the mountain top, the government will make sure their lives are ruined.

3. The applicant said that the reasons why he and his family would not be able to relocate to another part of Fiji, was that personal property was in Suva and it would cost he and his family a lot of money to relocate to another part of Fiji.  If they did relocate, this would create distress and psychological harm to his children, as well as additional and greater competition for him to find other employment in that new environment.

4. In explaining what he considers would happen to him if he returned to Fiji, he outlined three things.  Firstly, he cited unemployment and said that his employment had been terminated by the Fijian government and there is no other way to gain any employment elsewhere in Fiji.  Secondly, he cited harm to his family and his [children].  At the time of making his application for a protection visa [some] of those children were attending university and the [others] were in [school].  However, at the time of the review hearing, pone of his children had secured employed within [Country 1] and lives in that country.  Another child lives in Australia and out of the [remaining] children living in Fiji, only one is attending university. 

5. The applicant’s original claim he needed to provide the basic needs and pay the expenses associated with the schooling of his children so they can pursue their studies is now only really relevant to one child, with that child actually being of adult age. 

6. Thirdly, the applicant claimed that the Frank Bainimarama led Fijian government neglected him and his family and as a result, his family have been suffering from an educational benefit with a school dismissing one of his children.  He also claimed that there was not enough food to share and there was a denial of medical treatment.  By way of contrast, he said that in Australia he is able to feed his children and pay their educational fees, as well as meet other family needs. 

7. In conclusion to all of that, he conceded that he does not consider that he will be harmed or mistreated if he returned to Fiji.  In his explanation as to what he thought whether the Fijian authorities can protect him and his family if he returned, the applicant said that he considered that the Fijian government could protect him, and he thought that this would happen when another new government is formed.

   DISCUSSION

   Delay in lodging an application for protection

8. The Tribunal identifies that there has been a significant delay between the applicant’s arrival in Australia in May 2018 to when he lodged his application for a protection visa in January 2019.  That is a period of eight months.  He suggested that originally his reasons for travelling to Australia were not protection based, but rather at the request of his wife who was already in Australia, and she was experiencing difficulties with her health.

9. The applicant told the Tribunal that he wanted to remain living and working in Australia for at least the next three years.  He has a [child] attending university in Fiji, and he needed to cover those costs as well as other living expenses by working in Australia.

10. In respect to any consideration about the delay between the applicant’s arrival in Australia and his application for a protection visa, the Tribunal is guided by the principle that even a three month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[31]

    [31]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.

11. When applying the above principle to an assessment of the applicant’s original claims, and his current circumstances, the Tribunal notes the significant delay is not behaviour indicative of someone who fears for their physical safety[32] and the Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making his application.

    [32] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

12. The Tribunal has considered the applicant’s delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Fiji.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

    Applicant’s evidence at the review hearing

13. Prior to the review hearing being undertaken, the applicant provided to the Tribunal a significant number of documents which included achievements in workplace courses and studies which led him to acquire various authorities and licences.  He also provided various employment records to show that during the time he has spent in Australia, he has been employed for a considerable amount of that time.

14. The Tribunal recognises that he has achieved a great deal of workplace qualifications during the time he has worked in Australia.  Although those documents and the qualifications give an overall picture as to the applicant’s work ethic, the Tribunal finds that the material itself does not provide any probative or tangible value to the applicant’s claims that he has a well-founded fear of returning to Fiji.

15. At the review hearing, the applicant told the Tribunal that the previous Fijian government led by Frank Bainimarama was responsible for him losing his employment with the government and as [an occupation 2] at [Location 1].  He went on to claim that because of the recent change in the government of Fiji, he no longer has a well-founded fear of returning to Fiji because there has been a political change with a new democratically elected government.  He said that he is happy to return to Fiji and he has confidence that the new Fijian government will turn the economy around and make it a better place to live.

16. He went on to say that they only reasons that he did not want to return was because of his employment situation.  He claimed that the Fijian economy suffers from a huge government debt, and this debt has impacted upon the job opportunities in Fiji.  He claimed that there are no employment opportunities available in Fiji.

17. The applicant also said that why should he go back to Fiji and look for work when the Australian government are bringing people from Fiji to Australia to work.  He told the Tribunal that he wants the government to look favourability on his work history, his work ethic in Australia and what he has contributed to the Australian economy.  He wanted to stay and work in Australia for another three years and if Australia no longer needed his services by that time, then he would be happy to go back to Fiji.   

    Refugee findings

18. The applicant claims he faced financial harm because of what he claimed were the actions of the former Fijian government in terminating his employment and [Agency 1] influencing [Location 1] to dismiss him from his position as [an occupation 2]. 

19. When considering the applicant’s original claims and the evidence he relied upon, when all that is weighed against his oral testimony at the review hearing, the Tribunal accepts his claim that because of the December 2022 Fijian general election and the new democratically elected government, he no longer has a well-founded fear of returning to Fiji.   

20. That concession by the applicant leads to a finding by the Tribunal that any hypotheses originally espoused by him through his claims that he would be persecuted if he returned to Fiji is not supported by his own oral testimony.  His evidence is that a real risk does not exist whereby he will suffer significant harm and nor is there is a real chance that he would suffer serious harm if he were to return to Fiji.

21. The Tribunal is of the view that any reasonable assessment based on his claim that the only  reason he did not want to return was because of his employment situation; the Fijian economy suffers from a huge government debt; and this debt has impacted upon the job opportunities in Fiji is no basis for the categorisation of the applicant within the criteria of a refugee. 

22. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

23. For completeness, earlier in these reasons the Tribunal outlined its findings and rejected the applicant’s claims.  Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s evidence, the Tribunal finds that there is not a real risk that the applicant would suffer serious harm if he returned to Fiji because of any of the alleged claims. 

24. The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he is not likely to be persecuted or imprisoned for any of the claims he made; and he does not face a real chance of serious harm.     

    Complementary protection considerations

25. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm.

26. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[33] the Tribunal has considered the alternative criterion.[34] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm as it is defined in the Act.[35]

    [33]Migration Act 1958 (Cth), s 36(2)(a).

    [34]Migration Act 1958 (Cth), s 36(2)(aa).

    [35]Migration Act 1958 (Cth), s 36(2A).

27. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Fiji.  Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[36]

    [36]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

28. The Tribunal notes that notwithstanding all of which he raised with respect to his claims, he acknowledged that with the recent change of government in Fijian he has confidence that the new government will be able to turn things around in Fiji and make it a better place to live.  Having regard to that concession, the Tribunal does not accept that he will face a real risk of significant harm in Fiji for the reasons he originally claimed. 

29. Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Fiji now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.

    Conclusion: refugee criterion

30. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    Conclusion: complementary protection criterion

31. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, he will be exposed to a real risk of suffering significant harm.

    Overall conclusion

32. 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 section 36(2)(a) of the Act.

33. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

34. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    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.

    …